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| ![]         | COLUMBIA RIVER INTER-TRIBAL FISH COMMISSION            |
| (media/imag |                                                        |
| e1.png){wid | 729 NE Oregon, Suite 200, Portland, Oregon 97232 503   |
| th="1.35in" | 238 0667                                               |
| height="    |                                                        |
| 1.345833333 |                                                        |
| 3333334in"} |                                                        |
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**The Honorable Fidelia Andy**

**Chairwoman, Columbia River Inter-Tribal Fish Commission**

***H.R. 5680: A Bill to Amend Certain Laws Pertaining to Native
Americans,***

***and for Other Purposes***

**House Natural Resources Committee**

**April 9, 2008**

Chairman Rahall, on behalf of the Columbia River Inter-Tribal Fish
Commission, thank you for inviting me to testify on H.R. 5680. I also
want to thank Congressman Grijalva for sponsoring this legislation which
includes a much needed technical amendment under Section 9 for the
Columbia River Treaty Fishing Access Sites.

I am Fidelia Andy, Chairwoman of the Columbia River Inter-Tribal Fish
Commission and an elected leader of the Confederated Tribes and Bands of
the Yakama Nation. I am a descendent of the signers of the 1855 treaty
between the Yakamas and the United States Government. I fished the
Columbia River and I clearly understand the impact that the construction
of the dams has caused to the tribal way of life.

The Columbia River Inter-Tribal Fish Commission (CRITFC) was formed in
1977 by resolutions from the four Columbia River treaty tribes:
Confederated Tribes of the Umatilla Indian Reservation, Confederated
Tribes of the Warm Springs Reservation of Oregon, Confederated Tribes
and Bands of the Yakama Nation, and Nez Perce Tribe. CRITFC\'s mission
is to ensure a unified voice in the overall management of the fishery
resource and to assist in protecting reserved treaty rights through the
exercise of the inherent sovereign powers of the tribes. CRITFC provides
coordination and technical assistance to the tribes in regional,
national and international efforts to ensure that outstanding treaty
fishing rights issues are resolved in a way that guarantees the
continuation and restoration of our tribal fisheries into perpetuity.

To understand the significance of our technical amendment for the
Columbia River Treaty Fishing Access Sites, we need to take into account
our history that stretches beyond 10,000 years ago to time immemorial.
And we need to review the history over the last two generations that
included more promises yet repeated delays and setbacks resulting from
federal inaction.

The combined ancestral homelands of our four tribes cover roughly
one-third of the entire Columbia River Basin in Washington, Oregon and
Idaho. Salmon has always been a unifying figure providing both physical
and cultural sustenance. Collectively, we gathered at places like Celilo
Falls to share in the harvest, forging alliances that exist today. The
importance of fish, especially salmon, to our tribes cannot be
overstated. In 1855 when our four sovereign tribes and the United States
collaborated and negotiated treaties, our tribal leaders explicitly
reserved---and the U.S. agreed to assure---our right to fish in
perpetuity within our ancestral homelands as well as "at all usual and
accustomed places". We kept our word by ceding about 40 million acres of
our homelands to the U.S. and the U.S. pledged to honor our ancestral
rights.

In 1905 in the famous case of *U.S. v. Winans*, the U.S. Supreme Court
stated that fishing was "not much less necessary to the existence of the
Indians than the atmosphere they breathed." This statement, from the
highest court in the land over a century ago, symbolizes salmon as an
integral part of our cultural, economic and spiritual well-being.

Before the arrival of non-Indian settlers a tribal fishery thrived on
the Columbia River. By the late 1880\'s, non-Indian encroachment blocked
access to many of our usual and accustomed fishing grounds. In the late
1880s, Special Indian Agent George Gordon investigated the Columbia
River tribal fisheries and found that Indian fishers were being excluded
from many of their traditional fishing grounds. Agent Gordon submitted
his findings and recommended that the U.S. secure approximately 2,300
acres along the river for use by tribal fishers. Although the government
never acted on his recommendations, the U.S. did file several lawsuits
seeking to protect the tribes\' right to take fish at usual and
accustomed fishing grounds (e.g., *U.S. v. Taylor*, *U.S. v. Winans*,
*U.S. v. Seufert Brothers*, *and U.S. v. Brookfield Fisheries*). These
lawsuits firmly established as a matter of law the tribes\'
treaty-protected right of access to usual and accustomed fishing
grounds.

During the 1930\'s, the Army Corps of Engineers (COE), responding to
congressionally mandated studies, proposed that a series of dams be
built along the Columbia River. The Bonneville Dam was the first to be
built inundating approximately 37 tribal fishing sites. In 1939, a
settlement agreement between the tribes and the U.S. was made to furnish
sites in lieu of those lost. The agreement provided for the War
Department to acquire approximately four hundred acres of lands at six
sites along the Columbia River and install ancillary fishing facilities
to be used by the treaty tribes. The agreement was approved by the
Secretary of War in 1940 and by Congress in 1945 (Public Law 79-14).
However, it took the COE nearly twenty years to acquire five sites,
totaling only slightly over 40 acres. These sites are commonly referred
to as \"in lieu\" sites.

As more dams were built more tribal fishing grounds disappeared. In
1973, in a settlement order entered by the U.S. District Court for
Oregon in *CTUIR v. Calloway,* the Secretary of the Army and the
Secretary of the Interior agreed to propose legislation to provide
acquisition and improvement of additional sites and the upgrading of all
sites to National Park Service standards. Legislation was forwarded to
Congress in 1974, but no action was taken.

During the late 1970\'s and 1980\'s tensions continued to grow.
Increased fish runs in mid-1980 increased the use and pressure on the
existing in lieu sites resulting in the need for improvements and
additional fishing access sites. Conflicts also grew with increased
non-Indian use of the treaty sites for recreational activities along the
Columbia River. From 1982 -- 1986, legislation to establish a Columbia
Gorge National Scenic Area was considered by Congress. During
consideration of this legislation, the tribes once again brought
attention to the fact that the federal government still owed significant
acreage for fishing sites per the 1939 agreement. Although Congress did
not address the in lieu site issue in the passage of the Gorge Act, they
indicated they would consider providing additional fishing access sites
in the future.

In 1987 and 1988, at the request of the Senate Select Committee on
Indian Affairs, the tribes identified a number of locations that could
be suitable for additional sites. During hearings in 1988,
representatives from the COE testified that they required new
legislation before they could provide additional sites. Congress
responded with P.L. 100‑581 (Title IV, Columbia River Treaty Fishing
Access Sites) in November 1988. This legislation authorized new sites
and facilities and required an interagency transfer of the properties
from the COE to the Interior Department \"for the purpose of maintaining
the sites.\" This included sites behind Bonneville, The Dalles and John
Day Dams on the Columbia River in Oregon and Washington. As sites were
completed they were transferred to the Bureau of Indian Affairs (BIA)
within the Interior Department. The Act also authorized the
rehabilitation of the original "in lieu sites" constructed under the
P.L. 79-14. To date 29 sites have been completed and one site is
undergoing planning leaving one, possibly two sites remaining.

Subsequent amendments have been enacted to modify the legislation. These
amendments provide the COE with flexibility on technical boundary
adjustments, increases of authorization for appropriations, authorizing
the transfer of funding for operations and maintenance to the BIA, and
authorization to make improvements at Celilo Village.

In 1995, the COE and BIA agreed to a Memorandum of Understanding (MOU)
to effectuate the transfer of facilities and lands and to provide
operations and maintenance (O&M) funding. The COE agreed to provide a
lump sum of monies for each set of sites and then transfer those monies
to the BIA for O&M when the sites were completed. The amount of O&M
needed was calculated under a capitalized cost basis relying on a 7.75%
discount rate with the assumption that the BIA would invest the funds in
an interest bearing account to create a steady O&M funding stream for 50
years (to 2045). In the MOU the BIA also agreed to provide at least
\$250,000 per year for the first eight years beginning in 1996.

Unfortunately, the BIA never contributed their share and they lacked
authority to invest the O&M funds provided by the COE. Instead, BIA
spent about \$2 million of the principal from 1996 to 2003 to cover O&M
thereby reducing the term of the fund to less than 50 years. The tribes
repeatedly indicated their desire to get the COE-provided funds into an
interest bearing account.

In a July 1999 letter from the COE District Engineer to the Chairman of
Confederated Tribes of the Umatilla Indian Reservation, the COE even
committed to increasing their contribution under the 1995 MOU with the
BIA by \$1.2 million if BIA satisfied three conditions. Those conditions
were: "First, the funds need to be invested in an interest bearing
account. Second, the BIA needs to continue to provide their
contributions under the agreement. Third, there needs to be strong
technical justification for the increase." Unfortunately, this was
another lost opportunity since BIA never met any of these conditions
which were quite simply the BIA's commitments in the first place. The
additional money from the COE has never been provided.

Later, it was determined that the best way to accomplish investment of
the funds was for the tribes to take over the funds. In 2003, under a
Self-Determination Act agreement, BIA transferred the O&M balance
(approximately \$5.5 million) to CRITFC so the funds could begin earning
interest. CRITFC also assumed O&M responsibilities for the sites on
January 1, 2004.

However, under 25 USC § 450e-3 of the Self-Determination Act,
investments are restricted to low earning federally-backed instruments
that typically yield 2 to 6%. With the BIA's lack of contribution per
the MOU and the fact they spent principal instead of investing the
funds, these investment restrictions add to the inadequacy of O&M
funding needs. Under these restrictions with the current fund balance we
estimate that the O&M account will be depleted before 2025 leaving no
funding over the final 20 years.

While the investment of principal is restricted, the subsequent interest
earnings are not. Over the 30 months ending December 2007, the
restricted principal account yielded a 4.51% return compared to CRITFC's
investment of the unrestricted interest account which earned 13.16%.
CRITFC works closely with a reputable fund manager on prudent investment
standards for both the principal and interest accounts. CRITFC also
meets at least quarterly with the fund manager and presentations are
provided by the manager to the CRITFC Commission. In accordance with the
Self-Determination Act agreement, CRITFC prepared and submitted to BIA,
an investment policy for both the restricted account and the
unrestricted interest account.

Starting in early 2007 CRITFC met with the Interior Department to find a
solution to the investments restrictions. Interior staff was unable to
find a solution to the restrictions imposed under the Self-Determination
Act. Therefore, without objection by the Interior staff at the time,
CRITFC began working with the House and Senate on a technical amendment
to PL 100-581 to provide an exemption to the restriction specifically
for the in lieu and treaty fishing access sites on the Columbia River.

The four-year average for O&M is approximately \$449,900 per year for
the 29 existing sites. If the investment restrictions are left in place,
an additional \$4.6 million of principal is needed to revive O&M to
cover the 50 year time frame. However, if we are able to lift the
restrictions to afford returns closer to a historical market rate of 8%,
we estimate that we would need an additional \$2.3 million in FY2009.
This amount would also satisfy BIA's commitment in the MOU. If funding
is delayed until FY2010 we estimate \$2.5 million will be needed.

We support Section 9 of H.R. 5680. This technical amendment is narrow
and applies only to the Columbia River Treaty Fishing Access Sites. The
amendment would have a significant impact by extending the current O&M
fund by another 8-9 years and help us begin to overcome past disruptions
with the O&M funds by enabling CRITFC to apply prudent investment
standards to achieve higher yields than is now permitted. To complement
this effort we will continue to seek funding to fulfill the BIA's
commitment under the 1995 MOU with the COE.

On January 16, 2008, the Columbia River Gorge Commission wrote a letter
supporting our efforts to secure an amendment to P.L. 100-581 to provide
us "greater investment flexibility" for these sites. The Gorge
Commission was established in 1987 to develop and implement policies and
programs that protect and enhance the scenic, natural, cultural and
recreational resources of the Gorge.  The Gorge Commission noted that
these fishing sites are part of the Columbia River Gorge's "vital
cultural, historical and legal infrastructure." The Gorge Commission
further supports funding through the U.S. House and Senate to satisfy
BIA's funding commitment. The Gorge Commission has 13 members: three
appointed by each of the governors of Oregon and Washington, one
appointed by each of the six Gorge counties, and a non-voting
representative from the U.S. Forest Service.

CRITFC is prudent in spending funds for routine O&M of the sites in an
attempt to stretch the funding out as long as possible, but this carries
a long term consequence. First, being frugal does not allow maintenance
of the sites to conform to the required National Park Service standards.
Secondly, keeping maintenance costs low means the sites and facilities
will deteriorate faster requiring O&M funds to be redirected towards
major capital expenditures.

CRITFC has met our responsibilities. Our federal partner and trustee
struggled in meeting theirs. The dilemma of the operation and
maintenance funding for the Columbia River Treaty Fishing Access Sites
are not the result of the tribal effort. The current fate of the long
term O&M funding is the result of federal inaction and therefore we
would hope that our federal trustee would understand the need for this
amendment and offer their unqualified support. In addition, we would
hope that they would support the appropriation of funds necessary to
meet the commitment they made in the 1995 MOU with the Army Corps of
Engineers.

It is our hope that this Committee will act favorably on the technical
amendment as written in H.R. 5680 to lift the investment restrictions
for the Columbia River Treaty Fishing Access Sites. This would protect
the federal government's investment in the in lieu and treaty fishing
sites and also continue to satisfy the long overdue commitments made by
the U.S. to our tribes over 75 years ago when the dams were built and
over 150 years ago when our treaties were signed.

Again, thank you for this opportunity to express our support for this
legislation.

CRITFC Contact:

Jaime A. Pinkham Columbia River Inter-Tribal Fish Commission

<pinj@critfc.org> 729 NE Oregon, Suite 200

503-238-0667 Portland, OR 97232

Fax: 503-235-4228 [www.critfc.org](http://www.critfc.org/)

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