<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:93687.wais]
S. Hrg. 108-584
DEPARTMENT OF THE INTERIOR AND THE DEPARTMENT OF HEALTH AND HUMAN
SERVICES TRIBAL SELF-GOVERNANCE ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
S. 1715
S. 1696
TO AMEND THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT TO
PROVIDE FURTHER SELF-GOVERNANCE BY INDIAN TRIBES
__________
MAY 12, 19, 2004
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
93-687 WASHINGTON : DC
____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
----------
Page
May 12, 2004
S. 1715, text of................................................. 3
Statements:
Anderson, Dave, assistant secretary for Indian Affairs,
Department of the Interior................................. 56
Baker-Shenk, Phil, Holland and Knight LLP, Washington, DC.... 68
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
chairman, Committee on Indian Affairs...................... 1
Matt, Fred, chairman, Confederated Salish and Kootenai
Tribes, Flathead Reservation............................... 62
Sinclair, William, director, Office of Self-Governance and
Self-Determination, Department of the Interior............. 56
Strommer, Geoffrey, Hobbs, Strauss, Dean and Walker, on
behalf of the Council of Athabascan Tribal Governors....... 65
Appendix
Prepared statements:
Anderson, Dave (with attachment)............................. 79
Baker-Shenk, Phil............................................ 86
Matt, Fred (with attachment)................................. 95
Stevens, Ben, self-governance coordinator council of
Athabascan Tribal Governments (with attachment)............ 112
May 19, 2004
S. 1696, text of................................................. 122
Statements:
Allen, Ron, chairman, Jamestown S'Klallam Tribal Council
(with attachment).......................................... 143
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
chairman, Committee on Indian Affairs...................... 121
Kashevaroff, Don, president/chairman, Alaska Native Tribal
Health Consortium.......................................... 141
Peercy, Mickey, executive director, Management and
Operations, Choctaw Nation, Oklahoma....................... 147
Windy Boy, Alvin, chairman, Chippewa Cree Business Committee. 146
Appendix
Prepared statements:
Allen, Ron (with attachment)................................. 158
Kashevaroff, Don............................................. 155
Peercy, Mickey............................................... 170
Windy Boy, Alvin............................................. 175
DEPARTMENT OF INTERIOR TRIBAL SELF-GOVERNANCE ACT
----------
WEDNESDAY, MAY 12, 2004
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m. in room
485, Russell Senate Building, Hon. Ben Nighthorse Campbell
(chairman of the committee) presiding.
Present: Senators Campbell and Inouye.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.
SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON
INDIAN AFFAIRS
The Chairman. Good morning. The committee will be in order.
This morning the committee will receive testimony on S.
1715, a bill I introduced along with Senator Inouye to continue
the steady expansion of tribal self-governance by broadening
the programs within the Department of the Interior for which
Indian tribes and tribal consortia can contract and compact.
There is no more successful Federal policy than tribal self-
governance.
Today's hearing will be the second of three hearings on
tribal self-governance the committee has held within a single
month. Two weeks ago this committee held a hearing on S. 2172,
a bill to address the chronic underfunding of contract support
costs. Next week, we will be holding a hearing on S. 1696, a
bill I introduced, again along with Senator Inouye, to expand
tribal self-governance in the Department of Health and Human
Services.
There are good and simple reasons for the successes and
importance of tribal self-governance. Since President Nixon's
time, tribes have shown that they are much better than the
Federal Government at providing services and programs to tribal
members. Over one-half of the budgets of the BIA and the IHS
are now administered by tribes, and the success of self-
governance cannot be questioned.
It is time to take the next step and broaden self-
governance to include the non-BIA programs within the
Department of the Interior. Today, we will hear from Dave
Anderson, Welcome, Mr. Assistant Secretary; from tribal
witnesses and experts in self-
governance.
We will proceed with hearing from Dave Anderson. By the
way, all your written testimony will be included in the record
if you would like to abbreviate.
[Text of S. 1715 follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
STATEMENT OF DAVE ANDERSON, ASSISTANT SECRETARY FOR INDIAN
AFFAIRS, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY WILLIAM A.
SINCLAIR, DIRECTOR, OFFICE OF SELF-GOVERNANCE AND SELF-
DETERMINATION
Mr. Anderson. Good morning, Mr. Chairman and members of the
committee. Also, I would like to recognize our tribal leaders
that are here in the room this morning.
I am pleased to be here to provide the Administration's
position on S. 1715, a bill to amend title IV of the Indian
Self-Determination and Education Assistance Act. I just would
like to say that even though I am new on the job, in my
briefings I have come to understand that we have had in the
past a pretty good working relationship regarding the
development of this bill. I think we have come a long way over
the last few years. I just wanted everyone to know that we are
committed to working with the tribes.
There are still a few difficulties that I think that we
need to resolve, but I think overall we have come a long way on
the things that we do agree on.
In 1988, Congress amended the Indian Self-Determination and
Education Assistance Act by adding Title III, which authorized
the Self-Governance Demonstration Project. In 1994, Congress
again amended the act by adding title IV, establishing a
program within the Department of the Interior to be known as
Tribal Self-Governance. The addition of title IV made self-
governance a permanent option for the tribes.
These amendments authorized federally recognized tribes to
negotiate funding agreements with the Department of the
Interior for programs, services, functions or activities
administered by the Bureau of Indian Affairs [BIA] and, within
certain parameters, authorized such funding agreements with
other bureaus. In the year 2000, the act was amended again to
include titles V and VI, making self-governance a permanent
option for tribes to negotiate compacts with Indian Health
Services.
In 1990, the first seven funding agreements were negotiated
for about $27 million in total funding. For fiscal year 2004,
there are 83 agreements that include 227 federally recognized
tribes and about $300 million in total funding. So we have come
a long way over these years.
Some of these agreements are with tribal consortia which
account for the number of such tribes exceeding the number of
agreements. These funding agreements allow federally recognized
tribes to provide a wide range of programs and services to
their members, such as law enforcement, scholarship, welfare
assistance and housing repairs, just to mention a few.
Many of the funding agreements include trust-related
programs such as real estate services, appraisals, probates and
natural resource programs such as forestry, fisheries and
agriculture. What makes these funding agreements unique is that
the title IV allows tribal governments to redesign programs and
set their own priorities, consistent with federal laws and
regulations. This authority allows tribal leaders the ability
to respond to the unique needs of their tribal members without
seeking approval by departmental officials.
In fact, in the last two weeks under this Administration,
Secretary Norton signed the first-ever self-governance funding
agreement between a tribe and the Fish and Wildlife Service.
Title IV authorizes funding agreement throughout all bureaus
within the Department of the Interior.
On April 30, we also signed the agreement between, and this
is what I just referenced, signed the agreement between the
Council of the Athabascan Tribal Governments and the Fish and
Wildlife Service that will enable the Council to perform
certain functions previously provided by the Service on Yukon
Flats National Wildlife Refuge in Alaska during fiscal year
2004 to 2005. This agreement was the first of its kind between
the Service and a federally recognized organization.
In addition, in fiscal year 2004 and 2005, there will be
four tribal-funded agreements with the Bureau of Reclamation
and four tribal-funded agreements with the National Park
Service. So we are making progress.
The Department has concerns with this bill, S. 1715, which
we would like to work with this committee to ensure that this
legislation does not adversely impact our ability to meet our
trust responsibilities. In particular, the Department is
concerned with subsection 409(L) which would permit a tribe to
cease performance if it appears the expenditure of funds is in
excess of the amount transferred under a compact or funding
agreement. If the Secretary does not increase the amount of
funds transferred under the funding agreement, a tribe would be
permitted to suspend performance of the activity until such
time as additional funds are transferred. We have concerns
about the impact this provision may have, especially on
fiduciary trust functions.
Under this provision, if a tribe contracts with the
Department to administer IIM accounts and then decides there is
not enough money to administer these accounts, the tribe could
simply stop making IIM distributions to IIM accountholders. It
is imperative that a tribe perform any fiduciary function it
contracts or compacts for regardless of the level of funding.
The tribe should return the function to the Department to
administer if they believe that the funding level is
inadequate, rather than to have their members suffer if the
tribe decides not to perform.
In addition, section 405(B)(1)(b) also broadens application
of the funding agreements to authorize tribes to contract for
all programs to which Indian tribes or Indians are primary or
significant beneficiaries. Current law allows federally
recognized tribes to assume programs administered by the
Department's bureaus and offices other than the BIA, subject to
negotiations and as long as the programs are available to
Indian tribes or Indians. We would recommend that section
405(B)(1)(b) be made discretionary and subject to the terms of
the agreement for programs in which Indian tribes or Indians
are the primary or significant beneficiaries.
Finally, the Department is concerned with the reassumption
provision contained in section 407. The provision would require
that imminent jeopardy, substantial jeopardy and irreparable
harm be met simultaneously in order for the Secretary to resume
a program. This is a very high standard to achieve. Having to
prove all three conditions practically eliminates the ability
of the Secretary to quickly reassume a program in those rare
instances where such an immediate assumption would be
necessary, such as instances where serious injury or harm may
occur. The Department would recommend that the reassumption
standard contained in the current title IV be retained.
While we believe that S. 1715 is moving in the right
direction to expand self-governance, we cannot support the
legislation at this time, especially given the current high
priority for trust reform and the impact this legislation would
potentially have to that critical program.
We look forward to working with this committee and the
tribes in developing alternative language to address our
concerns.
Mr. Chairman, this concludes my statement and I will be
happy to answer any questions.
[Prepared statement of Mr. Anderson appears in appendix.]
The Chairman. Okay, thank you. I appreciate that, Mr.
Assistant Secretary.
I have several questions. Before I do, though, I want to
take just a moment of personal privilege because I saw a number
of our young Indian people come in and sit in the back of the
room. I would like to introduce a couple of personal friends
that are in the audience that are also in the back,
particularly to those youngsters. One is Gene Keluche who is
the head of the American Indian Sports Council that is here
today. Gene, why don't you stand up for just 1 moment if you
would. He is accompanied there with an old dear friend of mine
and former teammate, Billy Mills, Oglala Sioux. Billy was the
first American in the history of Olympic competition to win the
10,000 meter, if you know anything about international sports.
He has been just a wonderful role model for our kids.
I want to introduce them so the youngsters over there who
had never had a chance to meet either of these very, very well-
known gentlemen in Indian sports could see them.
Thank you for being here.
[Applause.]
The Chairman. Now, Mr. Assistant Secretary, before I get
into some of the questions on the bill, you mentioned to me
before we started that you had been on the road quite a bit
visiting tribes. How many tribes have you been out there to
talk to?
Mr. Anderson. I have visited 20 to 25 tribes.
The Chairman. At least 20. And in talking to them, has
anything come through that is sort of a main concern across the
board of tribes?
Mr. Anderson. Yes, sir; there is. One of the major concerns
that they have is law enforcement. It seems like this is an
important priority with all of the tribes, especially the
rampant increased use of methamphetamines, the finding of
methamphetamine labs on a reservation, and not having the
ability to adequately police those activities. Increasingly, we
are seeing a rise in alcohol and drug use among our teens. So I
think that is a very important concern.
But then overall, one of the things that I have come to
recognize is that we need to have a vision for where Indian
country is going. I think all of the things that we deal with
on a day-to-day basis are pretty much dealing or reacting to
some of the brushfires that are happening out there. I think
overall what is important for our Indian families is to know
that in this great country that we live in, that our children
growing up can have dreams and know that if they pursue those
dreams and follow their passion, that they can live successful
and rewarding lives. I believe that is possible.
The Chairman. Before we finish this year, I am going to try
to frame up a hearing to deal with just a general overview
about where we ought to go, particularly from the standpoint of
youngsters.
Of those tribes you visited when you were talking about law
enforcement, do you happen to know the number of them or the
percent of those who do their own contracting for law
enforcement?
Mr. Anderson. Senator, I would have to get back to you on
that.
The Chairman. Okay. One of the really important things that
we have tried to do, both Senator Inouye and I, is improve
tribal self-governance, as you may know. The BIA, as I
understand it, worries that the tribes will stop performing
contracts if they do not receive enough funding. Funding is
always a problem. But over the years, we have had dozens of
tribes appear before this committee complaining that they have
been forced to perform 638 contracts with inadequate funding,
particularly when it comes to contract support costs.
If a tribe stops performing under a 638 contract, doesn't
the Department have the authority to step in and take over the
services or the program?
Mr. Anderson. Yes; they could. Senator, I would like to
introduce Mr. Sinclair. He is not on the list, but he is the
Director for the Office of Self-Governance at the Bureau.
The Chairman. Okay. So whenever you think you have an
answer, Mr. Sinclair, we would appreciate your thoughts on it,
too.
Isn't it part of the negotiating process for a tribe and
the agency to determine what is sufficient funding when dealing
with a 638 contract? Mr. Sinclair, go ahead.
Mr. Sinclair. Yes, sir; when we negotiate a self-governance
agreement or a 638 contract, we base it upon either the
President's budget, which is modified then by congressional
appropriations. So the constraint is to determine what the
tribe's share is of that particular programmatic amount and
then determine it. That would also include contract support as
well.
The Chairman. Do you know off-hand how many times has a
tribal contractor stopped performing its responsibilities, and
particularly if they have done it without giving sufficient
warning to the Bureau that they were going to have to stop?
Mr. Sinclair. To my knowledge, I do not know of any tribe
that has actually done that. Basically, tribes take over the
responsibility for programs, services or functional activities,
many times knowing that the funding they will be receiving is
inadequate, but they believe that because of the flexibility of
the self-governance that they can do a better job of serving
their people. Many times because they have ownership of those
programs, as you well know, sir, they augment that with tribal
resources. So while tribes do feel the pain of inadequate
funding, along with the Department itself and the Bureau itself
in providing services, they do a lot with what they receive.
The Chairman. You mentioned that the re-assumption standard
in section 407 is too high. Is the Department's view that
raising the standard might interfere with the Department's
trust responsibility? So the Department cannot support the bill
because of the high priority for trust reform and the concern
about trust reform?
Mr. Anderson. Right. But I would also like to preface this.
We also believe that one, we are not that far away. We have
come a long way from my understanding of where we started out a
couple of years ago. There are a number of things that still
need to be resolved, but one of the things I would like to say
is that in our briefings, we are committed to seeing this thing
through. It is something we would like to see happen.
So when I said that at this time we were not in support of
it does not mean that we are fighting it, but it means that
there are just some things, there are a few difficult things
that need to be resolved that we feel can be worked out.
The Chairman. I appreciate that, because that is what the
committee wants to do too. Maybe the Department sees the bill a
little differently than we do, but it seems to me that self-
governance is certainly part of the answer to trust reform. In
the language of the bill, what specific language could you
point to that causes problems in trust reform efforts? I want
to try to make some changes to make this thing work, too,
before I leave, if I can. I think with the Department's help we
can get something that is going to go a long way to help tribal
governments.
Mr. Anderson. I think one of the main ones is this inherent
in Federal function.
The Chairman. Okay. Mr. Sinclair, maybe you could answer,
what does ``inherent function'' mean to you?
Mr. Sinclair. The definitions of tribal shares and
inherently Federal functions is a concern to us. While it is
consistent with what is in title V, we are fearful that the
standard presents us with, well, the definition as defined is
that if something needs to be statutorily defined, and there
are many functions that in providing trust services as we are
defining it through the trust reform that are not in statutes.
Yet, as the Secretary is a trustee, she feels that these are
things that only she can delegate to a Federal official, but it
is not codified in law. We feel like with this definition we
would be in a tension between tribes who are asking to have
those services or functions delegated to them through a
contract or compact, and we would be refusing them based upon
the trustee. It would set up an unnecessarily adversary
relationship that could go into the courts and all that stuff.
The Chairman. Okay. I have no further questions, but I look
forward to working with you to try to make this resolvable.
I might tell you, Mr. Assistant Secretary, you have just
come on board in the last year. I have not been here nearly as
long as some of my colleagues, but I have been here 12 years.
As I just go over in my own mind about all the bills that we
have dealt with to try to help Indian people, you were not
here, but I want to tell you I cannot remember a single one,
frankly, that the Administration, anybody's Administration in
the last 12 years I have been here, has put forth.
Most of the good bills that have come up and gone through
the committee have come from Indian people. In some cases, we
had to sort of drag part of the Administration along kicking
and screaming, when I thought we were all supposed to be in
this together, whether it was the Interior Department or the
Indian Health Service or this committee or tribes, and that was
to try to make Indian people more self-sufficient, make them
have a lifestyle that certainly they deserve, and a little more
independence from being tethered to the Federal Government. An
awful lot of the times when these bills are put forward by
tribes or by somebody in the committee, we run into a buzz saw
of opposition from the Administration.
So we are always continually trying to negotiate about
where we can fix the thing to move something forward. So much
of what has happened, at least in the 12 years that I have been
here, maybe I am wrong, but I viewed an awful lot of it from
the standpoint of the opposition being from turf protection
more than trying to do the right thing to help Indian people.
When I helped you with your confirmation, I was very, very
impressed with what I thought was a real belief in trying to
make sure that Indian people get a fair shake out of this
government. I would hope after I am gone and you are still
here, that that is going to be a driving force with you in the
years of your tenure.
Mr. Anderson. Senator Campbell, I cannot tell you how much
I appreciate your sentiments. I am a firm believer, as
evidenced in my own life of being self-determined. When I came
on board, I came on board with the spirit of heart that I could
make a difference. I will tell you that this has been a real
awakening for me. But I also believe that we cannot give up.
When we are out there, like a lot of tribal leaders, we often
think that, God, if I could just get in there, I would do this
a whole lot differently. And then when you get into it, you
find that the bureaucracy is greater than anybody could
imagine.
I have a goal to be able to try and cut redtape wherever we
can. I have a goal to see our Indian people self-determined,
economically self-sufficient and self-governed. I believe that
as sovereign people that we can accomplish that. Somehow, some
way, I believe that we will see this happen.
The Chairman. Mr. Assistant Secretary, welcome to
Washington. [Laughter.]
Thank you very much for your testimony.
Mr. Anderson. Thank you.
The Chairman. We will now hear from, and by the way, there
may be some followup questions. Senator Inouye had a conflict
this morning. He and several other members were not here. We
may submit some to you to be answered in writing.
Mr. Anderson. I would also say that I have always tried in
every meeting to be the last person out of the room. Today, I
have some scheduling conflicts that I cannot get out of, and
this is the first time I have ever left before the end of a
meeting.
The Chairman. I would appreciate it if you would read the
testimony of the next panel when you have the time.
Mr. Anderson. Thank you for your time.
The Chairman. We will now go to panel II. That will be the
Fred Matt, chairman of the Confederated Salish and Kootenai
Tribes of Flathead Reservation in Pablo, MT; Geoffrey Strommer,
Hobbs, Strauss, Dean, and Walker from Portland; and Phil Baker-
Shenk from Holland and Knight, the former committee
staffmember. Welcome to the committee this morning.
Mr. Matt, how are things up in Flathead country?
Mr. Matt. It was cold when I left.
The Chairman. It was cold when you left. How is my friend
Allard and their family?
Mr. Matt. Doug Allard is an amazing man. I just love your
friend. He just recently went through bypass surgery. He had a
valve in his heart that was not functioning properly, so he is
recovering now from that heart surgery.
The Chairman. He is a friend of mine for 30, 35 years.
Please give him my best and well wishes.
Mr. Matt. I always do.
The Chairman. Good. Tell him to stop eating the fry bread.
That will hurt your heart. [Laughter.]
Okay, we will go ahead with you, Chairman Matt.
STATEMENT OF D. FRED MATT, CHAIRMAN, CONFEDERATED SALISH AND
KOOTENAI TRIBES, FLATHEAD RESERVATION
Mr. Matt. Chairman Campbell and committee members, my name
is Fred Matt. I serve as chairman of the Tribal Council for the
Confederated Salish and Kootenai Tribes. With me today from our
legal staff is Brian Upton and George Waters, our lobbyist here
in town.
The Chairman. We know Mr. Waters.
Mr. Matt. I have provided written testimony for the record.
I will limit my remarks to just a few highlights, although it
is going to be hard to try to condense it in the time I know
that I have allowed, because we have done so much at Flathead
that we are proud of and we want to share our successes.
I understand also that this may be the last time that I
testify before this committee with you as Chairman. And
although Senator Inouye is not here today, on behalf of the
Salish and Kootenai people please accept our appreciation for
the great work you have both done for Indian country, and staff
like Pat Zell and Paul Moorhead. It is difficult to imagine
what Indian country would look like today, if over the course
of the last century, every member of Congress had simply spent
a fraction of the time that you have spent fighting for Indian
people.
Senator Campbell, during your 18 years in the House and
Senate, you have become a hero, literally, and a role model for
Native Americans. We wish you the best of luck in life after
the Senate.
The Chairman. Thank you. Would you send a copy of that
statement to my wife? [Laughter.]
Mr. Matt. Definitely.
The Chairman. Thank you.
Mr. Matt. In gold, bold letters. [Laughter.]
And as well pass on our appreciation to Senator Inouye.
Again, and for the last 45 years that he has been in Congress,
the Indian people have simply never had a better friend or
advocate. We look forward to working with him as Ranking Member
of the Commerce Committee.
Again, I am honored to be asked to provide testimony on
tribal self-governance, as our tribes are proud of our
successes in managing the programs of the Federal Government.
Our success began when the self-determination law was passed,
and after President Nixon proposed this landmark policy. CSKT
was one of the first tribes to exercise the opportunity of
Public Law 93-638. Since 1975, we have begun management of BIA
education programs. We have not looked back. I have said that
many times before.
Today, I am proud to report that the tribes I represent
manage under self-determination more Federal programs than any
other tribe in this Nation. We do so with excellent
evaluations, clean financial audits, and with few if any
complaints from those who receive those services.
For example, we are the only tribe operating the BIA's
title plant and individual Indian money account program, and
all of the natural resources programs that generate the revenue
deposited in those accounts. Since 1989, we have operated a
safety of dams program responsible for rehabilitation of 17
dams located on our reservation. We have had extremely good
success. We have repaired dams quicker and cheaper than has the
Bureau of Reclamation. One example is the Black Lake Dam was
completed at a savings of approximately $1.3 million below the
Bureau of Reclamation's estimates.
Again, I have said this before, but my personal favorite
success story in self-determination is the Mission Valley
Power. We manage the power utility that provides electricity to
nearly 22,000 Indian and non-Indian consumers on our Flathead
Reservation. Today, I am proud to report that Mission Valley
Power offers some of the lowest cost and most stable electric
rates throughout the Northwest. We have an independent utility
board and we have an active consumer council. Mission Valley
Power's conservation programs have won several awards, and our
safety record is outstanding.
We have succeeded because local government is the best
government and this includes Indian tribes. Our tribal council
is the best suited to address the needs of our tribal members,
and we understand their needs as we talk with them in our
grocery stores, at basketball games, and our weekly council
meetings. We do not operate one-size-fits-all programs created
through bureaucracies. With the self-governance flexibility, we
tailor the program to fit the needs, while complying with
federal laws and regulations.
My written testimony describes the tribe's compacting
experience in more detail. While self-governance has been a
quantum leap in Federal policy, the act itself could be
improved and strengthened to better meet its objectives. My
written testimony examines some of the proposed changes and
lays out rationales as to why such changes are needed.
We are particularly pleased to see the bill define
``inherent Federal function,'' and include OST funding as
mandatory for inclusion in annual funding agreements. As this
committee is aware, the CSKT is currently negotiating with the
U.S. Fish and Wildlife Service for an annual funding agreement
covering various activities at the National Bison Range
Complex. It has been 10 long years since we first initiated
this effort. It has been an expensive, frustrating and
resource-intensive effort, to say the least. Our efforts to
assume management of this Complex began when Congress
authorized the management of Department of the Interior
programs to tribes that have a significant historic, geographic
or cultural tie.
CSKT meets all of these criteria with the National Bison
Range. The Range is located in the heart of our reservation,
entirely on land reserved for us through the Hell Gate Treaty
of 1855. The bison at the Range are descended from a herd
raised by tribal members Charles Allard and Michel Pablo.
Finally, a study conducted by the Service documents a
number of cultural sites. After nearly a decade, we are close
to reaching an agreement. The recent agreement by Secretary
Norton with the Council of Athabascan Tribal Governments for
the Yukon Flats National Wildlife Refuge should help finalize
our agreement. We congratulate the Athabascan leaders and the
Fish and Wildlife Service in Alaska for reaching this
agreement.
One of our primary concerns with the process has been the
creation of a moving target to finalize negotiations. The Fish
and Wildlife Service continually creates new issues which has
delayed reaching an agreement. For example, at one point in
January of this year, we thought we had narrowed down our
outstanding issues to a very short list, and then the Fish and
Wildlife Service unilaterally rewrote the draft AFA in February
so that it included some unacceptable new issues, further
delaying our process.
Despite our concerns, we are hopeful that we can finalize
an AFA with Fish and Wildlife Service in the very near future.
It will be submitted to this committee for a 90-day period
before it becomes effective. At that time, we will need the
support of our friends in Congress who share our vision and
goals. We are aware that there is some opposition, but we are
confident that the Federal decisionmakers here in Washington
will see the opposition's arguments for what they are. We
believe that most people agree with the New York Times when it
said in a September 3, 2003 editorial that, quote:
The National Bison Range is an unusual case. It offers a
rare convergence of public and tribal interests. If the Salish
and Kootenai can reach an agreement with the Fish and Wildlife
Service, something will not have been taken from the public;
something will be added to it.
Unquote.
Mr. Chairman, my written testimony includes specific
comments on provisions in S. 1715. A number of those comments
reflect CSKT's current experience with the Fish and Wildlife
Service in negotiating an agreement on the National Bison Range
Complex, as well as 15 years of self-governance experience with
other Interior agencies, principally the BIA. Overall, I
believe that S. 1715 would help place Indian tribes on a
stronger footing when negotiating with the Department of the
Interior and its agencies, and that it should be enacted into
law.
Mr. Chairman, thank you for the opportunity to provide my
views to this committee.
[Prepared statement of Mr. Matt appears in appendix.]
The Chairman. Thank you, Mr. Chairman.
Now we will go to Mr. Strommer.
STATEMENT OF GEOFFREY STROMMER, HOBBS, STRAUSS, DEAN AND
WALKER, ON BEHALF OF THE COUNCIL OF ATHABASCAN TRIBAL
GOVERNMENTS
Mr. Strommer. Good morning, Mr. Chairman. It is an honor
and a privilege to be here today to offer testimony on behalf
of the Council of Athabascan Tribal Governments. Ben Stevens,
the Council's Self-Governance Coordinator, was scheduled to be
here today, but unfortunately his trip canceled at the last
minute, so I am really just substituting for him.
My name is Geoff Strommer. I am a partner at Hobbs,
Strauss, Dean, Walker, a large national law firm that
specializes in representing Indian tribes throughout the
country. For over 10 years, a large part of my practice has
focused on working with tribes and tribal organizations seeking
to exercise rights under the Indian Self-Determination Act,
both self-determination contracting as well as self-governance
compacting with the Department of the Interior as well as the
Department of Health and Human Services.
In my comments today, I would like to focus on three areas.
I would like to talk a little bit about CATG's experience in
self-governance, particularly as it relates to its most recent
achievement of negotiating a self-governance agreement with the
Fish and Wildlife Service; some of the benefits that CATG has
been able to achieve through the self-governance program; and
then I want to talk about a couple of key provisions in the
title IV amendments that CATG has a particular interest in
seeing enacted, and give you the justification for that
interest.
Let me start by telling you a little bit about CATG itself.
It is a tribal organization that was created in 1985 by 10
tribes to provide essential services to tribal members. The
services range from natural resources management, economic
development, and a wide array of health services. The
geographic area in which CATG provides these services is quite
large. It encompasses the entire Yukon Flats National Wildlife
Refuge and part or the Arctic National Wildlife Refuge. I have
heard some people say that it is close to the size of Wyoming,
to give you a sense of the size of the territory that we are
talking about.
CATG's villages have been located in this large region
since time immemorial. Today, many tribal members live
subsistence lifestyles that are very closely tied to the land,
and that are dependent upon a healthy and vibrant ecosystem.
For many years, CATG has had a compact of self-governance
with the BIA, as well as a compact of self-governance with the
Department of Health and Human Services. It provides
comprehensive health care services, for example, throughout the
region, and operates a health center in Fort Yukon, which is
the main hub city in the region.
Two weeks ago, after a long and difficult effort, CATG
became the first tribal organization in the country to enter
into a self-governance funding agreement with the Fish and
Wildlife Service. CATG sought to assume specific programs from
Fish and Wildlife that relate to the Yukon Flats National
Wildlife Refuge, because of its tribal members' unique
historical, geographic and cultural relationship to the
programs carried out by Fish and Wildlife on the Flats.
Under the agreement, the Fish and Wildlife Service will
transfer close to $60,000 to CATG. CATG will perform specific
responsibilities in exchange for those funds. Those
responsibilities include locating public easements under the
Alaska Native Claims Settlement Act, some environmental
outreach, educational outreach, wildlife harvest data
collection, survey of the moose population, and some logistical
functions such as maintenance of vehicles and facilities that
the Fish and Wildlife Service has in Fort Yukon.
The agreement describes operational standards and
performance measures that CATG has agreed to meet. The United
States retains complete oversight and ultimate control over the
lands and resources within the Yukon Flats. The agreement is to
last one year and is renewable by the parties in future years.
CATG is very proud of the agreement. I wish Ben were here
himself because he would express in his own words just how
proud they are. They are committed to making it work in
partnership with the Fish and Wildlife Service. The agreement
is viewed as a first step in a relationship between Fish and
Wildlife Service and CATG that tribal leaders hope will grow
and last long into the future.
The agreement provides many tangible benefits to the Refuge
and its resources. CATG brings to the partnership a wealth of
traditional and ecological knowledge. It has experience working
with local residents to gather accurate data. It has
demonstrated its efficiency and effectiveness in fisheries and
wildlife research projects, habitat management activities,
harvest data collection, aerial surveys, subsistence use
surveys, and traditional knowledge interviews.
While the agreement is an example of a successful
partnership between the tribes and the United States, it is a
success that was not easily achieved. Beginning in 1998, when
CATG first submitted a proposal to assume certain functions
from the Fish and Wildlife Service, CATG had to work hard to
educate Fish and Wildlife Service representatives and people in
the region of the benefits of the self-governance program.
I will not describe all the steps that CATG had to go
through to ultimately conclude an agreement with Fish and
Wildlife Service. I will say that the process for arriving to
the point where the parties could sign an agreement was long,
challenging, and very frustrating at times for CATG. It is only
because CATG was completely committed to its goal of forging a
new relationship with the Fish and Wildlife Service under title
IV and was willing to bear great expense to do so in commitment
of financial resources, time and energy that it succeeded in
accomplishing what it sought by negotiating the agreement.
A key element in the process was that under title IV, Fish
and Wildlife Service retained complete discretion over whether
to transfer any of the programs over to CATG, and the exercise
of that discretion was subject to the individual discretion of
Fish and Wildlife representatives sitting across the table.
Ultimately, it took a commitment from top political leadership
at the Department of the Interior for the Fish and Wildlife
Service employees sitting across the table to have the same
level of commitment to reach an agreement with CATG as CATG
brought to the table.
I do not think that Congress intended the process to be as
difficult as it has proven to be. I also doubt that Congress
could have foreseen that it would take 10 years from the date
it enacted title IV for a tribe to be able to assume the kinds
of programs that are included in CATG's agreement.
Unfortunately, the difficulties CATG encountered in the
process were not unique. A number of other tribes and tribal
organizations that tried to assume similar programs from non-
BIA agencies after title IV was enacted in 1994 simply gave up
after running into bureaucratic resistance to the full
implementation of what Congress intended through that act.
Several of the proposed amendments in S. 1715 are intended
to help clarify the scope of programs that tribes can assume as
a matter of right in a funding agreement, and provide tribes
with more leverage during the negotiation process.
Let me talk a little bit about the title IV amendments. The
amendments advance several very important purposes. First, over
95 percent of the bill's provisions are intended to ensure
consistency between title IV and title V, the permanent self-
governance authority within the Department of Health and Human
Services enacted in 2000. Enactment of those provisions are
critical to ensure that tribes participating in both self-
governance programs have access to the same advantages and
rights as they manage programs and funds that govern tribes'
rights to assume non-BIA programs. The existing title IV
provisions delegate to the Secretary almost complete discretion
to negotiate non-BIA programs into self-governance agreements,
and provides little by way of process or substantive rights
that a tribe can utilize if it does not agree with the exercise
of discretion.
S. 1715 contains several important provisions that will
help address some of the problems CATG encountered as it sought
to assume functions from Fish and Wildlife Service. For
example, a provision that Assistant Secretary Anderson
discussed, Section 405(B)(1)(b), amends title IV to make clear
that tribes have the right to administer any program from non-
BIA agencies in which Indian tribes are the primary or
significant beneficiaries.
This language is important. It is language that will ensure
that non-BIA agencies will not decline to include a particular
program in a funding agreement simply because non-Indians might
incidentally benefit from the program. If tribes are the
primary beneficiaries of a particular program, CATG believes
that it should as a matter of right have a right to take over
that program within the confines of the self-governance
legislation and manage that program.
This provision, coupled with the new section 407 of the
bill that creates important and needed procedures that must be
followed whenever a tribe and the Secretary cannot agree on
terms included in an agreement, will go a long way toward
clarifying tribes' rights to assume non-BIA programs and give
tribes more leverage in the negotiation process over these
programs.
Finally, the bill includes several provisions that seek to
address BIA's specific problems such as construction programs
and projects, reassumption standards and trust-related
functions, some of which we discussed earlier in the context of
Mr. Anderson's testimony. Many of these provisions are very
similar to comparable provisions in title V, but were redrafted
and included in S. 1715 to focus on BIA-specific issues. I
agree that we still have some room to negotiate over many of
those provisions with the Department and I am hopeful, as Mr.
Anderson indicated, that we will be able to achieve some kind
of a resolution over most of the areas of disagreement at some
time over the upcoming months.
In conclusion, CATG very much supports the enactment of all
the provision in S. 1715 as it is presently drafted. Self-
governance has given tribes the flexibility to achieve goals in
a way that is most meaningful for the people most affected.
Further, improvement in the self-governance program within the
Department of the Interior can provide not only benefits for
the land, its resources and the people who use and enjoy them,
as envisioned by Congress when it first enacted title IV, but
most particularly give more opportunities to tribes in the
future to continue improving the service delivery to the local
people.
Thank you for the opportunity to testify today. I will be
pleased to answer any questions that you may have.
[Prepared statement of Ben Stevens, as presented by Mr.
Strommer, appears in appendix.]
The Chairman. Thank you. I have several before I go on to
Mr. Baker-Shenk. You brought up a very important point, I
think. We pass legislation here and it is signed into law, but
that is not the end of it. Then it has to be implemented by
agencies. That is done through the rulemaking authority, as you
know. Unfortunately, sometimes agencies by the time they get
done with the rules, it just flies in the face of the intent of
the darn bill when we passed it.
We have seen tribes come in after rules have been
implemented for laws we passed, and said that it does exactly
different; something else from what the had wanted or what we
had wanted. That is the unfortunate thing that sometimes tribes
simply give up, as you mentioned, or sometimes there is not
enough communication between the agencies and the tribes, so
the tribes know what they can avail themselves to in the first
place. So there are a lot of weaknesses when you have a
government as clumsy and big as we have. The intent of the
bills when they get out of this committee, I can tell you, is
to try to help Indian people.
Now we go to Mr. Baker-Shenk.
STATEMENT OF PHIL BAKER-SHENK, ESQUIRE, HOLLAND AND KNIGHT LLP,
WASHINGTON, DC
Mr. Baker-Shenk. Thank you, Mr. Chairman. I am with the law
firm of Holland and Knight. We also represent a number of
tribes and tribal organizations around the country.
I am pleased and honored today to testify in support of S.
1715. Geoff, I and others have been working a long time with
some tribal leaders to get this bill to the shape it is in.
I plan today to give a brief overview of the basis for
self-governance as a matter of policy and philosophy, and the
rationale for the amendments in this bill. At the end of my
written testimony, there is a brief section-by-section on the
bill, all of which I would appreciate being included in the
record.
The Chairman. It will be in the record.
Mr. Baker-Shenk. As well, if I may, a letter from the
chairman of the Jamestown-S'Klallam Tribe, Ron Allen who is
seated here, to the Assistant Secretary Aurene Martin which
supplements and seeks on behalf of the tribes an additional
provision be added.
The Chairman. Okay, Mr. Allen's letter will also be
included in the record.
[Referenced document appears in appendix.]
Mr. Baker-Shenk. Thank you.
Mr. Chairman, a few words first on my personal experience
with this issue of tribal self-governance. For the past quarter
century, I have had the personal privilege to be working with
tribal and Federal officials on these and related issues. I
have served several tours of duty here on this committee staff
and worked as a legal advocate for tribal governments. In all
those years that have been given to me, the most important and
personally rewarding issue has been this issue of tribal self-
governance; that of shaping and expanding the authority that
tribes are given back by the United States to run their own
affairs.
The mission of this movement, if you will, of self-
governance is to transform a dependency-ridden and a services
delivery system run by the federal government, into a
government-to-government relationship that returns power,
accountability, responsibility and flexibility, along with
funding, to tribal governments.
In leading these efforts to authorize and expand tribal
self-governance, you, Mr. Chairman, and some of your colleagues
on this committee and others have believed that if given the
chance, tribal governments would indeed administer the programs
for their people in a competent, accountable and efficient
manner. You put some of your reputation on the line in that
belief, and I dare say that none of the self-governance tribes
have disappointed you.
I have had first-hand experience advising tribes during
negotiations like those mentioned earlier and the
implementation of dozens of compacts and funding agreements.
But the bill would permit the many other tribes who are waiting
to join this an opportunity to be involved. It is also
providing much, much more funding and authority that still
exists at the Interior Department in making that available for
transfer to tribes under self-governance.
This is precisely why early enactment of this bill is an
imperative. It would remove obstacles that have been identified
in the negotiations and in the implementations, differences
over what was the true intent of the Congress the last time you
approached this in 1994, informed by the work that Congress did
in 2000. It would remove obstacles that have emerged in these
negotiations that have blocked further expansion of self-
governance. Thereby, it would create and encourage greater
tribal participation.
The roots of tribal self-governance do run deep in American
legal and political history, but summed up, perhaps President
Nixon said it best when he said, ``the goal is to remove
Federal control, while preserving federal concern and federal
support.'' That rejected the previous policies and practices of
persecution, termination and paternalism.
This act has been amended many times by Congress, as you
stated, and the intent has always been debated after enactment.
But overall, the intention has been very clear, and that is to
provide special and expanded authority to tribal governments.
In most instances, this has also meant curbing the power and
the ability of the Federal bureaucracies, the power that they
have to interfere with tribal program authority.
In making these amendments, none of us should forget that
this self-governance notion was born as a result of federal
failure. Back in the late 1980's, investigation reports in the
Phoenix newspapers showed a Federal service delivery system
that had earned for itself great distrust. Congress then and
Congress today had a better solution: Trust the tribes
themselves to manage their own affairs.
When it comes down to it, no matter how good are the people
at the top of any Department, any Administration, you will not
hear this message from a departmental bureaucracy. Rather, the
Department's interests will always caution against further
transfer of further control to tribes. That is natural. But
look at the record. Who is better worth the risk? Who is better
worth it? The Federal bureaucracy or the tribes themselves?
This bill before the committee answers that question. As
history has proven out in the last 12 years, the tribes are a
better risk to manage their own affairs.
The rationale has always been that the best government is
the government closest to the governed, and the best service
delivery is done by those closest to those who are served.
Tribal self-governance funds, once the money gets to the tribal
government, are always spent and churned right there in the
targeted Indian community, rather than in some distant urban
bureaucracy or some distant research park.
When a tribal government serves its own members, there are
never cross-cultural or language barriers. There is always
commonsense responsiveness to changing needs. There is greater
potential for maximum flexibility and efficiency right on the
ground. And perhaps most important, there is direct
accountability to those who are served.
Unfortunately, these lessons of tribal self-governance
have, I fear, gone largely unheeded in the recent debates over
trust reform. The most effective and accountable service
delivery, and that includes trust services, is at the local
level. The self-governance answer to all these questions is
delegate the power down; delegate the authority down the
ladder, not up; authority to make trust decisions and the money
to do it right.
If trust is ever to be truly reformed, and you have been
here watching various proposals over the years to do just that,
if it will ever be accomplished, it will be because tribal
trust service capacities are first rebuilt at the reservation
and Native community level. That is where the decisions are
made most efficiently, and it is for a simple reason, because
all of the interested parties are there at the ground level.
This bill is the product of a several-year effort of tribal
leaders to improve the statutory basis. The language has been
reviewed and revised after countless meetings of tribal
leaders, some with representatives of the Department. Much of
the bill is informed by the experience and insight gained a
couple of years ago with the amendments mentioned earlier in
title V applying to the Indian Health Service.
In addition to providing very necessary updates to this
1994-era title IV, the bill addresses problems with sections of
the statute that govern non-BIA programs in construction. Among
the key features of this bill are provisions that would
facilitate more tribal participation in self-governance; that
would clarify the inclusion of both BIA and Office of Special
Trustee programs as they are moved about; and it would provide,
as in title V, for ways for a tribe to break and impasse in
negotiations so that we do not have the experience you just
heard of six years bargaining with an agency for, in the end,
modest in finances agreements.
It would also allow for greater inclusion of construction
activities and it would streamline payment procedures. There is
more detail in my written testimony. I will not bore you here
with that.
I would add that there was one reference made when
Assistant Secretary Anderson was here to the problems the
Department has with the provision dealing with inherent federal
functions. I would urge the committee to look at that in the
backdrop of the larger context of departmental interests versus
tribal interests in these questions.
Also, to submit for the record that from experience, there
is no uniform decision within the BIA as to what is and is not
an inherent Federal function. It varies from region to region.
In one region, which will go unnamed, it is nearly 100 percent
of everything they do, as if ``inherent'' means important or,
if you do not respect us, it is not an inherent Federal
function. ``Inherent Federal function'' in your bill is defined
as something that cannot be legally delegated. That is a narrow
subset. It is not, as mentioned earlier, what is not authorized
in statute to be delegated; simply what cannot legally be
delegated. There are certain things a trustee does that cannot
be legally delegated. This definition says no more than that.
We wanted something much more stringent. This is a backup
trying to reach toward the Department.
Finally, the tribes who have actively participated in self-
governance guided and shaped this, along with leaders like you,
Mr. Chairman, and have urged this Congress to enact this bill
in various forms for the last couple of years. They thank you
for your energy and the focus that you and your able staff have
given to bringing this to this near-final stage, and they urge
that you do bring it to enactment as soon as possible.
I thank you for the opportunity to testify here today, and
of course would be pleased to answer any questions now or later
that the committee may have.
[Prepared statement of Mr. Baker-Shenk appears in
appendix.]
The Chairman. Thank you, Phil. I have several questions of
each of you. Thanks for talking a little bit about dependency.
I do not know of an Indian person or a tribe, very frankly,
that wants to be dependent on anybody. I think most of us
recognize that dependency on the Federal Government hurts the
work ethic, kills productivity, flies in the face of human
dignity when you have to be dependent on the Federal
Government.
It might be a bad analogy, but I am thinking myself of all
the problems we are involved in Iraq now. Since 1945, we
rebuilt at a lot of American expense three nations, Japan,
South Korea, and Germany, that are totally independent; make
all their own decisions; and become leading democracies
themselves. We have done that since 1945. And yet, three times
that long we still cannot seem to give tribal governments the
kind of independence they have a right to expect. It is just
amazing to me that we sort of still after all these years, the
Federal Government has kept tribes tethered, if that word will
fit.
Let me start with you, Phil, since you were the last to
speak. Outsourcing is a relatively recent initiative. It is
encouraged throughout the Federal Government by President Bush.
We have heard him speak of it a number of times. Tribes have
been doing that for roughly 30 years through self-governance.
As we move forward expanding self-governance to include non-BIA
programs, questions are raised about whether the tribes have
the capacity to handle the programs. Perhaps I should have
asked Assistant Secretary Anderson, but what do you think the
Department of the Interior means when they talk about whether
the tribe has the capacity to operate a program? Is it
infrastructure or educational experience or what?
Mr. Baker-Shenk. I think it is likely both. It is largely
staff-driven. These are federal officials asking whether tribes
can truly hire people who can do as good or better a job as
existing federal staff have done. As I point out in written
testimony, often these debates boil down to job protection or
turf protection.
The Chairman. Maybe they can do a better job and may be
they cannot, but the way I understand the 638 contract, if they
cannot, they go back under the purview of the Bureau.
Mr. Baker-Shenk. That is right.
The Chairman. But if we are not going to give them a chance
in the first place, how are we ever going to know?
Mr. Baker-Shenk. That is a position that many tribes have
taken in negotiations and sometimes it has been persuasive. The
additional point is the accountability. Even if someone is not
perhaps at 100 percent performance, the incentive to get there
is very strong at the local level, when you compare it to the
incentive that a Federal official does in the bureaucracy to
improve performance. We are still searching for ways Federal
Government-wide to get performance measures and get the Federal
force to produce to measures that we set.
So here moving it to an accountability structure right by
the governed and served is, I think, the better course for
getting higher performance levels and building capacity more
quickly.
The Chairman. Do outside groups have a legitimate role in
the 638 process? And should their non-Indian interests be
involved in the 638 process?
Mr. Baker-Shenk. Those outside interests in the case of
more non-BIA programs that have been mentioned earlier
certainly have a stake. These are federally supported programs.
But if you look narrowly at the bill before the committee or if
they would look at the bill before the committee, they will see
that it is very narrowly drawn, to only those programs that are
of primary or significant benefit to Indians.
If there is a more incidental benefit to non-tribal
interests, those certainly can be taken into account. The
Federal Government will be taking those into account. But the
examples, Mr. Chairman, we have come so little way for so long
that we are still dealing with battlegrounds over bison ranges
within a reservation. We are still dealing with interests well
within the homelands of tribes where very few other people have
much interface, and we still cannot get significant agreements
even in those areas.
The Chairman. Let me ask you this, when the Federal
Government enters the equivalent of a 638 contract with a
state, let's say, do you know how often the states take into
consideration Indian concerns before they implement it?
Mr. Baker-Shenk. I like the premise behind the question.
The States will be concerned if there are voices raised within
their borders, just like tribes as good governments are always
concerned about their neighborly relations. If they have
neighbors living within their lands or without but nearby, more
and more tribes are opening up a hearing, information and
resource mechanisms. Those are part of many of the tribes,
particularly the self-governance tribes who have made so much
of this existing authority. It is just good government, self-
interested good government.
The Chairman. And that dialogue is working, too, and tribes
do that of their own volition, too, generally.
Mr. Baker-Shenk. I would add, Mr. Chairman, my guess is
that if you asked those interested parties whether they feel
that they have a voice with the Federal Government today under
the status quo, they may feel they have a better voice and
better hearing before their local governments like tribal
governments than they do with the distant Federal Government.
The Chairman. We have heard from two witnesses now, and I
will get back to them in 1 minute, that experienced a great
deal of difficulty in reaching agreement on contracts with a
non-BIA program. In fact, it appears that both had several
proposals rejected or had to trim down their proposals
considerably before they were approved. This bill somewhat
limits the grounds for rejection and requires the Secretary to
show validity of a rejection. Can you just briefly describe the
current process of denial for a non-BIA contract proposal by
the Secretary?
Mr. Baker-Shenk. Yes; it is different between contract
proposals now, given some reforms in title I, and what is the
law in title IV unamended by this bill. That is why this
amendment is so necessary. It would have permitted the tribes
represented earlier to at some point much earlier in the 6-year
process or even longer with respect to Flathead, I believe, to
have said, enough is enough; this is our final offer; and any
declination needs to fit the narrow statutory reasons that are
really mirrored on what a contracting tribe can impose under
title I. It would provide an end point, a fair appealable end
point to otherwise protracted negotiations.
Let me say one thing. I do not represent the Council of
Athabascan, but I am led to believe that the wonderful, far-
reaching, forward-moving agreement that was recently signed, at
the end of the day really amounted to just about $60,000 in
value. While money is not the only way to value agreements
between governments, it is one way to measure it. Six years for
$60,000, you know, some would say, well, it is very important
to get a foot in the door, and I would be the first to say the
first has to get in the door; you have to start somewhere; a
long journey begins with a small step. But I tell you, that
foot is the foot of a centipede, not big foot. That is a very
small foot in the door, and we need this kind of statute to
permit tribes to reasonably advance self-governance authorities
to other bureaus than the BIA.
The Chairman. And maybe the last question or two. Chairman
Matt told us in his testimony that his tribe had been
negotiating with a regional office of the Fish and Wildlife
Service. Is that the normal process, or do they normally talk
to a central office when they are negotiating a contract or a
compact?
Mr. Baker-Shenk. The departments in various administrations
have delegated that authority to the regional administrators of
the various bureaus. In the end, I believe it comes to
headquarters, to central, but much of the negotiation, and so
Mr. Chairman, with all due respect, you do have a non-uniform
command and control problem. Some areas or regions are
resistant completely; others are willing to talk and strike a
negotiation stance that is reasonable.
The Chairman. Thank you.
Mr. Strommer, if I could go to you. You said the Council of
Athabascan Tribal Governments has 10 tribes. Did I understand
that?
Mr. Strommer. That is correct.
The Chairman. How many villages does that represent?
Mr. Strommer. Ten villages.
The Chairman. Ten villages.
Mr. Strommer. Each village is a tribe.
The Chairman. Okay. And you also testified that your client
had two 638 contract proposals denied by Fish and Wildlife
before finally reaching an agreement. As I understand, you just
said about two weeks ago they reached an agreement?
Mr. Strommer. That is correct.
The Chairman. What were the reasons given for the denials
in all this time you have been negotiating with them?
Mr. Strommer. Really, the scope of what the Council of
Athabascan Tribal Governments was proposing to take over. One
of the first proposals was submitted under title I of the act,
so not under the self-governance authorities. That proposal was
rejected outright by the Department on the basis that none of
the programs that the Department operated within the Yukon
Flats Wildlife National Refuge were programs that benefitted
Indian exclusively. They took a very narrow reading of the
scope of contractibility.
The Chairman. They were afraid you would take over. ``We
cannot let you do that; you might determine your own future,''
that sort of thing.
Mr. Strommer. The Council then resubmitted proposals that
were subsequently tailored down several times. Up until the
breakthrough that came about 6 months ago, the Department,
frankly, was very resistant in sitting down across the table to
have a meaningful discussion over the scope of the programs
that the Department was willing to transfer over.
The Chairman. The differences between the original
proposals and the final agreement with the Service, did it
diminish what your tribal governments had planned?
Mr. Strommer. Rather dramatically.
The Chairman. Quite dramatically.
Mr. Strommer. Rather dramatically.
The Chairman. As I understand it, the contract agreed to on
April 30 does not involve a significant amount of funding. This
gets a little bit to what Mr. Baker-Shenk said. Is that true?
Mr. Strommer. Close to $60,000.
The Chairman. $60,000.
Mr. Strommer. And it is not money that is actually coming
out of the refuge budget. It is coming out of other pots of
money that the Department has. So the Department has not
actually transferred over any funds directly out of the refuge
budget. That budget is going to remain intact.
The Chairman. I wonder how much it cost them to go through
6 years of negotiating, as opposed to the $60,000. Talk about
efficient use of Federal money. How much program funding did
the Service retain for administrative purposes or overhead or
whatever?
Mr. Strommer. I cannot quote a figure as I sit here, but I
certainly can provide the information.
The Chairman. Would you provide that? I would be interested
if know if that was more than the $60,000.
Mr. Strommer. It is significantly more.
The Chairman. Significantly more.
Mr. Strommer. I will provide it to you.
The Chairman. Please do.
Did the Council have any opposition from outside groups in
its efforts to reach an agreement with the Service.
Mr. Strommer. It did. In the last 6 months, the notice of
the agreement that was negotiated between the Fish and Wildlife
Service and the Council was published in two newspapers, one in
Fairbanks and one in Anchorage. Public hearings were held. At
the end of the comment period, approximately 170 comments were
submitted.
The Chairman. What were some of the objections?
Mr. Strommer. Transferring anything to Indian tribes.
The Chairman. ``Oh, we cannot let them do that.'' Right.
Mr. Strommer. It was one large category. There were people
who had genuine concerns associated with environmental issues
and questioned the scope of the agreement, the scope of the
Council's authority, what role the United States would continue
to play in the management of the Refuge.
But there were also some very supportive comments submitted
by conservation and environmental organizations, as well as
other tribes and tribal organizations. But by far the bulk of
the comments that were submitted were in opposition to the
agreement.
The Chairman. Thank you.
Mr. Strommer. I should say, if I can add one comment.
The Chairman. Yes.
Mr. Strommer. After all the comments came in, the Council
sat down with Fish and Wildlife Service and negotiated
amendments to the agreement that reflected some of the more
important issues that Fish and Wildlife felt that it needed to
address as a result of the comments. So the end agreement did
take into account the comments that were submitted, and there
were a number of changes that were made to try to address them
and address the issues adequately.
The Chairman. Thank you for your testimony and your
answers.
Chairman Matt, you have indicated that your tribe was one
of the original 10 self-governance tribes. You have been
operating the programs for a good number of years, and as I
understand it you have the reputation for operating those
programs very successfully. What do you attribute that success
to in operating the programs? Why are some tribes still
hesitant to embrace the Self-Determination Act of contracting
and self-governance compacting? Just a fear of eroding the
trust responsibility?
Mr. Matt. I am not really sure, but in our case the
flexibility of self-governance that allows the tribes to
operate a program is one of the reasons that makes us
successful. Another thing that I can think of is having a
stable tribal government, and then something that was touched
on a little bit, having the professional and adequate staff to
manage these programs that we take over.
But thinking about why other tribes are reluctant to take
over and manage some of these programs, I simply do not
understand it. I try to think about Indian country overall,
some of the tribes I know not only in Montana, but throughout
the Midwest, and I was trying to think about why would they be
reluctant. Maybe it is the fear of the unknown and the fact
that maybe their tribal governments feel they are not as
stable, and maybe they do not have the capabilities or the
professional staff like we do to manage the programs.
The Chairman. After 10 years of negotiating with the Fish
and Wildlife Service for the National Bison Range, you are
close to an agreement. First of all, how close are you to
getting the agreement? Where do the negotiations stand now?
Mr. Matt. We are far away, and we are really close. This
afternoon we have some meetings lined up and we will know a
little more.
The Chairman. Do you think in your experience that there
might be some kind of a model in there that we can improve
Title IV to make sure other tribes do not have to also engage
in a 10-year process to assume management of eligible non-
bureau programs located in Interior?
Mr. Matt. I would hope that we would be able to develop a
model of some sort to lessen the frustration and the time frame
that we went through. But it is really interesting to sit here
and listen to what the Athabascan Tribal Government went
through because the similarities are the same.
The Chairman. After 10 years, were you inclined to give up
a couple of times?
Mr. Matt. You know, it has been a frustrating process. I
think that one of the things that became apparent to me is it
is not that we can't do it; I think there is a fear that we
can.
The Chairman. Yes; I am sure you experienced some
opposition as Indians do with anything when they try to move
ahead. What was some of the flavor of the opposition when you
were talking about a National Bison Range?
Mr. Matt. I have said it in the past, when it comes to
Flathead, Salish-Kootenai and our reservation, it seems like
there is a vocal minority almost at every juncture that the
tribe has taken to be more self-determined, take over programs
such as Mission Valley Power; when we negotiated with the state
on a hunting and fishing agreement so that non-Indians would be
able to hunt and fish on the reservation, this minority of
folks will come out of the woodwork and they are very effective
at coming back here and then through the local media generate
some opposition that was maybe similar in Alaska, too.
The Chairman. But you run the Mission Valley Power facility
now. Doesn't everybody benefit from that, Indian and non-Indian
alike?
Mr. Matt. Yes; as I mentioned in my testimony, there are
over 22,000 customers and it is one of the better run utilities
in northwestern Montana.
The Chairman. And many of them are non-Indian.
Mr. Matt. It has gotten many recognitions for how the tribe
has managed that utility.
The Chairman. When you were negotiating the National Bison
Range, did you get any opposition from rancher groups worried
about brucellosis, as an example?
Mr. Matt. I cannot think of too many specifically, but I am
sure that would be an obvious concern throughout Montana
because it does get rancher folks worried about it. It is a
totally different environment on the National Bison Range. They
are totally confined within 25,000 acres and they are managed
very well.
The Chairman. I appreciate it. I will follow up with a few
written questions, as I am sure some of the members may do too.
I am hoping that perhaps we can bring this bill back before we
adjourn for consideration. We only have about 58 more working
days this Congress before they adjourn in October. Frankly, we
are not sure what we are going to be able to get through from
this committee, but this is a really high priority for me and I
know it is for Senator Inouye, too.
With your help and with some ongoing dialog with Interior,
hopefully we will be able to get something out that will be of
lasting benefit to tribal groups.
Thank you very much for appearing here today. We will keep
the record open for 2 weeks for any additional comments that
you would like to make, or anybody that is in the hearing room
today.
Thank you, and this hearing is adjourned.
[Whereupon, at 11:15 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
=======================================================================
Prepared Statement of David W. Anderson, Assistant Secretary for Indian
Affairs, Department of the Interior, Washington, DC
Good morning, Mr. Chairman, Mr. Vice Chairman, and members of the
committee. I am pleased to be here today to provide the
Administration's position on S. 1715, a bill to amend Title IV of the
Indian Self-Determination and Education Assistance Act.
In 1988, Congress amended the Indian Self-Determination and
Education Assistance Act [the act] by adding title III, which
authorized the Self-Governance demonstration project. in 1994, Congress
again amended the act by adding title IV, establishing a program within
the Department of the Interior to be known as Tribal Self-Governance.
The addition of title IV made Self-Governance a permanent option for
tribes. These amendments authorized federally recognized tribes to
negotiate funding agreements with the Department of the Interior
[Department] for programs, services, functions or activities
administered by the Bureau of Indian Affairs [BIA] and, within certain
parameters, authorized such funding agreements with other bureaus of
the Department. In the year 2000, the act was amended again to include
titles V and VI, making Self-Governance a permanent option for tribes
to negotiate compacts with the Indian Health Service [IHS] within the
Department of Health and Human Services and providing for a now-
completed study to determine the feasibility of conducting a Self-
Governance Demonstration Project in other programs of that Department.
In 1990, the first seven funding agreements were negotiated for
about $27 million in total funding. For fiscal year 2004, there are 83
agreements that include 227 federally recognized tribes and about $300
million in total funding. Some of these agreements are with tribal
consortia, which account for the number of such tribes exceeding the
number of agreements. These funding agreements allow federally
recognized tribes to provide a wide range of programs and services to
their members such as law enforcement, scholarships, welfare
assistance, and housing repairs just to mention a few. Many of the
funding agreements include trust related programs such as real estate
services, appraisals, probates and natural resource programs such as
forestry, fisheries, and agriculture. What makes these funding
agreements unique is that title IV allows tribal governments to re-
design programs and set their own priorities consistent with Federal
laws and regulations. This authority allows tribal leaders the ability
to respond to the unique needs of their tribal members without seeking
approval by Departmental officials.
Many tribes have been successful implementing Self-governance
programs to meet their tribal needs. For example, the Salt River Pima-
Maricopa Indian Community was able to accomplish the following in 2002:
1) delivered welfare assistance and child welfare services to 676 cases
including placing 19 children in Indian homes, 29 children into non-
Indian homes and reunifying 12 families, 2) provided scholarships and
educational counseling to 42 tribal members, 3) responded to 772 Part I
offenses including 3 homicides and 97 burglaries and 187 motor vehicle
thefts and 3,395 other offenses including assaults, DUI's, runaways and
domestic violence, 4) maintained 131 miles of roads, processed, and 5)
prepared 5 probate cases; and submitting 30 conveyances to the BIA to
be approved and recorded. This example is just one of many where tribes
have been successful in directly administering Federal programs.
In addition, title IV authorizes funding agreements throughout all
bureaus within the Department of the Interior. On April 30, 2004, the
Secretary signed an agreement between the Council of Athabascan Tribal
Governments [Council] and the Fish and Wildlife Service [Service] that
will enable the Council to perform certain functions previously
provided by the Service on the Yukon Flats National Wildlife Refuge in
Alaska during fiscal year 2004-05. This agreement was the first of its
kind between the Service and a federally recognized Indian
organization. In addition, in fiscal year 2004-05 there will be four
tribal funding agreements with the Bureau of Reclamation and four
tribal funding agreements with the National Park Service.
The Department has concerns with this bill, S. 1715, and we would
like to work with the committee to ensure that this legislation does
not adversely impact our ability to meet our trust responsibilities. In
particular, the Department is concerned with subsection 409(l), which
would permit a tribe to cease performance if it appears the expenditure
of funds is in excess of the amount of funds transferred under a
compact or funding agreement. If the Secretary does not increase the
amount of funds transferred under the funding agreement, a tribe would
be permitted to suspend performance of the activity until such time as
additional funds are transferred. We have concerns about the impact
this provision may have, especially on fiduciary trust functions. Under
this provision, if a tribe contracts with the Department to administer
IIM accounts and then decides there is not enough money to administer
the accounts, the tribe could simply stop making IIM distributions to
IIM account holders. It is imperative that a tribe perform any
fiduciary function it contracts or compacts for regardless of the level
of funding. The tribe should return the function to the Department to
administer if they believe that the funding level is inadequate rather
than have their members suffer if the tribe decides not to perform.
In addition, Section 405(b)(1)(B) also broadens application of
funding agreements to authorize tribes to contract for all programs to
which Indian tribes or Indians are primary or significant
beneficiaries. Current law allows federally recognized tribes to assume
programs administered by the Department's bureaus and offices other
than the BIA subject to negotiations and as long as the programs are
available to Indian tribes or Indians. We would recommend that section
405(b)(1)(B) be made discretionary and subject to the terms of the
agreement for programs which Indian tribes or Indians are the primary
or significant beneficiaries.
Finally, the Department is concerned with the reassumption
provision contained in section 407. The provision would require that
imminent jeopardy, substantial jeopardy, and irreparable harm be met
simultaneously in order for the Secretary to reassume a program. This
is a very high standard to achieve. Having to prove all three
conditions practically eliminates the ability of the Secretary to
quickly reassume a program in those rare instances where such an
immediate reassumption may be necessary, such as instances where
serious injury or harm may occur. The Department would recommend that
the reassumption standard contained in the current title IV be
retained.
While we believe that S. 1715 is moving in the right direction to
expand Self-Governance, we cannot support the legislation at this time,
especially given the current high priority for trust reform and the
impact this legislation would potentially have to that critical
program. We would like to work with the committee and the tribes in
developing alternative language to address our concerns.
Mr. Chairman, this concludes my statement and I will be happy to
answer any questions you may have.
U.S. Department of the Interior Office of the
Secretary
Washington, DC.
Hon. Ben Nighthorse Campbell,
Chairmam, Committee on Indian Affairs
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am pleased to provide the responses to the
questions submitted following the May 12, 2004 hearing held by your
committee on S. 1715, the ``Department of the Interior Tribal Self-
Governance Act of 2003.''
Sincerely,
Jane Lyder, Legislative Counsel,
Office of Congressional and
Legislative Affairs.
1. The Administration's testimony indicates that it fears Self-
Governance tribes will stop performing contracts if they don't receive
``enough'' funding under the agreements they negotiate with the
Department. I must say that I find somewhat curious these concerns
about tribes refusing to perform contracts because of insufficient
funding.
Over the years we have had dozens of tribes appear before this
committee complaining that they have been forced to perform 638
contracts with inadequate funding--particularly when it comes to
Contract Support Costs.
Question 1A: If a tribe ceases to perform under a 638 contract, doesn't
the Department have the authority to step in and take over the program
or services?
Answer: Yes; the Department does have the authority to reassume a
tribal contract under section 109 of the Indian Self-Determination and
Education Assistance Act of 1975, as amended. However, under S. 1715,
subsection 409(l), a tribe would be permitted to suspend performance of
the activity they have compacted or contracted until such time
additional funds are transferred. It is imperative that a tribe perform
any fiduciary function it contracts or compacts for. The tribe, should
return the function to the Department to administer if they believe
that the funding level is inadequate rather than have their members
receive inadequate service if the tribe decides not to perform.
Currently, the Department has two recourses for reassuming a tribal
contract: Emergency and non-emergency reassumption. An emergency
reassumption occurs if a tribe fails to fulfill the requirements of the
contract and this failure poses an immediate threat or imminent harm to
the safety of any person, or imminent substantial and irreparable harm
to trust funds, trust lands, or interest in such lands.
A non-emergency reassumption occurs if there has been a violation of
rights or endangerment of health, safety, or welfare of any person or
gross mismanagement in the handling of contract funds, trust funds, or
interest in trust lands under the contract. Tribes have the right to
appeal the emergency or non-emergency reassumption.
Question 1B: Isn't it part of the negotiation process for a tribe and
the agency to negotiate and arrive at some agreement on what
constitutes ``sufficient'' funding under any given contract, compact,
or funding agreement?
Answer: ``Sufficient funding'' is not the criterion used in determining
the amount included in a Public Law 93-638 contract or Self-Governance
funding agreement. The criteria used for determining the amount in a
funding agreement is contained in section 106(a)(1) of the act which
states, in part ``...the amount of funds provided under the terms of a
self-determination contract entered into pursuant to this act shall not
be less than the appropriate Secretary would have otherwise provided
for the operation of the programs or portions thereof for the period
covered by the contract,...''
Question 1C: How many times has a tribal contractor ceased performing
its responsibilities without warning to the Department?
Answer: To our knowledge, no tribe has ceased performing its
responsibilities under a Self-Determination Contract without warning.
Contracting tribes do have the right to retrocede a program, service,
function or activity as provided by Subpart P, Section 900.241 of the
Code of Federal Regulations, but must inform the Department to do so.
2. In its comments on S. 1715, the BIA indicates that it wants non-BIA
program contracting to be ``discretionary'' and you also note a concern
with broadening the application of Self-Governance to include non-BIA
programs unless the contracts are ``discretionary''' for the Secretary.
Question 2A: If that change were made, wouldn't we actually be
narrowing, rather than expanding, Self-Governance?
Answer: No; self-governance would not be narrowed. Non-BIA Bureaus will
continue to have the same existing authority to enter into agreements
with tribes. We believe that it is better to negotiate non-BIA Bureau
programs that are not for the benefit of Indians because of their
status as Indians on a case-by-case basis where both parties, the tribe
and the non-BIA Bureaus, have the ability to consider all interests.
Question 2B: Under the current law, it has taken several tribes years
to obtain agreements on contracting non-BIA programs. If it became
discretionary, can we really expect that it would become easier for
tribes to obtain those contracts?
Answer: While the timeframes for some non-BIA Self-Governance
negotiations have been long, one of the reasons is the difficulty in
accommodating the interests of other affected parties. The Department
believes that such agreements should remain discretionary so that all
affected interests can be accommodated.
3. The BIA is also concerned that the reassumption standards that the
Department must meet before reassuming responsibility for a contract or
compact are too high. You also mention that the reassumption standard
in section 407 of S. 1715 is too high.
Question 3: How would the standard for reassumption contained in S.
1715 interfere with or prevent the execution of the Department's trust
responsibility?
Answer: The immediate reassumption by the Secretary, as contemplated by
the preamended version of S. 1715, would have set too high a standard.
Section 407(b)(3) would have required that three conditions (1)
imminent jeopardy, (2) substantial jeopardy, and (3) irreparable harm
be met simultaneously. This standard practically eliminated the ability
of the Secretary to quickly reassume a program, in those rare
instances, where such an immediate reassumption may be necessary. This
section also stated that imminent jeopardy would arise out of the
failure to carry out the compact agreement. Since funding agreements
are not specific in terms of scope of work, this would be difficult, if
not impossible, to argue, We are pleased S. 1715 was amended to retain
the reassumption standard contained in the current title IV.
4. The Department evidently cannot support S. 1715 because of what your
testimony says is the ``high priority'' for trust reform. Trust reform
is a top priority for the Department, the tribes, and this committee,
but If I understand your testimony, the Department cannot support this
bill because it will somehow interfere with trust reform.
Question 4A: What specifically, either in S. 1715 or in a general trust
modest expansion of Self-Governance within the Department will cause
problems for the trust reform efforts now underway?
Answer: We believe by including the definitions of ``tribal share'' and
``inherently Federal function'' in the bill, that trust reform will
significantly be impeded. The bill defines a tribal share as ``. . an
Indian tribe's portion of all funds and resources that support
secretarial included programs that are not required by the Secretary
for the performance of inherent Federal functions.'' ``Inherent Federal
function'' is defined as ``. . a Federal function that cannot legally
be delegated to an Indian tribe.'' This is of particular concern since
Section 405(b)(1), of S. 1715, treats the Office of the Special Trustee
the same as the Bureau of Indian Affairs.
These definitions offer no statutory parameters to support the
Secretary's identification of functions that the Federal trustee must
retain. We are concerned that the broad definitions pave the way for
challenges to the Secretary's authority to reserve trustee functions
and to retain funds to meet her trust responsibility.
Resolving such challenges would require time-consuming negotiation,
litigation, or legislation that could hinder the pace of trust reform.
For, with every challenge, the Secretary would be required to show that
a trustee function cannot ``legally be delegated to an Indian Tribe.''
In today's trust reform environment, such delays would be untenable.
Question 4B: I believe Self-Governance--and the negotiating process
between the tribes and the Department in terms of standards of
performance, resources management and the like--is part and parcel
``trust reform'' because it is changing the face of the Department and
what the Department is called on to do in Indian communities. Do you
agree that Self-Governance holds the key to large-scale reform of the
Department in the years to come?
Answer: A goal and objective of the Department's Comprehensive Trust
Management Plan is to promote ``Self-Governance and Self-
Determination.'' The Department is committed to providing trust
services to Indian country more efficiently and effectively than in the
past. Some, of these trust services will be provided by tribes or
tribal consortia under compacts and Public Law 93-638 contracts, and
other trust services will be provided by the Bureau of Indian Affairs
and by the Office of the Special Trustee. Tribal governments have been
and will continue to be an integral part of the Department's plans for
the delivery of trust services.
5. Your testimony notes that in 2004-05 there will be 8 new Annual
Funding Agreements signed: Four with the Bureau of Reclamation, and
four with the National Park Service.
Question 5: Can you give more details about these agreements in terms
of the activities to be covered by the agreements, the amount of the
agreements, how long they took to negotiate, and when in 2004-05 they
will be finalized?
Answer: In fiscal year 2004, four agreements were negotiated by the,
National Park Service [NPS] as follows:
<bullet> \\\\\\An annual funding agreement was negotiated and entered
into with the Grand Portage Band of Chippewa Indians [Band].
NPS provided $219,000 for the Band to perform the entire
maintenance program at Grand Portage National Monument. The
agreement also includes $88,000 for additional projects
including fire suppression system excavation, fire hydrant
replacement, and a handicap accessible pathway project.
<bullet> \\\\\\An annual funding agreement was negotiated and entered
into with the Yurok Tribe. NPS provided $120,000 for the tribe
to perform an archaeological investigation and a historic
resources study for the relocation of the park maintenance
facility from Requa to Aubell; $5,000 for the tribe to produce
an ethnographic overview; and $7,000 for the tribe to perform
an archaeological investigation of Alder Camp Road in Redwood
National and State Parks.
<bullet> \\\\\\An annual funding agreement was negotiated and entered
into with the Lower Elwha Tribal Community. NPS provided
$218,977 for the Lower Elwha Tribal Community to perform
activities in relation to the restoration with the Elwha River
Ecosystem and Fisheries Restoration Act of 1992 [Pub. L. 102-
495].
<bullet> \\\\\\An annual funding agreement was negotiated and entered
into with the Tanana Chiefs Conference, Inc. The NPS provided
$2,177,300 to the Conference for the design and construction of
the Morris Thompson Cultural Center.
While it is difficult to estimate or generalize the amount of time
needed to negotiate an annual funding agreement, NPS has found that
once an initial agreement has been negotiated and entered into, it is
substantially less time consuming to amend or to extend it for another
year. For example, the initial agreement between the Grand Portage
National Monument and the Grand Portage Band took months to negotiate,
but once it was in place, subsequent negotiations took only weeks. At
Olympic National Park, the agreement that began in fiscal year 2002
took approximately 150 person hours by the NPS and Solicitor's Office
to negotiate. However, by fiscal year 2004, an annual funding agreement
took only about 30 person hours to negotiate. Once the initial
agreement was in place at Redwood National and State Parks, negotiating
the next two agreements took approximately 80 person hours each.
In fiscal year 2004, the Bureau of Reclamation had or will have the
following four Self-Governance annual funding agreements signed:
<bullet> \\\\\\The Gila River Indian Community received $12,814,000
to plan, conduct, consolidate, and administer Reclamation's
Gila River Indian Community--Indian Distribution System and to
perform all functions and activities associated with the
Operation and Maintenance of the Central Arizona Project
Repository Project and curation of the Phoenix Area Office
Archaeological Collection. The annual funding agreement took
approximately 6 weeks to negotiate and became effective on
October 8, 2003.
<bullet> \\\\\\The Karuk Tribe will receive $51,000 to continue to
conduct data collection and analysis needed to assist in the
restoration of fish and wildlife population with the Klamath
River basin. The annual funding agreement took approximately 2
weeks to negotiate and is currently before Congress for the
required 90 day review. It will become effective on August 10,
2004.
<bullet> \\\\\\The Yurok Tribe will receive $741,153 to continue to
conduct data collection and analysis needed for the purpose of
assisting in the achievement of long-term fish and wildlife
restoration goals in the Trinity and Klamath basins. The annual
funding agreement took approximately 1 month to negotiate and
is currently before Congress for the required 90-day review. It
will become effective on August 10, 2004.
<bullet> \\\\\\The Duckwater Shoshone Tribe of Nevada will receive
$50,000 to conduct data collection and analysis needed to
assess the water resources of the tribe and their 3,800-acre
reservation located in central Nevada. The AFA took
approximately 2 weeks to negotiate and is in the process of
being sent to the Congress for the required 90 day review. It
is anticipated that the AFA will become effective in September,
2004.
6. We heard testimony from the Council of Athabascan Tribal Governments
[CATG] and the Confederated Salish and Kootenai Tribes regarding the
lengthy negotiations--6 and 10 years, respectively--before the
agreements were consummated. Not only are these extremely long periods
of negotiation but for the CATG agreement, for example, which is for
$60,000, I am curious what amount of staff hours and costs were
involved in the negotiations.
Question 6A: Please provide the committee with figures for the total
cost of negotiation to the Department in dollar and man-hour terms.
Answer: The Department received the formal proposal that led to the
U.S. Fish and Wildlife Service's [Service] annual funding agreement
with the Council of Athabascan Tribal Governments [CATG] on June 16,
2003, approximately 10 months before the agreement was signed. We
estimate the direct costs [travel, newspaper advertisements,
transcription costs, et cetera] to be about $10,000.
In terms of staff time devoted to the agreement, the development of the
tentative annual funding agreement required approximately 30 percent of
the Refuge Manager's time over the 10-month negotiation period, 30
percent of the Refuge Supervisor's time, and much smaller percentages
of several other employees' time. There was also a considerable amount
of effort put into this project by the Department's Solicitor's Office.
We would expect these costs and time commitments to go down
significantly for any successor agreements with CATO.
Regarding the length of time for the negotiations, as stated above,
this agreement took approximately 10 months to negotiate and sign. The
Service had received two previous proposals from CATG to perform some
or all of the ``programs, functions, services, and activities'' at the
Yukon Flats National Wildlife Refuge; the first on November 25, 1998,
and the second on November 5, 2001. Both of these requests were
declined. In the first instance, CATO proposed to take over programs,
functions, services and activities under title I of the Indian Self-
Determination and Education Assistance Act [ISDEAA], which does not
apply to the programs of the National Wildlife Refuge System and CATO
had not yet been qualified by the Office of Self-Governance as a self-
governance tribe. The Service suggested CATO contact the Service when
they were qualified. In 2002, we declined their second proposal under
title IV within the 10 day period prescribed by regulation, following a
July 2002 ``pre-negotiation'' meeting. The primary reason CATG's
proposal was declined in the second instance was because CATG had
proposed to take over most programs, functions, services, and
activities at the refuge. CATG appealed to the Director, saying they
would scale back their request. The Director upheld the Regional
Director's decision, which was [and had to be] based on the CATG's
position in the pre-negotiation meeting, but urged them to proceed with
a more limited request.
Question 6B:. Can you also provide for the committee from the CATG and
the Salish and Kootenai Tribes agreements with the Fish and Wildlife
Service breakdowns of what the tribes are to receive for funding, where
that funding comes from, and what percentage of the budget that funding
represents for the specific parks subject to the agreements?
Answer: The agreement with the Council of Athabascan Tribal Governments
[CATG] does not involve National Parks.
At the Yukon Flats National Wildlife Refuge [NWR], managed by the
Service, CATG will receive: (1) $13,000 to assist in educating local
residents about Federal easements established by section 17(b) of the
Alaska Native Claims Settlement Act and to help locate, map, and sign
some of these easements; (2) $10,000 to assist with Refuge
environmental education and outreach programs in the Yukon Flats
villages; (3) $18,000 to collect subsistence harvest information on
moose, bears, wolves, and furbearers, including the month of harvest
and geographic location; (4) $13,000 to assist in inventorying the
moose population in the eastern Yukon Flats, and (5) $5,000 to provide
maintenance of Government facilities and equipment in Fort Yukon.
The Yukon Flats NWR budget for fiscal year 2004 is $1,770,000. The
$59,000 that CATG will receive in the annual funding agreement is about
3.4 percent of the Refuge's budget.
A funding agreement between the Service and the Confederated Salish and
Kootnai Tribes for functions and programs at the National Bison Range
has been negotiated and is currently under public review.
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DEPARTMENT OF HEALTH AND HUMAN SERVICES TRIBAL SELF-GOVERNANCE ACT
----------
WEDNESDAY, MAY 19, 2004
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to other business, at 10:02
a.m. in room 485, Russell Senate Building, Hon. Ben Nighthorse
Campbell (chairman of the committee) presiding.
Present: Senator Campbell.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.
SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON
INDIAN AFFAIRS
The Chairman. We will move straight to the hearing part of
our meeting this morning. This morning, the committee will take
up S. 1696, the Department of Health and Human Services Tribal
Self-Governance Amendments of 2003. This is a bill that I
introduced last October, along with our Vice Chairman, Senator
Inouye. Unlike most other policies in courtrooms affecting
Native people, we can say with a great deal of certainty that
self-governance does work. Self-governance has resulted in
tribal governments with enhanced capacities, better services
for tribal members, and a greater degree of tribal
decisionmaking and resource allocation that at any time in the
past 150 years.
With over one-half of the budget of the Indian Health
Service administered by Indian tribes, the trend is towards
greater degrees of contracting and compacting. In 2000, I was
very proud to sponsor the bill that made self-governance in the
IHS permanent. It is now time to take the next logical measured
step in expanding self-governance to include the non-IHS
programs in the Department of Health and Human Services.
I will submit my complete statement for the record, as will
other members who are not here.
[Prepared statement of Senator Campbell appears in
appendix.]
[Text of S. 1696 follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
The Chairman. I do want to note the absence of any
representative from the Department of Health and Human
Services, which for reasons beyond my understanding have chosen
not to send a witness to today's hearing. I have to say as a
matter of record that I am not at all pleased with the response
we have gotten from the Administration when we are taking up
Indian issues that I believe are really measured to try to help
Indian tribes become more independent of the Federal
Government's tethering. Perhaps then not being here is an
indication they support the bill and just do not want to tell
us. Hopefully, that is the case.
So if there are no other opening statements, we will go
ahead to our first and only panel today. That will be Don
Kashevaroff, chairman of the Alaska Native Tribal Health
Consortium; Alvin Windy Boy, nice to see you, Alvin. I have not
seen you for a good amount of time, but hopefully I will see
you at some of the pow-wows. I am coming to your Fourth of July
big pow-wow. It is going to be a lot of fun, and homecoming for
me.
Mr. Windy Boy. I might come out of retirement. [Laughter.]
The Chairman. Okay. And Ron Allen, chairman of the
Jamestown S'Klallam Tribal Council from Washington; Mickey
Peercy, executive director of Management and Operations,
Choctaw Nation of Oklahoma, from Durant, OK.
If you gentlemen would all sit down, we will go ahead and
start with you, Don. For all of the people testifying today, if
you would like to submit your complete written testimony, that
will be included in the record. If you would like to
abbreviate, that is fine.
STATEMENT OF DON KASHEVAROFF, PRESIDENT/CHAIRMAN, ALASKA NATIVE
TRIBAL HEALTH CONSORTIUM
Mr. Kashevaroff. Thank you, Mr. Chairman. Yes, please
accept my written testimony. Good morning to you and committee
members. I am pleased to testify today in strong support of S.
1696, the Department of Health and Human Services Tribal Self-
Governance Amendment Act.
My name is Don Kashevaroff. I am the president of the
Seldovia Village Tribe. I am also the chair and president of
the Alaska Native Tribal Health Consortium.
In my written comments, I discuss some of the benefits of
S. 1696 and similar to what the chairman started out with
today, that it will increase efficiency, allow us to redesign
and to really help our people. I was kind of going to really
veer off the topic since I understand that no one from the
Administration is going to be present, so for the next few
minutes, let me go this way.
For the last 3 weeks, I have been doing nothing but
budgets, budget meetings, budget meetings, budget meetings.
HHS, we had a meeting with them last week, our consultation
meeting. HHS has a $500 billion budget. I cannot count that
high. I cannot imagine how much money that is, but it is a lot
of money. Even around $68 billion of that is discretionary,
meaning that they can spend it, or the Administration can
request to spend it anywhere they want.
What I see out of them and I asked out of them, and maybe
today is an indication, is, I asked them what priority are
Indians. We have already showed over and over again that we are
the lowest of the low when it comes to health disparities. We
are always on the bottom rung. We are never getting ahead. HHS
is spending about $1 billion on us; excuse me, they are
spending around $4 billion or $5 billion. They are spending 1
percent on us of their budget. It leads me to believe that if
Indians were a priority, they would be spending a lot more.
One of the reasons I think S. 1696 is very important to us
is that right now the government does not place a priority on
the health care of Indians. They just have too many other
things going on which I can understand. There are wars going
on. There is terrorism. There is a huge economy that we have to
keep running. But what S. 1696 would allow us to do, it would
allow the tribes through self-governance to compact some of
those services that we are already running through HHS. We are
already getting them in grants and things, but it would allow
us to run them and create more efficiencies and better service
for our people.
The Government has been working for 50 or more years on
Indian health care, and we are still the lowest of the low.
Something is not working right. If something is not working
right, you need to change something. What we need to change is
the way we operate. Instead of the government providing the
services, we need to let the tribes provide the services as we
have shown over and over again.
The other day I was flying back to Alaska, and I watched
that movie Titanic again, to segue here. The Titanic was going
down. It had 2 hours to sink. About 1 hour after it was going
down still, down below on the E-deck or something they had the
gates locked. All the low immigrants were down there and they
were shaking the bars. The guy was standing there with the key
saying, ``I cannot let you up.'' There were only lifeboats for
half the people, and those immigrants were shaking the gates
saying, ``Give us the chance to save ourselves.'' S. 1696 would
give us the chance to save ourselves, as the previous
compacting laws that have been passed have done.
Let me go through two examples of what we can do when we
start compacting. The Alaska Native Medical Center, which is
operated by the Alaska Native Tribal Health Consortium and
South Central Foundation since we took over has been aimed at
innovation, aimed at excellence. We have been looking for
customer service. We have been completely turning the culture
of that government-run hospital around. We currently have
achieved magnate status for nursing excellence. Only 71
hospitals in the whole country have done this. We are the first
IHS one, and probably the first government one, if I go to the
records. It is something that the private sector looks for the
best. We have achieved that.
We have been hiring more doctors, providing more services,
expanding the product line, and increased access. We now have
same-day, you can walk in and get an appointment with your
primary care provider the exact same day. We turned around our
special clinics this year, and now you can go in and you can
have surgery within 2 days in many of our special access
clinics. It used to be a 3-month wait. When the Government was
running it, it was even longer. We have been able to do that
under the compacted mode. So we have been able to improve the
services that we offer.
The second example is Seldovia, my tribe, we have been able
to expand greatly. When Seldovia took over the program, it was
a contract health care program. IHS hired private doctors in
the communities there, paid them money. When our folks went to
them and got service, the money never lasted that long. That
was fine. We took that over. We realized that with the doctors
increasing their rate 10 to 15 percent a year because that is
what medicine in this Nation is doing, 10 to 15 percent per
year, and IHS just giving us 1 to 4 percent a year in CHS,
something was wrong. We could not keep that up. We were going
backwards every year.
We wanted a clinic. We asked IHS for a clinic. They turned
down our application. But we are self-governing. We have a
priority of our people, who are number one. The Government does
not put Indian people number one. We do, because that is our
sole priority. I am directly elected by my folks. If I do not
do a good job, they get somebody else in there.
IHS said we cannot have a clinic. We went out and leased a
clinic ourselves. We innovated, put moneys together, and now we
have a leased clinic and we are also now building a clinic, a
permanent clinic that we will own that is twice the size of
what we currently lease.
That is what we can do with compacting. That is what we can
do if we S. 1696 is approved and we are able to take the HHS
funds, move them under tribal management. We will have a
priority for our people unlike the Government currently has.
So Mr. Chairman, I really ask that you and the rest of the
committee support and pass S. 1696 and give us a chance to save
ourselves.
[Prepared statement of Mr. Kashevaroff appears in
appendix.]
The Chairman. Okay, thank you. Ron, I have you second on
the list. Would you like to proceed? You came in just a few
minutes late, but I am sure you are not short of something to
say on this issue, are you?
STATEMENT OF RON ALLEN, CHAIRMAN, JAMESTOWN S'KLALLAM TRIBAL
COUNCIL
Mr. Allen. No; I am not, Senator. I really appreciate the
opportunity. My apologies for getting late here. All the
construction up here makes it a little longer to get up here on
the Hill anymore.
Thank you, Senator. My name is Ron Allen, chairman for the
Jamestown S'Klallam Tribe out in Washington State. You have my
testimony sent to you with specifics.
Self-governance clearly is an agenda that has been
important to my tribe and to myself and my colleagues here. It
goes back in terms of the evolution of empowering tribal
governments. As we have testified here before this committee,
in 1975 when the Self-Determination Act was passed it was all
about promoting empowerment of tribal governments and reducing
bureaucracy and allowing the tribal governments to be able to
control their own priorities with their own communities. Self-
governance clearly throughout the 1990's has shown that as we
transfer more and more of the Federal bureaucracy to the Indian
tribes, that we are better able to use these precious few
resources that the Federal Government makes available to us
more efficiently and more effectively for our programs.
It provides us the flexibility to design programs with
greater flexibility and appropriateness for our cultures and
our communities that the Federal Government cannot do. It has
to deal with over 560 Indian nations from Alaska to Florida,
and the complexities of our communities are great and many.
There is no way the Federal system could have ever created a
system that is really going to be reflective of what the tribal
governments really need and what the Indian communities need.
We have shown through the success of self-governance since
you have empowered us back in 1994, and even earlier when we
did the demonstration phase, that it is a success; that the
tribal governments given these resources can use these
resources more efficiently and effectively for our communities.
We have redesigned them. We have taken these resources and
matched them up with tribal resources and other resources, and
created more tribally culturally appropriate resources.
Back when it started, when it came out of the Arizona
Republic expose about the mismanagement of the Federal
resources for Indian people, there was the notion that, well,
let's just turn all the money over to the tribes, and they can
divvy it up based on individual Indians and memberships of the
tribe. We said back then, no, that is not the way to do this.
The Federal Government has the fundamental moral and legal
obligation to the tribes, and if we are going to transfer these
responsibilities from the Federal Government over to the
tribes, it will be based on our terms. We have been doing that
over the course of this last 10 to 15 years.
Now, we are moving forward into HHS. As my colleagues have
already been testifying, we moved first with BIA and started
into the Interior programs. We have testified to you how we
have had some struggles with the other non-BIA programs at
Interior. We moved quickly over to IHS, and now we are moving
into HHS.
So there are literally hundreds of programs over in HHS. We
contract out for a couple of dozen different programs out
there, so we really do not access all of the programs that HHS
has available to us, but we did want to start moving in that
direction very quickly. Already we realize that it is not as
efficient by going after each of these programs individually.
If we can go out there and negotiate for these programs and
move them in and redesign them for our communities, relative to
the existing resources that we get from the BIA, Interior and
IHS, as well as HUD with the housing programs, we can use them
more efficiently.
HHS has shown a willingness to do that. They were a little
hesitant and wanted to go through the study process to examine
the viability of conducting self-governance. We said okay,
fine, and they persuaded the Congress to conduct the study. The
study has revealed that it is effective, it is efficient, and
it is a good way to empower tribal governments and allow us to
move our governments forward constructively and effectively.
We have shown categorically, whether it is a small tribe
like mine or a large tribe with a large land base, that it can
move forward very effectively and we have been able to serve
our tribe.
We have only had a few blemishes that I would argue we
could look back and say, well, we made some mistakes here and
it did not quite work out the way we wanted it. As a general
observation, if you look at the big picture, it has been an
unequivocal success.
So we are arguing that not only does it affirm sovereignty
of the tribe, not only does it affirm the commitment of the
Congress and the Administrations of the past to empower the
tribal governments. It has shown that the tribes, who are the
lowest end of every economic and social category that we
measure the welfare of our society, that we are starting to
slowly build up that capacity and move forward.
So what we are looking for is this legislation that allows
us to move forward from the study into the demonstration.
Personally, we believe that we can move forward even faster,
but that is the process that the Administration has shown a
willingness to move forward. We would like to see the Congress
pass this legislation so that we can now move into that phase
and show to the other agencies of HHS, yes, it can work.
They have identified 11 programs. We have identified 13,
and we argue that 13 are very relevant to what we are doing. We
are contracting, like I said, a couple of dozen; 13 can be made
available to us to contract out and to secure these programs,
consistent with how we do it at the BIA and the IHS, and it is
very reasonable; 13 against the backdrop of 300 programs that
they have is reasonable. We think that it is a reasonable phase
to move forward.
The Secretary has exhibited his commitment to the tribes
and we take that commitment in earnest, and we want to move
that agenda forward. We have been showing that we are more than
willing to discuss the parameters of it. We do know that some
of the agencies do not administer these programs the same way
that we experience over on the BIA and IHS side, and
specifically with the contract support issue, which is a matter
that they administer a little differently with each of these
programs.
The biggest issue I think that we are going to have to
hurdle over is just the bureaucracy letting go of their
precious programs, and the notion that if they let go of these
programs, will they be administered to the benefit of the
people and the constituency that they are intended for. We
argue yes, that our experience and our history has shown that
we will be successful; that we will make these programs work;
and they will be working to the benefit of our community, from
the children to the elders, programs we have, to the benefit of
the communities as a whole, and to enhancing our families,
which we think is really important for our communities and for
our future.
So I certainly join my colleagues in urging the Congress to
pass this legislation and to encourage your colleagues to get
behind it, because it really is the way of the future with
regard to our Indian communities. Even though we argue that
there is a greater need than the resources that are being made
available, we will take what we have and make it work better
for the benefit of our people.
I am here to help in any way I possibly can, to answer any
questions I possibly can, and work with you, your staff and the
other Senators in any possible way to make this thing come to
fruition.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Allen follows:]
The Chairman. Thank you.
Chairman Windy Boy?
STATEMENT OF ALVIN WINDY BOY, CHAIRMAN, CHIPPEWA CREE BUSINESS
COMMITTEE
Mr. Windy Boy. Thank you, Senator, members of the audience.
Good morning. I greet you from the Cree and Chippewa people
of Rocky Boy. I am here also in support, along with my
colleagues, an initiative that I only dreamt about 16 years
ago, being in tribal politics for 16 years. I always felt that
there has got to be something different for my people. I
happened to stumble across politics on a horse. I was moving my
dad's cows one day and an elderly lady waved me down from the
hill. I went down to her log house and she told me in Cree,
what does this mean, this letter. It was an Indian Health
Service letter, a letter of denial of payment for services she
got. She was raising her grandkids. Apparently the kid got sick
on a Friday and services were not available for the weekend, so
she did the next best thing and took him to the hospital.
Ultimately, the bill was denied, and that was several years
before that it applied to her credit, which many bills end up
in the credit bureau that my people have. I always felt that
there has got to be something different.
In 1988 when I first got on Council and this demonstration
was first talked about, I asked my colleague, is our tribe
ready? We took the initiative back to Rocky Boy and the Council
did not want to step into that arena. Up until 1994, we had
some young Council come on board, and we are seeing that a lot
of things that we were going without, particularly in the arena
of health care. I was telling my colleagues that maybe
compacting is not for everybody, but we have to look at a
different way of providing better health care to my people.
We took a demonstration project midway through the year. My
staff said we need to advance a compact which had done. The
first year that we had our compact, it was the first time Rocky
Boy had ever gotten a JCAHO 100 percent accreditation. From
that point, we have not only looked at compacting outside of
HHS, but also over in Interior. The Chippewa Cree Tribe is
constructing a major dam with a compact with the Bureau of
Reclamation. Also we have compacts with Minerals Management
Service, the Bureau of Land Management.
So with HHS, we have a road map. My staff has a road map of
what could be doable. I have been working with this
Administration for the last 2 or 3 years and trying to look at
the President's management plan. How could I make that work to
benefit the Chippewa Cree? I see that it could, but as
mentioned by one of my colleagues earlier, we have got to get
that flexibility from this Administration, from HHS.
Certainly, there are issues that we may have differences
with the State of Montana, certainly issues that we may differ
with this Administration, but that is not to say that we should
no be able to sit down.
In reference to the self-governance tribes, several
statistics kind of jump out at me. One looks at the Indian
Health Service since 1994, over 52 percent of the IHS's budget
is already being administered by tribes. This year, we have 30
ways in the 2004 that are being negotiated, which brings it up
to a total of 319 of the 580 some-odd federally recognized
tribes that are compacting. I understand that compacting may
not be for everybody. I look at the delivery of tribal
governmental services in three areas, those that choose to be
direct service, those that choose to contract, and those that
choose to compact. I equate that to the life of a child, when
you are infant, when you are adolescent, to your adult. Right
now, I am prepared. I am waiting to expand the health delivery
of Rocky Boy to include other agencies within HHS.
I will be glad to answer any questions.
[Prepared statement of Mr. Windy Boy appears in appendix.]
The Chairman. Thank you. It is interesting how you were
sort of herding cows and stumbled into public policy. That is
kind of the way I got involved. Be careful you do not stumble
around until you end up in the U.S. Senate. [Laughter.]
We will go ahead with our last witness. That will be Mr.
Peercy.
STATEMENT OF MICKEY PEERCY, EXECUTIVE DIRECTOR OF MANAGEMENT
AND OPERATIONS, CHOCTAW NATION OF OKLAHOMA
Mr. Peercy. Yes, sir; good to see you again, Senator and
staff.
I want to say good morning and greetings from Chief Gregory
Pyle, chief of the Choctaw Nation of Oklahoma. Also, I want to
add our testimony in the spirit of the late Merle Boyd, second
chief of the Sac and Fox who we lost 1 year ago, who was
certainly a warrior in the area of self-governance.
The Choctaw Nation is typical of many of the tribes in the
Nation. We are strong. We are resilient. As was mentioned, I
know there are 319 tribes looking to enter into self-
governance.
I have submitted testimony I will refer to mine on some,
just on the high points. We have demonstrated that in 1975
those legislators who initially endorsed Public Law 93-638 were
right. We, along with many other tribes, have been successful.
The Choctaw Nation, we are strong believers in the philosophy
of self-determination.
In 1985, the Choctaw Nation was the first health care
system to contract under Public Law 93-638 for the entire
health system. This was done in a very sudden and dramatic way.
It was done not because in those days we thought it was a good
thing, but the health care delivery in the Talihina, Oklahoma
Hospital and the four satellite clinics had gotten to a point
where the tribe said, we are bound to be able to do a better
job than the Indian Health Service.
I think we can prove that we have done it today. I think
you are aware, Senator, we are in a new 144,000 square foot
hospital in Talihina, OK. We are in the process of constructing
a joint venture clinic in Idabel, OK; a small ambulatory grant
clinic in Stigler, as well as a substance abuse recovery center
in Talihina. These were done with a combination of IHS and
tribal dollars.
Because of self-governance, we have been able to create
efficiencies. I think that is the key in what we are talking
about, to locate efficiencies and redesign programs to maximize
for the good of the people.
We have been innovative and aggressive in our approach to
providing services to our people. We have been diversified. One
thing I want to point out, we provide $4 million to Choctaw
Nation students each year across the Nation through that
diversity, through our contracting, our manufacturing and our
enterprises. To give you an example of manufacturing, in
McAllister, OK, we build large industrial heaters that we send
to Afghanistan. In McAllister, OK, we construct some of the
tail sections for some of the bombs that have been dropped in
Iraq. In Hugo, OK, we build the containers that ship those
bombs to the Army. Through our Choctaw Management Services
Enterprises, we staff all the emergency rooms in the armed
forces overseas in all the Army hospitals. We also have the WIC
contract, the Women, Infants and Children contract for the Army
overseas. This diversifies.
All of this is accomplished through self-governance. One
thing I highlighted and pointed out in my testimony, 4 years
ago our Federal tribal income ratio was 80 percent Federal to
20 percent tribal. Today, it is 17 percent Federal and 83
percent tribal. So the dependence on the Federal dollar has
been greatly reversed.
I made a comment. I said this is impressive. I do not care
who you are. That is not disrespectful to this body. That is
blue collar Southern Oklahoma humor, that looking at these
statistics wherever you sit, that has got to be impressive. I
wanted to point that out.
Choctaw Nation of Oklahoma was one of the supporters of the
demonstration project in title V. We were involved in
rulemaking. We were also involved in the feasibility study
under title VI. The feasibility study shows that we were
successful.
We also wanted to point out, and it is in the testimony, of
the 13 programs that have been outlined by the tribes, or the
11 by DHHS, Choctaw Nation manages six of those programs to a
tune of over $6 million. We do that well. We do that well. We
are very pleased with it. However, there are issues with that.
There are flags. Congress can edict tribal self-determination.
Agency staff can verbalize self-determination and its support,
but the spirit is lacking, and when the spirit is lacking,
nothing is accomplished. Due to mistrust, control issues and
fear, it makes self-governance and moving into self-governance
very difficult.
Again, our programs have been successful, but just to point
out one example. We have built a new Head Start Center, and we
have built a new Child Development Center. They are fairly side
by side. They are new. They are built with Government CDBG
grants and tribal funds. We have two playgrounds in the back,
one on each side. The issue is, they cost about $50,000 apiece
to build the playgrounds, when one would have sufficed.
However, due to the constraints of the programs being separate,
the Head Start kids cannot play on the Child Development
playground, and the Child Development kids cannot play on the
Head Start, so you build two. To us, that is ridiculous, but it
is the way the system works.
With that, I just want to tell you that we support
wholeheartedly, Chief Pyle supports wholeheartedly the movement
of this bill. As was mentioned by my colleagues here, anything
that we can do to support in any way, please let us know.
We appreciate your time and we will be here for questions.
Thank you, Mr. Chairman.
[Prepared statement of Mr. Peercy appears in appendix.]
The Chairman. Thank you.
I may start with you, Mr. Peercy, since you just finished.
We will probably be submitting some questions in writing for
all four of you, too. That timeframe, you mentioned that the
total financial resources of the tribe at one time was 80
percent federal, 20 percent tribal, and now is 17 percent
Federal and 83 percent tribal. What was the time frame between
that change?
Mr. Peercy. That is about a 4- to 5-year period.
The Chairman. Just in 4- to 5-years, that fast.
Mr. Peercy. Yes, sir.
The Chairman. And the 144,000-foot hospital you mentioned
that you are in the process of building, was the money you
needed to do that, did you work with private lending
institutions to finance that?
Mr. Peercy. No, sir; we did our own through tribal revenues
built that.
The Chairman. You did not have to borrow money to do it?
Mr. Peercy. No, sir; it is a $28-million hospital that is
debt-free.
The Chairman. Debt-free. Wonderful.
Your written testimony indicates the Nation operates 6 of
the 13 programs identified in this bill that we are dealing
with today.
Mr. Peercy. Yes, sir.
The Chairman. Has the Choctaw Nation been prevented from
operating all 13 programs because of current statutory
restrictions or lack of compacting authority or something of
that nature? What is the basis?
Mr. Peercy. I would think most of those have been through
tribal choice, such as the TANF program. That is something that
our chief and the Council chose not to do.
The Chairman. Did they choose not to because they were
worried about availability of resources from the Federal
Government to implement it, or what?
Mr. Peercy. Yes, sir; that is an issue with most of those
programs. And again to point out, sir, to followup on that a
little bit, we have had these programs for the most part for
many, many years.
The Chairman. So you look at them and basically if the
project is going to exceed the cost savings, it is a non-
starter for you then.
Mr. Peercy. Yes, sir.
The Chairman. Yes.
Don, let me ask you maybe the same question. You also spoke
of the hospital that you are building in Alaska, your tribe is.
Is that primarily being done with tribal money?
Mr. Kashevaroff. Yes; the clinic we are building is part
tribal money, part money from HUD, and part money from the
Denali Commission. Then we have also applied to a couple of
private foundations for equipment. We basically have gone to
the bank for a line of credit, which we do not actually need
now that all the funding has come in, but the banks were more
than willing, after reviewing the tribe and our economic
successes to loan us money if we need it, but we do not.
The Chairman. The portion of the Federal money that you did
get through IHS or HHS, you mentioned in the past they have
been unilaterally determined standards and measures that were
used to evaluate your programs. Did they affect the building of
this hospital at all?
Mr. Kashevaroff. Yes; I guess they did. We are going to
build this clinic with no IHS funds. We had to go through other
sources. The IHS through their standards had basically turned
down our contract to have a clinic based on lack of population
as they said. So using their standards, we should not be able
to have a clinic. By using their standards also, our contract
health service dollars just keep getting less and less buying
power, and eventually we will have no buying power.
So if we were to follow the IHS and the rules they live by,
we would eventually just have no health care, basically. So by
compacting and doing it ourselves and showing them that we can
succeed, IHS is working with us quite well. We get along with
HHS. We get along with IHS very well, and I think that we have
been able to prove that we can make a better health system by
doing it on our own, and we can rely on other folks besides IHS
also.
The Chairman. Thank you.
Ron, you have testified a lot lately on self-governance
bills. I think you were in here when I kind of blew up at the
Administration because I thought they were dragging their feet
on us and not really seriously interested in helping us. But
thank you for attending and thank you for your testimony last
time, and this time, too.
You were on the Title IV study team which included the
Department of Health and Human Services representatives. Is
that correct?
Mr. Allen. Yes.
The Chairman. Can you describe what is the level of
participation by the Department of Health and Human Services?
Mr. Allen. Actually, it was fairly good. We received quite
a bit of participation by the majority of the agencies that we
were entertaining to put into this demonstration phase. They
raised a number of issues, and of course the States raised some
of their issues, because a lot of these funds will go through
the state before it gets to the tribe. So we have to kind of
filter it, or they filter it, before it gets to the tribe and
our communities. We worked with them in terms of why we needed
to have direct access, and then why the Administration should
be supportive of it.
So they participated and identified what their concerns
were. We think we alleviated the majority of them. We do know
that they have still some anxieties over the notion of how do
you negotiate. We had to persuade them that, look, we take this
one step at a time to learn how we are going to negotiate, what
is our fair share and how should it be administered, and why
should you adjust your budget to accommodate this new way of
doing business with Indian tribes.
So I think that we are making some good progress. The
encouraging part was the Secretary's office was fairly active
and very tuned into the process of the study, so they were very
supportive of the study as well. We became a little concerned,
and it took a little bit of a side-step or diversion if you
will, because of the contractor who conducted the study, who we
had to educate. Consistently, when we would go through these
processes, you would bring in a contractor and they would know
nothing about tribal governments and the empowerment of tribal
governments. So we had to spend a lot of energy.
The Chairman. Everytime new people come in, you have to
reinvent the wheel, every time new people come on board.
Mr. Allen. Oh, consistently. It has been a problem that we
have been struggling with for 15 years. But at least we made
some good headway and we feel the report is fair and objective
and supportive of what we are trying to achieve.
The Chairman. You identified streamlining programs as one
of the key objectives of this bill, S. 1696. That is what I
believe is the real goal, too. The duplication of grant
applications is an example, or budgets reporting. It is all a
big huge waste of resources. In my opinion, if it could be
better directed, that money that we use in doing that could be
directed to the programs.
Do you have any ballpark idea about maybe even including
costs and man hours that a tribe such as yours could expect to
save by not having to submit all those multiple applications,
budgets reports and so on, and could administer programs
yourself?
Mr. Allen. No, Senator; I do not off the top of my head. I
can tell you just instinctively and through my experience, it
is a phenomenal amount of energy. When you have to put together
these grant or contracting applications, you go through the
program directors and you go through the planners and grant
writers themselves, and you make sure that it is working. You
talk about how it is going to complement other programs. And
then you have to go through the whole process of applying and
interacting with the Department and the agency process, the
whole process of review, and the interaction going back and
forth.
So the amount of staff resources and energy that we have to
put in is phenomenal. If we could convert those resources and
energies into the programs, we would be much better off. But
obviously, we need those resources. Those resources are
important to our programs, whether it is the children or the
elders or community service programs, domestic violence
programs.
So yes, without having any specific data, we can tell you
that unequivocally that the amount of resources we are saving,
the Federal Government and the tribes, is going to be
phenomenal in terms of the end results of how much more we can
divert of those resources to more constructive at the
grassroots-type of activities.
The Chairman. The reason I asked you is because I have
heard for years and years, over and over from many people that
testify, that if we could direct the money directly to the
tribes, it would not be eaten up by administrative costs,
overhead, all the other stuff as it sort of dribbles down. But
I have never seen anything that is really authoritative to say
how much more in percent a tribe would find usable if we gave
direct funding through compacting or contracting, as opposed to
the agencies doing all the administration. I, like you, think
it could be considerable.
I have seen things saying 80 percent of all the money we
appropriate for the BIA, for instance, does not actually get to
the tribal members. It is eaten up somewhere in the
bureaucracy. I hear that and read that, but they are usually
accusations or guesstimates or so on, but I have never seen
anything definitive about how much better of we would be by
sending the money directly to tribes.
Mr. Allen. Mr. Chairman, it would be easy for us to
identify all the participants in the tribe who have to develop
these grants and contract applications, and identify the actual
processes and the interaction with the Federal agencies to show
you the kind of energy that we have to spend, the kind of man
hours we have to actually spend soliciting each of these
grants. Some of these grants are little tiny grants. They are
$2,000 grants or it may be $200,000 or $2 million grants. The
irony of it is that the $2,000 grant can take up as much energy
as a $2-million grant. You can't not go after them because we
need every little dollar we can get into our community.
The Chairman. Yes; I would like you to do something for the
committee, and that is just pick out any one of them that deals
with your tribe, that goes to your tribe, and see if you can
put together a comparative study for me, for the committee,
about what percent of any x amount of money that you think
would be better used going directly to the tribes, as opposed
to how it is being used up in the process if we could do more
direct funding. Any one of the programs you now deal with with
the Federal Government, if you could do that so I could use it
as an example for the committee and the members, I would
appreciate it.
Mr. Allen. We would be delighted to do that, Mr. Chairman.
The Chairman. A small one of $2,000 or a big one, whichever
one, but give me some information so I have something more
definitive.
Mr. Allen. Okay.
The Chairman. Thank you.
Chairman Windy Boy, you have been long a champion of self-
governance and the hard work that you have done is paying off
for the improvements in health certainly for your tribal
members on your reservation. I thank you for being here.
This bill requires annual reporting which must verify that
tribes meet the statutory purposes of the bill. What is your
view on that oversight? Is it too much? How would you compare
that with other current compact oversight?
Mr. Windy Boy. In order to provide in this case better
health care delivery, we have jumped through a lot of hoops and
reports. We have done that. Fiscal analysis, we have done that.
So if there are reports, whether it be additional or
downsized reporting mechanism, we would do that.
The Chairman. The bottomline is we cannot get it passed
unless there is some oversight. That is the way it works around
here, or we cannot get it signed into law, I mean.
Mr. Windy Boy. Yes; I want to mention an oversight on my
part. In 1975, health care delivery was available to my people
by the Indian Health Service. My late father, chairman for 20
years, took it upon himself to finance their own health
facility, because at that time the enrollment was 3,200 people.
The facility that the Indian Health Service was manning in
Rocky Boy certainly was insufficient by way of space and
personnel.
In 1975, they went from east coast to west coast attempting
to get a loan to build a facility. It was not until he and
several other Council members went to a small town in Malta, MT
that financed the facility for them. They have since paid it
off, which gets us into another era. Our last enrollment
meeting several months ago showed that we were close to 6,300
people. The facility, and I thank my dad and them for what they
have done for my people, but in this day and age we have
increased enrollment. That is probably pertinent in Indian
Country all over.
The Chairman. What percent of your enrollment lives on the
reservation?
Mr. Windy Boy. Of the 6,200 people, we have close to 4,000
that live on it, and we are seeing a lot more move back.
Incidentally, before I came here we had a groundbreaking
for a facility that the tribe is going to build. We have
collaborated with both the Indian Health Service, USDA, HUD and
the BIA to create this from a 3,400-square-foot facility to a
10,000-square-foot facility, with an emphasis on wellness
center within.
The Chairman. Good. This new center you are groundbreaking
for, I note with interest some of the new Indian clinics and
hospitals that are being built by tribes where they have a lot
more input on determining what they want emphasized in there.
They are not just hospitals. They are really, to use your
words, wellness centers.
I live at Southern Ute in Colorado and they just built one.
Included with the clinic, which is right next door, they have a
nutrition program, as an example, where they teach cooking and
how to improve diets to try to reduce diabetes. They have a
gymnasium. They have exercise class. They have a lot of things
that are related to health. I think that is really the future
direction that Indian, if you want to use that word
``hospital,'' that they take. They look at it in a holistic
sense, rather than just trying to patch things up after they
happen.
Mr. Windy Boy. Actually, I was proud of my people at home.
They persistently met with the two school boards in Rocky Boy
and Box Elder and basically turned the feeding program of the
Rocky Boy School for the students. Students have more
nutritious food, and actually the wellness center we are
creating does have a swimming pool and gymnasium, with that in
mind. They did tell me that we will do something about my
[native word].
The Chairman. Yes; you know, I like fried bread as well as
the next guy, but it is probably the worst thing in the world
to eat for your arteries. [Laughter.]
You talked some about duplicating services. The duplication
of services provided by the tribes and the States is almost
always an issue. Your testimony indicates that your health
board contracts with the state for some programs. What steps
have your tribe taken to avoid duplicating services?
Mr. Windy Boy. Actually, the services that we do get from
the State of Montana, as mentioned earlier, TANF, LIHEAP, in
fact we have about 13 programs that we do contract through the
State. What this bill is going to allow us to do is actually
negotiate with the DHHS, rather than having to go through the
State of Montana. Knowing the State of Montana and tribes,
particularly my tribe, the relationship is not really that
well.
In reference to the earlier statements about ingesting
tribal revenue, my tribe, maybe it is an anomaly, but we do not
have the natural resources. We certainly do not have the gaming
operations to ingest. So the money that we do have is basically
money coming from our timber sales, grazing fees, because those
services are needed. Those are the only revenues that we have
to ingest.
The Chairman. Do you have a 2-year Indian community college
there?
Mr. Windy Boy. Stone Child College, yes.
The Chairman. What is it?
Mr. Windy Boy. Stone Child College.
The Chairman. Oh, yes, Stone Child. Do they offer any
classes dealing with health, nutrition, something along that
line?
Mr. Windy Boy. Yes; they do. I chair the National Tribal
Leaders Diabetes Committee, and through the efforts of the
National Institutes of Health, through Dr. Larry Agodoa and Dr.
Sandy Garfield, we have collaborated with them and created six
demonstration sites across Indian country. I am not very good
at acronyms, but I know that the project that we are working
with in six colleges is the DETS program, and that is teaching
the students about diabetes, for them to later on become
students. It is a 10-year project.
The Chairman. Very good.
I have no further questions of this panel, but I appreciate
your being here. Senator Inouye may have some, which he will
probably submit in writing, but I do thank you for being here.
Your complete written testimony will be included in the record.
We will keep the record open for 14 days for any additional
comments by our panel or anyone in our audience.
Thank you for being here.
The committee is adjourned.
[Whereupon, at 11:07 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
=======================================================================
Prepared Statement of Don Kashevaroff, President, Seldovia Village
Tribe and Chairman, Alaska Native Tribal Health Consortium
Good morning Mr. Chairman and committee members. I am pleased to
testify today in strong support of S. 1696, the Department of Health
and Human Services Tribal Self-Governance Amendments Act. My name is
Don Kashevaroff and I am the president of Seldovia Village Tribe and
the chairman of the Alaska Native Tribal Health Consortium.
The bill you sponsored will create a demonstration project for non-
Indian Health Service programs in the Department of Health and Human
Services. More importantly, the bill will further the central purpose
of the Indian Self-Determination Act--to allow tribes to exercise their
own governmental powers and sovereignty by managing Federal programs
for their own benefit. And, as you know, Self-Governance has resulted
in a reduction in the Federal bureaucracy and an improvement in the
quality of services delivered to our members. Enactment of this bill
into law will add yet another important chapter in tribal self-
sufficiency.
I would like to describe for you how well Self-Governance is
already working in Alaska and why it makes perfect sense to expand the
scope of Self-Governance to other programs within the Department of
Health and Human Services.
First, in Alaska, the permanent Self-Governance program under title
V of the Indian Self-Determination has been an unqualified success.
Tribes and tribal organizations, such as the ones that I represent
here, have been able to run the system with more efficiency,
effectiveness and creativity than the Indian Health Service ever could.
For many years Seldovia has been a co-signer of the Alaska Tribal
Health Compact [``ATHC'']. Starting in 1994, a number of tribes and
tribal organizations in Alaska negotiated and signed the ATHC and
Annual Funding Agreements authorizing them to operate health programs.
Today the ATHC has 18 co-signers under which a total of 213 federally
recognized tribes in Alaska receive the great majority of the health
care services provided to Alaska Native and American Indian
beneficiaries residing in Alaska. Over 95 percent of the IHS programs
in Alaska, including the Alaska Native Medical Center in Anchorage, are
currently operated under tribal administration in accordance with the
ATHC.
Under Seldovia's Funding Agreement negotiated under the ATHC, the
Seldovia Tribe provides a full range of health care to our people,
including clinical services, pharmaceutical services, family health
care, health education, diabetes clinics, and domestic violence
intervention services. Seldovia is very interested in broadening the
scope of these programs to included non-IHS programs from within other
agencies located in DHHS.
The bill would create a 5-year program to extend Tribal Self-
Governance to programs within the Department of Health and Human
Services [HHS] that are outside the Indian Health Service. The project
would include up to 50 current self-governance tribes that would be
eligible to negotiate new Self-Governance compacts and funding
agreements for the additional HHS programs. There are 13 programs
included in the bill. These include key programs such as Tribal TANIT
to Low Income Home Energy Assistance to Head Start and Family Violence
Prevention Grants. In addition, the bill would allow the Secretary to
choose an additional 6 programs to add to the existing 13. The bill
makes it clear that the Secretary is under no obligation to do so, but
can if he or she believes it would benefit the Department and the
Tribes.
The new compacts and funding agreements set forth in the bill are
substantially the same as those under the current title V program. The
bill, in other words, is not a radical or large departure from what the
Department and Indian country are used to. In fact, the bill would
allow a tribe to simply expand its current compact to include any new
programs, rather than draw up a new compact.
The bill continues the flexibility that is the hallmark of the
Self-Governance program. The fact is that Indian tribes that are given
the ability to tailor or modify Federal programs so that they best meet
tribal and cultural needs can run better programs. The ability to
redesign, consolidate and reallocate programs and funds, as tribes can
already do under title I and title V, is a critical element of this
bill. Further flexibility is provided through the waiver provision in
the bill in section 606. The waiver provision would allow a tribe to
ask the Secretary to waive certain Federal program requirements. The
Secretary can do so, but only if he or she determines that the waiver
would further the purposes of the act. The bill recognizes that tribes
will comply with final regulations for the each of the 13 programs. At
the same time, flexibility is ensured by also recognizing that tribes
will not be bound, unless agreed to, by other agency policies,
circulars, manuals or guidances.
The bill also recognizes that funding formulas should be the result
of negotiation between the Federal Government and the Indian tribes. We
express strong support for the funding provision in this bill which
would provide for a lump sum annual payment made within 10 days after
the apportionment of funds to HHS from OMB.
Another key benefit to tribes in this bill is the inclusion of
negotiated baseline measures. Prior to Self-Governance, the IHS
unilaterally determined what standards and measures would be used to
annually evaluate Seldovia's programs. Often those standards and
measures were burdensome and inapplicable to what we were doing. Under
the ATHC, the IHS and Seldovia have jointly developed relevant and less
burdensome baseline measurements, which are used for the annual
evaluation of our programs.
Finally, I want to point out that the bill brings another key
element of the Self-Governance program: Streamlining. Many tribes and
tribal organizations in Alaska already receive substantial funding for
the programs contemplated under the bill. For instance, tribes in
Alaska already operate their own Head Start, Child Care Development
Block Grant, Family Violence Prevention, and Child Welfare Services
Program. Thus, expanding the scope of Self-Governance to include these
programs as the bill would do is simply a natural extension of what we
are already doing. In fact, bringing the efficiencies and tribal
flexibility of Self-Governance to these programs will only make them
better for us in Alaska.
In order to participate in non-IHS programs within the DHHS, tribes
currently develop and submit multiple grant applications for related
programs, which requires hundreds of pages of narratives, separate
budgets and recordkeeping, and the submission of numerous time-
consuming reports. Title VI allows tribes to combine funds from various
sources and provides flexibility for tribes to use the funds to design
and provide services that are appropriate for the tribes' communities.
The title VI demonstration program thus promotes efficiency, which
translates to better health care for native people.
On the other hand, all Indian tribes who are part of the Self-
Governance program will tell you that the one missing element in the
bill is the right to full contract support costs. The bill provides
that contract support costs will be provided for each of the eligible
programs. Nevertheless, our experience under Self-Governance has shown
that tribes never receive the full amount of contract support costs
from the IHS. This has to change if tribes are to ever fully realize
the benefits of Self-Governance. We cannot afford to pay for the unmet
costs out of our own pockets. For many of us, that means we have to
take funding from other important programs. In a larger context, lack
of full funding will serve to discourage other tribes from entering
into the demonstration project. In simple terms, we want this program
to succeed. We know that the committee wants this program to succeed.
Therefore, we urge you to make the Department pay its full share of
contract support costs.
Section 607 of the bill requires the Secretary to annually report
back to Congress on the status of the demonstration project. We fully
expect that the reports will demonstrate ability of tribes to
carefully, and expertly, manage the additional HHS programs. In fact,
we expect the reports to show that Native tribes will manage the
programs better than the Department has. We urge this committee to
carefully examine those reports and then work with us on making the
demonstration project within HHS permanent. At the same time, we will
work the Department on identifying additional HHS programs that should
be eligible for inclusion in the Self-Governance program.
Tribal governments, under Self-Governance have become increasingly
stronger governments. Passage of this bill will further this
committee's and Mr. Chairman, your efforts to strengthen and promote
tribal governance. Tribes have continuously demonstrated that when
given the chance to manage Federal programs, they have succeeded at
every turn. Self-Governance has given tribes more management capacity,
better information networks, and, by bringing in more and more
programs, a better capacity to operate as a true sovereign nations. It
is fitting that we are here 70 years after the passage of the Indian
Reorganization Act. The IRA was a well-intentioned, but simplistic and
rigid attempt to further tribal self-governance. What we now know, is
that the only laws that work to truly promote tribal self-governance
are those place real management responsibility in the tribes
themselves, and with arm the tribes with flexibility to tailor Federal
programs to meet their own needs, and provide tribes with the funding
to make those programs work.
The Seldovia Village Tribe and the Alaska Native Tribal Health
Consortium strongly support S. 1696 because it accomplishes just that.
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