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S. HRG. 107–1024

TRIBAL TELECOMMUNICATIONS ISSUES

JOINT HEARING

BEFORE THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

AND THE

COMMITTEE ON INDIAN AFFAIRS

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

MAY 14, 2002

Printed for the use of the Committee on Commerce, Science, and Transportation

(

(II)

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ERNEST F. HOLLINGS, South Carolina, Chairman 

DANIEL K. INOUYE, Hawaii 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

JOHN B. BREAUX, Louisiana 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

MAX CLELAND, Georgia 

BARBARA BOXER, California 

JOHN EDWARDS, North Carolina 

JEAN CARNAHAN, Missouri 

BILL NELSON, Florida 

JOHN MCCAIN, Arizona 

TED STEVENS, Alaska 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

SAM BROWNBACK, Kansas 

GORDON SMITH, Oregon 

PETER G. FITZGERALD, Illinois 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

KEVIN D. KAYES, Democratic Staff Director 

MOSES BOYD, Democratic Chief Counsel 

JEANNE BUMPUS, Republican Staff Director and General Counsel 

COMMITTEE ON INDIAN AFFAIRS 

DANIEL K. INOUYE, Hawaii, Chairman 

KENT CONRAD, North Dakota 

HARRY REID, Nevada 

DANIEL K. AKAKA, Hawaii 

PAUL WELLSTONE, Minnesota 

BYRON L. DORGAN, North Dakota 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

BEN NIGHTHORSE CAMPBELL, Colorado 

FRANK MURKOWSKI, Alaska 

JOHN McCAIN, Arizona 

PETE V. DOMENICI, New Mexico 

CRAIG THOMAS, Wyoming 

ORRIN G. HATCH, Utah 

JAMES M. INHOFE, Oklahoma 

PATRICIA M. ZELL, Majority Staff Director/Chief Counsel 

PAUL MOOREHEAD, Minority Staff Director/Chief Counsel 

(III)

C O N T E N T S 

Page 

Hearing held on May 14, 2002 ............................................................................... 1

Statement of Senator Boxer .................................................................................... 4

Statement of Senator Burns ................................................................................... 3

Statement of Senator Campbell .............................................................................. 1

Statement of Senator Cleland ................................................................................. 19

Prepared statement .......................................................................................... 19

Statement of Senator Inouye .................................................................................. 6

Prepared statement .......................................................................................... 6

Statement of Senator McCain ................................................................................. 2

Prepared statement .......................................................................................... 2

Statement of Senator Thomas ................................................................................ 5

WITNESSES

Day, William, Chairman, Culture and Heritage Committee, United South 

and Eastern Tribes .............................................................................................. 39

Prepared statement .......................................................................................... 41

Edelman, Marcia Warren, President, S.M.E. LLC and Former Senior Policy 

Advisor to the Secretary of Commerce for Native American Affairs ............... 20

Prepared statement .......................................................................................... 24

Masten, Sue, Chairperson, Yurok Tribe ................................................................ 12

Prepared statement .......................................................................................... 16

Snowden, K. Dane, Chief, Consumer & Governmental Affairs Bureau, Federal 

Communications Commission ............................................................................. 7

Prepared statement .......................................................................................... 9

Stanton, John, Chairman/CEO, Western Wireless Corporation .......................... 31

Prepared statement .......................................................................................... 34

Strand, Michael, Executive Vice President & General Counsel, Montana Independent Telecommunications Systems ............................................................... 27

Prepared statement .......................................................................................... 29

APPENDIX

Brown, John, Tribal Historic Preservation Officer, Narragansett Indian Tribe, 

letter dated May 10, 2002, to Hon. Daniel Inouye ............................................ 84

Hopkins, M. Teresa, Vice-President, IndigeTEC, Inc., prepared statement ....... 83

Johnson, Hon. Tim, U.S. Senator from South Dakota, prepared statement ...... 83

Watkins, Richard, General Manager, Cellular One, prepared statement ........... 86

(1)

TRIBAL TELECOMMUNICATIONS ISSUES 

WEDNESDAY, MAY 14, 2002

U.S SENATE, COMMITTEE ON COMMERCE, SCIENCE, AND

TRANSPORTATION, MEETING JOINTLY WITH THE COM- MITTEE ON INDIAN AFFAIRS, Washington, DC. 

The Committees met, pursuant to notice, at 10:06 a.m. in room 

SR–253, Russell Senate Office Building, Hon. Daniel K. Inouye, 

Chairman of the Senate Committee on Indian Affairs, presiding. 

OPENING STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL,

U.S. SENATOR FROM COLORADO 

Senator CAMPBELL [presiding]. This joint Committee session will 

start without Senator Inouye. He is running a little bit late and 

asked me to go ahead and start the Committee hearing. We thank 

him for scheduling today’s hearing on telecommunications in Indian Country. Since the arrival of the Internet over 20 years ago, 

every American surely recognizes its potential to improve our economy and our standard of living. 

In general, availability of telecommunications information technology in Indian communities is not the rarity it was 10 years ago. 

In fact, it is sizeable and growing. A number of Tribes are already 

involved in telecommunications. Tribal involvement ranges from 

connecting Indian schools to the Internet, to Tribes regulating and 

operating telecommunications services on Indian reservations 

themselves. We still have a long way to go, however. Only 39 percent of Indian households have telephones, compared to 94 percent 

of non-Native households. 

Law enforcement officers on reservations are often at a disadvantage because of poor communications equipment, in some cases, in 

fact, costing their lives. Most Indian kids are not being connected 

to the world via the Internet, as other American kids are, and 

health care to rural areas like remote areas of Alaska are made 

more difficult and, in fact, businesses are simply walking away because of the lack of physical infrastructure on Native lands. 

In Native and non-Native communities, telecommunications is 

the backbone to development. The weak economic base in much of 

Indian America, especially in the Plains Tribes of the Upper Midwest, make it difficult to support infrastructure investment. For 

many private communications firms, it is simply not profitable to 

provide services to the vast expanse of Native American lands. In 

turn, the lack of physical infrastructure makes it difficult for these 

same Native communities to undertake and attract successful ecoVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
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nomic initiatives, so Tribes in many cases are in a Catch-22 situation. 

But there is reason for hope. Tribes, tribal organizations and the 

business sector are all focusing on the issue, and looking to broaden technology options for Tribes and helping them to develop a 

physical telecommunications infrastructure. While we are still 

years away from getting all of Indian America online, I know this 

hearing will do a great deal in informing us how we achieve that 

end. 

With that, I would call on Senator McCain. 

STATEMENT OF HON JOHN MCCAIN,

U.S. SENATOR FROM ARIZONA 

Senator MCCAIN. Thank you, Vice Chairman Campbell, and I 

want to thank Senator Inouye for holding this hearing with the 

Commerce Committee as well. It is a very important topic, and we 

all know how important telephone and telecommunications is, not 

only to the world, but to the United States of America, and unfortunately many Native American communities across the United 

States have been left behind. 

According to 1990 U.S. Census data, only 47 percent of tribal 

households had telephone service. In the 1990 Census, I am sorry 

to say, Mr. Chairman, that 4 of the 10 lowest telephone penetration 

rates were for reservations in the State of Arizona, San Carlos, 

Navajo, Gila River, then Mississippi, and then Fort Apache. It is 

not a pleasant statistic for me to contemplate. 

In 1997, Senator Inouye and I worked together to include an 

amendment in the 1996 Telecommunications Act to prevent a further degradation of service to tribal communities. That amendment 

ensured that tribal telephone companies would continue to receive 

universal service support for the provision of local telephone service. 

I think we all know that wireless is the answer to our problems 

in the Indian Country, particularly in a reservation the size of the 

Navajo Reservation, but I think it is also very clear that we are not 

doing enough. I look forward to hearing from the witnesses today 

as to how we can address this very serious problem in our society, 

and particularly on Indian reservations, and I thank you, Mr. 

Chairman. 

[The prepared statement of Senator McCain follows:]

PREPARED STATEMENT OF HON JOHN MCCAIN, U.S. SENATOR FROM ARIZONA

Thank you, Mr. Chairman, for holding today’s joint hearing on this very important topic. In particular, I am pleased the Committee is joined by the Members of 

the Indian Affairs Committee in addressing this critical issue. 

The advent of the telephone was one of the greatest technological marvels in 

American history. Years ago, having a telephone was a luxury. Today, having basic 

telephone service is a necessity that most of us take for granted. It is critical in 

order to communicate with family, friends, business contacts, and more importantly, 

for use in times of emergency. The explosion of wireless services and the rollout of 

new and advanced telecommunications services are changing the world as we know 

it and giving Americans access to information in a way we never imagined. 

Unfortunately, many Native American communities across the United States have 

been left behind during the information age and do not have access to advanced 

telecommunications services, or even basic phone service. According to 1990 U.S. 

Census data, which is the most recent data available on telephone penetration on 

3

tribal lands, only 47 percent of tribal households had telephone service. In Arizona, 

these statistics are even more staggering. For example, the 1990 Census found the 

telephone penetration rate on the Gila River Indian Community to be 22 percent. 

According to the Navajo Nation, they have a penetration rate of 24 percent. 

These are sad—and frankly unacceptable— statistics, especially at a time when 

the world is in the midst of a telecommunications revolution. As the information age 

progresses, no segment of the American community should be left behind. 

In 1997, Chairman Inouye and I worked together to include an amendment in the 

1996 Telecommunications Act to prevent a further degradation of service to tribal 

communities. That amendment ensured that tribal telephone companies would continue to receive universal service support for the provision of local telephone service, 

which is something that the Telecom Act had not ensured. 

Even with universal service support, however, wireline telephone service is not 

likely to become the mainstay of tribal telecommunications. Instead, wireless technologies represent the future, just as they do in many developing countries throughout the world. This is good, because wireless technologies are technically more 

versatile than many wireline telephone systems and cheaper and quicker to construct. 

In 1998, I placed a very special phone call to Naomi Chiago, an elder of the Salt 

River Pima-Maricopa Indian Community. This was an important phone call because 

until that time, Ms. Chiago never had the opportunity to receive a phone call at her 

home. However, the deployment of a fixed wireless system allowed her to have basic 

phone service. I hope that phone calls like these become more of a reality for our 

nation’s Native American communities. 

Again, I thank the Chairman for holding this important hearing and look forward 

to hearing from today’s witnesses.

Senator CAMPBELL. Thank you, Senator McCain. In order of arrival for opening statements we will go to Senator Burns. 

STATEMENT OF HON. CONRAD BURNS,

U.S. SENATOR FROM MONTANA 

Senator BURNS. Thank you, Senator Campbell, and I appreciate 

Senator Inouye calling this hearing, especially a joint hearing. I 

will submit my statement, but I just want to paraphrase some 

things. You know, we do a good job in identifying the problem reading statistics and all of those things, but we do not do a very good 

job in following through on what Senator McCain and Senator 

Inouye did in the 1996 Telecommunications Act. 

I have 7 reservations in my State. We have moved along as well 

as could be expected in wiring our interactive systems from our 

universities, at the University of Montana and Montana State University into the colleges, into the 2-year colleges on our reservations, but the stats do not lie that we have not done a lot about 

residential or other communication challenges that we find on the 

reservation. 

And Senator McCain is exactly right, wireless is going to play a 

big role in this, because in my country, and especially in Indian 

country, we have got a lot of dirt between light bulbs, and I have 

used that old phrase so many times I am going to wear it out, but 

people are starting to understand it now. 

I think what we have to do today, and with this hearing, and 

what will surface, I think, is to identify the parameters in which 

we have to work, and also the challenges within those parameters. 

We have to peel back multiple layers of the onion to get down and 

make policy that will work in Indian Country. Some of the layers 

I believe need discussion, and they should include, how do we provide basic service to reservations when incomes are averaging less 

than $10,000 a year? It is an economic fact, and we have to deal 

4

* The information referred to was not available at the time this hearing went to press. 

with that one way or another, or those conditions, because that 

prevents us from deploying a lot of services, advanced services, 

broadband services, wireless broadband, and all of those, and I 

think it is time we look at it. 

How do we approach language barriers and the lack of interest 

in phone service? How do we overcome those cultural obstacles that 

get in our way from deploying good communications services, and 

how do we collect timely data on reservation penetration and deployment? How do we do those things? 

So we certainly have a lot of challenges ahead of us. It is important that we recall and refer back to the mandates of the work that 

Senator McCain and Senator Inouye and a lot of us that participated in the 1996 Act, where we clearly stated, and I quote, ‘‘All 

consumers in all regions of the Nation, including low-income consumers in those rural insular and high-cost areas, should have access to telecommunications and information services.’’

Now, we passed this 6 years ago, and right now our infrastructure is just not in a position where it is ready to build out, and it 

is paramount that the Tribes become more involved in the process, 

and we have their constant involvement and of course their consultation. 

A final note, Mr. Chairman. It is a pleasure to have Mike Strand 

here on the panel today. Mike is executive president and general 

counsel to the Montana Independent Telecommunications System, 

and that is a system that we and the State should be very proud 

of, and we do not talk, Mike, enough about it, but what the independents and the coops have done is to basically wire our State 

without going past customers. 

We had a big build-out of fiber, as you know, nationwide, but 

they built right past our customers. Well, this organization that 

Mike is involved with is doing a tremendous job in bringing those 

broadband services to Tribes and rural areas across Montana, and 

I think he could probably share with us today some of the challenges that they had, but also can give us an idea on how we could 

change our policy to make some things happen, and I appreciate 

him being here today, and I thank the Chairman. 

[The prepared statement of Senator Burns follows:]* 

Senator CAMPBELL. Senator Boxer. 

STATEMENT OF HON. BARBARA BOXER,

U.S. SENATOR FROM CALIFORNIA 

Senator BOXER. Thank you so much, Mr. Chairman, and I want 

to welcome everybody here, thank the leaders of both sides of the 

aisle, both Committees. 

I really think this is an issue that, as we learn about it, we can 

work across the aisle on. I mean, we have talked about the digital 

divide. Well, here it is. I mean, it is right here, and it is something 

we can do something about together, so I simply want to take 

about 2 minutes of time to welcome Sue Masten in particular, chair 

of the Yurok Tribe of Northern California. I am very proud of her. 

The Yurok Tribe is the largest Tribe in my State, and the Yurok 

Reservation is located in a rural, remote area of Northern CaliVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
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fornia. I have had the pleasure of working with Sue on a number 

of issues, and she is a terrific person, and there is no problem too 

large for her, so we just need to work with her to resolve this, and 

with all our people who are in this situation. 

The telephone was invented more than a century ago and, as 

Senator McCain said, only 47 percent of our Native Americans on 

reservations have a telephone. I think it speaks poorly of us that 

we have not paid attention to this problem. We are essentially leaving some of our Indian reservations stranded in the 19th Century, 

Mr. Chairman, and I do want to work with all of you to change 

that. 

You know what is amazing is, the Yuroks are 360 miles from Silicon Valley. When you think about that, 360 miles from Silicon Valley, and yet they are on the wrong end of the digital divide. As Sue 

will point out, 180 households and two public schools are without 

basic telephone service. In the most basic of terms, it means that 

if a grandfather in one of those homes has a heart attack, he has 

no phone with which to call an ambulance. If a wife goes into labor, 

she cannot contact her husband for assistance, and in terms of economic development, businesses are difficult to attract because of 

the lack of phone service. That is obvious. Without phone service 

you cannot reach customers, you cannot sell things you make. It is 

just a terrible situation, so the artisans cannot sell their wares outside the reservation, or if they do, it is very cumbersome. 

It keeps the kids from being able to access all of the educational 

tools we all know about. Only 9 percent of individuals living in Native American communities nationwide have personal computers. 

Only 8 percent have access to the net. We have to do better. 

So Mr. Chairman, I am pulled to another Committee hearing, 

but that does not in any way show a lack of interest. I very much 

want to work with you. We have worked together on a lot of things, 

so please include me, because I know you and Senator Inouye and 

Senator McCain have been leaders on this, and I hope you will call 

on me to do everything I can to change this dire situation. Thank 

you. 

Senator CAMPBELL. Thank you. I think most of our witnesses recognize the conflicts all of us have. 

Senator Thomas. 

STATEMENT OF HON. CRAIG THOMAS,

U.S. SENATOR FROM WYOMING 

Senator THOMAS. Thank you, Mr. Chairman. I will file my statement, but I want to just say that coming from a State like Wyoming, why, rural as we are, I understand some of the difficulties 

that go on there, and certainly we all want to provide these kinds 

of services on the reservations. But I think we ought to talk a little 

more about what some of the basic reasons that it is not, and get 

down to the real cost. We can talk about, we want it there. Everybody does that, but we need to talk about fractionalized land, for 

example, where you cannot get rights of ways. We need to talk 

about some of the other real causes of the slowness in getting 

there, and I hope the witnesses will do that, and we will do that, 

and really get down to the roots of it. 

Thank you, sir. 

6

* The information referred to was not available at the time this hearing went to press. 

[The prepared statement of Senator Thomas follows:]* 

Senator CAMPBELL. Thank you, and Senator Inouye is with us 

now for the testimony from the witnesses. Senator. 

STATEMENT OF HON. DANIEL K. INOUYE,

U.S. SENATOR FROM HAWAII 

Chairman INOUYE. I am embarrassed to be late, but we are in 

the first cycle of the Appropriations Committee, and we have a few 

problems. 

[Laughter.] 

Chairman INOUYE. So if I may, I would like to place my statement in the record. It is a good statement. I just want to point out 

that communications are very important, and in Indian country, for 

example, in Navajo land, I think the latest study would indicate 

that less than 30 percent of the households have access to telephones, and less than 10 percent of the households have access to 

Internet. With that, I do not think we can maintain our Government-to-Government relationship in a proper fashion for the 21st 

Century. So with that, I thank you all, and may we proceed with 

our first witness, the chief of Consumer and Governmental Affairs 

Bureau of the FCC, Mr. Snowden. 

[The prepared statement of Senator Inouye follows:]

PREPARED STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII

Good morning. Today’s joint hearing, convened by both the Senate Commerce and 

the Indian Affairs committees, focuses on tribal telecommunications issues. As such, 

it gives us the opportunity not only to examine the obstacles facing Native communities in obtaining basic telephone and Internet services, but also to chart the important progress being made by many tribes over the past few years. In addition, 

we appreciate the participation of Mr. Snowden, so that we might be informed of 

the FCC’s recent efforts to fulfill its trust responsibility to federally-recognized Indian tribes and to promote the expanded availability of telephone service on tribal 

lands. 

In today’s world, access to telephone service is essential. Telephones permit parents to communicate with their children. They enable people without jobs to contact 

prospective employers. They allow individuals with health problems to seek emergency medical assistance. And finally, they help businesses serve and stay in touch 

with their customers. Similarly, while new by comparison, the Internet is fast becoming a necessary part of modern day life—not only for communication, but also 

for access to educational, medical, political, and financial information. 

Unfortunately, for too many Native Americans living on tribal lands, these essential services are not yet part of everyday life. Often, a variety of factors contribute 

to the lack of telephone and Internet service on tribal lands, including: low population density, geographical remoteness, low income, and high unemployment. 

In 1999, a Commerce department survey studying the technology infrastructure 

of Native communities found that only 39 percent of households in rural Native 

communities had basic telephone service, and that only 8 percent of rural households in Native communities had access to the Internet. These grim statistics not 

only fall well below the national average, but also provide a window to the many 

obstacles facing tribal leaders in encouraging economic development on reservation 

lands. 

In July of 1999, the Administration took a number of steps to raise awareness 

of these challenges, including President Clinton’s historic visit to the Pine Ridge Indian Reservation in South Dakota—the first visit to a tribal reservation by a sitting 

President since President Franklin Roosevelt. 

Following this historic visit, the FCC initiated a number of proceedings to reaffirm its commitment in helping federal tribes to meet their communications needs. 

In June of 2000, the FCC released a Policy Statement acknowledging the sovVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
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ereignty of federally-recognized Indian tribes and reaffirming its commitment to promoting government-to-government relationships between the FCC and tribes. 

Since then, the FCC has initiated other programs designed to expand the availability of telephone service, including an expansion of Universal Service programs 

for low-income residents living on tribal lands and the creation of wireless bidding 

credits for new licensees willing to serve Native communities. 

Today, we look forward to the testimony of our witnesses to determine if these 

programs are working, whether we are collecting data sufficient to chart our 

progress, and what more can and should be done to extend the reach of telephone 

and Internet service in these areas. As such, we look forward to constructive criticism and new ideas as to how the federal government and the FCC might better 

encourage the spread of telecommunications services on tribal lands and might better meet its responsibilities to tribal governments. 

One item of particular concern is the current process by which competitive telephone carriers apply for eligible telecommunications carrier’’ or ‘‘ETC’’ designations 

that are a prerequisite for the receipt of certain universal service subsidies. Under 

the current process, carriers seeking an ETC designation for service provided on 

tribal lands may apply to the FCC only in cases where the carrier would not be subject to state jurisdiction. Unfortunately, this deference can lead to undue delay as 

such carriers may face the burden of establishing the proper forum for their application before there is any consideration on the merits of its request. Given the Federal 

government’s trust relationship with federally-recognized Indian tribes, I believe 

that we have an obligation to review these and any procedures that might slow the 

roll-out of telecommunications services to underserved tribal communities. 

Accordingly, I look forward to the testimony of the witnesses and to the questions 

and comments of my colleagues here today. Let me now yield, to my colleague the 

ranking member of the Commerce committee and former Chairman of the Indian 

Affairs committee, Senator McCain.

STATEMENT OF K. DANE SNOWDEN, CHIEF,

CONSUMER & GOVERNMENTAL AFFAIRS BUREAU, FEDERAL 

COMMUNICATIONS COMMISSION 

Mr. SNOWDEN. Good morning, Mr. Chairman and Members of the 

Committee. My name is Dane Snowden. I am the chief of the Consumer & Governmental Affairs Bureau at the Federal Communications Commission. I appreciate this opportunity to appear before 

you today to discuss tribal telecommunications issues. 

On March 25, 2002, the FCC formally completed its reorganization and formed the Consumer & Governmental Affairs Bureau. 

The bureau serves as the agency’s primary liaison with other Federal agencies and Tribal, State, and local governments. It implements the commission’s consumer-related policy, it responds to consumer inquiries and resolves informal complaints, and finally, it 

engages in outreach and education initiatives intended to inform 

consumers about important telecommunications issues and initiatives. 

As Senator Burns just stated, Congress articulated a national 

goal that consumers in all regions of the Nation, including low-income consumers and those in rural, insular, and high cost areas, 

should have access to telecommunications and information services. 

Two years ago this June, the FCC took steps consistent with this 

goal to address historically lower than average telephone penetration rates on tribal lands. The commission concluded two comprehensive rulemakings that resulted in measures to promote telecommunications subscribership and infrastructure deployment 

within American Indian and Alaskan Native tribal communities. 

In the first of these orders, the commission amended its universal service rules to provide additional targeted support under 

the universal service low income programs. These Lifeline and Link 

8

Up programs help consumers pay for monthly service and installation, and create financial incentives for carriers to serve and deploy 

facilities in areas that may have previously been regarded as high 

risk and unprofitable. The commission’s amendments included up to $25 per month in 

additional Federal Lifeline assistance on tribal lands. The enhanced Lifeline support program brings basic monthly rates on 

tribal lands down to $1 per month in most cases, while the Link 

Up program helps defray up to $100 of service initiation costs on 

tribal lands. 

In adopting these enhanced low income programs for residents of 

tribal lands, the commission also recognized that many consumers 

in rural and low income communities did not know about the Lifeline and Link Up programs, so the commission required telecommunications carriers that participate in the programs to publicize the availability to Lifeline and Link Up. 

In June 2000, the commission also adopted a policy statement in 

response to the request of Indian leaders for a statement of policy 

reaffirming its recognition of tribal sovereignty and the special 

trust relationship existing between the Federal Government and 

federally recognized Tribes. Among other things, the FCC committed to endeavor to work with Indian Tribes on a Government 

to Government basis consistent with principles of tribal self-governance to ensure that Indian Tribes have adequate access to communications services. 

Although the commission’s efforts are less than 2 years old, these 

actions appear to have accomplished a number of key goals. For example, more consumers have been made aware of the enhanced 

Lifeline and Link-Up programs and, as a result, more people are 

getting affordable telephone service on tribal lands. Since first implemented in the last quarter of 2000, enhanced Lifeline 

subscribership has increased by approximately 177 percent nationwide. 

Increased access to basic telecom services can mean greater prosperity, both economic and otherwise, for all. Conversely, the absence of basic telephone service within the home places its occupants at a disadvantage with respect to seeking employment and 

contacting emergency personnel, for example. The commission believes that with greater awareness of the tools and resources available to increase telecommunications access, tribal nations will be 

better able to help connect their members to much-needed telecommunications services both as consumers and, for some, as providers of those services. 

The commission is committed to bringing this knowledge to Indian Country through a variety of means. Currently, the commission provides information to tribal communities about enhanced 

Lifeline and Link Up and other matters related to telecommunications services through meetings with tribal representatives, its 

Web site, and its toll-free consumer centers. 

In addition, this June the commission is launching a national 

outreach program called Get Connected, Afford a Phone, which 

seeks to inform consumers on nontribal and tribal lands about the 

availability of the Lifeline and Link-Up programs. As part of this 

initiative, we will contact each of the more than 550 federally recVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
9

ognized Tribes and various Tribal Associations. We will also coordinate with those Federal agencies providing services on tribal lands, 

and provide information and guidance on how to take advantage of 

these programs. In addition, the bureau will continue to endeavor 

to work closely with your respective Committees in these efforts. 

The FCC remains committed to advancing the goals of improving 

the quality of life in Native American communities through improved telecommunications access. Rather than a single annual 

outreach event, the commission will focus on a series of interactive 

workshops among Tribes, Federal Government agencies, and the 

communications industry. Our new approach will be called the Indian Telecommunications Initiative, or ITI, and it will acknowledge 

that different Tribes are in different stages of economic development and face different impediments to telecommunications deployment. 

The goal of ITI is to encourage partnerships among Tribes, Federal agencies and industry to improve telecommunications access in 

Indian communities, and to do so in a manner that may permit the 

commission to target those communities where the need is most 

pronounced. 

Finally, with the formation of the Consumer & Governmental Affairs Bureau, the commission will formalize meetings between 

Tribes and commission staff to provide a forum and a single point 

of entry for individual tribes to explore the various tools and resources available to them. Ultimately, our goal is to engage more 

direct input from Indian Country to decide how to move forward in 

bringing telecommunications access to Native American communities. 

Working collaboratively with other Federal agencies, rather than 

in isolation, the commission believes it can be more effective in improving the overall quality of life for residents of Indian Country 

through telecommunications development. By casting a broad net 

and seeking input, coupled with a targeted approach, the commission increases the chances of finding workable solutions that can 

be adapted to meet the telecommunications needs of Native American communities. 

I thank you, and I look forward to any questions. 

[The prepared statement of Mr. Snowden follows:]

PREPARED STATEMENT OF K. DANE SNOWDEN, CHIEF, CONSUMER & GOVERNMENTAL

AFFAIRS BUREAU, FEDERAL COMMUNICATIONS COMMISSION

I. Introduction 

Good morning, Mr. Chairman and Members of the Committees. My name is K. 

Dane Snowden, and I am the Chief of the Consumer & Governmental Affairs Bureau at the Federal Communications Commission. I appreciate this opportunity to 

appear before you today to discuss tribal telecommunications issues. 

On March 25, 2002, the FCC formally completed its reorganization. As part of 

that reorganization, the Consumer & Governmental Affairs Bureau was formed. The 

Bureau serves as the agency’s primary liaison with other Federal agencies and tribal, state and local governments. It implements the Commission’s consumer-related 

policy through rulemakings that address issues such as slamming and cramming. 

It responds to consumer inquiries and resolves informal complaints. And finally, it 

engages in outreach and education initiatives intended to inform consumers about 

important telecommunications issues and initiatives. 

As part of its intergovernmental affairs functions, the Bureau has primary responsibility within the agency for establishing and developing relationships with Federally-recognized American Indian tribes. The Bureau works closely with the CommisVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
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sion’s other bureaus and offices to address telecommunications issues of concern to 

the tribes. 

II. Background 

The Telecommunications Act of 1996 codified the Commission’s historical commitment to promote universal service to ensure that all Americans have access to affordable, quality telecommunications services. Congress articulated a national goal 

that ‘‘consumers in all regions of the Nation, including low-income consumers and 

those in rural, insular, and high-cost areas, should have access to telecommunications and information services.’’ Those living in American Indian and Alaskan Native tribal communities are included. 

Two years ago this June, the FCC took steps consistent with this goal to address 

historically lower-than-average telephone penetration rates on tribal lands. The 

Commission concluded two comprehensive rulemakings that resulted in measures to 

promote telecommunications subscribership and infrastructure deployment within 

American Indian and Alaskan Native tribal communities. In the first of these Orders, the Commission amended its universal service rules to provide additional, targeted support under the universal service low-income programs, the so-called Lifeline and Link-Up programs, to help consumers pay for monthly service and installation and create financial incentives for carriers eligible to receive universal service 

support to serve and deploy facilities in areas that may previously been regarded 

as high-risk and unprofitable. 

Lifeline allows eligible consumers to save money on their basic monthly telephone 

service fee. The Commission’s amendments included up to $25.00 per month in additional Federal Lifeline Assistance on tribal lands. This Enhanced Lifeline support 

brings basic monthly rates on tribal lands down to $1 per month in most cases. In 

comparison, for consumers living on non-tribal lands, the discount is up to $8.50 per 

month, depending on the state of residence. Link-Up offsets initial connection 

charges and line extension costs associated with the initiation of service. Link-Up 

helps defray up to $100 of such costs on tribal lands, and up to $30 on non-tribal 

lands. For more information about these programs see http://www.fcc.gov/cgb/

consumerfacts/lowincome.html.

In addition to implementing these amendments, the Commission broadened the 

consumer qualification criteria for low-income consumers on tribal lands to include 

income-dependent eligibility criteria employed in means-tested programs in which 

Native Americans may be more likely to participate. These include Bureau of Indian 

Affairs general assistance, Tribally Administered Temporary Assistance for Needy 

Families (or TTANF), Head Start or the National School Lunch Program. 

In adopting these ‘‘Enhanced’’ low-income programs for residents of tribal lands, 

the Commission also recognized that many consumers in rural and low-income communities did not know about the Lifeline and Link-Up programs. So, the Commission required telecommunications carriers that participate in the programs to publicize the availability of Lifeline and Link-Up to reach those likely to qualify for 

them. 

Finally, in this Order, the Commission established a framework designed to 

streamline the process for eligibility designation of carriers providing service on tribal lands. With such designation, carriers are eligible to receive universal service 

support. Under this framework, a carrier seeking an eligibility designation for the 

provision of service on tribal lands may petition the Commission for such designation. 

In a companion Order, the Commission established bidding credits for use by winning bidders in spectrum auctions who pledge to deploy facilities and provide service 

within three years to Federally-recognized tribal areas that have a telephone penetration rate at or below 70 percent. A winning bidder may receive a $300,000 credit 

for up to the first 200 square miles of qualifying tribal lands within its license area. 

Finally, in June 2000, the Commission adopted a Policy Statement in response to 

the requests of Indian leaders for a statement of policy reaffirming its recognition 

of tribal sovereignty and the special trust relationship existing between the Federal 

government and Federally-recognized tribes. In this statement of policy, the FCC 

committed to, among other things, endeavor to work with Indian tribes on a government-to-government basis consistent with principles of tribal self-governance to ensure, through its regulations and policy initiatives and consistent with the Communications Act, that Indian tribes have adequate access to communications services. 

These steps represented the culmination of an examination of the issues involved 

in providing access to telephone service for Native Americans living on reservations. 

This examination included, in part, meetings here in Washington involving Commission staff, representatives from other Federal agencies, and Indian tribal leaders, 

as well as field hearings in Albuquerque, New Mexico and Chandler, Arizona. 

11

Today, the telephone penetration rate for tribal lands remains well below the nationwide rate of 95 percent. Although there is promising news for some tribes, looking more closely, we observe that certain tribes enjoy penetration rates approaching 

the national average; for others, the penetration rate continues to remain far below. 

For example, Mescalero Apache Telecom, a tribally-owned carrier which serves the 

Mescalero Apache Reservation in New Mexico recently celebrated its first anniversary and announced that it has more than doubled subscribership on the reservation 

from 650 to 1,449 customers. In contrast, last month I met with representatives of 

the Yurok Tribe of Eureka, California, who told me that basic phone service is not 

widely available to its members. 

Although the Commission’s efforts are less than two years old, these actions appear to have accomplished a number of key goals. For example, more people have 

been made aware of the Enhanced Lifeline and Link-Up programs, and, as a result, 

more people are getting affordable telephone service on tribal lands. Since first implemented in the last quarter of 2000, Enhanced Lifeline subscribership has increased by approximately 177 percent nationwide. 

Because more consumers can afford service as a result of these programs, tribal 

communities have become more inviting to existing telecommunications carriers 

and, in some cases, even new carriers or providers. For example, Western Wireless 

and Smith Bagley, two wireless providers, have commenced serving Federally-recognized reservations in South Dakota, Arizona and New Mexico. 

III. Targeted Indian Country Outreach 

Increased access to basic telecommunications services can mean greater prosperity—both economic and otherwise—for all. Conversely, the absence of basic telephone service within the home places its occupants at a disadvantage with respect 

to seeking employment and contacting police, fire departments, and medical providers in an emergency, for example. Basic telecommunications services may also 

provide access to more advanced services. Voice telephone is currently the most common means of household access to the Internet, and the same copper loop used to 

provide ordinary voice telephone may be used for broadband services. 

The Commission believes that with greater awareness of the tools and resources 

available to help increase telecommunications access, tribal nations will be better 

able to help connect their members to much-needed telecommunications services, 

both as consumers and, for some, as providers of those services. The Commission 

is committed to bringing this knowledge to Indian Country through a variety of 

means. 

Currently, the Commission provides information about Enhanced Lifeline and 

Link-Up and other matters related to telecommunications services on tribal lands 

on its Internet site. http://www.fcc.gov/indians. Additionally, consumers may call 

the Commission’s Consumer Center toll-free at 888–CALL–FCC and talk with an 

FCC customer representative to learn more about these matters. 

In June 2002, the Commission is launching a national outreach program called, 

‘‘Get Connected: Afford-A-Phone,’’ which seeks to inform those otherwise eligible of 

the availability of the Lifeline and LinkUp programs. As part of this initiative, the 

Consumer & Governmental Affairs Bureau will contact each of the more than 550 

Federally-recognized tribes. In addition, the Bureau has identified to date 25 tribal 

associations that will also be contacted. The Consumer & Governmental Affairs Bureau will also coordinate with those Federal agencies providing services on tribal 

lands and provide individuals easy-to-understand information and guidance on how 

to take advantage of these programs. Finally, the Bureau will continue to endeavor 

to work closely with your respective committees in these efforts. 

One of the Commission’s key outreach efforts in Indian Country is hosting educational conferences on increasing access to telecommunications services. 

One of these conferences is the Indian Telecom Training Initiative (ITTI). The 

FCC postponed ITTI 2001 in the wake of the September 11, 2001 terrorist attacks 

and rescheduled it for September 2002. However, because of decreased advance registrations and acknowledgement of the first anniversary of the tragedy of September 

11, the Commission decided, in consultation with our conference co-sponsor, the National Exchange Carrier Association (NECA), to cancel ITTI 2002. 

The FCC remains committed to advancing the goal of improving the quality of life 

in Native American communities through improved telecommunications access. 

The Commission will shift its focus from a single annual event to a series of interactive workshops among tribes, Federal government agencies and the communications industry to address telecommunications issues facing Indian Country. Our new 

approach will be called the Indian Telecommunications Initiative (ITI). It acknowledges that different tribes are in different stages of economic development, particuVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
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larly where telecommunications access is concerned, and recognizes that different 

tribes face different impediments to telecommunications deployment. 

The goal of ITI is to encourage partnerships among tribes, Federal agencies, and 

industry to improve telecommunications access in Indian communities and to do so 

in a manner that may permit the Commission to target those communities where 

the need is most pronounced. 

Finally, in addition to these targeted Commission initiatives, from time to time, 

tribal representatives meet with FCC staff to obtain information about our various 

telecommunications programs. With the formation of the Consumer & Governmental 

Affairs Bureau, the Commission will formalize these meetings between tribes and 

Commission staff to provide a forum for individual tribes to explore the various tools 

and resources available to them consistent with the government-to-government relationship acknowledged in the Commission’s Policy Statement. 

IV. Conclusion 

Given the Commission’s continuing commitment to increasing telecommunications 

access in Indian Country, we want to engage in dialogue with tribes, industry, and 

other Federal agencies as well as the states to decide how best to achieve our mutual goal. 

Then, working with tribes and other interested parties, the Commission can further develop an outreach plan to address those needs on a more targeted level. Ultimately, our goal is to engage more direct input from Indian Country to decide how 

to move forward in bringing telecommunications access to Native American communities. 

The Commission proposes to seek the input of other Federal agencies, especially 

those that are charged with issues like education, health care, housing and employment to draw on their expertise, as access to basic telecommunications services is 

key to each of these areas. 

The Commission further proposes to seek the input of the telecommunications industry, so that the potential of all technologies: wireless, wireline, cable and satellite 

can be explored. 

Working collaboratively with other Federal agencies, rather than in isolation, the 

Commission believes it can be more effective in improving the overall quality of life 

for residents of Indian Country through telecommunications development. 

By casting a broad net in seeking input, coupled with a targeted approach, the 

Commission increases the chances of finding workable solutions that can be adapted 

to meet the telecommunications needs of Native American communities. 

I look forward to answering any questions you have.

Chairman INOUYE. Thank you very much, Mr. Snowden, and now 

may I call upon the chairperson of the Yurok Tribe of California, 

Ms. Masten. 

STATEMENT OF SUE MASTEN, CHAIRPERSON, YUROK TRIBE 

Ms. MASTEN. Good morning, Chairman Inouye, Vice Chairman 

Ben Nighthorse Campbell, and Committee members. It is a privilege and honor for me to be able to participate in a subject so dear 

to my heart as access to telephones and the Internet. I have the 

distinct honor of serving as the chairperson of the Yurok Tribe, 

which, as you heard from Senator Boxer, is the largest Tribe in 

California. We have 4,500 plus members. 

We are located on the beautiful wild and scenic Klamath River 

in two of the northernmost counties in California, on the coast, Del 

Norte and Humboldt. We are in the heart of the redwoods. It truly 

is God’s country, and when the Creator came to Yurok country he 

promised that the Yurok people would not want for anything, and 

before the early 19th Century we were self-sufficient and affluent. 

However, that is not the case today. We had aboriginal territory 

that spanned over 400,000 acres. Currently our reservation at least 

is located within our homelands, and is approximately 55,000 

acres. Unfortunately, because we had a wealth of redwood trees 

and in those days they said you could walk across the backs of the 

13

salmon, we were hit hard with those things that hit Indian Country. You sell your land, oh, you have timber, your land went too. 

All those things that occurred everywhere else happened to us because we were wealthy in resources, so today, of a 55,000-acre reservation, only 3,000 acres are held in trust for the Yurok Tribe. So 

I do want to talk a little bit about the rural area, because we are 

in a river gorge one mile either side of the Klamath River, extremely rural; our communities upriver are at least 2 hours from 

any emergency services, and two-thirds of the reservation is without power or telephones. We have approximately, as the Senator 

indicated, 180 homes that are Upper Reservation, two elementary 

schools, a Head Start facility, a governmental facility, and several 

small businesses located on the Upper Reservation, all without 

telephone services. 

We have been a Tribe that has always been federally recognized. 

However, we were not organized until 1993, when we adopted our 

constitution and elected our Government as we see it today. However, we have been extremely concerned about being able to provide telephone services to our community, and have been actively 

engaged in looking for ways to bring electricity and telephones to 

our Upper Reservation. 

I think it is a shame that today, in this land of prosperity, and 

also in this land of opportunity, that there would be communities 

that would be without basic telephone services and without electricity. It is not okay that our children are growing up and will be 

disadvantaged, will not have the same opportunities, but will have 

the same expectations in the educational system and in the employment field that they know how to use the Internet, and that 

they know how to use computers. It is not surprising that they are 

not being able to be successful or competitive in the job market or 

in the educational system. Nor can we expect that our businesses 

will be competitive in the marketplace without having access to 

telephones or to the Internet to market their products. And without 

basic roads, telephone and electricity, it is difficult and impossible 

to attract businesses to the reservation, so it should not come as 

a surprise that we have an unemployment rate that is at 70 percent-plus, or that our poverty rate is at 90 percent-plus, and it is 

not likely that is going to improve without having those basic infrastructures in place. 

I think you heard from the Senator when she talked about, we 

take for granted in our daily lives that we can call 911 if our mother or our father had a heart attack, or if a child was being born, 

or if someone falls or someone is drowning in the river. We take 

advantage of the fact that someone will be there within minutes. 

On our Upper Reservation, someone is not there for 21⁄2 hours. If 

you are fortunate enough to get to a telephone to reach someone 

to come, you are 2 hours away from the telephone, and although 

some residents have radio telephones, they do not work if there is 

any fog in the area or any clouds, so if you get to a telephone it 

is unlikely that the radio phone will work to be able to provide that 

assistance to you. Emergency services being 2 hours away, it is 

likely that life-threatening situations will result in the loss of life, 

and that is not okay in this day and time, in our opinion. 

14

I think it is also important to recognize that if we are going to 

be effective in trying in our own process in trying to bring telephones to the reservation, we have searched everywhere. Because 

we do not have economic development dollars, we cannot take advantage of the low interest rate loans, because how are we going 

to pay those loans back? If we cannot leverage the million dollars 

that we have by accessing other things that help us to bring telephones and electricity, we are not going to be able to overcome 

those barriers. 

We are located in an area that is not franchised by a carrier, so 

although there are telephone services all around us, within 11 

miles of us, the area that we are located in is not a franchised area 

by a carrier, and although our people have petitioned electric companies and telephone companies throughout the last 50 years, it 

has been to no avail because it is not cost-effective for these companies to do business. They are not going to recover their investment, 

and so we have been without telephone services or electricity. 

I think that we have tried to make efforts. We have brought public safety to the area. We took advantage of the COPS grant, and 

although our offices have brought more coverage to the reservation, 

if the residents cannot call them in an emergency situation, using 

911 or any other mode, then they are compromised for being able 

to provide those additional services. And although we currently are 

building two fire stations for the Upper Reservation through a 

HEAD grant, the residents will not be able to contact the volunteer 

firemen, so the best of what we can do is not to save a home, but 

to keep the fire from spreading to other areas or other homes, 

which is unfortunate. 

We were able to in the initial stages contact the PUC in California to ask them for some assistance or recommendations for 

what we could do to try to bring telephone service to the reservation, and they suggested we contact the local carriers in the area. 

Well, at the time they told us they were not interested, but we 

learned of a possible sale that was occurring, and so we intervened 

in that sale to the PUC and asked for, because of public safety reasons, for them to intervene and to call for some provisions for 

bringing service to the reservation. And we were successful because 

of those public safety risk issues in convincing the PUC to provide 

additional provisions within that intervention that required them 

to bring telephone services to the Upper Reservation community at 

Weitchpec, which is at the most upper region in the territory, and 

to the two elementary schools in that region. 

However, due to the economic situation the sale fell through. The 

current carrier, Verizon, is in confidential discussions with us, and 

we are hopeful that they will still want to meet some of those requirements that were conditions on the sale, and we are trying to 

remain optimistic that will happen. 

I am running through here, because I am just talking to you 

about our situation, to be sure that I cover everything that I want 

to with you. 

Under medical services, we are fortunate enough to have a medical clinic in our Weitchpec Office. However, in order for them to 

provide the service, and for their staff to be there and to man that 

facility, they require that a doctor be present, unless you can access 

15

a doctor by telephone. We do not have telephones, and so unfortunately the clinic is only able to operate when the doctor can be 

present, which is only twice a month, as opposed to every day of 

the week, so our people are left without that service, and the nearest hospital is 2 hours away in the Hoopa Valley. 

And as I mentioned, with economic development, with the additional burden of not having the basic infrastructure, it only allows 

for us to have very limited activities that occur on the reservation, 

and that is not going to provide for economic stability to those communities, and unless we do something to encourage that basic infrastructure development, it is not likely that the unemployment 

rate or the poverty level will improve for the Yurok Tribe. 

Under housing, we do have a wonderful housing authority, wanting to encourage tribal members to move back to the reservation. 

It is difficult to build homes if you do not have electricity, roads, 

and power lines to be able to encourage people to want to live in 

the Upper Reservation Area. It is a hard way of life to live. To not 

be able to go to the refrigerator to get something cold, or not to be 

able to wash your clothes, or to be able to call someone is a hard 

way to live in today’s time. Or to expect that your children are 

going to do their homework by a lantern is difficult to conceive in 

this day and time. 

I would like to just end by talking a little bit about what are the 

kinds of things that you can do to change the situation, and as you 

can see, we are caught, and most Tribes are caught in a Catch-22 

situation. We do not have the money to develop the basic infrastructure, and these are not going to change unless that occurs. 

We ask that you look at ways to provide for capital, that you look 

at ways to provide for additional incentives, tax credits, so that 

people will want to partner up with the Tribes to bring this muchneeded service to the reservations. We ask that with the Lifeline 

project, that you encourage the local carriers to partner up with the 

Tribes to get the word out. We are trying to reach those who need 

it the most, and yet they are not aware that it is available to them, 

so I ask that you encourage them to do that. 

Ask that the FCC put some teeth into the recommendations to 

provide service to reservations so that there is additional incentive 

there. We would ask that you look at ways to provide technical assistance. We were at a disadvantage for negotiating with the carrier, as well as for looking at what technology would best meet our 

needs, and so I ask that you look at ways to provide for technical 

assistance to Tribes as they look at how they bring telecommunications or access to the Internet to the reservation. 

I would like to also ask that you update and improve the data 

that is available on telecommunications and access to the Internet 

in Indian Country, and that you have someone who is responsible 

to oversee that, and someone who is in charge of disseminating information to Congress, the agencies, and the Tribes. And in conclusion, I would just like to say no matter what label you put on it, 

there still exists a major gap between the technology haves and the 

have-nots in this Nation for much of Indian country and, in particular, the Yurok Tribe, where the gap does not refer to the difference between having a T–1 line or a dialup modem, but it refers 

to having a dial tone in your home. 

16

As you may recall, I was recently the president of NCAI, and as 

such I took it upon myself to develop a policy initiative in the Committee to take a look at the digital divide, which resulted in the 

publication of ‘‘Connected Indian Country: A Tribally Driven Telecommunications Policy.’’ I ask that you consider the tribal-driven 

recommendations in that, and to seriously give weight to that. 

In conclusion, no one today in America should be without telephones, electricity, and I trust that you will not allow for Indian 

Country to continue to be left out in this technology world. 

Thank you. 

[The prepared statement of Ms. Masten follows:]

PREPARED STATEMENT OF SUE MASTEN, CHAIRPERSON, YUROK TRIBE

Mr. Chairman, members of both committees, I am Susan Masten, Chairwoman of 

the Yurok Tribe. I am grateful for the opportunity to testify today of this matter 

of great significance to our tribe—the lack of telecommunications services on a significant part of our Homelands.

BACKGROUND. The Yurok Tribe, with about 4,300 members, is the largest federally recognized Tribe in California. The Yurok Reservation spans Humboldt and 

Del Norte Counties and is one of the most rural and isolated areas in Northern California. The Reservation contains approximately 55,000 acres, of which only 3,000 

are owned in tribal trust status. The reservation is one mile on each side of the 

Klamath River from its confluence with the Trinity River, and stretching approximately 50 miles northwest to the Pacific Ocean. The Klamath River is federally designated as a wild and scenic river. Sadly it also has been recently designated as seriously environmentally threatened. Most of the Reservation is a river gorge. 

The current Yurok Reservation is small portion of our aboriginal territories, which 

once included significant portions of the Hoopa Valley, the Redwood National Park 

and the adjacent National Forests. The Yuroks are a fishing and timber people 

whose abundant resources had made us quite self-sufficient until the late-nineteenth century. Although we have long been a federally recognized tribe, the Yurok 

Tribe was not formally organized until 1993 when under inherent tribal sovereignty 

we adopted a Constitution, that has been recognized by the Department of the Interior, and began the council form of government that I represent today. Also today, 

we reside on a Reservation, that thankfully is within the places we have been since 

time immemorial, it is, however, a place without basic infra-structure—roads, 

bridges, electricity, and telephones. 

Due to lack of roads, the Yurok Reservation is divided into separate communities—the Upper and Lower Reservations, named for the flow of the Klamath 

River. The Lower Reservation is located along busy coastal highway, U.S. 101, 

where most basic infrastructure services are available. However, the Upper Reservation, the larger land area which contains two public schools, approximately 200 

homes, a health clinic and two community centers, lacks basic telephone service, 

power, safe roads and adequate police and fire protection. 

Consequently, the Yurok People in the Upper Reservation live in very bad conditions; conditions fairly unique in modern day America. Even though the high-tech 

Mecca of the San Francisco Bay Area is just 250 miles south of our Reservation, 

Yurok children attending the our public schools and our Head Start Center in the 

Upper Reservation do not have regular telephone service, let alone access to the 

Internet, and like President Lincoln in the early 19th century they must study by 

lantern light. It is not surprising that Yurok children often fall seriously behind 

their peers in educational opportunities. 

There is almost no economic opportunity on the Upper Reservation. The unemployment rate in the Upper Reservation exceeds 70 percent and the poverty level 

is over 90 percent. Although it our homeland, due to the conditions that I have 

briefly described, Yurok people are often forced to leave the Reservation to seek employment elsewhere.

EXISTING TELEPHONE SERVICE. The Upper Yurok Reservation is not within the franchise territory of any telephone company and has no traditional telephone 

service. In addition, the topography of the Reservation (as noted previously, a river 

gorge), combined with its distance from existing cell towers, limits the availability 

of cellular telephone service within the Upper Reservation to only a handful of locations. Radio-telephone service, which consists of two-way radios that are trunked to 

17

the publicly switched telephone network, is available to subscribers. However, radio 

telephone service is not private (radio signals can be picked up by any other subscriber to the service as well as any police scanner), so the schools, clinic, and Tribal 

Office cannot use this system to conduct private or confidential business. Perhaps, 

more importantly, radio-telephones are significantly affected by weather and do not 

work when it is foggy or cloudy—conditions that occur on a regular basis in this 

area and therefore are unreliable. Other than radio-telephone and extremely limited 

cellular telephone service, there is no other means of modern communication for 

residents of the Upper Reservation. 

In an effort to help and protect its Members, the Yurok Tribe has worked to establish telephone service in the upper Reservation communities. In 1995, our Planning and Community Development staff members contacted the California Public 

Utilities Commission (‘‘PUC’’) to explore options for the provision of telephone service on the Upper Yurok Reservation. The PUC recommended that the Yurok Tribe 

contact providers of such service in the area. Accordingly, we contacted both local 

providers, GTE and Contel, concerning telephone service to the upper Reservation. 

Both telephone companies stated that it was not economic for them to extend service 

to the Upper Reservation. These telephone providers did however provide service to 

similar small communities in the surrounding areas. Since that time, GTE has combined with Contel and is now known as Verizon. 

Verizon continues to provide telephone service to Indian and non-Indian communities that surround the Upper Reservation but not to the upper Reservation. 

Verizon provides telephone service to the communities of Hoopa and Willow Creek 

just south of the Yurok Reservation, the community of Klamath on the Yurok Reservation to the northwest, and the community of Orleans to the north. The Yurok 

Reservation is surrounded by isolated and rural communities with identical geography and similar population densities, although not necessarily all Indian. The 

Yurok Tribe continues to encourage Verizon to establish telephone service to the 

Upper Reservation Indian communities of Weitchpec, Ke’pel, Sregon, Pecwan, and 

Wautec. 

In fall of 2000, the Yurok Tribe intervened in an application before the California 

Public Utilities Commission (CPUC) that sought the approval of a sale of Verizon 

service areas to Citizens Communications. This sale included all of the Verizon service areas around the Upper Yurok Reservation. The Yurok Tribe stated in its intervention petition that it was in the public benefit to make extension of basic telephone service to the Upper Reservation a condition of this Verizon sale. The Tribe 

successfully convinced the CPUC that the serious health and safety risks and economic disparities associated with lack of telephone service to the Upper Reservation 

would continue unmitigated without action by the CPUC. The CPUC included numerous conditions requiring the extension of service to the Upper Reservation in its 

Decision approving the sale. However, due to other factors, including recent economic uncertainties and the slowdown in the telecommunications industry, the sale 

was not consummated. 

At this time, the Yurok Tribe and Verizon are engaged in good faith and confidential discussions, which we hope, will result in at least some of the telephone service 

issues being resolved.

EFFECTS OF NO TELEPHONE SERVICE. Even though most of the areas 

surrounding the Yurok Reservation have basic telephone service, residents of the 

upper Reservation have no telephone service and no access to the Internet. Unlike 

all other locations surrounding the Yurok Reservation, children attending schools on 

the Yurok Reservation are denied access to the Internet as an information source 

and learning tool. As a result, all other children in the area, except the children enrolled in public schools on the upper Yurok Reservation, have the opportunity to develop the crucial Internet skills that will be expected of them by future employers. 

The Upper Reservation children do not have computers in their homes to assist in 

homework assignments or to help them do research on the Internet. This lack places 

them well behind other youth in many areas, including in college admission and 

seeking higher education. In addition, residents of the upper Reservation have no 

access to distance learning opportunities. Specifically,

• Approximately 180 households, a General Store, several small businesses, and 

three churches on the Yurok Reservation have no basic telephone service;

• Two public schools with approximately 90 students are without basic phone 

service or access to the Internet;

• One Head Start Center, supporting approximately 30 children and their families, is completely without phone and Internet service;

18

• Two Community Centers are without telephone service and, therefore, have no 

communications link with other Tribal offices and cannot provide badly needed 

Internet based community resources.

Public Safety. The Yurok Tribe formed a Public Safety Department in 2001. The 

direct delivery of public safety services by a Tribal department is a tremendous advancement for the Tribe. However, upper Reservation residents still do not have the 

ability to contact the police directly in the event of an emergency. The lack of telephone services compromises the ability of the Public Safety Department to protect 

the Reservation. 

Because of the distance between most of the upper Reservation communities and 

emergency first-responders (the California Department of Forestry and Fire Protection in Elk Camp near Orick and the Humboldt County Sheriffs Substation in 

Hoopa), the lack of reliable telephone service poses a significant health and safety 

risk to residents in the event of an emergency. Initial contact with a 911 operator 

is a crucial element of an emergency response. Pre-arrival 911 instructions could 

provide guidance that could allow a family member or other by-stander to stabilize 

an injured person in the two-hour plus period between the accident and the time 

emergency services arrive at an accident in the upper Yurok Reservation area. Because of the lack of a telephone utility, upper Reservation residents are not able to 

contact 911. The elderly and disabled residents do die as a result of delays in accessing emergency medical treatment. 

The Yurok Tribe has received a grant from HUD to construct two fire stations 

in the Upper Reservation. In addition, the Tribe and the residents of the Upper Reservation have combined to form the newest fire department in the nation. However, 

even with the addition of the new fire stations and a fledgling fire department, the 

lack of telephone service prevents residents from reporting fires and other emergencies. Without telephone service, the fire department is unable to provide early 

intervention in the event of a house fire, and instead must only work to prevent 

the fire from spreading to adjacent houses. 

Medical. Because there is no reliable or secure telephone service available to the 

Upper Reservation, the United Indian Health Services (UIHS) Clinic, our local tribal consortium that contracts with I.H.S. to deliver health services, located at the 

Weitchpec Community Center is unable to operate as it was intended—as a functioning health clinic staffed by medical professionals. UIHS requires that, if no doctor is present onsite, staff must be within regular contact by telephone. But, because 

there is no telephone service between the Clinic site and Weitchpec and other UIHS 

facilities, the other staff cannot effectively staff the Clinic unless a doctor is present. 

Therefore, UIHS cannot effectively provide medical services at the Clinic. Instead, 

the Clinic will only be operated approximately two days per month when a doctor 

can be present until regular telephone service is available. 

Economic Development. The unemployment rate on the Upper Reservation is 

approximately 70 percent and the poverty rate exceeds 90 percent. Although many 

residents are gifted artisans they are unable to effectively market their products because of the lack of telephone service and access to the Internet. The Yurok Tribe 

is dedicated to providing economic opportunities on the Yurok Reservation to encourage Tribal members to return to and remain on the Reservation. ‘‘Cottage industry’’ or home-based ‘‘e-commerce’’ businesses are not available to residents of the 

upper Reservation. Further, Yurok Tribal members living on the upper Reservation 

cannot take advantage of federal procurement preferences available to American Indians because the federal government requires businesses to have the ability to 

transact business via electronic commerce. 

In addition, the Yurok Tribe cannot attract businesses to locate in the upper Reservation due to the lack of telephone service. Without telephone service, only the 

most primitive economic activities are viable in the upper Reservation. Although 

these are important activities to the Yurok Tribe, they will not result in the economic development necessary to improve conditions on the Yurok Reservation. 

Housing Development. Developing new housing within the Upper Reservation 

is a priority for the Yurok Tribe and the Yurok Indian Housing Authority. Without 

basic telephone service, power, and adequate roads, and few if any nearby economic 

opportunities, it is difficult to justify constructing such housing. Further, without 

new housing construction and any promise to develop the basic building blocks of 

Upper Reservation communities, it will be impossible to encourage Tribal Members 

to return and difficult to retain those already there. The trend threatens the future 

existence of these critical Upper Reservation communities—communities that are 

closely linked to traditional Yurok life-style and culture.

ISSUES AFFECTING THE EXTENSION OF TELEPHONE SERVICE. Telephone service has not been extended to the Yurok Reservation because this portion 

19

of the Reservation was never included within the franchised area of a telephone 

company. In addition, it is very costly to build the facilities required to provide service to this area. Providers believe that there would be little financial return on the 

investment to provide telephone service. To make matters worse, the roads on the 

Upper Reservation are all single-lane and are without sufficient rights-of-way to accommodate widening to a standard roadway cross-section. The roads are so narrow, 

including a 21-mile one-lane State of California Highway (State Route 169), that the 

roads may not be able to safely handle the addition of a utility pole at the road’s 

edge. Further, there is no utility grade power available to operate the switching facilities that will be required to support telephone service at locations such as Jack 

Norton School, the Ke’pel Head Start Center, and the Judson Brown Community 

Center. 

To facilitate the construction of telephone lines to serve the Upper Reservation 

communities several things should happen in tandem. First, the Upper Reservation 

should be included within the service area of a telephone company that has the 

means and motivation to provide service. Federal and State universal or High-Cost

should be available, and perhaps increased, to make the provision of high quality 

telephone service to the Upper Reservation feasible. Further, the federal government should provide funding to support the extension of power lines as well as the 

widening of existing roads to unserved upper Reservation communities to ensure 

that reliable telephone service can be made available safely. If roadway improvements are constructed concurrently with telephone and power line installation, significant cost savings can be realized. At a minimum, power and telephone lines 

should be installed simultaneously, because the cost of installing either one at a 

later date is significantly higher. 

Thank you for this opportunity to testify.

Chairman INOUYE. Thank you very much, Ms. Masten. 

We have been advised that a vote is on right now, but before I 

call upon the next witness, may I recognize Senator Cleland. 

STATEMENT OF HON. MAX CLELAND,

U.S. SENATOR FROM GEORGIA 

Senator CLELAND. Thank you very much, Mr. Chairman. Just 

very quickly, with no objection I would like to enter my complete 

statement in the record. 

Chairman INOUYE. Without objection. 

Senator CLELAND. Ms. Masten, you make a key point here on 

overcoming the digital divide. I have some legislation in this very 

Committee to facilitate that in terms of minority-servicing institutions which would include tribal colleges and universities. I was 

shocked when we had a young man from the Navajo Nation in Arizona indicate that only 28 percent of people on his reservation had 

telephones. That was quite shocking to me, so I am very much in 

sympathy with the panelists here, Mr. Chairman, and I am glad 

you are holding the hearing. 

Thank you very much, sir. 

[The prepared statement of Senator Cleland follows:]

PREPARED STATEMENT OF HON. MAX CLELAND,

U.S. SENATOR FROM GEORGIA

I want to commend the Commerce and Indian Affairs Committees for holding this 

important hearing today. Almost three months ago, the Commerce Subcommittee on 

Science, Technology, and Space held a hearing on the so-called ‘‘Digital Divide’’ at 

America’s Minority-Serving Institutions—our Tribal Colleges and Universities, Historically Black Colleges and Universities, and Hispanic-Serving Institutions. At that 

hearing we heard compelling testimony that a distinct disparity exists in computer 

and Internet use among students in this country who are of different racial, ethnic, 

and income backgrounds. The case was made, by some, that American Indians are 

the ethnic group most likely to be caught on the wrong side of the digital divide. 

20

In fact, Richard Williams, director of the American Indian College Fund, has said, 

and I quote: ‘‘the digital divide in Indian Country is like a canyon.’’

Testifying at that February hearing was Dr. Gerald Monette, President of Turtle 

Mountain Community College in North Dakota and Chairman of the Technology 

Committee at the American Indian Higher Education Consortium. Dr. Monette 

shocked many of us in that hearing room when he stated that less than 50 percent 

of homes on Indian reservations have telephones. Less than fifty percent—less than 

half—and this is compared to 95 percent of homes nationwide. Dr. Monette gave us 

other compelling statistics at that hearing: Less than 10 percent of American Indian 

households have computers. No more than 8 percent of all American Indian homes 

have access to the Internet. Only one tribal college currently has funding for highband width connectivity, but it is not in place yet. 

The good news is that Dr. Monette also talked about efforts being taken by the 

Native American community to turn this situation around. He talked about the historic Circle of Prosperity conference called two years ago, where for the first time 

ever local, national and international stakeholders were called together to develop 

strategies to bring modern technology to remote tribal colleges and reservations. Dr. 

Monette told us about Bay Mills Community College, located in a refurbished fish 

plant in Michigan’s Upper Peninsula, which is using technology and distance learning to deliver higher education to all 11 tribes in Michigan and to people in 17 other 

states, from Florida to Alaska. He told us about a wireless technology pilot program 

at 4 tribal colleges which will eventually weave a high-speed broadband web around 

all of the 32 tribal colleges and universities as well as the reservations they serve. 

So I’m looking forward to today’s hearing. I want to hear about the digital opportunities that exist to ensure that Native American communities are fully included 

in this nation’s prosperity. I also want to hear the response of our panelists to S. 

414, legislation which I have introduced and which is cosponsored by 14 Senate colleagues, to provide up to $250 million to help Tribal Colleges and Universities, Historically Black Colleges and Universities, and Hispanic-Serving Institutions bridge 

the digital divide. Funds provided under S. 414 could be used for such activities as 

campus wiring, equipment upgrade, technology training, and hardware and software 

acquisition. Under my bill, Minority-Serving Institutions could compete for funds regardless of where they are on the ‘‘technology spectrum.’’ The language would allow 

funding, regardless of whether the college is seeking basic connectivity or upgrading 

an existing system to dramatically increase its connectivity speed rate. Again, I 

commend the chairmen of these two committees for calling today’s hearing. I want 

to hear our panelists’ recommendations on how we can meet the challenge which 

Dr. Monette posed to the Commerce Committee three months ago—the challenge of 

‘‘building a bridge of technological opportunity across our vast nation.’’

Chairman INOUYE. Thank you very much. 

I will recognize Ms. Warren Edelman. She represents S.M.E., 

president and former Senior Policy Advisor to the Secretary of 

Commerce for Native American Affairs. Ms. Warren Edelman. 

STATEMENT OF MARCIA WARREN EDELMAN, PRESIDENT, 

S.M.E. LLC AND FORMER SENIOR POLICY ADVISOR TO THE 

SECRETARY OF COMMERCE FOR NATIVE AMERICAN

AFFAIRS 

Ms. WARREN-EDELMAN. Good morning, Mr. Chairman and Members of the Committee. Thank you very much for inviting me to testify today on this very relevant and urgent issue. 

Chairman INOUYE. Ms. Warren——

Ms. WARREN-EDELMAN. Yes. 

Chairman INOUYE. Could you bring your microphone closer? 

Ms. WARREN-EDELMAN. Thank you. Is that better? 

Again, thank you for inviting me to testify this morning. I am 

pleased to come before the Committee today to provide a broad perspective on telecommunications access in Indian Country. I come to 

this hearing with my background at the Department of Commerce, 

where I did work on issues relating to closing the digital divide in 

Indian Country, as well as the coauthor of a report published by 

21

the Benton Foundation in 1999 entitled, Native Networking, Telecommunications and Information Technology in Indian Country. 

I would like to relate a little bit of my experience when I first 

did that report. I started to do the research for that for a telecommunications company I was employed by. They needed a market assessment on telecommunications in Indian Country, and I 

started out doing the research assuming that there would be data, 

and that there would be plenty of information for me to put together such a report. To my great surprise, there was none. 

The only report that was in existence at that time was the Office 

of Technology Assessment Report from 1995, which provided what 

little information we had on tribal communities and their efforts to 

access basic telephone service, the Internet, and other telecommunications services and products in order to provide for cultural preservation, health, and education needs. 

Since that time, we have been fortunate to have not only the 

Benton Foundation report but also two reports, both from the Department of Commerce, released in 1999, one from the National 

Telecommunications and Information Administration, and also the 

other one from the Economic Development Administration, which 

focused on this issue. However, information since that time has not 

been forthcoming, has not been updated nor accurate. 

I believe that this particular situation in Indian country again is 

urgent, it is severe, we have heard many personal experiences related today, I have heard them over the past few years. I think 

from what I have heard, and the little bit of data that we have 

been able to gather, we can point to three particular areas of need 

that can be addressed in either current proposed legislation or Federal programs that are already in existence, and some that may 

need our support. 

I would say three issues, lack of current and accurate information, which you have already heard quite a bit about today, lack 

of ongoing coordination of resources is another major need area, 

and the third one, lack of investment capital and technical assistance. All three contribute to the environment that we see today. 

As I mentioned before, we did have three reports coming out in 

1999. Nothing new has come through, except for the report that 

holds policy recommendations from NCAI, and I concur with Chairwoman Masten to look at those results and really take into consideration those recommendations, but in terms of baseline data what 

we are looking for is more than just policy recommendations. We 

are looking for baseline information that measures not only telephone access, but also existing tower locations. 

I remember one conversation I had with a woman from the Navajo Nation trying to find what existing towers existed on their tribal lands, and there was no data that she could find to that effect, 

and that was months and months of looking for that, and that was 

unacceptable. 

Secondly, the type of technology currently utilized or might best 

be utilized, either wireless, versus satellite, versus whatever technology is out there, that should be examined closely. And Internet 

access, which is quite important. Any new studies must also take 

into consideration the differences in Indian Country, and I am talking about large, land-based Tribes versus Tribes that are close to 

22

urban locations that might have easier access to some of those 

services. 

We all talk about how each Tribe has very specific and varying 

degrees of connectivity. That should be taken into consideration 

with any studies that occur. 

The results of such studies would not only provide, I think, Federal agencies and also Congress with the data that is needed to 

fully support any legislation or programs in place, but also would 

provide Tribes with the means to justify business cases, which 

would increase either investment from the outside into these communities, or in their own ability to create infrastructure to be able 

to get loans, to be able to get the means in order to create the infrastructure that is so badly needed. 

The second point I was making, lack of ongoing coordination of 

resources, I have to commend all the organizations, both Native, 

Federal, private foundations, all of those that have been involved 

over the past, I would say 7 to 10 years, in really, looking at the 

digital divide if you want to call it that, or the gap in technology 

access. But all these efforts have been not well coordinated in 

terms of getting actual connections between Tribes, the foundations, the businesses, the Federal programs that can really come 

together to put together comprehensive efforts that would meet this 

need. 

Tribes cannot be expected to do this alone. The cost of infrastructure, especially telecommunications infrastructure, is high, and it 

is ongoing. This is not a field where it is going to end within 2 

years in terms of costs. These are ongoing costs that Tribes need 

to consider. 

I would support, and I would encourage the Committees to consider supporting the creation, like Chairman Masten was saying, of 

either an individual program or such organization, and I would 

have to say probably outside the Federal sphere, to coordinate 

these resources, information, also provide research, any kind of 

analysis and coordination that is possible to help Tribes and the 

businesses and the foundations and the programs that are interested in helping them come together effectively. 

The third area, lack of investment capital and technical assistance, as I said before, telecommunications equipment, products, 

and services are an expensive business. It requires money. Tribes 

cannot do it all alone. From my experience at the Department of 

Commerce, I could point you towards the direction of some programs that were highly effective. The first one would be the technology opportunities program. Since 1994, it has funded over 18 

tribal projects that are serving as models within Indian Country. 

In fiscal year 2001, the program provided $4.2 million to tribal 

communities throughout the Nation, a record amount. I would 

highly support this program as being effective and being innovative 

in how it helps Tribes form partnerships on the ground, is responsive to a grassroots-level planning process that results in, I believe, 

long-term successes in Indian Country. 

Also within the National Telecommunications and Information 

Administration is the public telecommunications facility program, 

which funded the American Indian Higher Education Consortium 

23

satellite-based distance learning network which serves 31 tribal 

colleges today. 

As part of the Department of Commerce over the past 3 years, 

I was very proud of this program. However, there is still a need, 

even though the tribal colleges are connected through the satellite 

distance learning network, again we are talking about the last mile 

technology. For those people that cannot get to the tribal colleges 

there is nothing in between the tribal college and either home or 

community centers or offices of some sort. And I am talking about 

another kind of technology that can bridge that gap, that can bring 

the educational benefits of those tribal colleges being linked together to them. I would encourage the Committees to take a look 

at that particular issue. 

The Department of Agriculture’s rural utility service has provided loans to five tribal entities to create tribal telephone companies, again a very important factor in closing the gap in tribal communities, and the Economic Development Corporation again under 

Department of Commerce has provided much-needed funding for 

planning for these Tribes in order to incorporate technology and 

telecommunications into the economic development plans. 

Again, as I have mentioned, a number of private foundations 

have worked with Tribes in order to close this gap. I would refer 

you to a Web site, www.digitaldivide.com, for more information on 

these joint partnerships and programs. However, the fact remains 

that Tribes need access to capital, really need access to capital. 

Funding from Federal programs is very much needed, but I would 

stay focused in the area not only in building up infrastructure, but 

planning. Planning is essential. There is not enough money for 

planning out there, period. From planning and needs assessments, 

each Tribe can then take a look at where capital should be funneled towards in terms of technical assistance, development of last 

mile telecommunications systems, equipment purchase and maintenance, pilot programs and projects which are again essential in 

terms of bringing new technologies out to Indian lands, and actually seeing if they work, and also seed capital for telecommunications and information technology business development. 

I would also encourage that the Federal Communications Commission continue to maintain an active and ongoing relationship 

with Tribes. I am encouraged to hear that the Indian Telecom 

Training Initiative has not disappeared along with the annual conference, which I do have to say, the first one was quite successful 

and was the only conference to date that I know that was able to 

bring together over 500 representatives from Indian Country to 

speak about this one issue. I was happy to actually be part of that. 

It was a fantastic conference. 

I think FCC really does need to take a look at any existing regulatory barriers and really focus on supporting in-house their tribal 

liaison. Whoever that person may be really needs to have the support of the FCC fully and be able to provide the best information 

to the Tribes as they need it, and really keep that level of responsiveness immediate and ongoing. 

Lastly, I believe a vehicle must be created to encourage outside 

investment in our tribal communities, either through loan funds, 

investments, joint partnerships. One source of capital is not 

24

enough, never enough to address this issue, especially in the consideration of the importance of the long-term nature of telecommunications access. 

In conclusion, I would like to commend both Committees for addressing this issue. We have been talking about it for many, many 

years, both on the Federal side, Congressional side, and Indian 

Country. I cannot emphasize enough that the talking needs to stop, 

and action needs to happen now. We are falling way behind. Economic development needs to happen for our communities. It cannot 

happen without infrastructure, and Tribes need to have all barriers 

removed toward achieving that end, and all the support we can 

give in order to do that. 

As a member of Santa Clara Pueblo in New Mexico, this hits 

home for me, and as a person that has worked with fantastic 

Tribes and very dedicated individuals in this issue, I can really say 

that I believe in this issue and I would be happy to help in any 

way possible. 

Thank you, and I look forward to answering any questions you 

may have. 

Chairman INOUYE. Thank you very much, Ms. Warren Edelman, 

and Mr. Strand. 

[The prepared statement of Ms. Warren Edelman follows:]

PREPARED STATEMENT OF MARCIA WARREN EDELMAN, PRESIDENT, S.M.E. LLC AND

FORMER SENIOR POLICY ADVISOR TO THE SECRETARY OF COMMERCE FOR NATIVE

AMERICAN AFFAIRS

Good morning, Chairman Inouye, Chairman Hollings, Vice Chairman Campbell, 

Vice Chairman McCain, Members of the Committee, tribal representatives and leaders, and distinguished guests. Thank you for the opportunity to present testimony 

today on this very important issue in Indian Country. 

My name is Marcia Warren Edelman and I am the President of S.M.E. LLC, a 

consulting firm that provides strategic planning and business development services 

in the areas of Native American policy, economic development, and telecommunications and information technology. From 1999 to February of this year, I served 

as the Department of Commerce’s Senior Policy Advisor to the Secretary for Native 

American Affairs where I had the opportunity to work on a number of issues and 

initiatives, including the Department’s focus on closing the Digital Divide. I am also 

the co-author of ‘‘Native Networking: Telecommunications and Information Technology in Indian Country,’’ a policy report and resource manual published by the 

Benton Foundation in 1999. 

I am pleased to come before the Committees today to provide a broad perspective 

regarding the impact of the lack of telecommunications access to tribal nations, as 

well as to discuss a number of solutions that have been proposed to address this 

serious need. 

As you have heard during the course of today’s hearings, the lack of telecommunications access in Indian Country is urgent and severe. Based on the statistics and 

information related from tribal communities across the nation, it is clear that the 

infrastructure needed to support connectivity for every Indian individual in his or 

her home or community continues to remain, for the most part, unavailable and 

unaffordable. Three reasons can be cited as contributing factors to this situation:

• Lack of current and accurate information

• Lack of ongoing coordination of resources

• Lack of investment capital and technical assistance

• Lack of current and accurate information

In 1999, three reports were published which examined the state of connectivity 

in Indian Country. All three found that Native Americans face an urgent situation 

where current infrastructure capabilities fall far behind that of the United States, 

threatening the economic, educational and cultural self-sufficiency of tribes and 

their communities. 

25

‘‘Falling Through the Net: Defining the Digital Divide’’ published by the Commerce Department’s National Telecommunications and Information Administration 

(NTIA) found that:

• For telephone penetration, rural Native American households (76.4%) rank far 

below the national average (94.1%).

• Rural Native American households’ access to computers (26.8%) is also lower 

than the national average (42.1%).

• Overall, Native Americans are also behind in their access to the Internet 

(18.9%), compared to the national average (26.2%).

The Economic Development Administration (EDA) supported these findings in 

their report, ‘‘Assessment of Technology Infrastructure in Native Communities,’’ 

with similar data and identified the dilemma faced by many tribes in this area:

‘‘Today, many Native communities find themselves in a vicious circle. The weak 

economic base of these communities makes it difficult to support infrastructure 

investment. And in turn, the poor state of infrastructure undermines their ability 

to undertake and attract successful economic development initiatives.’’

Finally, the Benton Foundation’s report, ‘‘Native Networking: Telecommunications 

and Information Technology in Indian Country,’’ provided not only an effective guide 

to the policies and resources affecting tribes, but also presented the following challenge:

‘‘Tribes must begin at home to define the needs and goals important to their communities, and then reach out and forge the relationships necessary to achieve 

those goals. As well, federal agencies, foundations, businesses and policy makers 

must include tribes and Indian people in their scope of telecommunications and 

technology growth and opportunities. Only then, when these two spheres meet 

and a new network of relationships is created, will the mandate of the Information Superhighway truly be fulfilled.’’

Since 1999, the only new information that has been published on telecommunications access and policy in Indian Country is the July 2001 report by the National 

Congress of American Indians (NCAI) entitled, ‘‘Connecting Indian Country: Tribally-Driven Telecommunications Policy.’’ NCAI, under a grant from the AOL Foundation, created the NCAI Digital Divide Task Force in 2000 with the purpose of providing a forum for tribal leadership to address the top policy issues regarding telecommunications policy in their communities and on a national level. The report 

brings together the findings of the Task Force under four priority areas: access; economic development, workforce training and education; content; and sovereignty. I 

would like to refer the Committees to review this report on www.indiantech.org or 

www.ncai.org, and consider the action items and specific policy changes recommended by the tribal leaders and representatives that served on the Task Force. 

However, as important as policy discussions may be, it is imperative that current 

and accurate baseline data is obtained to fully measure the current status of telecommunications access in Indian Country. Currently, no new such data has been 

gathered or compiled, even though the 2000 Census has been completed and the National Telecommunications and Information Administration (NTIA) has published 

two more reports in the Falling Through the Net series—both without data on 

American Indians and Alaska Natives (due to inadequate sampling size of existing 

data). 

Accurate statistics are extremely important, not only to measure the telephone 

penetration rates of our tribal communities, but also to identify other indicators of 

telecommunications access such as existing tower locations, the type of technology 

currently utilized (wireless vs. landline), and Internet access. Any new studies must 

also take into consideration the differences in Indian Country (large land-based 

tribes vs. reservations near urban areas) and it must continue to track this information consistently. The results of such a study would in turn provide federal agencies, 

businesses and tribes with the support needed to develop funding programs, strategic plans and viable business cases. 

I encourage the Committees to identify the means to perform comprehensive and 

ongoing studies in order to update the 1999 information presented in the reports 

listed above. 

Lack of ongoing coordination of resources 

To this date, a number of Native organizations, federal agencies, businesses and 

non-profit organizations have been actively involved in addressing the issue of telecommunications access in Indian Country. All of their efforts deserve recognition for 

26

the excellent work that has been done to close the gap. Unfortunately, there has 

been no single organization that has provided coordination between these groups 

and/or served as a voice for advocacy, policy recommendations and resource coordination. 

I encourage the Committees to consider supporting the creation of a national-level 

program or organization housed outside the federal government focused on promoting equal access to, and the appropriate use of, telecommunications and information technologies in Indian Country through coordination, research, analysis, the 

dissemination of information and federal policy advocacy. 

Lack of investment capital and technical assistance 

Telecommunications equipment, products and services are an expensive business. 

For many tribes, it is simply a luxury they cannot afford. In many cases, members 

of tribal communities cannot call relatives away at school or work, cannot call 911 

in an emergency, cannot create a new business for lack of telecommunications infrastructure, cannot access online information that the rest of the nation takes for 

granted. ‘‘E-government’’ does not exist and cell phone coverage stops at reservation 

borders. This situation is unacceptable and tribes should not be expected to provide 

the funds to address this situation alone. 

Fortunately, there exist a number of federal programs that have been able to 

work with tribes to begin addressing this issue:

• The National Telecommunications and Information Administration (NTIA): 

NTIA has helped to extend the benefits of information and communications 

technology to American Indian and Alaska Native communities through two 

grants programs, the Technology Opportunities Program (TOP) and the Public 

Telecommunications Facilities Program (PTFP). TOP provides matching grants 

to non-profit entities, tribal, state and local government, and since 1994 has 

funded over 18 tribal projects that are serving as models within Indian Country. 

In FY 2001, the program provided $4.2 million to tribal communities throughout the nation, a record amount. PTFP has made a significant contribution to 

the public broadcasting system in Indian country by providing matching grants 

to over 40 tribal communities throughout the United States for the planning, 

construction, and replacement of outdated public radio and television equipment. In addition, PTFP funded the establishment of the American Indian 

Higher Education Consortium (AIHEC) satellite-based distance-learning network, which serves 31 tribal colleges.

• The U.S. Department of Agriculture’s Rural Utility Service (RUS): RUS has 

made loans to five tribal entities to create tribal telephone companies, including 

the Gila River Telephone Company, Tohono O’Odham Utility Authority, Fort 

Mojave Telecommunications, Cheyenne River Sioux Telephone Authority, and 

San Carlos Apache Telecommunication Utility. Together, these companies now 

provide service to approximately 8,000 Native American subscribers. In addition 

to loans, the RUS also provides technical assistance and counseling in formulating development plans.

• The Economic Development Administration (EDA) has provided much-needed 

funding to a number of tribes for planning and economic development that focuses on and/or utilizes telecommunications and information technology.

In addition, a number of private foundations are working in partnership with 

tribes and businesses to create infrastructure, access to hardware and software, and 

technical assistance for telecommunications needs in Indian Country. I encourage 

the Committees to access www.digitaldividenetwork.com for more information on 

these projects. 

However, the fact remains that tribes need access to capital in order to significantly impact the current lack of infrastructure so common in their communities 

today. Funding from federal programs is imperative for all areas of telecommunications access, but most especially for planning and needs assessments, as each situation of each tribe is unique does not necessarily apply to all tribal communities. 

Based on the accurate determination of needs and goals, capital can then be applied 

to other priority areas such as:

• technical assistance

• development of ‘‘last mile’’ telecommunications

• equipment purchase and maintenance

• pilot programs/projects

27

• seed capital for telecommunication and information technology business development

In addition, it is essential for the Federal Communications Commission (FCC) to 

maintain an active and ongoing relationship with tribes to examine any existing 

regulatory barriers that may exist, as well as identify programs and successful models to increase telecommunications access in underserved communities. 

Lastly, a vehicle must be created to encourage outside investment in our tribal 

communities, either through loan funds, investments, joint partnerships, etc. to 

work in conjunction with federal and private funding. One source of capital is not 

enough to address this issue, especially in consideration of the importance and longterm nature of telecommunications access. 

I encourage the Committees to support existing or proposed legislation that facilitates increased access to capital for telecommunications infrastructure development 

and maintenance, planning and business development. 

In conclusion, I would like to commend the Committees for holding this joint hearing on tribal telecommunications issues and I look forward to seeing the creation 

of legislation that will address this issue, which is of great relevance and importance 

to tribal nations throughout the country. Thank you for your invitation to testify, 

and I welcome any questions you may have.

STATEMENT OF MICHAEL STRAND, EXECUTIVE VICE

PRESIDENT & GENERAL COUNSEL, MONTANA

INDEPENDENT TELECOMMUNICATIONS SYSTEMS 

Mr. STRAND. Thank you very much, Mr. Chairman. Good morning. 

I would like to thank the Committees for allowing me this time 

to offer my observations with respect to the deployment of basic 

and advanced telecommunications services to Native Americans. I 

represent five small rural telephone companies operating in Montana. They range in size from about 5,000 lines to about 10,000 

lines. Their service areas include four Indian reservations, the Fort 

Peck, Fort Belknap, Rocky Boy, and Crow. 

Our reservation areas are a challenge for us. Our most current 

information is that the average per capita income on the reservations we serve is approximately $8,000 per year. Many residents, 

particularly the elderly, do not speak English; many others have 

lived their entire lives without telephone service, and are not interested in the service regardless of price; and finally, there is an understandable mistrust of programs and projects offered to them by 

non-Indians. 

Like many small rural telephone companies around the country, 

we acquired the bulk of our reservation exchanges from the local 

Bell Operating Company in the last 10 years. To give you an example of how that has worked, I will focus on the experiences of one 

of our companies, Project Telephone Company. I think a lot of the 

things that Project has done will be instructive and valuable as 

other companies look at how to increase penetration on their reservations. Project purchased all but one of the telephone exchanges 

on the Crow Indian Reservation from U.S. WEST in 1994. Telephone service to the Crow at that time was abysmal. 

Subscribership was approximately 50 percent. The equipment and 

facilities were antiquated, and customer service was practically 

nonexistent. 

Upon purchasing U.S. WEST’s assets in the area, Project imme- diately invested $2 million in new digital switching equipment, 

fiber optics and new copper plant. We implemented new construction policies so that any home or business located within 1 mile of 

28

one of our lines could get service with no construction charges. Formerly, many Crow had been told they would have to pay thousands 

of dollars to get telephone service. We hired all Crow-speaking customer service representatives and field technicians to do telephone 

hookups. A tribal member was appointed to our board of directors. 

We made dialup Internet access available to every customer, and 

we made high-speed Internet access using DSL technology available to two-thirds of the tribal members. We expanded the local 

calling area so the reservation could call Montana’s largest city 

without incurring toll charges. This is important because many 

tribal members lose their telephone service for nonpayment of long 

distance charges. 

Finally, we aggressively pushed the enhanced Lifeline and LinkUp program to those who were eligible. Of the 1,423 residential 

lines in our service area on the Crow Reservation, 490, or 34 percent of the lines are currently involved in the enhanced Lifeline 

program that makes local service available for $1 per month. This 

is a critical program. As we have traveled around the country talking to other Native American groups, we found that many of them 

think that this program is unique to Project Telephone Company. 

Clearly, telephone companies across the country are not making 

their reservations well enough aware that this program exists. 

Well, not surprisingly, subscribership grew. In the 8 years since 

we acquired the exchanges on this reservation, it has increased 

from 50 percent to nearly 85 percent, and continues to grow. 

I mention Project’s experience, because it underscores a fact that 

I think is little known in Washington today. Many reservation 

areas around the country have been sold to companies like Project 

in the last 10 years. When the Bell Companies owned these areas, 

their requirements for return on investments simply provided them 

no incentive to provide service to the reservations, but for companies like Project, that only had 4,000 lines to begin with, reservation areas are simply not that different from the rural areas they 

already serve. 

Before any significant changes in Federal policy occur with respect to phone service and the reservations, I would like to call 

upon Congress and the FCC to ensure that they are fully aware of 

the accomplishments of companies like Project so that their policies 

do not undermine those efforts. I think this point dovetails nicely 

with the testimony you have already heard that the current information out there is hopelessly out of date. The 1990 Census information that Senator McCain mentioned is out of date for all of the 

reservations with which I am familiar. 

I understand the central theme of this hearing is ETC designation. I would like to make a couple of points in that regard, and 

then I would be happy to answer questions at the appropriate time. 

Our companies operate one of the most successful cellular operations in the State of Montana. It is called Sagebrush Cellular, and 

we have tremendous coverage. We have taken a saturation approach to tower siting so that we cover not just the main highways 

but also the secondary roads, making it very popular with farmers 

and ranchers in Montana. 

While we love wireless technology for specific applications, we 

are very skeptical as to its suitability as a universal service offerVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00032 Fmt 6633 Sfmt 6601 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
29

ing in most cases. The wireless service we have seen deployed in 

rural areas is not nearly as reliable and robust as wire line service. 

Wireless service is subject to congestion problems because of a lack 

of communications channels built into most systems. It has very 

poor redundant power supply in the event of an extended power 

outage. It is subject to distortion, fade, or outright blocking, depending on the frequency used. It has problems with weather conditions and line of sight issues. With very few exceptions, it provides incredibly slow and unreliable connections to the Internet, 

and finally, very few wireless providers offer their customers a 

choice of long distance service. In rural areas, where incomes are 

low, folks need to be able to shop around for the best deal on long 

distance. 

That said, if there is no traditional wire line provider that is willing to provide true universal service to a reservation area, then by 

all means wireless should be used to keep those folks connected to 

the national network. 

The other point I would like to make is that current FCC policy 

with regard to ETC designation needs to be fundamentally reviewed. There are three very significant problems with it. The first 

is that the FCC’s policy is to give competitive ETC’s the exact same 

support per line as the incumbent ETC, based on the incumbent’s 

cost of providing service. This policy will inevitably drive service 

quality in rural America to a lowest common denominator, because 

the FCC does not require the competitive ETC to match the incumbent in terms of service quality. 

The second point is that when the FCC decides to take up an application for ETC designation itself, rather than leaving the decision to the State commission, the FCC lacks the investigative tools 

to make an informed decision. The competitive ETC files an application with the FCC. Interested parties file comments, and the application is either granted or denied. There is no hearing. There is 

no discovery. There is no opportunity for cross-examination. 

ETC designation is an extremely important decision. The FCC 

needs to make certain that the representations made in a competitive ETC’s application are true. If not, when a natural disaster 

strikes and the phones do not work, someone is going to get hurt. 

The FCC is not the appropriate decisionmaker with respect to 

ETC designations on reservations. Where the reservation has a 

well established public utility commission of its own that has experience regulating rates and service quality, it is in the best position 

to determine what is best for the reservation. Where the State public utility commission has historically taken on that role, it is in the 

best position. The FCC is simply too far away, and its investigative 

processes are too limited to make such important decisions. 

Thank you for this opportunity to express my views, and I would 

be happy to answer questions. 

[The prepared statement of Mr. Strand follows:]

PREPARED STATEMENT OF MICHAEL STRAND, EXECUTIVE VICE PRESIDENT & GENERAL

COUNSEL, MONTANA INDEPENDENT TELECOMMUNICATIONS SYSTEMS

Good Morning. I would like to thank the Committees for allowing me this time 

to offer my observations with respect to the deployment of basic and advanced telecommunications services to Native Americans. 

30

I represent five small rural telephone companies operating in Montana. They 

range in size from about 5,000 lines to about 10,000 lines. Their service areas include four Indian reservations: Fort Peck, Fort Belknap, Rocky Boy and Crow. Our 

companies are quite progressive, offering DSL services to nearly 60 towns with populations under 2,000. 

Reservation areas are a challenge for us. Our most current information is that the average per capita income on the reservations we serve is approximately $8,000 

per year. Many residents, particularly the elderly, do not speak English. Many others have lived their entire lives without telephone service and are not interested in 

the service regardless of price. Finally, there is an understandable mistrust of programs and projects offered by non-Indians. 

We have rigorously reviewed our operating policies and procedures to address 

these challenges. These efforts have been quite successful, a point on which I will 

provide greater elaboration in just a moment. 

While we are primarily wireline providers, we love the attributes of wireless service for particular applications. Where a customer’s primary need is to make a mobile 

voice communication, there is no better solution than cellular or PCS. 

That said, we are far less enamored of wireless as a universal service offering, 

particularly in rural areas. Our view of a universal service offering is that it is the 

solid, reliable connection to the national network for people in remote areas. It 

needs to work in bad weather and when there is a power outage. It needs to work 

regardless of the vagaries of terrain and line-of-sight. When calling outside their 

local community, users need to be able to select an affordable long distance provider, 

and they need to know that they can get a reliable connection to the Internet at 

a reasonable speed. Generally speaking, wireline service has these attributes and 

wireless service does not. That is why we continue to believe that wireline service 

is the best universal service offering in rural Montana. 

This brings me to the problems inherent in the current FCC approach to ETC designation. 

The first problem is one of process. At the FCC, an application is filed, interested 

parties can file comments, and the application is either granted or denied. There 

is no hearing. There is no opportunity for discovery. There is no opportunity for 

cross-examination. 

Why is this a problem? As an example, we operate a cellular company in northern 

Montana called Sagebrush Cellular. It has not applied for ETC status. 

Another cellular provider in the same area did apply to our state public service 

commission for ETC designation. The provider claimed to provide service to all locations in the area, which is roughly the size of the state of West Virginia. It has three 

towers. Sagebrush Cellular has 22 towers, using the same type of equipment and 

providing the same service throughout the same area. Nonetheless, there are still 

almost 5 percent of the homes and businesses in the area that Sagebrush does not 

reach. In our view, the applicant’s coverage claims were highly improbable at best. 

However, had the application been processed by the FCC, there would have been 

no opportunity to ask the provider’s engineers what miracle they had performed to 

reach more customers with three towers than we could reach with 22. Fortunately 

for the area and for the federal Universal Service Fund, the state public service 

commission’s process included such opportunities to delve beneath the surface of the 

application, and the application was ultimately withdrawn. 

Another problem is the FCC’s current funding rules for universal service. The 

FCC’s definition of universal service is extremely basic. The companies I represent 

provide service that exceeds the FCC’s definition by a wide margin. To do so, they 

incur costs. The FCC has decided that a competitive ETC is to receive support based 

on the incumbent’s costs. So a competitive ETC’s incentive is to spend just enough 

on service to meet the FCC’s definition and then receive support based on the incumbents costs of providing service. Faced with that situation, an incumbent has 

little choice but to reduce the quality of its service so it can match the competitor’s 

costs and, by extension, its prices. This drives service quality in rural America to 

a lowest common denominator. We find this deeply troubling. 

The FCC has, in at least one case, decided to preempt state commission jurisdiction with regard to ETC designation on Indian reservations. The Supreme Court has 

made clear that state law is not to be preempted unless specifically authorized by 

Congress or where state regulation would interfere with tribes’ rights to govern 

themselves. Congress has not specifically granted the FCC authority over ETC designation on reservations. Further, since the effect of FCC preemption is to move the 

decision from the state commission to the FCC, this is not a case where the tribe 

is allowed to govern itself in this regard. The appropriate decision-maker is the 

state public service commission that has regulated rates and service quality for decades. 

31

On a final note, I would like to briefly describe a company called Project Telephone Company. Project purchased all but one of the telephone exchanges on the 

Crow Indian Reservation from U.S. WEST in 1994. Telephone service to the Crow 

at that time was abysmal. Subscribership was approximately 50 percent. The equipment and facilities were antiquated, and customer service was practically non-existent. 

Project immediately invested millions of dollars in new digital switching equipment, fiber optics, and new copper plant. We implemented new construction policies 

so that any home or business located within 1 mile of one our lines could get service 

with no construction charges. Formerly, many Crow had been told they would have 

to pay thousands of dollars to get service. We hired Crow-speaking customer service 

representatives and field technicians to do hook-ups. A tribal member was appointed 

to our Board of Directors. We made dial-up Internet available to every customer and 

DSL available to nearly two-thirds of the tribal members. We expanded the local 

calling area so the reservation could call Montana’s largest city without incurring 

toll charges. Finally, we aggressively pushed the enhanced Lifeline and Link Up 

programs to those that were eligible. Of the 1,423 residential lines on the Crow Reservation, 490 (or 34 percent) of the lines are enrolled in the enhanced Lifeline program that makes local service available for $1 per month. 

Not surprisingly, subscribership grew. In eight years, it has increased from 50 

percent to nearly 85 percent and continues to grow. Under current FCC rules, if a 

competitor now decides to file for ETC designation, that competitor will jeopardize 

the viability of Project’s service improvements on the Crow Reservation. Nonetheless, a competitor that meets all of the legal requirements for designation has the 

right to be designated. We simply believe that the decision-maker should be the 

state commission that knows the difference between the service that existed before 

and the service that exists today. 

I have tremendous admiration and respect for people I have met at the FCC. 

There is a lot of brain power over there and their intentions are good. But they cannot fully appreciate the local circumstances in communities 2,500 miles away, and 

their investigative processes are not designed to allow them to do so. 

Thank you again for giving me this opportunity to present my views. I would be 

happy to respond to questions.

Senator CAMPBELL. Thank you. We will now go to Mr. Stanton. 

STATEMENT OF JOHN STANTON, CHAIRMAN/CEO,

WESTERN WIRELESS CORPORATION 

Mr. STANTON. Thank you, Senator. My name is John Stanton. I 

am the chairman and chief executive of actually three businesses 

in the wireless industry, and I originally founded a fourth business. 

I helped found McCaw Cellular Communications, which is now 

owned by AT&T Wireless, in the early 1980’s. I started a business 

called Western Wireless, which services 1.1 million customers, almost entirely in the rural United States. Our subsidiary, Western 

Wireless International, operates in 10 countries outside the United 

States, ranging from Haiti and Ghana and Cote D’Ivoire to Ireland 

and Austria, and I founded Voice Stream Wireless, and am still 

chairman of that company, which was sold to Deutche Telekom last 

year. 

The purpose of my testimony is to answer the question as to why 

on certain indian reservations the tribal members suffer with teledensity rates, or the rates of telecommunication penetration, below 

those in many Third World countries. The answer to the question 

as to how to improve service is clearly wireless, as both Senator 

McCain and Senator Burns suggested, but in many cases that is 

not available simply because the system today is broken. The system is broken in the that there are legal and regulatory barriers 

that bar competition from entering and providing services on tribal 

land. I urge you today to fix the system. 

32

My detailed testimony goes through many of the specific concerns 

that we have, but I would like to use two examples to tell you what 

good can happen and what challenges we have faced. In representing our Western Wireless business on a panel chaired by 

Senator Daschle 21⁄2 years ago, I had the opportunity to discuss, or 

maybe more accurately debate with the general manager of the 

telephone company servicing the Pine Ridge Indian Reservation, 

the quality of telecommunications service. In that hearing, the general manager of Golden West indicated that only 25 percent of the 

population of the Pine Ridge had telecommunications service because in his view, that was all that wanted telecommunications 

service. He indicated because the population was poor, because 

they spoke Native languages, and/or because they were aged, that 

they did not want telecommunications services. I frankly did not 

believe it and did not agree with him. 

The answer, we believed, was competition, and after an extensive 

legal process that took us to the State supreme court in South Dakota twice, took us to Federal court, and eventually to the FCC, we 

were able to get authority to provide telecommunications services 

on the Pine Ridge. 

We launched service about 18 months ago. Today, we serve more 

customers than that telephone company that has been there for 

about 50 years. We provide service to over 4,000 residents of the 

Pine Ridge. We have provided access to telecommunications services to every member and are actively growing our business today. 

We created jobs through a joint venture agreement with the Oglala 

Sioux Tribe. We created access to emergency and public services to 

every tribal member, and we are providing high speed data services 

on tribal lands. 

The second example was an example of the frustration associated 

with jurisdiction. The Goshute Tribe is located on the Nevada and 

Utah State border. We have had a terrible challenge in trying to 

be able to provide service. The State of Nevada granted us Eligible 

Telecommunications Carrier authority, but failed to provide universal service funding authority. The State of Utah, where most of 

the Goshute population is located, failed to even grant us Eligible 

Telecommunications Carrier status. We have gone through a series 

of processes and attempted to be able to provide service, but frankly, Senator, radio waves do not respect State boundaries. It is essential for us to be able to provide service for the FTC to act, and 

frankly Senator, in many cases the FCC has been slow to act. 

The challenge for us is broader. The 1996 Act, as both Senator 

McCain and Senator Burns referred to, was intended to bring competition to telecommunications, and it clearly succeeded in general 

in the wireless industry. Our industry has grown dramatically 

since the passage of the act. In 1997, the amendment to the Act 

that Senator McCain referred to was intended to clarify that tribal 

lands should be subject to FCC authority, but the act and the process that is created by the Act frankly have stifled rather than encouraged competition. 

The distinction between rural and nonrural designated areas, 

where the people with the greatest needs in rural areas have a 

greater administrative burden imposed on the carriers attempting 

to provide them with service, has slowed the introduction of servVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
33

ice. States were made responsible for designating eligible telecommunications carriers and States have been slow to act. My company has spent millions of dollars attempting to litigate over a 4-

year period in 14 States. There are some States that have still not 

acted on our petitions to be granted eligible telecommunications 

carrier status. 

The FCC has also not acted. We have a petition in Mr. Strand’s 

area in the Crow Indian Reservation that has been pending before 

the FCC for over 2 years. The FCC only acted in the Pine Ridge 

case where we went through a State supreme court process and got 

an agreement with the tribal authorities to provide service. Only 

then were we able to sign a treaty just about 2 years ago. 

We have been further challenged in the States by the manipulation of the process by independent telephone companies. The application for eligible telecommunications carrier status is a relatively 

simple application, and yet in Montana Mr. Strand’s organization 

filed 465 interrogatories against our application. As one of our lawyers put it, it was ‘‘death by 1,000 paper cuts.’’

The challenge for us has been that we have a need to be able to 

act quickly in order to get a fair return on our investment, and the 

delay in being authorized as a carrier has delayed the ability for 

us to implement our services, increased the cost, and frankly made 

it a more challenging economic proposition. Several States have not 

created universal service funds which are necessary, as has been 

described by all the witnesses, in order to overcome some of the 

economic challenges in certain tribal areas. 

Ironically, the telecommunications accounting system even 

makes it more difficult for tribal areas. The way the telephone accounting allocates costs between long distance and local jurisdictions creates an economic incentive for telephone companies to create very small areas, perpetuating the isolation of tribal lands because the independent telephone companies are incited to create a 

local service area that only includes the tribal areas and charge 

long distance in many cases for calling to larger cities. 

Lastly, I would like to comment on some solutions that I would 

encourage the Congress to consider. First, to clarify jurisdiction for 

Indian country under section 214(e)(6) of the act—that is, the provisions that were amended in 1997, and the FCC has indicated in 

some conversations with us that there are difficulties, there is a 

lack of clarity that covers Indian Country. 

Second, encourage the FCC to act promptly on Indian reservation 

eligible telecommunications carriers status. As I indicated, in certain cases we have had an application on the Crow Reservation 

pending for over 2 years before the FCC. 

Third, to take steps to ensure that the support and subsidy systems for telephone companies are open and nondiscriminatory. 

Fourth, to require the States to implement competitively neutral 

universal service policies which ensure that wireless services can 

compete effectively and fairly against wire services. 

Our company is deeply committed to providing services on tribal 

lands. We do it both because it is the right thing, and because we 

think it is a good economic proposition for carriers to come in and 

compete. 

34

Competition represents the opportunity to offer choices to members of tribal communities, the ability to choose between competing 

carriers. In our experience on the Pine Ridge, the quality of service 

provided by the independent telephone company, our wired competitor, has actually improved as a result of the introduction of competition. Competition brings the benefit to consumers, and it brings 

the benefits to the entire community, and we would encourage you 

to take steps to allow that competition. 

Thank you. 

[The prepared statement of Mr. Stanton follows:]

PREPARED STATEMENT OF JOHN STANTON, CHAIRMAN/CEO,

WESTERN WIRELESS CORPORATION

Introduction 

Mr. Chairman and members of the Committees, I commend you and your colleagues for convening this joint hearing to examine the critically important issue of 

how best to improve telecommunications service to individuals residing on tribal 

lands in America. I especially appreciate the opportunity to address a subject that 

is not only of great interest to these committees, but also a subject that is at the 

core of the business mission of my company, Western Wireless Corporation. 

As we sit here today, more than three thousand members of the Oglala Sioux 

Tribe on the Pine Ridge Indian Reservation in South Dakota have telephone service, 

including access to emergency 911 services, in their homes for the very first time 

because of a unique cooperative arrangement between Western Wireless and the Oglala Sioux Tribe, which can be replicated in other areas of the country only if action 

is taken to eliminate barriers to universal availability of telecommunications services. In this testimony, I identify the successes and challenges associated with the 

current system in place to provide universal service to all Americans and what steps 

need to be taken to allow all individuals residing in rural America, including Native 

Americans, to enjoy the benefits of access to basic and advanced telecommunications 

services. 

Background 

Western Wireless has built a successful business providing wireless telecommunications services in rural America. The company holds cellular licenses to provide 

service in 19 western states, which include more than 85 Indian reservations and 

Native American communities. The Company is the second largest wireless carrier 

in the country based upon geography served with its cellular licenses covering about 

25 percent of the land in the continental U.S. With a service area that has an average population density of approximately eleven people per square mile, Western 

Wireless serves many areas that do not have access to basic telephone service, much 

less advanced telecommunications services. 

Western Wireless has a long history of providing service to unserved and underserved consumers. In 1994, through a unique arrangement with the Nevada Public 

Utilities Commission and the incumbent local exchange carrier, Western Wireless 

began providing wireless local loop service to small businesses and residential consumers in a remote area of Nevada that did not have access to wireline local telephone service. In 1999, Western Wireless began offering wireless local loop service 

in Senator Dorgan’s hometown of Regent, a community of less than 300 people, 

which represented one of the first competitive local telephone service offerings in 

rural America and made available new and innovative services to consumers. More 

recently, Western Wireless has introduced competitive universal service offerings in 

more than 140 rural communities in Minnesota, Nevada, Kansas, Texas, and the 

Pine Ridge Reservation in South Dakota. 

Indian Initiatives: The Success 

Recognizing that many American Indian people living on federal trust land (reservations) and in tribal communities lack access to basic telecommunications services, Western Wireless has undertaken several initiatives to bridge the telecommunications divide and ‘‘make available . . . to all the people of the United 

States, without discrimination on the basis of race, color, religion, national origin, 

or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication 

service’’ as required by the Communications Act of 1934, as amended. Specifically, 

in August 2001, Western Wireless entered into a historic agreement called Tate 

35

Woglaka (Talking Wind) with the Oglala Sioux Tribe on the Pine Ridge reservation. 

The purpose of Tate Woglaka agreement was to build a state-of-the-art telecommunication infrastructure necessary for economic and social development. 

Western Wireless is very proud of our efforts to provide telecommunications service on tribal lands, and, most particularly, on Pine Ridge. As Senator Johnson 

knows so well, this is a very rural, economically depressed area lacking many of the 

basic necessities of life, including affordable telecommunications services. In fact, 

the Census Bureau identifies Shannon County consistently as the one of the poorest 

counties in America. 

Our success on Pine Ridge can be attributed, in part, to the relationship developed 

between Western Wireless and the Oglala Sioux Tribe. In 1999, we responded to a 

devastating tornado that hit the town of Oglala on the reservation by providing 

emergency cellular service to emergency workers and tribal officials. When it became apparent that there was a need for basic telephone service on the reservations, 

we negotiated the Tate Woglaka service agreement. The agreement was signed in 

late 2000, and the Indian Affairs Committee was so gracious to host the ceremonial 

signing of that document in December 2000. 

The highlights of the agreement include:

• A sharing of rights and obligations related to operations, sales, and maintenance;

• Cooperation between the tribe and Western Wireless on customer service offerings;

• $1 monthly rate plan for Lifeline eligible residents;

• An expanded local calling area that eliminates all toll charges previously associated with making certain calls on the reservation and to Rapid City;

• Access to a local Emergency Service Provider on the Reservation;

• Long distance service, prepaid services, and enhanced services;

• Access to advanced telecommunications services capabilities; and

• 24-hour customer service.

Earlier this year, Western Wireless completed the expansion of the telecommunications network on the Oglala Sioux reservation, providing tribal members with access to wireless telephone service for the first time. 

Our Oglala Sioux Pine Ridge offering speaks louder than words:

• There are approximately 4,000 total tribal households with a total tribal population of around 40,000;

• To date, Western Wireless has more than 3,500 customers on Pine Ridge, representing a significant market penetration in the short time our network has 

been operational on the reservation; and

• Of the 3,500 customers that we serve, approximately 75 percent did not have 

landline telephone service prior to signing up for service from Western Wireless.

Western Wireless is also working with numerous other tribes on replicating its 

successful service offering on the Pine Ridge reservation, but faces certain challenges that must be overcome before other tribes can enjoy the benefits of access 

to a competitive choice for the telecommunications needs. 

Indian Initiatives: The Challenges 

As difficult as it is to resolve the business issues related to providing service on 

reservations, the biggest challenges to bridging the telephone and digital divide on 

reservations are the regulatory issues, both in terms of market entry and a level 

playing field. 

Market Entry. Section 214(e)(2) of the Communications Act provides that state 

commissions shall review applications by common carriers for designation as an Eligible Telecommunications Carrier (‘‘ETC’’) for purposes of universal service support, 

and Section 214(e)(6) of the Act provides that the FCC shall review applications by 

common carriers not subject to the jurisdiction of a state commission for designation 

as an ETC for purposes of universal service support. For our Pine Ridge offering, 

Western Wireless filed an ETC application with the FCC under Section 214(e)(6) 

based upon the tribe’s view that our service offering on the reservation is not subject 

to state commission jurisdiction and that Western Wireless’ designated service area 

would be primarily limited to the reservation (as opposed to the entire study area 

of the incumbent local exchange carrier). The Oglala Sioux Tribal Council formally 

supported our application. The South Dakota state commission and Incumbent Local 

36

Exchange Carriers (ILECs) opposed the application on jurisdictional grounds. The 

state commission and the ILECs argued that the state, not the FCC, had the authority to consider Western Wireless’s application under Section 214(e)(2). At the 

same time, the state commission was defending in the courts and at the FCC its 

decision to deny our state ETC application for non-tribal lands (the state Supreme 

Court and the FCC ultimately reversed the state commission’s denial of ETC status 

to Western Wireless). 

The FCC ultimately assumed jurisdiction over our Pine Ridge application and 

granted ETC status to Western Wireless for the reservation. Our application, however, reveals a problem that needs to be resolved: jurisdictional uncertainty, procedural wrangling, and legal maneuvering hamper the ETC application process that 

effectively denies service to rural consumers. 

Although the FCC ultimately resolved the issues and granted ETC to Western 

Wireless, the tortuous application process has no doubt ‘‘chilled’’ competitive carriers’ interest in serving reservations. 

The Goshute reservation in Nevada and Utah, and the Winnebago reservation in 

Nebraska, highlights some of the problems with state action on ETC applications 

aimed at serving Indian reservations. 

The Goshute reservation is located in both Nevada and Utah.

• Early last year, the Goshute tribe declared a telecommunications emergency 

due to the lack of access to basic telephone service, including emergency 911 

service.

• Western Wireless applied for ETC status in rural areas of Utah and Nevada, 

including reservations, with the state commissions under Section 214(e)(2)—Nevada granted Western Wireless’ request and Utah denied Western Wireless’ request, resulting in the Company being an ETC in the Nevada portion of the 

Goshute reservation but not the Utah portion of the reservation.

• Western Wireless could have filed for ETC status under Section 214(e)(6) with 

the FCC, but the process would be lengthy, costly, and quite possibly litigious 

because of the uncertainty of whether the FCC has jurisdiction and the strong 

opposition from many states and ILECs.

In Nebraska, the situation is different, but the result is the same.

• The Winnebago tribe has been ‘‘held hostage’’ to the delays by the Nebraska 

Commission in approving Western Wireless’ ETC application for rural areas of 

the state.

The application has been pending since August 1998.

• After 3 years, the Commission granted Western Wireless ETC status, but has 

held up approval of what should be pro forma approval of an Advertising Plan.

To create a process that simply recognizes tribal sovereignty and allows 

the tribes to benefit from telecommunication service offerings that meet 

their needs, the following steps need to be considered by Congress:

• Establish Section 214(e)(6) as the clear vehicle for common carriers to file applications at the FCC for ETC status on reservations;

• Impose a 6 month deadline for action on ETC applications; and

• Eliminate the public interest determination if the tribal government supports 

the grant of ETC status.

Level Playing Field. It has been a national policy since 1934 to make available 

to all Americans, regardless of the location of their residence, affordable telecommunications services. In too many cases, rural areas have been effectively excluded from the benefits of a competitive telecommunications market because incumbent local telephone companies have historically monopolized access to universal 

service support necessary to provide affordable telecommunications services in these 

rural, high-cost areas. For example, the cost of providing telephone service in many 

rural areas exceeds $100.00 per line per month, and yet consumers pay as little as 

$10.00 or less per month, with universal service funding making up the difference. 

Clearly, a competitive carrier that does not have access to universal service funds 

would not choose to enter the local market and compete with incumbent carriers 

who do have access. 

The FCC’s pro-competitive universal service policies, adopted pursuant to the 

Telecommunications Act of 1996 (‘‘1996 Act’’), are beginning to have a significant 

impact in enabling consumers in rural and high-cost areas to realize the benefits 

of local competition. These benefits include more competitive pricing structures for 

37

telecommunications services, more responsive service providers spurred by competition, and more rapid deployment of new technologies and service packages. Aided 

by federal universal service policies that are consistent with competitive entry into 

local telephone markets, competitive carriers are developing new ways of providing 

basic telephone service, and are making progress in serving historically underserved 

and hard-to-reach markets. 

Four years ago, Western Wireless embarked upon an effort to bring the benefits 

of competition to the local telephone market in rural and tribal America. The centerpiece of this effort has been the Company’s petitions, pursuant to Section 214(e), for 

designation as an ETC for purposes of universal service support, which is necessary 

to provide affordable telecommunications services in many rural, high-cost areas. To 

date, Western Wireless has been designated as an ETC in 14 states and on the Pine 

Ridge Reservation and is working with the FCC and state commissions on furthering the goals of universal service. 

These inroads have not come without a high cost, however. While the ILECs were 

summarily designated ETCs for participation in federal universal service programs, 

new entrants seeking to serve high-cost and rural areas often face costly, extensive, 

and protracted proceedings for ETC status. In addition, in states with their own 

universal service support programs, it is often difficult, and sometime impossible, 

to gain access to funds set aside for incumbent local exchange carriers. 

The 1996 Act mandates the elimination of the historical barriers to local competition in rural areas by requiring the FCC and state commissions to open the universal service market to competitive entry. It has been six years since Congress 

passed the Act, and many tribal and rural consumers still await the promised benefits. Simply put, many state commissions have not followed the FCC’s lead in changing to a competitive universal service system, which I believe is critical to closing 

of the ‘‘digital divide’’ in tribal and rural America. 

What steps can Congress take to create a level playing field for all service providers in the universal service market? 

First, Congress should impose a 180-day deadline for state commission 

action on ETC applications. Congress has imposed a similar deadline for state 

commission action in interconnection arbitration proceedings. The FCC has sought 

comment on whether to impose a 180-day deadline for state commission action on 

ETC applications, but is facing strong opposition from state commissions and is unlikely to take action on this proposal. Expeditious action on ETC designations will 

facilitate new service offerings on reservations, and will also have the salutary benefit of qualifying the tribal customers for the two components of the FCC’s Low-Income program: Lifeline and LinkUp. Although Lifeline and LinkUp are available to 

all qualifying low-income consumers, the FCC’s enhanced Lifeline and LinkUp programs provide special additional discounts to qualifying subscribers living on tribal 

lands. The enhanced Lifeline program for qualified subscribers on Native American 

Indian and Alaska Native tribal communities gives federal discounts of up to $30.25 

off monthly telephone bills. Additional discounts are sometimes available under 

state Lifeline programs. As a result, depending on current rates, many eligible subscribers on tribal lands are eligible to receive basic local phone service for $1 per 

month. All of Western Wireless’ Pine Ridge Lifeline customers receive service at $1 

per month, which, together with an attractive service offering, has greatly increased 

telephone penetration rates on the reservation. The enhanced LinkUp program for 

qualified subscribers on Native American Indian and Alaska Native tribal communities also offsets up to $100 for installation costs. 

Second, Congress should encourage and enable the FCC to ensure that 

(i) states establish competitively and technologically neutral rules and procedures for designating common carriers as ETC for purposes of state and 

federal universal service support, (ii) states establish explicit, portable, and 

competitively-neutral universal service funding mechanisms free of implicit subsidies that have the effect of entrenching the incumbent carriers 

in the universal service market, and (iii) funds are available to cost-effectively provide service in high-cost areas. The Tenth Circuit Court of Appeal’s 

remand, in Qwest Corp. v. FCC, of the Federal-State Joint Board on Universal Service, Ninth Report and Order, presents an ideal opportunity for the FCC to re-examine universal service reform to identify ‘‘uneconomical attributes of the current system that dampen competitive opportunity,’’ with an eye toward remedying ‘‘shortcomings in the current system that ‘‘undermine economic competition and new 

entry.’’ Among the most vital steps in this process will be, at long last, creating ‘‘inducements’’ for state commissions to adopt rules and policies that work in conjunction with federal efforts to preserve and advance universal service in a competitive 

environment, consistent with the 1996 Act and the Tenth Circuit remand decision. 

The adoption of explicit rules is critical, in that new entrants should not have to 

38

resort (as has been the case to date) to piecemeal FCC oversight of individual state 

ETC designations and universal service programs. Such FCC proceedings are themselves costly and time-consuming, and new entrants must bear the burden of demonstrating the need to preempt state action pursuant to Section 253 of the Act. 

Spectrum Management: The Key to Unlocking New Services 

It should not be overlooked that as the new Internet economy moves from wired 

to wireless, the need for the development of a long-term spectrum allocation plan 

is vital if your constituents and our customers are to see the benefits of this new 

economy. The Congress, the FCC, the Administration, and industry must continue 

to work together to develop a roadmap for a comprehensive spectrum allocation policy that (1) is market driven, (2) is open to the greatest number of participants, (3) 

considers industry’s additional spectrum requirements to provide innovative advanced services to consumers at home and abroad, and (4) encourages continued 

competition in the wireless industry and equal footing in international markets. In 

the long run, this market-based approach will be better for the U.S. economy, better 

for consumers, and better for American taxpayers. The wireless industry is working 

with congressional and Administration leaders to promote economic growth in the 

short-term by providing a pathway to spectrum for a high-tech growth industry that 

enables it to compete in the global marketplace—recognizing at the same time that 

national security interests benefit from a comprehensive, spectrum management 

plan. 

Conclusion 

Competition holds the key to the deployment of high quality telecommunications 

services—regardless of where it is offered. Government should ensure a level playing field through the establishment of a competitive universal service system, a comprehensive spectrum allocation policy, a fair and responsive competitive bidding 

process, reasonable tower siting policies, reasonable incentives and funding to provide advanced services in rural America, and strong enforcement action against 

anti-competitive behavior by incumbent carriers. In so doing, the goals of the Telecommunications Act of 1996 will be fulfilled and the ‘‘digital divide’’ will be eliminated. 

The Western Wireless Story 

Western Wireless’ entry into the local telecommunications market reflects a building block approach to the provisioning of advanced telecommunications services in 

rural America. Today, Western Wireless provides service (d.b.a. Cellular One) 

throughout the more than 140 rural service areas and small metro areas licensed 

to the Company covering approximately 25 percent of the geography of continental 

United States. The Company has expanded its service offerings to include residential phone service (RPS) in rural areas by using its existing cellular network infrastructure, including switching, high-bandwidth network facilities, cell sites, and 

wireless local loops (WLL), to provide new and innovative local telephone services, 

including universal telephone service, to consumers. The expansion of its service offerings in rural areas to provide WLL and universal service enables Western Wireless to offer consumers advanced telecommunications services, including high-speed 

data services, using 3rd generation cellular technology. 

Wireless (Cellular) Telephony Service Provider

• Rural service provider in 19 western states (AK, AZ, CA, CO, ID, IA, KS, MN, 

MO, MT, NE, NV, NM, ND, OK, SD, TX, UT, WY) (http://www.wwireless.com).

• State-of-the-art telecommunications infrastructure in rural areas.

• Planned deployment of 2.5 generation and 3rd generation technology capable of 

delivering advanced telecommunications services, including high-speed data 

services. 

Universal Service & Wireless Local Loop Provider

• ETC status granted in 14 states (CA, CO, IA, KS, MN, NE, NM, NV, ND, OK, 

SD, TX, UT, WY) and one Indian Reservation (Pine Ridge in South Dakota).

• Serving over 140 markets in 5 states (KS, MN, NV, TX, Pine Ridge), with thousands of universal service customers.

• Industry leader in the deployment of wireless local loop service in rural America.

39

• Sole provider of local telephone service to the residents of many rural areas.

Senator CAMPBELL. Mr. Day. 

STATEMENT OF WILLIAM DAY, CHAIRMAN, CULTURE AND 

HERITAGE COMMITTEE, UNITED SOUTH AND EASTERN 

TRIBES 

Mr. DAY. Thank you, sir. Mr. Chairman, I am very encouraged 

to hear all of this very positive effort to bring many of our people 

into this century. However, sir, I have to digress from all of this 

good talk that has occurred, and talk about something that is occurring that I think will probably shock some people in this room. 

I first got to know you and Senator Dale Bumpers and of course 

I already knew Bennett Johnson and Lowell Weicker back in 1991, 

1992, when the amendments to the National Historic Preservation 

Act were being passed at your hand. 

Unfortunately, your work has been thwarted, grossly thwarted 

by the Federal Communications Commission and its allies. We 

have been taken advantage of, not with Government to Government relationship from the FCC, or recognition of the trust responsibility that exists with the FCC, or the issue of sovereignty, which 

I have heard you, Senator, speak on many times at conferences, 

and the importance of that very word, and its 500-year history in 

this country. 

The FCC has taken it upon themselves to tell individual private 

companies, commercial enterprises, that they have been delegated 

the authority to consult with Tribes. There is absolutely nothing 

whatsoever in Federal law that permits that. There is nothing in 

the advisory council regulations on section 106 that permits that. 

As a matter of fact, in the preamble it expressly prohibits that, but 

that is what has happened. There are 800—that is just this 

year’s—demands by these private companies that we provide them 

at our cost, and the usurpation of our staff and our finances, to accommodate what they need to satisfy section 106 without any compensation or even thank you to the Tribes. 

I represent here at this meeting the United South and Eastern 

Tribes, 24 Tribes from Maine to Texas. Specifically I represent the 

Poarch Creek in Alabama. This is Poarch Creek letters, 688 of 

these demands on their time and staff from these private enterprises, authorized by the FCC to do this and impose upon us a burden, both financial and personnel-wise, that if it were property 

would amount to a constitutional question of a taking. Now, it is 

an unfunded mandate, and they have no right whatsoever to do 

that. 

There is also no reason whatsoever on earth that I would share 

with this company that I have no idea who these people are, what 

they want here, our religious sites, our sacred sites. They want to 

know that. We cannot do that. We can do it with a Federal agency, 

where the law will apply, but the Federal law does not apply to 

them, and the exemptions that exist under the Freedom of Information Act that we can rely on with an agency does not exist here. 

These are people with a commercial bent, whatsoever, and I guarantee you I congratulate these people who want to serve the rural 

communities, and do not forget, we have got an awful lot of woods 

40

in Maine as well, so you know, there are some people up there that 

do not have telephones. 

But one of the earliest, one of the very earliest reactions to this 

is from your neighbor that spoke, who are saying, how do you, the 

FCC, come off doing this to us? There is nothing in the law that 

says this, that you can permit these people to impose themselves 

on our time and our finances to serve their gain. This is what is 

going on, Senator, and what is going on is that no one, to our 

knowledge, is following up on whether these people have actually 

abided by section 106 of the National Historic Preservation Act. We 

cannot determine that, and as a result, what is happening when 

these people tell us that if we do not answer them within 30 days, 

they will proceed. There are even letters in here saying if I do not 

answer them in 10 days they will proceed, at my expense, of 

course. 

Now, I cannot possibly research something like this, with 1,000 

of these. How many people do I need on my staff? How many do 

you have on your staff that are going to read all of these? Because 

I certainly do wish to make these part of the record, for your own 

delight, of course. 

You know, it takes a while just to read one of these things, but 

I am not required by any law that I know of, moral, ethical, or 

legal, to even open these people’s letters. They have no call on the 

sovereignty of a federally recognized Indian Tribe, but yet this 

agency would allow them with their leave to cross our borders, so 

to speak, and impose themselves upon us, and this is going on 

every day. It goes on in every State of this Union, and it certainly 

is true here in the South and the East. 

Every Tribe of the USET Tribes have received thousands of these 

demands from these outside people that we know nothing about. 

They are even in here, sir, a photograph of the base and the anchors put in the ground by a phone company and then saying, we 

are going to go do a survey. Well, I mean, it is a little late on that, 

you know. We have got another one over here that says, we are not 

archaeologists, but we walked over the ground and did not see anything, so therefore there is nothing there. This is what is happening to the National Historic Preservation Act, and to the cultural and historic heritage of everyone in this country. 

And what are they doing about it? We have met with them—

there is one of their lawyers sitting right back there that was with 

us here in February at our conference, and we asked, ‘‘do you understand what we are saying?’’ There were six of them sitting 

there. ‘‘Do you understand what we are trying to do, do you understand what we are saying?’’ ‘‘Uh-huh.’’ But apparently not. 

We also, Senator, spent 8 months of our time—I made six trips 

to Washington, D.C. to meet with representatives of PCIA, the public—one of their cell phone company associations, to work out a 

programmatic agreement of protocol, how we could handle this 

thing equitably and timely to everyone. We were taken advantage 

of. We met in good faith, an attorney back here, Bennett Johnson 

associate, Gregg Smith and others, sat down with these people and 

wrote and wrote and wrote, and back and forth, an agreement, and 

then when it was finally sent to them for their signature, they said 

well, we are not really interested anymore. But in the meantime 

41

they went about building their towers while we held back trying 

to attempt to work with these people. 

Now, we have come forward, we have said, we cannot justify in 

any manner whatsoever the expenditure of tribal funds and the expenditure of tribal personnel to answer these people’s problems, 

and we also would like to know how it is that they come off saying 

that the FCC has given them, has delegated to them the ability to 

conduct Government to Government consultation with a federally 

recognized Tribe. You have no such authority whatsoever, none. 

It does say that it can to a THPO, but let me define Tribal historic preservation officer. I happen to be the first one recognized in 

this country under section 101(d)(2). That exists, according to the 

advisory council’s own definition of Indian land, within the exterior 

boundaries of a reservation and no place else, and so when they 

say we are giving it to the THPOs, they have assumed that Tribal 

historic preservation officer is something that exists outside the 

boundaries. It does not. You are then dealing with the Tribe again, 

and again you cannot delegate that, and so these are totally illegal. 

If you have licensed these, then you have done so not in recognition 

of the law and your responsibility, and we ask relief from it, sir. 

We ask relief just from somebody having to spend half a day opening these pieces of mail. 

And we have offered, we have gone the full measure to try and 

work agreements with these people that we would be adequately 

compensated for using our resources to answer their questions. We 

have not attempted to bleed them dry, so to speak. We felt that a 

reasonable fee, we used the fee of $300, to research what they 

needed, to take the time, put somebody on this to answer these 

questions, was not unreasonable, particularly in light of the fact 

that last year I saw an ad in the New York Times, a full page ad. 

It was nothing but a cell phone tower. In big, 52-point type outside 

on the side of it said, ‘‘This is not a tower. This is a money tree.’’ 

And that being the case, we would like a leaf or two off of it for 

our trouble. We do not think that is too much to ask, and we also 

ask please, that somebody in the Federal Communications Commission give more than lip service to the concept of Government to 

Government relationship, and sovereignty, and your responsibility 

of trust. 

Thank you, sir. 

[The prepared statement of Mr. Day follows:]

PREPARED STATEMENT OF WILLIAM DAY, CHAIRMAN, CULTURE AND HERITAGE

COMMITTEE, UNITED SOUTH AND EASTERN TRIBES

I. Introduction 

Thank you, Mr. Chairman and Members of the Senate Committee on Indian Affairs and the Communications Subcommittee of the Senate Committee on Commerce, Science and Transportation for this opportunity to testify regarding telecom 

carriers, tribal governments and the siting of communication towers. My name is 

William Day. I am Chairman of the Culture and Heritage Committee of the United 

South and Eastern Tribes, Inc., an inter-tribal organization consisting of 24 tribes 

from Maine to Texas. I am also the Tribal Historic Preservation Officer for the 

Poarch Creek Indians and the Jena Choctaw, as well as the Native American Affairs 

coordinator for the Louisiana, Mississippi and Oklahoma National Guard. I was 

deeply involved in the development of the current regulations for the National Historic Preservation Act, as well as the Army Alternative Procedures for Section 106, 

the tribal consultation process. 

42

I would like to address my comments specifically to the failure of the FCC to comply with Federal law when it comes to consulting with tribal governments before 

cell towers are constructed, the questionable legality of the FCC’s purported delegation of its tribal governmental consultation obligations to private entities (the cell 

tower companies), and the appropriateness of tribe’s charging fees of cell tower companies when those companies seek unique tribal expertise in evaluating tower sites 

in order to comply with a host of laws including the National Historic Preservation 

Act (NHPA) and the National Environmental Policy Act (NEPA). 

This has been an area of great frustration for Indian tribes and for tribal historic 

preservation officers. Despite federally mandated consultation requirements, literally tens of thousands of cell towers have been constructed across the United 

States with virtually no effort by the FCC to consult with tribes. A number of these 

towers have had an adverse impact on sites of religious and cultural importance to 

Tribes. In a belated attempt to make up for past errors, the FCC has stated that 

it has delegated its consultation obligations to the cell tower companies, who are 

now sending letters to tribes demanding information, some of it very sensitive in 

nature, and asserting that if the information is not provided within a certain timeframe, usually 10 to 30 days, as one typical letter to the Chitimacha Tribe of Louisiana put it, ‘‘[w]e will presume that a lack of response from the Chitimacha Tribe 

of Louisiana to this letter will indicate that the Chitimacha Tribe of Louisiana has 

concluded that the particular project is not likely to affect sacred tribal resources.’’ 

In the last year, many tribes have received hundreds, and even thousands of these 

letters. To add insult to injury, the letters frequently refer to the tribes as ‘‘organizations’’ or ‘‘groups’’ demonstrating disrespect for tribal sovereignty, ignorance of the 

status of tribes and their unique legal rights, and generally conveying an impression 

that these companies do not care about tribal views. 

Despite the onerous workload involved in responding to these letters, the cell 

tower companies, which stand to make great profits from these towers, have with 

few exceptions, been unwilling to pay fees to cover tribal costs. These exceptions are 

worth noting, as they demonstrate that it is both possible and practical to establish 

a process involving tribes and cell tower companies which addresses tribal concerns, 

meets the economic needs of the cell tower companies, and preserve the consultation 

obligation of the FCC. For example, the Seminole Tribe of Florida has developed a 

professional relationship with a number of cell tower companies whereby for appropriate fees, the Seminole Tribe is able to respond in a timely manner to the requests 

of those companies. The process works smoothly in great part because the companies know, in advance, exactly what kind of information the Tribe needs to be able 

to respond. Similarly, the Narragansett Tribe has worked out an effective process 

with cell tower companies in Rhode Island, but has met with opposition from cell 

tower companies in Massachusetts and Connecticut. The success stories are the exception. By and large, cell tower companies need tribal expertise to properly evaluate commercial cell tower sites, but have refused to pay for that expertise. The FCC 

has an independent obligation to consult with tribes, but has refused to enter into 

consultation, pawning off that responsibility to the cell tower companies. Meanwhile 

the tribes, who are generally financially strapped, fear the continuing loss, damage 

or destruction of tribal cultural properties as communications towers proliferate.1

In an effort to work with the communications industry, the United South and 

Eastern Tribes reached out last year to industry trade organizations. With one exception, the Personal Communications Industry Association (PCIA), USET was 

rebuffed. At considerable expense, USET entered into detailed negotiations with 

PCIA over establishing a process for handling this issue. From the tribal perspective, we worked hard to find pragmatic solutions, while still assuring respect for 

tribal sovereignty and maintaining the FCC’s ultimate consultation responsibility. 

Based on the negotiations, USET developed and sent to PCIA a detailed proposal 

for establishing a set of protocols, which I have attached.2 We waited many months 

for a response, and then were told that PCIA had no further interest in these negotiations.3

The letter and spirit of such laws as the National Historic Preservation Act have 

been ignored, and continue to be ignored. The agency principally responsible for this 

state of affairs is the Federal Communications Commission. Although the FCC has 

made a few timid efforts in the last year to address these issues I, for one, see little 

actual progress. As an example, I have attached to my testimony an email I received 

from the Tribal Historic Preservation Officer for the Mississippi Band of Choctaw 

Indians, Ken Carleton. In his email he noted that the Mississippi Band had received 

‘‘a minimum of about 400–500 requests’’ from cell tower companies, many providing 

virtually no information on the location of the sites or maps, but all with at least 

a check off saying that there are no sites of religious or cultural importance to the 

tribe to make it easy to ‘‘rubber stamp their requests!’’ See Attachment C. Mr. 

43

Carleton’s email goes on to describe in some detail his experience with an FCCsponsored Telecommunications Working Group in which he responded to a Public 

Notice issued by the FCC for tribal input, a notice which was never sent to the 

tribes to the best of my knowledge despite the fact that we have complained repeatedly to the FCC in the last year about its lack of contact and consultation with 

tribes. Mr. Carleton describes the lack of regard for his views on the Programmatic 

Agreement that was under discussion (by the time he received a draft copy it was 

already draft number 9 or 10). He has since learned that the draft agreement will 

likely be submitted to the Advisory Council for Historic Preservation for approval 

at its June 2002 Meeting, despite the fact that there has been virtually no tribal 

input. This level of disregard for tribal views is, unfortunately, all too common.4 It 

is also a violation of federal law, the trust responsibility, and the government-togovernment relationship between the United States and Indian tribes. 

The FCC has consistently disregarded and denigrated Tribal views. Last year, the 

FCC advocated, and the Advisory Council on Historic Preservation adopted an antenna co-location agreement for existing cell towers with little regard for tribal 

views. Notably, former FCC Commissioner Tristani was quoted in the March 19, 

2001 issue of Communications Daily as expressing concern that the agreement fell 

short of the FCC’s obligation to facilitate tribal consultation. She stated that ‘‘[t]he 

overwhelming majority [of tribal comments] told us our approach is not working. 

This response is prima facie evidence that our understanding of tribal consultation 

is misguided.’’ The Tribes could not have said it better themselves. 

As sovereign nations, Tribes have an inherent right and responsibility to protect 

and promote the welfare of their people, which includes the right to protect their 

cultural and religious properties and the right to be treated with respect by Federal 

agencies. Federal law acknowledges these rights, but Federal agencies have been reluctant to comply. 

II. Principal Issues of Concern 

A. The Federal Communications Commission (FCC) has violated the tribal consultation requirements of the National Historic Preservation Act, 

particularly when it comes to the licensing and siting of communications 

towers.

The National Historic Preservation Act (NHPA) provides protection for ‘‘districts, 

sites, buildings, structures and objects significant in American history, architecture, 

archeology, engineering, and culture.’’ 16 U.S.C. Section 440(f). The NHPA does this 

by requiring federal agencies engaged in a ‘‘federal undertaking’’ to ‘‘take into account the effect’’ the undertaking may have on historic properties ‘‘included,’’ or ‘‘eligible for inclusion’’ in the National Register of Historic Places. Id. The NHPA is implemented through a complex regulatory scheme (the Section 106 process), a consultation process through which federal agencies collect information concerning a 

particular site’s eligibility for the National Register, potential adverse effects the undertaking may have on the site, and ways to mitigate adverse effects. See 34 C.F.R. 

Part 800.

The NHPA has always required consultation with Tribes, but in 1992 it was specifically amended to clarify and mandate such consultation. The 1992 amendments 

state that federal agencies ‘‘shall consult with any Indian tribe and Native Hawaiian organization that attaches religious or cultural significance’’ to properties that 

might be affected by a federal undertaking. 16 U.S.C. Section 470a(d)(6)(B) (emphasis added). The FCC licensing process for cell tower antenna arrays is a federal undertaking, but the FCC has consistently failed to consult with Tribes in this process. 

The NHPA tribal consultation requirement applies broadly to traditional religious 

and cultural properties of Native Americans and Native Hawaiians, and makes no 

distinction with respect to tribal religious or cultural properties located on or off 

tribal lands. The law does not provide for delegation of this responsibility to private 

entities, such as cell tower companies.

B. The FCC is also in violation of general principles of Federal Indian 

law which recognize tribal sovereignty, place tribal-U.S. relations in a government-to-government framework, and set forth a Federal trust responsibility to American Indian tribes that applies to all Federal departments 

and agencies.

These general principles are rooted in the U.S. Constitution (Art. I, Section 8), 

Federal case law, Federal statutes (including the National Historic Preservation Act, 

the Native American Graves Protection and Repatriation Act, the American Indian 

Religious Freedom Act, and the Archaeological Resources Protection Act), Executive 

Orders (including Executive Order 13007—Indian Sacred Sites, and Executive Order 

13175—Consultation and Coordination with Indian Tribal Governments), regulaVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
44

tions, and case law, as well as in the policy statement of the Advisory Council on 

Historic Preservation entitled The Council’s Relationship with Indian Tribes.

(1) Federal Statutory Consultation Obligations with Indian Tribes on Religious Matters. Congressional Indian policy with respect to Indian religious matters is set forth in the American Indian Religious Freedom Act (AIRFA):5

‘‘Protection and preservation of traditional religions of Native Americans 

Henceforth it shall be the policy of the United States to protect and preserve 

for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession 

of sacred objects, and the freedom to worship through ceremonials and traditional rites.’’

42 U.S.C. Section 1996. AIRFA also requires federal agencies to consult with Native American traditional religious leaders in order to evaluate existing policies and 

procedures and make changes necessary to preserve Native American cultural practices. Act of Aug. 11, 1978, P.L. 95–341, Section 2. 92 Stat. 470. 

There are several other statutes where Congress has set forth a policy of protecting traditional Indian religion, such as the Native American Graves Protection 

and Repatriation Act (NAGPRA),6 the Archaeological Resources Protection Act 

(ARPA),7 and the National Museum of the American Indian Act (20 U.S.C. Sections 

80q to 80q–15). The consultation requirements of, and legal rights established by, 

these statutes are not geographically confined to situations where cultural or religious objects are found (or activities occur) solely on tribal lands.

(2) Executive Action. There are also several presidential orders which mandate 

Federal consultation with Indian tribes. Executive Order 13007 (May, 24 1996) 

(hereafter ‘‘Executive Order on Sacred Sites’’) directs federal agencies to provide access to American Indian sacred sites, to protect the physical integrity of such sites 

and, where appropriate, to maintain the confidentiality of these sites. This Executive Order on Sacred Sites also incorporates a prior Executive Memorandum issued 

on April 29, 1994, which directed federal agencies to establish policies and procedures for dealing with Native American Tribal Governments on a ‘‘government-togovernment basis.’’

Executive Order 13175 (Consultation and Coordination with Indian Tribes, November 6, 2000) directs Federal officials to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications.

(3) Federal Court Interpretation of Indian-Related Statutes. The Federal 

Courts have developed canons of construction that are used to interpret Indian treaties and statutes relating to Indians. The fundamental component of these canons 

of construction is that treaties and statutes are to be liberally interpreted to accomplish their protective purposes, with any ambiguities to be resolved in the favor of 

the Indian tribes or individual Indians. See Alaska Pacific Fisheries Co. V. United 

States, 248 U.S. 78, 89 (1918) (‘‘the general rule [is] that statutes passed for the benefit of the dependent Indian tribes or communities are to be liberally construed, 

doubtful expressions being resolved in favor of the Indians’’); Tulee v. Washington,

315 U.S. 681, 684–685 (1942); Carpenter v. Shaw, 280 U.S. 363 (1930); McClanahan 

v. Arizona State Tax Com’n, 411 U.S. 164 (1973). In this context, the National Historic Preservation Act should be read broadly to support and protect tribal interests. 

There has been an effort from some quarters to cloud the consultation right by 

asserting that the tribal right to consultation is not as strong off tribal lands as on 

tribal lands. This argument ignores the fact that Congress, in providing in the National Historic Preservation Act that federal agencies ‘‘shall consult’’ with Indian 

tribes regarding their properties of cultural and historic importance, created no distinction between off and on-reservation sites. It also ignores the numerous instances 

where Congress has acted to provide tribes with jurisdictional and other rights off 

tribal lands in conformity with the ‘‘overriding duty of [the] Federal government to 

deal fairly with Indians wherever located. . . .’’ Morton v. Ruiz, 415 U.S. 199, 236 

(1974). One quirk in this legal framework is that the authority of the Tribal Historic 

Preservation Officer is a creature of federal statute (101(d)(2)(3). The federally created Tribal Historic Preservation Officer arguably only has jurisdiction over tribal 

lands. Nonetheless, this limitation does not affect the Tribes’ right to be consulted 

with regard to tribal cultural and religious properties located off of tribal lands. A 

tribe may designate the federally created Tribal Historic Preservation Officer as the 

Tribe’s representative for the off-reservation sites.

45

C. The FCC has unlawfully attempted to delegate its consultation obligations to the cell tower industry.

The FCC’s consultation obligation is an ‘‘inherent Federal’’ or ‘‘inherently Governmental’’ function that is non-delegable. FCC efforts to delegate this function to the 

cell tower companies violate the principle of separation of powers founded in the 

Constitution. The U.S. Constitution provides that ‘‘[t]he executive power shall be 

vested in a President of the United States of America,’’ and gives the President the 

responsibility to ‘‘take care that the Laws be faithfully executed.’’ U.S. Const., art. 

II, sec. 1, cl. 1; art. II, sec. 3. The President delegates this power to Federal officers 

(‘‘Officers of the United States’’) pursuant to the Appointments Clause. U.S. Const., 

art. II, sec. 2, cl. 2. 

The Federal courts have identified a ‘‘horizontal’’ component of the Appointments 

Clause that assures that executive power is not exercised by individuals appointed 

by, or subservient to, another branch of government. See Buckley v. Valeo, 424 U.S. 

1 (1976) and Bowsher v. Synar, 478 U.S. 714. The Courts have also identified a 

‘‘vertical’’ component of the Appointments Clause that protects against the delegation of Federal authority to private entities outside the constitutional framework. 

See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) and Northern 

Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50 (1982). 

The Executive Branch has further interpreted the ‘‘Vertical’’ component of the Appointments Clause in OMB Circular A–76 which states that certain functions are 

‘‘inherently Governmental in nature’’ and therefore can only be performed by Federal employees.8 The circular goes on to specifically identify as governmental functions ‘‘activities which require either the exercise of discretion in applying Government authority or the use of value judgment in making decisions for the Government.’’ The circular describes specific examples of the ‘‘act of governing,’’ including 

‘‘management of Government programs requiring value judgments’’, the ‘‘regulation 

of the use of space, oceans, navigable rivers and other natural resources,’’ and the 

‘‘conduct of foreign relations.’’ Under each of these bases, as well as the unique Federal trust responsibility to Indian tribes, the FCC’s obligation to consult with federally recognized sovereign Indian tribes with regard to federal undertakings that 

could affect tribal cultural and religious properties is a non-delegable ‘‘inherent Governmental’’ function. 

Although the Advisory Council on Historic Preservation has promulgated regulations that purport to allow limited delegation by an agency to private entities ‘‘to 

initiate consultation’’ with tribes, such delegation, on its face, violates the ‘‘vertical’’ 

component of the separation of powers doctrine. Moreover, even these regulations 

require notification to Tribal Historic Preservation Officers of such a delegation, 

which the FCC has not done. Contradictorily, and in an attempt to have their cake 

and eat it too, the ACHP regulatory process also provides that agencies that do delegate the initiation of consultation ‘‘remain responsible for their government-to-government relationship with Indian tribes.’’ It is not possible to delegate this consultation obligation to private companies and maintain the government-to-government 

relationship with a tribe at the same time.

D. The cell tower companies seek information from tribes necessary to 

carryout National Historic Preservation Act, NEPA and other requirements, but have generally been unwilling to pay for that expertise.

Tribes have a consultation right, but lack the resources to exercise it. The Federal 

government has an obligation to protect this right, but has failed to do so. The cell 

tower companies, in order to complete their evaluation of potential cell tower sites, 

often need the unique expertise of tribal experts to evaluate the sites but are generally reluctant to provide compensation which would be standard for other professionals. In the last year, tribes have been buried in hundreds and even thousands 

of letters from cell tower companies demanding a response, usually within 10 to 30 

days. Few, if any tribes, can afford to put thousands of staff hours into responding 

to these letters which only benefit the cell tower companies’ commercial interests. 

If a tribe does not respond, or seeks compensation for services rendered to help the 

cell tower companies, the cell tower companies move ahead without any regard to 

tribal interests or rights. 

III. Court Decisions under the National Historic Preservation Act. 

A review of federal court decisions brought by tribes under Section 106 of the 

NHPA demonstrates a pattern of non-compliance and an unwillingness to truly seek 

tribal input by federal agencies. See e.g., Pueblo of Sandia v. United States, 50 F.3d 

856 (10th Cir. 1995); Attakai v. United States, 746 F. Supp. 1395 (D.Ariz. 1990); Colorado River Indian Tribes v. Marsh, 605 F.Supp. 1425 (C.D. Cal. 1985). These same 

cases also demonstrate how important the NHPA is to tribes to provide some modVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
46

icum of protection to their sacred and cultural properties, particularly those properties located off tribal lands. 

In Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995),9 the United 

States Court of Appeals for the Tenth Circuit held that the U.S. Forest Service violated section 106 of NHPA by failing to properly evaluate or reasonably pursue information provided by various Pueblos regarding the Las Huertas Canyon as a traditional cultural property eligible for listing in the National Register. The Forest 

Service had sent letters to various local Pueblos requesting information regarding 

the existence and location of traditional cultural properties in the Las Huertas Canyon, and had attended various tribal council meetings to request the same information. General information was made available to the Forest Service indicating the 

existence of sacred ceremonial sites, but specific information was not provided largely because secrecy is often a vital aspect of these ceremonies. 

The Forest Service took the position that it had made the efforts required by the 

regulations to identify historic properties in the canyon and that none existed. The 

SHPO concurred in this determination and a final agency decision was rendered.10

The Pueblo of Sandia brought suit in federal district court, alleging, among other 

things, that the Forest Service failed to comply with section 106 of NHPA by failing 

to properly evaluate the canyon as a ‘‘traditional cultural property’’ eligible for listing on the National Register. The district court noted that the Forest Service ‘‘does 

not appear to have taken the requirements of [the NHPA] very seriously.’’ 50 F. 3d 

at 858, quoting Memorandum Opinion and Order (April 30, 1993) at 12. Nevertheless the district court ruled in favor of the Forest Service, finding that it had made 

the required ‘‘good faith effort’’ to identify historic properties in the canyon. 

The United States Court of Appeals for the Tenth Circuit reversed the district 

court, finding that the Forest Service violated its obligation under Section 106 by 

failing to adequately pursue information it had in its possession that the canyon 

was used by the Pueblos for religious and ceremonial purposes and contained sacred 

sites: ‘‘[W]e hold that the agency did not reasonably pursue the information necessary to evaluate the canyon’s eligibility for inclusion in the National Register.’’ 

Pueblo of Sandia, 50 F.3d at 861. The Tenth Circuit also found that the Forest Service failed to act in good faith by withholding certain information, and by ignoring 

various of the section 106 procedural requirements (e.g., not providing documentation to the SHPO upon concluding that no historic properties existed until after litigation was filed by the Sandia Pueblo). 

Similarly, in Attakai v. United States, 746 F. Supp. 1395 (D.Ariz. 1990), the 

United States District Court for the District of Arizona found that the Bureau of 

Indian Affairs (BIA) and the Department of Interior failed to adequately consider 

the effects of a federal undertaking on Navajo ceremonial sites located in areas no 

longer a part of the Navajo reservation. (The sites were located on what is now Hopi 

reservation land.) The district court issued a preliminary injunction enjoining further governmental activity as a violation of Section 106 of NHPA. The court held 

that the BIA violated Section 106 consultation requirements because it failed to consult with the Navajos. (The BIA had consulted with the Hopi Tribe but not the Navajos, apparently because the sites were not located on Navajo land.) The court emphasized that the Section 106 process depended upon proper consultation since the 

goal is to gather the necessary information to properly evaluate historic properties. 

Moreover, ‘‘the regulations clearly contemplate participation by Indian tribes regarding properties beyond their own reservations.’’

The Attakai court also held that the BIA violated Section 106 by failing to consult 

with the Advisory Council and the SHPO during the preliminary determination as 

to whether historic properties existed which were eligible for protection under Section 106. The BIA had conducted its own survey to locate historic properties and 

a BIA archeologist had recommended certain steps intended to avoid adverse effects 

on the properties located. Significantly, BIA officials testified that it was standard 

practice for the BIA Phoenix Office to make eligibility and adverse effects determinations under Section 106 prior to consulting with the SHPO. The court emphasized the importance of the initial identification stage of the Section 106 process. 

Here, however, the BIA ignored the procedures, acting ‘‘contrary to the letter and 

spirit of the regulations.’’ 746 F. Supp. at 1408. The court concluded that the BIA 

‘‘did not adequately take into account the effect of the undertakings on historic properties’’ in violation of the NHPA. 

The Army Corps of Engineers (Corps) was found to have flouted Section 106 procedures in Colorado River Indian Tribes v. Marsh, 605 F.Supp. 1425 (C.D. Cal. 

1985). In Marsh, the district court granted the plaintiff Colorado River Indian 

Tribes (Tribes) an injunction against the Corps’ issuance of a permit for construction 

along the western shore of the Colorado River in California, on land abutting property owned by the United States, administered by the Bureau of Land Management 

47

(BLM), and located near the Colorado River Indian Reservation. The BLM managed 

land is an archeological district with significant cultural and archeological sites. The 

construction involved the placement of riprap along the riverbank to stabilize the 

bank and establish a boundary line for a housing development. 

In conducting surveys to determine if eligible historic or cultural properties existed, the Corps relied on proposed (but not yet promulgated) regulations it had 

adopted but which had not been approved by the Advisory Council as counterpart 

regulations for Section 106. These proposed regulations imposed different responsibilities on the agency depending on whether a site was listed on the National Register and those not yet listed, but potentially eligible. By doing this, the Corps was 

able to conduct archeological surveys in a more limited area than the section 106 

regulations require and the Corp therefore did not survey the required areas for potentially eligible historic and cultural sites. The Court emphasized that possible 

sites of archeological and cultural significance had subsequently been located on 

lands nearby the proposed development that should have been surveyed if the proper regulations had been adhered to. 

In short, the court in Marsh concluded that the Corps ‘‘breached its responsibilities under NHPA,’’ and violated Section 106 by failing to properly evaluate ceremonial sites of the Colorado River Indian Tribes as eligible properties entitled to protection under Section 106. 605 F. Supp. at 1438. 

All of the above cases were brought by tribes who claimed an interest in traditional cultural sites located off tribal lands. They were all brought prior to the time 

that Congress amended the NHPA to statutorily impose an affirmative obligation 

on federal agencies engaged in the Section 106 consultation process to ‘‘consult’’ with 

‘‘any Indian tribe or Native American Organization.’’ 

IV. Conclusion 

The FCC has been unwilling to live up to its consultation obligations both under 

the National Historic Preservation Act and the Trust Responsibility to Tribes. Instead, it has sought to delegate those obligations to the cell tower companies, who 

have little understanding, and generally even less regard for, tribal sovereignty. The 

cell tower companies have sought the unique expertise of tribes in the evaluation 

of sites for commercial cell towers, but have been unwilling generally to cover the 

costs associated with using that expertise. The result is an untenable situation 

where tribal rights are trampled and tribal cultural and religious properties are endangered. I urge the Committee to examine this situation closely and ensure the 

protection of tribal rights and properties. 

Thank you for this opportunity to testify. Your attention to this matter is very 

important, and greatly appreciated by the United South and Eastern Tribes.

ENDNOTES 1One of the cruel ironies of this situation is that cell tower companies and many 

tribes tend to value the same place: high points in the landscape. 2 Attachment A: ‘‘Protocols Governing the Relationship between Federal Recognized Indian Tribes and Wireless Communication Tower Manufacturers in the Review of Cell Tower and Tenant Array Siting,’’ Draft Number 4, August 9, 2001. 3 In marked contrast to USET’s experience with the communications industry, I 

have personally been involved in a number of successful negotiations regarding consultation with tribes with the Louisiana National Guard (see Attachment B), the development of a Memorandum of Agreement between the Poarch Creek Indians and 

the Alabama National Resource Conservation Service (which is serving as a model 

for other NRCS’s), and the establishment of a Keepsake Heritage Cemetery at Camp 

Beauregard for internment of American Indian remains. 4See discussion at Section III, below. 

5Pub. L. No. 95–341, Section 1, 92 Stat. 469 (1978)(codified at 42 U.S.C. Section 

1996 (1988). 6Pub. L. No. 101–601, Section 2, 104 Stat. 3048 (1990)(codified at 25 U.S.C. Sections 300–13 (Supp. III 1991). 7Pub. L. No. 96–95, Section 2, 93 Stat. 721 (1979)(codified at 16 U.S.C. Sections 

470aa–70mm (1988). 8OMB Circular A–76

‘‘5. Policy. It is the policy of the United States Government to:

b. Retain Governmental Functions In-House. Certain functions are inherently 

Governmental in nature, being so intimately related to the public interest as to 

mandate performance only by Federal employees. These functions are not in competition with the commercial sector. Therefore, these functions shall be performed 

by Government employees.

48

1 ‘‘Federal Undertaking’’ means ‘‘a project, activity, or program funded in whole or in part 

under the direct or indirect jurisdiction of a Federal agency, including—(A) those carried out 

by or on behalf of the agency; (B) those carried out with Federal financial assistance; (C) those 

requiring a Federal permit, license, or approval; and, (D) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.’’

6. Definitions. For purposes of this Circular:

e. An inherently Governmental function is a function which is so intimately 

related to the public interest as to mandate performance by Government employees. 

Consistent with the definitions provided in the Federal Activities Inventory Reform 

Act of 1998 and OFPP Policy Letter 92–1, these functions include those activities 

which require either the exercise of discretion in applying Government authority or 

the use of value judgment in making decisions for the Government. Services or products in support of inherently Governmental functions, such as those listed in Attachment A, are commercial activities and are normally subject to this Circular. Inherently Governmental functions normally fall into two categories:

(1) The act of governing; i.e., the discretionary exercise of Government authority. Examples include criminal investigations, prosecutions and other judicial 

functions; management of Government programs requiring value judgments, as 

in direction of the national defense; management and direction of the Armed 

Services; activities performed exclusively by military personnel who are subject 

to deployment in a combat, combat support or combat service support role; conduct of foreign relations; selection of program priorities; direction of Federal employees; regulation of the use of space, oceans, navigable rivers and other natural resources; direction of intelligence and counter-intelligence operations; and 

regulation of industry and commerce, including food and drugs.’’

9 Although this case was decided by the Court of Appeals in 1995, the district 

court case was brought earlier, and the facts complained of occurred prior to 1992 

when Congress amended the NHPA to provide tribes with consultation rights (see 

discussion below). 10 After the Pueblo of Sandia filed suit in federal court, the SHPO withdrew its 

concurrence in the Forest Service’s ‘‘no adverse effects determination.’’ There is evidence that the Forest Service withheld certain information from the SHPO. 

Attachment A 

Protocols Governing the Relationship between Federally Recognized Indian Tribes and Wireless Communication Tower Manufacturers In the 

Review of Cell Tower and Tenant Array Siting 

I. INTRODUCTION 

A. Background. The Personal Communications Industry Association (hereinafter, PCIA) and the United South and Eastern Tribes (hereinafter, USET), a consortium of 24 Federally recognized Indian Tribes east of the Mississippi River (hereinafter, Tribes) have established these Protocols in order to govern the review process whereby the individual USET Tribes and the individual Cell Tower Manufacturers (hereinafter, CTM) represented by PCIA may establish and regularize working 

relationships, and in order to evaluate the potential impact of cell tower and tenant 

array—both ‘‘green fields’’ (new site) and co-location sitings on properties of religious 

and cultural significance to the Tribes. 

Since 1492, Indian Tribes within what is now the United States have, as a group, 

lost 98 percent of their aboriginal land base. This percentage is even higher for the 

member Tribes of USET, whose aboriginal lands were the first to be subsumed in 

the process of European settlement. Today, as a result, the overwhelming majority 

of Tribal properties of cultural and religious significance are located off Indian Reservations and Federal trust lands. 

The National Historic Preservation Act (NHPA) recognizes the validity of continuing Tribal concerns with the protection of both on- and off-Reservation properties of cultural and religious significance, and establishes extensive Federal agency Consultation requirements with Tribes when there is a ‘‘Federal Undertaking,’’ 

as defined in the National Historic Preservation Act,1 with the potential to have any 

affect on such properties. In the case of wireless communication towers and tenant 

array sitings, that responsibility resides with the Federal Communications Commission, in its capacity as permitter of the transmission frequencies. 

The CTM are engaged in the construction of a universal wireless telecommunications infrastructure network that is vital to the economic and social future of the 

United States. The Tribal interests at issue are also vital, both to the Tribes, and 

49

2The parties to these Protocols recognize that the terms ‘‘prehistoric’’ and ‘‘historic,’’ which 

respectively refer to history before and history after the arrival of the process of written 

recordskeeping, with the Europeans in the Americas, do not convey the historical perspective 

of Native Americans. Such terms are used here to maintain consistency and, therefore, clarity 

in the relationship with the language of Federal law and not to otherwise validate these 

Eurocentric concepts. 

to the United States in terms of its historic preservation goals and its national identity as a nation of diverse and vibrant peoples and cultures. 

The CTM seek to establish a process for Tribal review of tower sitings that will 

expedite the Federal Communications Commission’s Section 106 Consultation process responsibilities under the National Historic Preservation Act. As a central part 

of this process, the CTM seek access to the unique expertise held by Tribes in the 

identification, evaluation, assessment of effects, and treatment of these sites, and 

understand the value of obtaining these professional services. Consequently, it is of 

great importance to the CTM that a cost-effective, fair, predictable, and consistent 

process be established for accessing Tribal expertise. 

Through these Protocols, the parties seek to assure that legitimate and important 

Tribal interests in the preservation of properties of religious and cultural significance to the Tribes are fully recognized, while also addressing the needs of the CTM 

in a cost-effective and efficient manner. 

B. Good Faith Efforts. The parties agree to comply with these Protocols in good 

faith to achieve the goals set forth herein. 

C. Federal Indian Law Principles. The sovereign status of Federally recognized Tribes (those Tribes listed by the Secretary of the Interior pursuant to the 

Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. Section 479a et seq.), 

arising from their inherent nationhood and existing since time immemorial, is affirmed in broad principles of Federal law that provide that the Federal government 

has a trust responsibility towards Tribes and that the United States relates to the 

Tribes within a government-to-government framework. As sovereign nations, Tribes 

have an inherent right and responsibility to protect and promote the welfare of their 

people, which includes the right to protect their cultural and religious properties. 

These doctrines are rooted in the U.S. Constitution, Federal statutes (including the 

National Historic Preservation Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, and the Archaeological 

Resources Protection Act), Executive Orders (including Executive Order 13007—Indian Sacred Sites, and Executive Order 13175—Consultation and Coordination with 

Indian Tribal Governments), regulations, and case law, as well as in the policy 

statement of the Advisory Council on Historic Preservation entitled The Council’s 

Relationship with Indian Tribes.

D. Federal Consultation Obligation. In addition to the broader obligations of 

the Federal government described in Paragraph I.C., Federal agencies have a specific obligation under the National Historic Preservation Act (NHPA) to consult with 

Federally recognized Indian Tribes whenever a Federal Undertaking ‘‘has the potential to affect an historic property to which an Indian tribe or Native Hawaiian organization attaches religious and cultural significance’’ (16 U.S.C. Section 

470a(d)(6)(B)). An historic property is any prehistoric 2 or historic district, site, 

building, structure or object included in or which maybe eligible for inclusion in the 

National Register of Historic Places, including artifacts, records, and material remains related to such property or resource. (See 16 U.S.C. Section 470w.) FCC licensing of telecommunications frequencies, the integral element of tower siting and 

tenant arrays, therefore, is a ‘‘Federal Undertaking’’ within the meaning of the 

NHPA. 

E. Federal Communications Commission. Under the NHPA, the FCC is responsible for consulting with Federally recognized Tribes whenever it engages in an 

Undertaking that affects Tribal properties eligible, or which may be eligible, for the 

National Register. The procedures established by these Protocols contemplate no 

specific role for the FCC. It is the intent of USET and of PCIA that these procedures 

should lead to a Tribal certification regarding the effect of a cell tower and antenna 

construction that can be relied upon by the FCC in meeting its Consultation requirements. By these Protocols, the Tribes have not agreed to any deferral, delegation, or diminishment of the FCC’s Consultation obligations under the NHPA or 

under the FCC’s trust obligation within the general principles of Federal Indian 

law. Except as specifically agreed to in writing by any individual Tribe, the Tribes 

do not concur in any delegation or abrogation of the FCC’s responsibilities under 

the NHPA. 

F. United South and Eastern Tribes. USET was authorized by its Board of Directors, representing its member Tribes (USET Resolution 2001:——), to engage in 

50

discussions with PCIA, with the intention of establishing Protocols regularizing 

CTM access to Tribal expertise, in order that the Tribes may protect sites and properties to which they attach historic and religious significance from impact during 

the process of cell tower and tenant array siting. USET recommends these Protocols 

to its member Tribes, but does not have the authority to bind any of its member 

Tribes to their acceptance. 

In accordance with these Protocols, USET will establish a Tribal Lands Directory 

(TLD) that lists the USET Tribes and the states in which they have interest, as determined by each Tribe itself. The Tribes will provide the information to the TLD. 

USET will make this directory available to the CTM and their compliance subcontractors and construction contractors through its website (www.usetinc.org). 

USET also will maintain a directory of Tribal leaders, at the same site, setting forth 

the name, title, and address for each USET Tribe and leader, and the Tribal official 

responsible for historic preservation. In addition, USET will facilitate these Protocols by providing mediators for the Mediation Team, as set forth in Section XI. 

G. Personal Communications Industry Association. PCIA was authorized by 

its membership to engage in discussions with USET, with the intention of establishing Protocols regularizing CTM access to Tribal expertise, in order to expedite 

wireless communication tower and tenant array sitings, and assist the FCC in fulfilling its Federal responsibilities by seeking direct access to the unique expertise 

of Tribes. PCIA recommends these Protocols to its members, but does not have the 

authority to bind any of its members to these Protocols. PCIA will facilitate these 

Protocols by providing mediators for the Mediation Team, as set forth in Section XI. 

H. State Historic Preservation Officer. These Protocols do not provide a role 

for the State Historic Preservation Officer (SHPO). Consistent with Federal law, the 

Tribes and the CTM recognize that the SHPOs have a role in the NHPA Consultation process off Tribal lands, and, in those cases where a Tribe does not have a Tribal Historic Preservation Officer (THPO) established pursuant to Section 101(d)(2) of 

the NHPA, on Tribal lands. Nevertheless, these Protocols are not a substitute for 

the FCC’s proper Consultation with all relevant parties under that law. The Tribes 

and the CTM affirm and agree that a Tribe, and not the SHPO or others, is the 

ultimate authority in the process of identifying Tribal properties of cultural and religious significance. The parties recognize the unique expert knowledge of the Tribes. 

Consequently, notification to a CTM by a SHPO or others that there are no properties of religious or cultural significance to a Tribe at a given site shall not be 

taken to mean that no such properties exist at that site but, rather, shall be taken 

to mean only that no such properties are known, by the SHPO or others, to exist 

there. A search of Master Site File (MSF) records is not sufficient to make a determination about the properties which may exist at a site. Nor is an archaeological 

survey necessarily sufficient for such purposes. 

II. PROTOCOLS OF REVIEW 

This section provides specific guidelines for contacting a Tribe and providing the 

information necessary to obtain Tribal review of the proposed greenfield or co-location construction site. 

A. Contact with a Tribe shall be made at the earliest planning stage but 

in no event later then when the CTM narrows its search ring to a specific 

site. Failure to contact the Tribe as early as possible will materially impede the review process. Contact may be made either by the CTM or its representative, e.g., 

an archaeological, compliance, or construction contractor (hereinafter, Contractor). If 

contact is made by a Contractor, the CTM shall supply to the Contractor a copy of 

these Protocols and sample documents, and shall require adherence to this process. 

If contact with a Tribe is made by a Contractor, the CTM, as the entity seeking 

Tribal expertise, shall nevertheless retain responsibility for compliance with these 

Protocols. 

B. Contacting the Tribe. The CTM shall commence good faith, respectful, and 

culturally sensitive contact with the Tribe concerning a site by sending a ‘‘Request 

for Review’’ letter to the Tribal official specifically responsible for historic preservation. In many instances, such official will not be the Tribal leader, but another official designated to represent the tribe on historic preservation matters. (Please note: 

letters sent to the incorrect official or to any individual Tribal citizens will result 

in delays in processing.) The names, proper titles (which should be used in all correspondence), and addresses of the historic preservation officer or other individual 

charged with the responsibilities of historic preservation may be obtained directly 

from the Tribe or from the USET website (indicated, above). Facsimile transmissions of information to the Tribe will not be sufficient due to the degradation 

of detailed information that is necessary for decision-making. The Request for ReVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00054 Fmt 6633 Sfmt 6621 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
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view letter must be sent either by USPS First Class Mail (preferably certified, return receipt requested), or by overnight courier service. 

C. Request for Review Letter and Review Materials. A sample Request for 

Review Letter is appended to these Protocols, as Appendix A. In addition to the letter, the review materials provided to the Tribe should include the following basic 

information, at minimum. Review will not begin until these basic materials are received.

1. Site Location including latitude and longitude coordinates (for those areas 

where property descriptions occur only in metes and bounds), or Township, 

Range, and Section (TRS), where applicable, of all areas included in the review site.

2. Map with the review site plotted on copy or copies of USGS 7.5’ Series Topographic Maps.

3. Complete Site Survey Report. (A Report Summary will not suffice.) The 

site survey shall be a Phase I archaeological survey, conducted by a Registered Professional Archaeologist who meets the Secretary of the Interior’s 

Standards and has credentials that demonstrate regional knowledge and experience. The archaeological examination must be conducted on a five-meter 

or less established grid after a pedestrian reconnaissance along the transects, 

and shovel testing to sterile soil levels at each grid intersect across the Area 

of Potential Effect (APE). The APE shall be defined as including the primary 

site; any anchor sites (for guyed towers); any areas required for new construction of access road(s) and/or equipment pads inside or outside of the primary site and any anchor sites; and/or other areas of heavy equipment access.

The Site Survey Report must include:

• a site and area history, including a detailed description of the land, and indicating the degree of historical and current soil disturbance;

• a bibliographic or narrative review of any prior archaeological surveys;

• an evaluation of the potential for viewscape intrusion;

• a review of any other potential environmental intrusions or impact; and

• color images of the site in question (digital images are acceptable if they are 

output at [——-] dpi, minimum).

4. A detailed description and drawing of construction methodologies,

specifying all facets that will entail soil disturbance. This description is required for both greenfields and co-location sites.

5. A copy of the findings of the State-Wide Archaeological Inventory or 

Master Site File search, signed by the SHPO. Please note that a finding 

of ‘‘no known sites’’ in the Inventory or MSF does not indicate that no sites 

are present. Nor does it relieve the CTM of the responsibility for conducting 

a Phase I archaeological survey (as above).

6. Not FCC Consultation. A statement indicating that this Request for Review does not substitute for the FCC’s Consultation obligation, although the 

Tribe’s response and/or Certification and non-confidential data may be provided to the FCC. (See: sample Request for Review Letter, Appendix A.)

7. Contact Information. Name, address, and telephone number of contact individual. If the Request for Review has been made by a Contractor to the 

CTM, then the name, address, and telephone number of the CTM official responsible for compliance with these Protocols shall be provided also.

8. Standard Review Fee. A check to cover the standard review, made payable 

to the Tribe. (See: X, ‘‘Fees.’’)

D. Tribal Determinations in response to the Request for Review and Review Materials. The Tribe commits to a response, in writing, within 30 days of receipt of the Request for Review letter and complete review materials package. Tribal 

responses may include:

1. Request for Additional Information. If the review materials package 

originally provided by the CTM does not provide all of the required information (as established in II. C, 1–8), or is otherwise insufficient for the Tribe 

to make a decision regarding its interest in, and determination concerning, 

a site, the Tribe may request additional information. This request may take 

the form of a letter indicating the additional information required; an in-perVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00055 Fmt 6633 Sfmt 6621 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
52

son meeting or teleconference; or a site visit by Tribal representative(s). (See: 

X. ‘‘Fees.’’) The Tribe’s 30-day deadline for responding to the CTM shall 

begin anew, upon receipt of an adequate response from the CTM.

2. ‘‘No Interest’’ Determination. If the Tribe determines that it has no interest in the site, it shall send the CTM a ‘‘No Interest Determination.’’ The 

CTM may provide such a determination to the FCC in order to demonstrate 

that the Tribe has determined that it has no interest in the site.

3. ‘‘No Current Interest.’’ If the Tribe determines, on the basis of the Request 

for Review letter and the complete Review Materials provided, that it has no 

current interest in the site it shall so inform the CTM. (For sample ‘‘No Current Interest’’ Response Letter, see Appendix B.) The CTM may provide a 

copy of this response to the FCC in order to demonstrate that the Tribe has 

reviewed the site materials and has issued its response. The finding of ‘‘No 

Current Interest’’ does not preclude the possibility that inadvertent finds 

made during the construction process may be of interest to the Tribe. (See: 

V, ‘‘Inadvertent Finds.’’)

4. ‘‘Deferral’’ Response. If the Tribe determines, on the basis of the Request 

for Review letter and the complete Review Materials provided that, for reasons of culture and history, it wishes to defer its interest to another Tribe, 

it shall so inform the CTM. (For sample ‘‘Deferral’’ letter, see Appendix C.) 

The CTM may provide a copy of this response to the FCC in order to demonstrate that the Tribe has reviewed the site materials and has issued its 

response. One Tribe’s Deferral to another does not preclude the possibility 

that inadvertent finds made during the construction process may be of interest to the Deferring Tribe. (See: V, ‘‘Inadvertent Finds.’’)

5. Request for Additional Time. The Tribe also may extend the deadline for 

responding by an additional 30 days if, in its reasonable judgment, it is unable to respond adequately during the initial period, for reasons of research 

requirements, staff constraints, or other extraordinary considerations. In 

such a situation, the Tribe shall notify the CTM or its Contractor prior to 

the expiration of the initial 30-day review period. In the case of a notification 

of deadline extension, the CTM shall not incur any additional Tribal review 

fee, in accordance with the fee provisions of these Protocols. (See: X, ‘‘Fees.’’)

6. No Adverse Impact Determination. A No Adverse Impact Determination 

means that the Tribe has identified no properties of cultural and religious 

significance within the APE or has otherwise determined that the greenfields 

or co-location construction, as described in the CTM’s Review Materials, will 

have no adverse impact on any such properties. The CTM may provide the 

Tribe’s ‘‘No Adverse Impact Determination’’ to the FCC to demonstrate that 

the Tribe has determined that the construction will have no adverse impact 

on any Tribal properties of cultural and religious significance. (For sample 

‘‘No Adverse Impact Determination’’ response see Appendix———.) The 

Tribe’s ‘‘No Adverse Impact Determination’’ does not preclude the possibility 

that inadvertent finds made during the construction process may be of interest to the Tribe.

7. Adverse Impact Determination. An Adverse Impact Determination means 

that the Tribe has determined that the greenfields or co-location construction 

as described in the CTM’s Request for Review and Review Materials will 

have an adverse impact on a property of cultural and religious significance 

to the Tribe. An Adverse Impact Determination will result in one of several 

possible courses of action: (1) the CTM may choose to abandon the site, in 

favor of an alternate site, and re-initiate review on the alternate site; (2) the 

Tribe may agree to construction at the site, with on-site monitoring by a 

qualified professional archaeologist; or (3) the CTM and the Tribe may agree 

on a Resolution Plan for the site in accordance with Section II.E., which will 

provide for the disposition of inadvertent finds and make arrangements for 

repatriation of any human remains following the steps provided in these Protocols. Absent Tribal consent, no construction or other development activities 

shall occur on a site with human remains unless there is a repatriation and 

reinternment plan, agreed upon with the Tribe.

E. Tribal-CTM Adverse Impact Negotiations. In the event that the CTM 

chooses to pursue negotiations with the Tribe concerning resolution of an Adverse 

Impact (pursuant to II, D, 7), such negotiations shall commence as soon as possible. 

It shall be the goal of the parties to reach a final plan on Adverse Impact resolution 

within 30 days of the commencement of negotiations. Such a deadline may be exVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
53

tended by the mutual consent of the parties. Such negotiations may lead to one of 

two results:

1. Resolution Plan. The Resolution Plan shall be an agreed-upon plan that 

satisfies the Tribe’s concerns regarding protection and preservation of the 

historic properties at issue. The Tribal-CTM Resolution Plan will not necessarily address the concerns of the general public or those interested parties 

who have expressed concerns about the site. Nevertheless, the CTM may provide the Resolution Plan to the FCC in order to demonstrate that it has 

made a good-faith effort to seek out the wishes of the Tribe, and has reached 

a satisfactory arrangement concerning the resolution steps that will satisfy 

the Tribe’s concerns regarding the site.

2. Non-Agreement. If the Tribe and the CTM fail to agree that resolution is 

necessary, or fail to agree upon a Resolution Plan, they shall, in the first instance, request that the Mediation Team seek a mediated resolution of the 

conflict. The Mediation Team shall have 30 days to work with the parties in 

order to reach an agreement. In the event that no agreement is reached, the 

parties may present their separate findings to the FCC, in order that the 

FCC may enter into Consultation directly with the Tribe concerning the Undertaking, as required by Federal law (including the National Historic Preservation Act, the Native American Graves Protection and Repatriation Act, 

the American Indian Religious Freedom Act, the Archaeological Resources 

Protection Act, Executive Order 13007—Indian Sacred Sites, and Executive 

Order 13175—Consultation and Coordination with Indian Tribal Governments). Once the FCC and the Tribe enter into Consultation, the requirements and remedies of the National Historic Preservation Act will apply. 

III. RELIABILITY OF TRIBAL DETERMINATIONS 

A Tribal determination, based upon a Request for Review and complete Review 

Materials, may be relied upon by the CTM before the FCC, unless the Tribe has 

subsequently rescinded such determination in writing, for good cause. 

IV. TRIBAL FAILURE TO RESPOND 

If the Tribe fails to meet the deadlines set forth herein, the CTM may: 

A. contact the Tribe directly by any means, in order to inquire as to the delay 

and seek its cure; 

B. notify the Mediation Team and seek the Mediation Team’s assistance in securing a response from the Tribe; or 

C. complete its review of the site to the best of its ability without Tribal input 

and notify the FCC that the Tribe failed to meet the deadlines as set forth herein, 

with a copy of such notice sent to the governmental leader of the Tribe and the Tribal official responsible for historic preservation. Such a failure on the part of the 

Tribe does not absolve the FCC or the CTM of its historic preservation responsibilities under Federal law. 

V. INADVERTENT FINDS 

A. CTM Responsibility. In the event of an inadvertent find of cultural remains, 

and/or artifacts, and/or human remains, and associated grave goods which potentially may be associated with the Tribe, the CTM or its Contractor shall: (1) cease 

construction immediately; (2) take reasonable and immediate steps to protect the 

site from environmental destruction, vandalism, and/or theft; (3) ensure the confidentiality of the site; (4) contact a source of technical expertise (e.g., the original 

archaeological compliance firm, or a forensic anthropologist or pathologist in the 

case of human remains), in order to confirm the find; (5) if the remains or artifacts 

are, or have the potential to be, Native American, the CTM or its Contractor shall 

notify the Tribe’s historic preservation officer immediately by telephone; and (6) follow up within three days of telephone notification with written notification by first 

class U.S. mail or overnight courier. In the event that human remains are uncovered, the CTM also shall be responsible for complying with any and all state laws 

regarding the discovery of human remains. 

B. Tribal Response. The Tribe shall have the opportunity to make a written determination of its desires concerning the inadvertent find, including the disposition 

of any human remains and associated grave goods, and to make physical disposition 

of the human remains and associated grave goods within the traditional cultural requirements of the Tribe. In the event that these items have cultural significance to 

more than one Tribe, the Tribe agrees to confer with the other interested Tribes regarding the appropriate disposition of these remains and/or artifacts. In the event 

that the land is owned by an entity or individual other than the CTM, the CTM 

shall still solicit, in writing, comments from the Tribe. The Tribe shall be obligated 

54

to respond as quickly as practicable in order to minimize the CTM’s project delay, 

but in no case later than seven days after written notice has been received by the 

Tribe’s historic preservation officer. Except as otherwise provided in this paragraph, 

the Tribe’s response shall follow the provisions of Section II.D. 

C. Compliance with the Law. In the event of an inadvertent find the CTM 

shall comply with all pertinent Federal and state laws and regulations including, 

but not limited to, the National Historic Preservation Act, Native American Graves 

Protection and Repatriations Act, Archaeological Resources Protection Act, American Indian Religious Freedom Act, National Environmental Protection Act, and Executive Order 13007—Indian Sacred Sites. 

VI. CO-LOCATION 

A. Overview. Co-location of antennas constitutes an impact upon a site, although 

the scope of that impact can vary widely. Tribes are concerned about any impact 

that could affect properties of cultural and religious significance to a Tribe. 

B. Expedited Review for Co-Location(s) at a Site for which the CTM previously has received a ‘‘No Adverse Impact Determination’’ from the Tribe.

Expedited review for co-location(s) may be available for sites that previously have 

been reviewed under these Protocols and for which the CTM can demonstrate that 

it has received either an Adverse Impact Determination, No Adverse Impact Determination, No Interest Determination, No Current Interest Determination, or Deferral, from the Tribe. In such a circumstance, the CTM shall provide a copy of the 

Tribe’s original determination letter, along with documentation (sketches or working 

drawings) indicating clearly the construction process and methods to be employed 

in co-locating the new array. The Tribe shall have 30 days to respond, in accordance 

with the procedures of Section II, above. It shall be the expectation of the parties 

that, unless the co-location is determined to have an Adverse Impact, the Tribe shall 

expedite review at a reduced fee, as provided in the fee schedule. (See: X, ‘‘Fees.’’) 

C. Co-location Review for a Site not Previously Submitted for Tribal Review. If the co-location site previously has not been submitted for Tribal review 

under these Protocols, the CTM shall submit to the Tribe a Request for Review Letter and Review Materials, as if the site were under original consideration, as per 

Section II, C, 1–8, above. In addition, the Review Materials must include construction drawings for the already constructed tower. If the Tribe determines that the 

original or subsequent construction already has had an adverse impact on property 

of cultural and religious significance to the Tribe, then the parties shall enter into 

discussions regarding practicable resolution (as per Section II, E, 1). If the parties 

are unable to reach such a resolution, then it shall be the responsibility of the FCC 

and/or the Advisory Council on Historic Preservation to enter into Consultation to 

resolve the issue (as per Section II, E, 2). With regard to the co-location, the Tribe 

shall have 30 days to respond in accordance with the procedures of Section II, 

above. 

VII. IDENTIFYING TRIBAL LANDS 

For the purpose of identifying where the Tribe may have an interest in a greenfields or co-location site, it shall be deemed a good faith effort for the CTM to request that information from the USET Tribal Lands Directory. 

VIII. MULTIPLE TRIBAL INTEREST 

These Protocols are applicable to the professional relationship between the CTM 

and an individual Tribe or multiple Tribes. In those cases where the site under review is situated on the ancestral lands of more than a single USET member Tribe, 

the CTM may rely upon these Protocols in order for each Tribe to make a determination regarding the site. It shall remain the responsibility of the CTM to contact 

each appropriate Tribe. It shall remain the prerogative of the Tribes to respond individually, defer to one another, or decline to review, as per Section II, D. 

IX. CONFIDENTIALITY ISSUES 

A. CTM Concerns. Both the CTM and the Tribe have substantial confidentiality 

concerns. The CTM considers potential site locations to be proprietary business information. The Tribe agrees to keep confidential all material it receives from the 

CTM regarding the location of a cell tower site and related business information, 

except where disclosure is authorized in writing by CTM or otherwise required by 

law. The Tribe stipulates that it has no way of knowing what information is considered to be proprietary by the CTM and what is not. Consequently, the Tribe agrees 

to treat the information exchanged in the course of Requests for Reviews as confidential, except where the CTM authorizes the disclosure in writing, or where it 

is otherwise required by applicable law. 

55

B. Tribal Concerns. The Tribe considers the location of many properties of cultural and religious significance to be proprietary cultural information, and seeks 

confidentiality in order to protect those properties. The CTM shall not disclose information it has acquired, whether from the Tribe or from another source, that relates 

to properties of cultural and religious significance to the Tribe, except where disclosure is authorized in writing by the Tribe or otherwise required by law. The parties 

understand that there may be some circumstances in which the Tribe cannot divulge to the CTM the exact nature or location of a Tribal cultural or religious property. In such circumstances, the Tribe shall endeavor, in good faith and to the extent consistent with its need for confidentiality and Tribal custom and/or law, to 

provide as much relevant information as possible to the CTM. The CTM stipulates 

that it has no way of knowing what information is considered to be proprietary by 

the Tribe and what is not, despite the fact that U.S. governmental agencies have 

unilaterally chosen to disclose Tribal information in the past. Consequently, the 

CTM agrees to treat the information exchanged in the course of Requests for Reviews as confidential, except where the Tribe authorizes disclosure in writing, or 

where it is otherwise required by applicable law. 

X. FEES 

Tribal fees for providing these professional review services to the CTM shall be 

based upon a fee schedule that reflects the uniqueness of the expertise, the complexity of the task, the labor-intensive nature of the work, and the resources needed 

to address the issue. The following fee schedule is proposed as fair and equitable. 

Standard Review. Tribe engages in a standard review of the site, based upon 

a complete Review Materials package. Cost: $——

Extended Review. Tribe needs to undertake a more extended review which 

could include a site visit. The cost of a site visit, including travel, per diem at the 

Federal rate, and a review fee of $—— per day for the Tribe’s historic preservation 

officer, traditional cultural practitioner, or other designated representative, shall be 

borne by the CTM, in addition to the Standard Review fee (above). 

Co-Location Review: Tribe has reviewed the original construction and issued a 

determination of No Adverse Impact. Cost: $——

Co-location Review: Tribe has not reviewed original construction. Cost: 

$——, same as Standard Review fee, above. 

Inadvertent Find Fees: The CTM shall compensate the Tribe for out-of-pocket 

expenses (including, but not limited to, travel) associated with reviewing an inadvertent find. 

Negotiated Fees. The parties may agree in writing to such other fees as they 

jointly deem warranted. 

XI. DISPUTE RESOLUTION 

A. Mediation. Except as otherwise provided by mutual written agreement of the 

parties, the parties shall resolve disputes under these Protocols through mediation. 

The parties agree to use the USET–PCIA Mediation Team to assist in mediating 

a dispute over any aspect of these Protocols including a determination of an Adverse 

Impact or the terms of a Resolution Plan. By mutual consent, the parties may select 

any other mediating entity. The Mediation Team shall consist of 4 or 6 individuals; 

half selected by USET and half selected by PCIA. The Mediation Team shall serve 

as a mediator for the Tribe and the CTM regarding disputes under these Protocols. 

The Mediation Team shall have no enforcement authority, but shall encourage the 

parties to reach agreement consistent with their own interests and the goals of 

these Protocols. The Mediation Team shall endeavor to meet with the parties and 

seek resolution of the dispute within 30 days of receiving notice of the dispute from 

one of the parties. [The Tribe shall pay the costs of the mediators associated with 

USET in accordance with such terms as the Tribe shall reach with USET. The CTM 

shall pay the costs of the mediators associated with PCIA in accordance with such 

terms as the CTM shall reach with PCIA.] 

B. Failure of Mediation. In the case of sites concerning which the Tribe and 

the CTM are unable to reach any agreement satisfactory to both parties, the dispute 

shall revert to the head of the FCC as the Federal agency responsible for complying 

with Section 106 of the National Historic Preservation Act, and the Advisory Council on Historic Preservation if either party deem necessary. It will then be the responsibility of the FCC to complete Consultation, on a government-to-government 

basis, with the specific Tribe, and to reach a decision regarding the siting and to 

justify its decision in writing. At the time of its decision, it shall remain the prerogative of either party, the FCC or the affected Tribe, to request formally the entry of 

the Advisory Council on Historic Preservation into the Consultation process. Further, no language in these Protocols or in the process of Consultation or in the recVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
56

ommendations of the ACHP shall be construed as limiting the rights of the original 

parties to seek legal redress in a court of competent jurisdiction. 

XII. AMENDMENT 

These Protocols may only be amended by agreement in writing of the parties hereto. The parties agree to meet at one-year intervals to discuss the effectiveness of 

these Protocols and the need for any amendments. 

Programmatic Agreement Among The Louisiana Army National Guard, The 

Alabama Coushatta Tribe of Texas, The Caddo Tribe of Oklahoma, The 

Chitimacha Tribe of Louisiana, The Coushatta Tribe of Louisiana, The 

Jena Band of Choctaw Indians, The Mississippi Band of Choctaw Indians, The Quapaw Tribe of Oklahoma, The Tunica-Biloxi Indians of Louisiana, The Louisiana State Historic Preservation Officer, The Louisiana State Archaeologist and The Advisory Council on Historic Preservation Regarding Undertakings that May Affect Historic Properties 

WHEREAS, the Louisiana Army National Guard (LAARNG) has a Federal mission which includes federal military training and related activities on lands it owns, 

leases or controls in the State of Louisiana; and, 

WHEREAS, the LAARNG has determined that its Federal mission and related activities may have an effect on properties included in or eligible for inclusion in the 

National Register of Historic Places (National Register); and, 

WHEREAS, the LAARNG has consulted with the Advisory Council on Historic 

Preservation (ACHP), the Louisiana State Historic Preservation Officer (LASHPO), 

and the Louisiana State Archaeologist (LASA); and, 

WHEREAS, the LAARNG has determined that its Federal mission and related activities may have an affect on properties included in or eligible for inclusion in the 

National Register that are of religious and cultural significance to the Alabama 

Coushatta Tribe of Texas, the Caddo Tribe of Oklahoma, the Chitimacha Tribe of 

Louisiana, the Coushatta Tribe of Louisiana, the Jena Band of Choctaw Indians, the 

Mississippi Band of Choctaw Indians, the Quapaw Tribe of Oklahoma and the 

Tunica-Biloxi Tribe of Louisiana (Signatory Tribes); and, 

WHEREAS, the LAARNG in recognition of the sovereignty of each of the Signatory Tribes, has consulted with these Tribes on a government-to-government basis 

in accordance with Section 800.14(f)(2)(c)(2) of the ACHP’s regulations (Protection 

of Historic Properties 36 CFR Part 800) and Executive Order 13175: Consultation 

and Coordination with American Indian Tribal Governments, and invited them to 

be signatories to this Programmatic Agreement (PA); and, 

WHEREAS, the LAARNG and each Signatory Tribe has entered into a Memorandum of Understanding (MOU) on or after May 7, 1998; and, 

WHEREAS, the Signatory Tribes and the LAARNG have adopted the ‘‘Policy Regarding Consultation, American Indian Cultural Sites, Cultural Resource Investigation and Procedures, and American Indian Human Remains’’ (Policy) on or after 

January 6, 2000. 

WHEREAS, the LAARNG and the Signatory Tribes, through a MOU, solemnly 

created an American Indian Keepsake Heritage Cemetery on or after October 13, 

1999; and, 

WHEREAS, the signatories to this PA recognize that only the Signatory Tribes 

possess the expertise to identify and evaluate historic properties of religious and cultural significance; and, 

WHEREAS, the signatories to this PA recognize the necessity of consultation with 

the Signatory Tribes and the authority of the LAARNG and the LASHPO to make 

determinations with regard to cultural sites eligible for the National Register; and, 

WHEREAS, all signatories to this PA recognize that there may be cultural prohibitions against tribal members divulging certain information about properties of religious and cultural significance and agree to keep confidential to the fullest extent 

of the law any such information that may be revealed in the course of consultation; 

and, 

WHEREAS, through implementation of this PA, the LAARNG intends to meet its 

responsibilities, pursuant to Section 101(d)(6)(B) of the National Historic Preservation Act (NHPA),‘to consult with Indian tribes that attach religious and cultural significance to historic properties,’ in carrying out its mission; and, 

WHEREAS, historic properties, including but not limited to, archaeological sites, 

locations, and other properties in which features and cultural items are of American 

Indian origin, or in which there are American Indian burials, or Traditional Cultural Properties and/or Sacred Sites which are of religious and cultural significance 

57

to the Signatory Tribes, for purposes of this PA, shall be referred to as American 

Indian Cultural Sites (AICS); and, 

WHEREAS, AICS shall be afforded the same legal standing and protection by all 

applicable Federal or state statutes, regulations, policies, Presidential Memoranda, 

or Executive Orders, including, but not limited to the American Indian Religious 

Freedom Act (AIRFA), Executive Order 13007, Executive Order 13175, Executive 

Order 12898, Executive Order 11593, Department of the Army Pamphlet 200–4: 

Cultural Resources Management, Army Alternative Procedures for Section 106 and/

or other Federal agency alternate procedures, the Louisiana Unmarked Human Burial Sites Preservation Act (LA R.S.8:671, et seq.), and the Louisiana Archaeological 

Resources Act (LA R.S. 41: 1601–1614); and, 

WHEREAS, the definitions given in Appendix A are applicable throughout this 

PA; and, 

WHEREAS, the Federal and state statutes, regulations, policies, Presidential 

Memoranda, or Executive Orders and related documents listed in Appendix B are 

applicable throughout this PA; 

NOW, THEREFORE, the LAARNG, the Signatory Tribes, the ACHP, the 

LASHPO, the LASA agree that the administration, planning, and conduct of the 

LAARNG’s Federal mission and related activities shall be carried out in accordance 

with the following stipulations to satisfy the LAARNG’s Section 106 requirements 

for undertakings that may affect AICS and other historic properties. 

Stipulations 

The LAARNG shall ensure that the following measures are carried out: 

I. Consultation with the Signatory Tribes 

A. The LAARNG shall consult with the LASHPO, the LASA and the Signatory 

Tribes early on in the planning process and throughout the Section 106 review regarding any activity or undertaking that might affect an AICS and other historic 

property. Such consultation shall be conducted in the following manner:

1. Initial consultation by telephone followed by written confirmation. 

2. Written correspondence documenting the consultation process for the administrative record. 

3. Face-to-face consultation meetings for obtaining advice or the opinions.

B. Consultation with the Signatory Tribes

1. The LAARNG shall consult with each Signatory Tribe on a government-togovernment basis in recognition of Tribal sovereignty. 

2. The LAARNG shall establish and maintain the position Coordinator for Native American Affairs (CNAA) to serve as liaison and coordinator of affairs 

between the LAARNG and the Signatory Tribes. The CNAA shall advise and 

provide guidance to the LAARNG concerning Native American affairs and 

will facilitate consultation with the Tribes on a government to government 

basis. The LAARNG shall ensure that the CNAA be provided with documents 

relating to the Signatory Tribes, AICS and other historic properties, and 

other resources as the CNAA may need to carry out the duties of the position. In addition, the LAARNG shall ensure that the CNAA participates in 

Section 106 consultation with the Signatory Tribes.

C. The LAARNG shall consult with the Signatory Tribes, the LASHPO and the 

LASA regarding the timing, location and agenda of consultation meetings and ensure that advance written notification to the Signatory Tribes for such meetings is 

done in a timely manner that is satisfactory to the Tribes and the LAARNG. 

D. Designated representatives of the LAARNG, including the Unit Environmental 

Compliance Officer (UECO), the CNAA, official representatives of the Signatory 

Tribes, the LASHPO, the LASA and the ACHP, if participating, shall consult in 

good faith and in the manner defined in Executive Order 13175, Executive Order 

13007, the MOU, the Policy, this PA and in accordance with those authorities listed 

in Appendix B. 

II.Initiating the Section 106 Review Process 

A. The LAARNG shall determine whether a proposed action is an undertaking 

and therefore subject to the Section 106 Review Process. 

B. In consultation with the LASHPO, the LASA and the Signatory Tribes, the 

LAARNG shall identify any other consulting parties entitled to participate in the 

Section 106 process in order to determine if the proposed undertaking has the potential to affect AICS and other historic properties. 

58

C. The LAARNG shall invite any local government to participate in the consultation process that has jurisdiction over an area in which the effects of an undertaking may occur. 

D. The LAARNG shall ensure that consultation with other consulting parties, including local governments, shall not include the dissemination of information that 

might risk harm to the AICS or that might impede the use of a religious or Sacred 

Site by any of the Signatory Tribes in accordance with Section 304 of the NHPA 

and with those authorities as listed in Appendix B. 

III. AICS and other historic properties 

A. Scope of Identification 

Site discovery, recordation, preservation, protection, and avoidance shall be the 

standard operating procedure regarding AICS and other historic properties.

1. Determining the Scope of Identification for AICS and other historic properties:

The LAARNG shall consult the LASHPO, the LASA and the Signatory 

Tribes to determine the area of potential effects; to review information on 

AICS and other historic properties in the area; and, to seek information 

from others likely to have knowledge of such properties in the area.

2. Identifying AICS and other historic properties is based on the information 

gathered in Stipulation III.A.1. The LAARNG in consultation with the Signatory Tribes, the LASHPO and the LASA shall develop and implement an appropriate and competent non-destructive investigative cultural survey to locate AICS and other historic properties. The LAARNG shall ensure that:

a. All such archaeological surveys conform to the minimum survey standards 

of the Louisiana Division of Archaeology;

b. Remote sensing is emphasized and recommended;

c. GPS coordinates along with all other geographical and site information required by the State of Louisiana is included along with photographs that 

relate the site to its physical location.

3. Data Collection:

a. When necessary for determining significance, artifacts removed for diagnostic purposes and /or site verification shall be limited to a minimum. 

Refer to Stipulation IV. 

b. Rather than intensive collecting of artifacts, recordation in place is the preferred practice. 

c. Artifacts shall be photographed and/or drawn in place with sufficient detail 

as to show diagnostic attributes. 

d. The LAARNG shall ensure that the removal of cultural items from an 

AICS and other historic property adheres to those authorities as listed in 

Appendix B. 

e. The LAARNG shall ensure that the removal of cultural items from an AICS 

and the disposition of those items require consultation with and agreement 

by a majority of the Signatory Tribes. 

B. Evaluation of AICS and other historic properties 

1. The LAARNG, the LASHPO and the LASA shall evaluate properties identified through a survey in accordance with 36 CFR Section 800 (4)(c). 

2. The LAARNG shall provide the Signatory Tribes the opportunity to evaluate 

all historic properties to determine if such properties are of religious and cultural significance and are considered to be an AICS.

3.a. If a survey, conducted for cultural resource management purposes, results 

in the identification of properties that are of undetermined eligibility and 

will not be affected by a proposed undertaking, but are of religious and cultural significance to one or more of the Signatory Tribes, the LAARNG in 

consultation with the Signatory Tribes, shall develop and implement a 

management plan for the properties in accordance with Stipulation VII of 

this PA. 

b. If a survey conducted for cultural resource management purposes, results 

in the identification of other historic properties that are of undetermined 

eligibility for the National Register, the LAARNG, in consultation with the 

LASHPO, the LASA, and the UECO shall develop and implement a management plan for the properties. 

59

C. Assessing the effects of a proposed undertaking on AICS 

The LAARNG, the LASHPO and the LASA, in consultation with the Signatory 

Tribes, shall determine if the proposed undertaking alters, directly or indirectly, any 

characteristics that qualify the property for inclusion in the National Register or are 

of religious and cultural significance to the Signatory Tribe(s). Alterations that 

would diminish the integrity of the property’s location, design, setting, materials, 

workmanship, feeling, or association may be considered to be adverse effects.

1. The LAARNG shall consider all qualifying characteristics of a historic property, including those qualities for which the property is of religious and cultural significance to a Signatory Tribe(s). 

2. The LAARNG and the LASHPO shall determine if one or more of the examples of adverse effects (36 CFR Section 800) apply, including threats from unavoidable alteration, physical destruction or damage. Signatory Tribes shall 

be consulted when alterations would adversely affect an AICS. 

3. If the LAARNG, the LASHPO and the LASA determine that a proposed undertaking will not adversely affect an AICS or other historic properties after 

consultation with the Signatory Tribes, the LAARNG shall implement the 

undertaking as planned. If, at any time, prior to or during implementation, 

the undertaking is modified, the LAARNG shall consult the Signatory Tribes, 

the LASHPO, and the LASA regarding the modification and its effect on historic properties. 

D. Resolution of adverse effects to AICS and other historic properties 

1. If the LAARNG in consultation with the Signatory Tribes and the LASHPO, 

determines that a proposed undertaking will adversely affect an AICS and/

or other historic properties, the LAARNG shall consult with the Signatory 

Tribes and the LASHPO to develop and implement a plan to avoid or minimize adverse effects to the AICS and other historic properties through project 

redesign or other means. 

2. If the LAARNG, the Signatory Tribes and the LASHPO agree on conditions 

that successfully avoid or adequately minimize adverse effects to an AICS 

and other historic properties, the LAARNG shall implement the proposed undertaking in accordance with the agreed-upon conditions. 

3. If the LAARNG, the Signatory Tribes and the LASHPO agree that adverse 

effects cannot be avoided or adequately minimized through project redesign 

or other means, the LAARNG, in consultation with the Signatory Tribes, and 

the LASHPO, shall develop and implement a plan to mitigate the adverse effects of the proposed undertaking on AICS and other historic properties. 

4. If the LAARNG, the Signatory Tribes, the LASHPO and the LASA determine 

that appropriate mitigation of an AICS or other historic property is site data 

recovery, then, prior to any site data recovery, the LAARNG shall ensure 

that a research design, a data recovery plan and timetable is developed and 

implemented in consultation with the Signatory Tribes, the LASHPO and the 

LASA. 

5. In accordance with the regulations of the ACHP (36 CFR 800), the LAARNG, 

the LASHPO, the Signatory Tribes may at any time request the ACHP to 

participate in the consultation. 

IV. Permits 

A. The LAARNG shall ensure that consultation with the Signatory Tribes occurs 

prior to the application of a permit from the State Archaeologist, acting on behalf 

of either the Louisiana Division of Archaeology, the Louisiana Survey and Antiquities Commission, or the Louisiana Unmarked Burial Sites Board, as may be required by the nature of a proposed undertaking. 

B. The LAARNG, Tribal, or other consulting parties’ concerns and restrictions, if 

any, shall be relayed to the State Archaeologist prior to the issuance of any permit. 

C. The LAARNG shall ensure that all necessary permits are obtained prior to carrying out the site data recovery plan. Permitees must have a research design approved by the LAARNG and the LASA—acting, as defined by the nature of the proposed undertaking, on behalf of either of the Louisiana Division of Archaeology, the 

Louisiana Survey and Antiquities Commission, or the Louisiana Unmarked Burial 

Sites Board. 

V. Data Recovery 

A. The site data recovery plan, based on firm background data, sound planning, 

and accepted archaeological methods, shall specify, at a minimum:

60

1. The property, properties, or portions of properties where data recovery is to 

be carried out; 

2. The research questions to be addressed through data recovery, with an explanation of their relevance and importance; 

3. The methods to be used, with an explanation of their relevance to the research questions; 

4. The methods to be used in analysis and data management; 

5. The proposed disposition of recovered materials and records; 

6. The proposed methods by which the Signatory Tribes, the LASHPO, and the 

LASA will be kept informed of the progress of the data recovery and be afforded the opportunity to participate; 

7. A proposed schedule for the submission of progress reports to all relevant 

parties; and, 

8. The procedures for addressing the discovery of human remains or funerary 

objects in accordance with Stipulation IX of this PA, as applicable.

B.1. The LAARNG shall ensure that the data recovery plan is implemented by 

or under the direct supervision of a person(s) meeting the minimum qualifications for the Secretary of Interior’s Qualifications Standards (48 CFR 

44738–44739) and the mimimum qualifications for Professional Archaeologists as set out in Title 25 Section 102 of the Louisiana Administrative Code. 

2. When the LAARNG requests assistance from a Signatory Tribe(s) to aid in 

the identification, evaluation, assessment of effects, and treatment of historical properties of traditional religious and cultural importance, such Signatory Tribe(s), their representatives, Traditional Cultural Authorities and/or 

Practitioners or other religious leaders need not meet the Secretary of the Interior’s Professional Qualifications Standards (48 FR 44738–44739) and the 

minimum qualifications for Professional Archaeologists as set out in Title 25 

Section 102 of the Louisiana Administrative Code.

C. The LAARNG shall ensure that adequate time and funding are provided in 

order to carry out all aspects of the data recovery plan. 

D. The LAARNG shall submit the data recovery plan with supporting documentation to the Signatory Tribes, the LASHPO, the LASA, and other consulting parties 

for review and comment for a period of not less than thirty (30) working days. 

VI. Curation 

A. Artifacts Recovered during Identification Surveys and Data Recovery

1. The LAARNG shall follow curation standards set forth in 36 CFR Part 79 

and the curation standards of the Louisiana Division of Archeology. Cultural 

items including human remains, field notes, project-related slides and photographs, analysis notes, or other materials generated during an identification 

survey, test excavation, data recovery, or related project shall be curated in 

a state approved curation facility. However, should a Signatory Tribe have 

a concern with the curation items related to an AICS, the LAARNG and the 

CNAA shall consult with the Signatory Tribe(s) to ensure that the treatment 

of the curated items is acceptable with tribal practices and traditions. 

2. The LAARNG shall ensure that documentation, including geographical and 

site information, is curated with cultural items, including human remains, 

and is made available to the designated representatives of the LAARNG, the 

LASA, and the official representatives of the Signatory Tribes if cultural 

items are from an AICS. Site location information shall be withheld from 

public disclosure in accordance with Section 304 of the NHPA, LA RS 41: 

1609, and in accordance with those authorities listed in Appendix B. 

3. American Indian human remains and associated funerary items originating 

from LAARNG lands shall be curated in consultation with and approval from 

the majority of the Signatory Tribes. 

4. When American Indian human remains and associated funerary items are 

not from LAARNG lands, the tribe(s) having ‘‘right of possession’’ to those 

cultural items may request temporary curation through the LAARNG prior 

to burial in the American Indian Keepsafe Heritage Cemetery. 

5. Human remains and associated funerary items will be curated together. 

6. The LAARNG shall consult with the Signatory Tribes prior to the accession 

or the deaccession of any cultural items recovered from an AICS. 

VII. Preservation and Protection of AICS and other historic properties: 

The LAARNG, in consultation the LASHPO, the Signatory Tribes, or other consulting parties, shall develop a plan for the preservation of AICS and other historic 

properties that are identified pursuant to this PA and that may or may not be afVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
61

fected by a proposed undertaking. The plan shall include measures for the long-term 

protection of such properties including, but not limited to:

1. Camouflaging, where warranted, with soil and/or protective cover by utilizing 

native flora or other natural and native materials. 

2. Posting ‘‘Off Limits’’ signs or other appropriate warning signage, fencing, and/

or the placement of remote sensing monitoring devices, as is site appropriate. 

3. Systematic patrols of AICS and other historic properties by trained, qualified, 

and authorized LAARNG personnel shall include periodic monitoring of the 

condition of such properties and the development and implementation of corrective measures that may include erosion control, restoration, or other 

means of preservation and protection. 

4. Development of procedures and guidelines for the conservation and preservation of historic structures and properties. 

VIII. Documenting and Reporting Requirements 

A. The LAARNG shall provide all cultural resource investigation/archaeological 

reports, including bibliographies, on LAARNG controlled properties, to the Signatory 

Tribes, designated officials of the LAARNG, the LASHPO, and the LASA. 

B. The LAARNG shall ensure that the Signatory Tribes, designated officials of the 

LAARNG, the LASHPO, and the LASA are provided timely progress/activity reports 

on the implementation of the data recovery and/or as each survey session is complete. 

C. Reports shall conform to the Louisiana Division of Archaeology’s Standards for 

Archaeological Reports and shall be submitted to the LASHPO, the LASA, designated officials of the LAARNG, the Signatory Tribes and other consulting parties 

for a review and comment. Recipients of the report shall have forty-five (45) days 

from receipt of the report to provide comments to the LAARNG. 

D. Precise location data shall only be provided to Signatory Tribes, designated officials of the LAARNG, the LASHPO, and the LASA in a separate attachment to 

the report and shall otherwise be withheld from disclosure pursuant to Section 304 

of the NHPA, Executive Order 13007 and other authorities as listed in Appendix 

B. 

E. The LAARNG shall ensure that a final report is produced in a timely manner 

for all data recovery efforts and it shall be provided to designated officials of the 

LAARNG, the Signatory Tribes, the LASHPO and the LASA. 

IX. Inadvertent Discovery 

A. In the event of an inadvertent discovery, that may be eligible for the National 

Register, which may include human remains, associated funerary objects, or the indications of a burial, that is encountered during an undertaking, the LAARNG shall 

ensure that all activity in the general area ceases, the area is secured and a reasonable effort is made to protect the discovery including any human remains and any 

associated funerary objects. 

B. If human remains are discovered, the individual(s) who made the discovery 

shall immediately notify law enforcement officials, the LASA, the appropriate 

LAARNG officer(s), including the CNAA and the UECO.

1. If such remains constitute a crime scene, all applicable laws and procedures 

will apply. 

2. If human remains are deemed to be of American Indian origin, the LAARNG 

shall notify the Signatory Tribes, by telephone, within 24 hours of the discovery, followed by written notification. 

3. If human remains are historic and not of American Indian origin, the 

LAARNG shall consult with the LASA to identify consulting parties.

C. For and inadvertent discovery, the LAARNG shall implement the following procedures:

1. An immediate survey or resurvey of the general area shall be instituted by 

an archaeologist in the presence of designated officials of the LAARNG and 

if of American Indian origin, a designated representative(s) of the Signatory 

Tribes and the CNAA. 

2. Within five (5) working days of receipt of written notification, the LAARNG 

shall consult with all relevant parties to determine the appropriate course of 

action with regard to the human remains and accompanying artifacts. The 

appropriate course of action shall be limited to:

a. Protection from further disturbance 

b. Repair of damage to site 

c. Avoidance 

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d. Removal of human remains and associated funerary objects

3. If the LAARNG, after consultation, determines that protection, avoidance, or 

repair are not possible, then disinterment shall be conducted in accordance 

with methods and procedures acceptable to the relevant parties. 

4. American Indian human remains shall not be drawn or photographed without prior consultation and agreement from a majority of the Signatory 

Tribes. 

5. The LAARNG may authorize activity in the direct discovery areas to resume 

in less than thirty (30) days, if the following conditions are met:

a. The relevant parties have determined an ‘‘appropriate course of action’’ by 

the adoption of an expedited recovery plan for excavation or an agreedupon alternative. For an AICS, a majority of Signatory Tribes will need to 

concur on the recovery plan or an agreed-upon alternative. 

b. Implementation and completion of a recovery plan or agreed-upon alternatives. 

c. Development of a time line procedure depending on the significance of the 

site. 

d. Written confirmation by the LAARNG that the above requirements have 

been met. 

X. Intentional Excavation of Human Remains 

The LAARNG shall ensure that removal or disinterment of a burial and human 

remains occurs only after all feasible alternatives have been considered in consultation with the LASHPO, the LASA, designated LAARNG officials, the Signatory 

Tribes, or other relevant parties. If the LAARNG, the LASHPO, the LASA, and the 

Signatory Tribes (when the site is an AICS), or other relevant parties concur that 

removal or disinterment is the only feasible alternative, the LAARNG shall ensure 

that:

1. Disinterment is carried out in accordance with the concurrence of, and in the 

presence of, a designated representatives of the LAARNG and, if relevant, a 

designated representative(s) of the Signatory Tribes or other relevant parties. 

Disinterment shall be carried out in a sensitive manner respectful of the customs and beliefs of the deceased. 

2. There is proof of consultation, in accordance with Stipulation I.C., through 

issuance of a required permit. 

XI. Reinterment 

A. Reinterment of American Indian human remains from LAARNG lands shall be 

in the American Indian Keepsafe Heritage Cemetery at Camp Beauregard or, if conditions warrant, as close to the original burial site as possible. The location of the 

reinterment shall be determined in consultation with a majority of the Signatory 

Tribes. 

B. When reinterment concerns American Indian human remains not from 

LAARNG lands, the tribe(s) with ‘‘rights of possession’’ of the human remains and 

associated funerary objects shall consult with the official designates of the LAARNG 

for reinterment in the American Indian Keepsafe Heritage Cemetery. 

C. The LAARNG shall consult with relevant parties when human remains that 

are not of American Indian origin and are from LAARNG lands for a determination 

of a reburial site. 

XII. Scientific Analysis of Human Remains 

A. The LAARNG shall ensure that any proposal with regard to scientific investigation or analysis of human remains will warrant approval from relevant parties. 

Written approval from the majority of the Signatory Tribes is required before scientific investigation or analysis on American Indian human remains and/or associated funerary items. 

B. The LAARNG shall ensure that extensive scientific research, including intrusive or destructive analysis, will not be conducted on burials, human remains, or 

associated funeral objects emanating from LAARNG lands without the express written approval from the relevant parties, including the Signatory Tribes. The exception to this is when forensic information is necessary with regard to a crime scene. 

C. The LAARNG shall ensure that those Signatory Tribes that desire to conduct 

religious ceremonies with regard to American Indian human remains and funerary 

objects are afforded that opportunity. [AIRFA: 42U.S.C.SECTION 1996(94)] 

D. The LAARNG shall ensure that documentation American Indian human remains, associated funerary objects, or cultural items is in accordance with the 

standards and procedures of the Louisiana Division of Archaeology. 

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XIII. Review of Implementation 

A. The LAARNG, the Signatory Tribes, the LASHPO, and the LASA shall meet 

annually to review implementation of the terms of this PA and determine whether 

revisions are needed. To facilitate such consultation, the LAARNG shall report to 

the Signatory Tribes, the CNAA, and the LASHPO all activities carried out pursuant to this PA. Such reporting shall be in a form acceptable to these parties. If these 

parties determine that revisions are needed, the LAARNG, the Signatory Tribes, 

and the LASHPO shall consult in accordance with 36 CFR Section 800.14(b) and 

Executive Order 13175 to make such revisions. 

B. Any of the Signatory Tribes or the LASHPO may request that the ACHP review the LAARNG’s implementation of the terms of this PA. If the ACHP determines that the terms of this PA are not being carried out, or if the agreement is 

terminated, the LAARNG shall comply with 36 CFR 800 Sections 3 through 7 with 

regard to individual undertakings covered by this agreement. 

XIV. Administrative Procedures 

A. The LAARNG, in consultation with the Signatory Tribes, the LASHPO, and the 

LASA shall develop standard conditions for inclusion in all cultural resource contracts and work orders that include, but are not limited to, cultural resource surveys, investigations, National Register evaluations, site protection, and mitigation/

data recovery. In addition, the LAARNG shall provide the LASHPO, the LASA, and 

the Signatory Tribes a description of the area of potential effects, a summary of the 

proposed work, and attached maps. Previous survey testing and eligibility to the 

National Register shall be included. 

B. The LAARNG shall provide sufficient information, including contact names of 

designated LAARNG officials, to all contractors and staff regarding procedures for 

an inadvertent discovery of historic properties, human remains, and cultural items 

and the penalties for inappropriate actions under the applicable Federal and state 

laws and regulations in all contracts, work orders, and related documents with copies to the UECO and the CNAA. 

C. The LAARNG, in consultation with the LASHPO and the LASA shall develop 

standard operating conditions for inclusion in all contracts, work orders, and other 

related documents for activities that might result in ground or habitat disturbance. 

D. Standard operating procedures shall be attached as appendices to contracts, 

work orders and other related documents. 

XV. Dispute Resolution 

Should any signatory to this PA object within forty-five (45) days from receipt of 

any plans provided for review, the LAARNG shall consult with the objecting party 

to resolve the objection. If the LAARNG determines that the objection cannot be resolved, the National Guard Bureau (NGB) shall request further comments of the 

ACHP pursuant to 36 CFR Section 800.7(a)(1). Any ACHP comment provided in response to such a request shall be taken into account by the NGB and the LAARNG 

in accordance with 36 CFR Section 800.7(c)(4) (i)(ii)(iii) with reference only to the 

subject of the dispute. The LAARNG’s responsibility to carry out all actions under 

this PA that are not the subject of the dispute will remain unchanged. 

XVI. Null and Void Provision 

In the event any provision of this PA shall be deemed contrary to or in violation 

of any applicable existing law or regulation of the State of Louisiana or the United 

States of America or of the Signatory Tribes affixing their signatures hereto, only 

the conflicting provision shall be deemed null and void, and the remaining provisions of this PA shall remain in effect. 

Execution and implementation of this PA evidence that the LAARNG has satisfied 

its Section 106 responsibilities for all individual undertakings carried out pursuant 

to this PA.

LOUISIANA ARMY NATIONAL GUARD 

Major General Bennett C. Landreneau, the Adjutant General

ALABAMA COUSHATTA TRIBE OF TEXAS 

Kevin Battise—Chairman

CADDO TRIBE OF OKLAHOMA 

LaRue Parker, Chairwoman

CHITIMACHA TRIBE OF LOUISIANA 

Alton D. LeBlanc, Jr., Chairman

COUSHATTA TRIBE OF LOUISIANA 

Lovelin Poncho, Chairman

JENA BAND OF CHOCTAW INDIANS 

64

Beverly C. Smith, Chief

MISSISSIPPI BAND OF CHOCTAW INDIANS 

Philip Martin, Chief

QUAPAW TRIBE OF OKLAHOMA 

Tamara Summerfield, Chairperson

TUNICA-BILOXI INDIANS OF LOUISIANA 

Earl J.Barbry, Sr., Chairman

ADVISORY COUNCIL ON HISTORIC PRESERVATION 

John M. Fowler, Executive Director

LOUISIANA STATE HISTORIC PRESERVATION OFFICER 

Laurel Wyckoff, State Historic Preservation Officer

LOUISIANA STATE ARCHAEOLOGIST 

Thomas Hales Eubanks, PhD 

Appendix A: Definitions 

The following definitions apply throughout this PA: 

American Indian Cultural Resource: shall mean any material remains of 

human life, activities religious or ceremonial practices. Cultural resources shall include, but not be limited to, pottery, basketry, bottles, weapons, weapon projectiles, 

tools, structures, or portions of structures, pit houses, rock paintings, certain plants, 

rock carvings, intaglios, viewscapes, graves, human remains, or any portion or piece 

of the forgoing objects. 

American Indian Cultural Sites: shall mean historic properties, including but 

not limited to, archaeological sites, locations, and other historic properties in which 

features are culturally important or items that are of American Indian origin, or in 

which there are American Indian burials, or Traditional Cultural Properties and/or 

Sacred Sites which are of religious and cultural significance to the Signatory Tribes. 

American Indian Keepsafe Heritage Cemetery: shall mean those LAARNG 

lands, which are designated and maintained by the LAARNG as cemeteries under 

Louisiana Law for the secure and permanent reinterment of the human remains 

and funerary objects or sacred items of American Indian Tribes. 

Area of Potential Effects: means the geographic area or areas within which an 

undertaking may directly or indirectly cause changes in the character or use of Traditional Cultural Properties and/or Sacred Sites which are of religious or cultural 

importance to any Signatory tribe, if any such properties exist. 

Burial: means the placement of a dead body or bodies below, on, or above the 

surface of the earth by specific intent, accidental or undetermined reason. Burial 

methodologies may vary. Remains may be whole, partial, cremated, disarticulated 

or have been exposed to, or by, the elements, and burial may be evidenced only by 

a stain in the earth and/or by funerary objects. 

Burial site: means any natural or prepared physical location, whether originally 

below, on, or above the surface of the earth, into which, as a part of the death rite, 

event or ceremony of a culture, human remains are deposited by specific intent, accidental or undetermined reason. It is understood that many American Indian burial sites do not fall within a non-Indian definition or concept of gravesite or burial. 

Consultation: means the process of seeking, discussing, and considering the 

views of other participants, and where feasible, seeking agreement regarding matters arising in the Section 106 review process. Consultation is an important part of 

a cooperative effort and has as much to do with obtaining information as with providing information. Notification, which alerts parties of a pending agency action late 

in the planning process, is not consultation. 

Coordinator for Native American Affairs: means that person who is to serve 

as a liaison and coordinator of affairs between a military organization and the Federally-recognized tribes that are culturally affiliated with those military lands 

owned, leased or controlled by the military organization. The CNAA shall advise 

and provide guidance to the military organization concerning Native American affairs and will facilitate consultation on a government to government basis. 

Cultural affiliation: means that there is a claimed and shared tribal relationship culturally linked historically or prehistorically between a present day federallyrecognized Indian tribe and an earlier people. 

Cultural items: 

a. associated funerary objects: shall mean objects that, as a part of the death 

rite, occurrence or ceremony of a culture, are believed by any Signatory Tribe 

or other party to have been placed with individual or collective human remains either at the time of death, accidentally or on purpose, or later, except 

65

that other items exclusively made for burial purposes or to contain human 

remains shall be considered as associated funerary objects. 

b. unassociated funerary objects: shall mean objects that, as an element of the 

death rite, occurrence, or ceremony of a culture, are believed by any Signatory Tribe or other party to have been placed with human remains either at 

the time of death or later but have been removed from the human remains 

by whatever means or for whatever purpose. 

c. sacred objects: shall mean specific objects designated by a federally recognized 

tribe or by Traditional Cultural Authorities and Practitioners and/or other religious leaders acknowledged by a Signatory Tribe. 

d. cultural patrimony: shall mean an object having ongoing historical, traditional, cultural importance central to an American Indian group or culture 

itself, rather than property owned by an individual American Indian, and 

which therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian 

tribe, and such objects, or object has been, or is, considered inalienable by 

such an American Indian Tribe.

Diagnostics: shall mean artifacts or cultural items, which may be used to aid 

identification as to cultural affiliation, cultural phases, or time periods. 

Historic Properties: shall mean any pre-European contact or historic district, 

site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places, including artifacts, records, and material remains 

related to such a property or resource. For purposes of this PA, historic properties 

that are of religious and cultural significance to the Signatory Tribes are referred 

to as American Indian Cultural Sites and which as such may be eligible for inclusion in the National Register of Historic Places. 

Human remains: shall mean the physical remains of a human body of a person 

or persons of American Indian ancestry or other party, including but not limited to 

bones, teeth, hair, ashes, other remnant evidence thereof mummified or otherwise 

preserved soft tissues. Where human remains may have been incorporated into a 

funerary object, that object shall be considered a part of that particular burial or 

burials. 

Inadvertent discovery: shall mean the unanticipated encounter or detection of 

American Indian Cultural Sites and/or other historic properties, human remains, funerary objects, sacred objects, or objects of cultural patrimony. 

Indian tribe: means an Indian tribe, band, nation, or other organized group or 

community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians as stated 

in Federal statutes and more properly as defined most current Department of Interior/Bureau of Indian Affairs list of tribal entities published in Federal Register pursuant to Section 104 of the federally recognized Indian Tribe List Act. (1994) 

Intentional excavation: shall mean a planned removal from an American Indian Cultural Site and other historic property, human remains, funerary objects, sacred objects, or objects of cultural patrimony. 

Reinterment: shall mean the reburial, in accordance with the terms of this PA, 

MOU, the Policy, and tribal cultural and religious practices, in such a manner that 

the identity, location, and integrity of the human remains are maintained in accordance with Section 304 of the NHPA and those other authorities listed in Appendix 

B, 

Relevant Parties: means those parties that have a particular interest in an 

AICS and other historic property who should be consulted with regard to an undertaking, inadvertent discovery, or an intentional excavation. These parties may be 

lineal descendants, or culturally affiliated, federally recognized Signatory Tribes, or 

have a vested interest in a specific undertaking. 

Sacred Sites: refer to Executive Order 13007: Sacred Sites. 

Traditional Cultural Property: means those properties whether tangible or intangible that are of religious and cultural significance to a specific tribe(s). 

Undertaking: means a project, activity, or program funded in whole or in part 

under the direct or indirect jurisdiction of a Federal agency, including those carried 

out by or on behalf of the agency; those carried out with Federal financial assistance; those requiring a Federal permit, license, or approval; and, those subject to 

State or local regulation administered pursuant to a delegation or approval by a 

Federal agency. 

Appendix B 

Authorities:

Executive Order 11593

Executive Order 12898

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Executive Order 13007

Executive Order 13175

American Indian Religious Freedom Act 

Army Alternative Procedures for Section 106

Army Regulation 200–4

Archeological Resources Protection Act 

Department of Army Pamphlet 200–4: Cultural Resources Management 

Native American Graves Protection and Repatriation Act 

Louisiana Administrative Code: Title 25 Section 102

Louisiana Archaeological Resources Act (LA R.S. 41: 1601, et seq.) 

Louisiana Cultural Resources (LA Administrative Code, Title 25, Chapter 1.) 

Louisiana Unmarked Human Burial Sites Preservation Act (LA R.S. 8:671, et 

seq.) 

National Historic Preservation Act 

Cell Tower Reviews: 

To date the Mississippi Band of Choctaw Indians have received a minimum of 

about 400–500 requests to review cell tower construction in the states of Mississippi, 

Alabama, Arkansas, Florida, Georgia, Louisisana, South Carolina Tennessee and 

Missouri. All of these requests have come either directly from the companies building the cell towers themselves or from environmental contractors working for the 

companies building the towers. Many have virtually no locational information or 

maps included witht he letter requesting review—but they do include a check off 

saying that there are no sites of religious or cultural importance to the tribe so that 

we can rubber stamp their requests! 

FCC Sponsored Telecomunications Working Group 

To the best of my knowledge this group was formed at least two years ago and 

has previously written one nation-wide programmatic agreement covering the National Historic Preservation Act (NHPA) Section 106 review of upgrades and expansions of existing cell towers. This PA was adopted with NO tribal involvement in 

it’s drafting or tribal constultation about it’s content. 

Sometime in February I received a copy of a Public Notice issued by the FCC from 

a friend of mine who works for another federal agency who just happened to see 

it and thought I might be interested in it. It was a call for tribal involvement in 

the newly formed Sub-groups to the Telecommunications Working Group which 

were in the process of drafting yet another nationw-wide programmatice agreement—this time covering the NHPA Section 106 review for the contruction of NEW 

cell towers. I called the contact phone number listed in this public notice (since the 

email address listed was non-functioning!) and eventually got a reply to the message 

I left. I was told that while the public notice had been released, it had not at that 

time been mailed out to Tribes or in anyway distributed directly to tribes, but that 

it would be mailed out within a few days. To the best of my knowledge this public 

notice has yet to be distributed to tribes. 

In response to my inquiry about the working groups I was added to what was 

then Subgroup number 3 which was subsequently combined with Subgroup number 

4 and was informed that there was a joint conference call occuring THAT afternoon 

and given the information for joining it. I was emailed a copy of the draft document 

which Subgroup number 3 was working on—it was draft number 9 or 10. Having 

had little time to prepare for the conference call I nonetheless joined it to see what 

exactly was occurring in these calls. During this conversation whenever I voiced concerns over the language or policies being discussed which reflected the Tribal views 

of issues I was politely but pointedly either ignored or told that this was a document 

which was only going to govern the cell tower manufacturers and the SHPOs. The 

manufacturers were aware that they had an obligation to consult with tribes (not 

the FCC mind you, the manufacturers) and that they would therefore not really be 

covered in this document. 

Within a couple of weeks of this initial meeting I was informed that Draft number 

15 of the portion of the PA being drafted by the Subgroup number 3⁄4 had been finalized and would be forwarded along with the work of the other 4 or so subgroups 

to be integrated into the final draft PA. I had previously been informed that when 

that draft was completed it would be submitted to the Advisory Council on Historic 

Preservation for adoption—hopefully at their JUNE 2002 Meeting! When I voiced 

an objection to this time frame, given the fact that NO Tribal consultation had occurred on this document, I was ignored. 

This occurred just before the last meeting of the Advisory Council earlier this year 

(2002). Since the Council was about to meet, I called the staffer who was involved 

67

in drafting the integrated programmatic agreement and was told that if I wish to 

voice my concerns over the total lack of Tribal consultation on this matter and the 

rush to adopt it that I would need to take it up with Ray Soon, the Native Hawaiian 

representative to the Council. I was told to send a note requesting Soon call me 

about this matter and giving a brief description of the issue which I did. I have yet 

to hear anything back from Soon on the matter. 

KENNETH H. CARLETON, 

THPO/Archaeologist, 

Mississippi Band of Choctaw Indians.

Chairman INOUYE. Thank you very much, Mr. Day. I am aware 

that you are here against your doctor’s orders. 

Mr. DAY. Yes, sir. 

Chairman INOUYE. And I am aware that you are undergoing radiation treatment at this moment, and for that I thank you very 

much. 

Chairman INOUYE. May I begin by asking Mr. Snowden, you just 

heard Mr. Day. If my interpretation of section 106 is correct, the 

Government is the one that should conduct the environmental assessment, and you are supposed to bear the cost. Am I wrong in 

my interpretation of the law? 

Mr. SNOWDEN. Senator, the answer to your question is out of my 

purview. I would be happy to get for the record and for your staff 

the answer to your question. 

Chairman INOUYE. Do you have lawyers in the back, sitting 

there? 

Mr. SNOWDEN. I do have some lawyers in the back sitting here. 

Chairman INOUYE. Will you ask them, or would the lawyer care 

to take the stand? 

Mr. SNOWDEN. What he is saying is that the rules do permit us 

to act as you have just suggested. It is also important to note 

that——

Chairman INOUYE. Then why don’t you do that? 

Mr. SNOWDEN. What we will need to do is talk with the members 

of the commission and find out exactly what our status is on that 

issue. 

Chairman INOUYE. And if you are going to do that, you are supposed to bear the costs, are you not, and why has this situation 

continued for years, as Mr. Day indicated? 

Mr. SNOWDEN. Again, I will need to look into it. I am unfamiliar 

with the——

Chairman INOUYE. I will expect a full report from the Federal 

Communications Commission. 

Mr. SNOWDEN. You will have it forthwith. 

Senator may I add a point to something that Mr. Day was saying, though? 

Chairman INOUYE. Sure. 

Mr. SNOWDEN. We actually are taking a very proactive approach 

with this issue, and I notice some of the documents he was holding 

up are from previous commissions, and that is not stated to negate 

our responsibility, but it is important to note that we are, through 

this reorganization of the agency which the Congress has just 

passed, we are respecting the Tribe’s sovereignty, the role of the 

sovereign Governments, and we will also respect the interest of 

confidentiality, because I think you are absolutely right, we need 

to keep this information confidential in terms of what is going on. 

68

So that is our position at this point, but I will get information back 

to you shortly. 

Chairman INOUYE. There is a law that says that in order to—

well, receive certain universal service subsidies you must be designated an ETC. 

Mr. SNOWDEN. That is correct. 

Chairman INOUYE. And now that ETC must be under State jurisdiction? 

Mr. SNOWDEN. Well, it depends, sir. The reason we get involved 

from the Federal level is when both the State and the Tribes are 

asserting jurisdiction, and that is at the request of a carrier, and 

so as Mr. Stanton and Mr. Day and others have—Mr. Strand has 

also mentioned, our agency, we get involved through the law that 

we have submitted, or we have enacted to make a decision on if 

the carrier should have ETC status or not. 

It is important to note that also we are planning to look into this 

issue to see if there is a better way to support actual cost of ETC 

in the competitive markets. 

Chairman INOUYE. Is it not true that if the State has jurisdiction 

over this carrier, and I think that almost all of the carriers, without exception, are land carriers, that the States make it very difficult for wireless cell phones to get into operation in Indian land? 

Mr. SNOWDEN. I think it depends where you are. Each State is 

different, each situation is different, and we review it when it 

comes to us on a case-by-case basis. 

Chairman INOUYE. Then why does it take so long to process an 

application of this nature? We know, for example, that in Navajo 

land there is no telephone service because it is so expensive to lay 

lines, and it does not take an expert to figure out no company is 

going to lay that line. Why can you not give it to a cell phone company? 

Mr. SNOWDEN. We have committed to deciding the jurisdictional 

issue when it comes through us within a 6-month period, so our decisions will be made in that 6-month time frame. 

Chairman INOUYE. Does it take 6 months to make that decision? 

Mr. SNOWDEN. According to our position now it is——

Chairman INOUYE. Do you think we should change the law to 1 

month? 

Mr. SNOWDEN. I think that is above my pay grade, sir. 

Chairman INOUYE. Can you ask someone back there who may be 

above you? 

Mr. SNOWDEN. I think I would need to ask the four commissioners that are currently at the FCC. I am above their pay scale, 

so it is definitely above theirs, and mine. 

Chairman INOUYE. Will you ask the commission? Because we will 

be submitting an official letter. 

Mr. SNOWDEN. I sure will, sir. 

Chairman INOUYE. Because something has to be done, because 

under the present law as it is interpreted by the FCC, we are not 

going to get anywhere. 6 months will expire, and something else 

will come up. 

Mr. SNOWDEN. It is important to note that we only get involved 

when the jurisdiction question needs to be answered, so the States 

69

are definitely involved, as well as the Tribes, and so that is when 

it comes to us. 

Chairman INOUYE. Now, in your testimony, it was very nice that 

Indians are involved, that you have a lot of programs for Indians, 

and in fact Indians are a part of the homeland security program? 

Mr. SNOWDEN. I am not sure if I am following what you are saying. 

Chairman INOUYE. You mentioned that, that there is a role to 

play for Indians in homeland security. 

Mr. SNOWDEN. I am not familiar with what you are asking, sir. 

Chairman INOUYE. Then I will ask you, do Indian Tribes have a 

role to play in homeland security? 

Mr. SNOWDEN. I think all Americans have a role to play in homeland security. 

Chairman INOUYE. How can they play this role if you do not have 

telephones or communication? I am not being facetious, but are we 

going to have smoke signals now? 

Mr. SNOWDEN. Senator, I do not think that is necessarily the 

route we would take. However, we at the commission do treat 

homeland security as a very serious issue, and the chairman has 

established a Homeland Security Policy Council which, of course, 

we will coordinate and work with from a Government to Government relationship with our tribal partners as well as our State and 

local governments. 

Chairman INOUYE. I think most of us assembled in this room 

have at least three telephones per home. They also have a couple 

of cell phones, and I think all of the executives sitting here at least 

have a cell phone in the car, and yet in just about every Tribe 

there are certain people who cannot dial 911. Do you think that is 

right? 

Mr. SNOWDEN. I think in the situation that we are in today, we 

need to increase the penetration rate of telephones across the country on Indian lands, in rural America, in some of our poorer sections of the country, everyone. Telephones are no longer just—they 

are required in life. 

Chairman INOUYE. I hope you will look into 106 and the ETC. 

Mr. SNOWDEN. We sure will, sir. 

Chairman INOUYE. I think that would bring about some noticeable change. 

Ms. Masten, if you had the authority to request something and 

be granted, what would you request of the Government? Not a 

whole list, now. 

Ms. MASTEN. I am trying to narrow it. You notice I had a little 

pause there. 

I would request that you look at capital, because it is cost-prohibitive, and I think this country recognized that sometime ago when 

they brought electricity and telephones to America and they subsidized that. I think it is unfair to expect that Tribes should subsidize the burden and cost of infrastructure today, and I would ask 

that you look at ways to provide the capital, technical assistance 

incentives and tax credits. 

Chairman INOUYE. If I am correct, Ms. Warren Edelman testified 

that you can get grants from the Department of Agriculture and as 

70

a result 6 Tribes have set up their own telephone companies, is 

that correct? 

Ms. WARREN-EDELMAN. That is correct, yes. To my knowledge, 

and I am not familiar with the program in terms of its limitations, 

but in order to put together, I believe an application for the USDA 

you probably have to have a business plan in place and again, as 

I mentioned before, funds for planning are not adequate. So in 

order for those Tribes to get to the point where they could probably 

take advantage of the loan program, they would also need to have 

assistance on the planning side in order to know that is what they 

wanted to do. 

And again, that is not the solution for all Tribes. Having a telephone, or telecommunications business, as you have heard, is highly competitive, and constantly changing, so I am sure the tribal 

councils in each of these communities took that into consideration 

and were able to address those issues, but again, funding needs to 

be placed in planning programs. 

Chairman INOUYE. So that program would require some money 

up front. 

Ms. WARREN EDELMAN. I believe so. I think as with any business 

you have to invest some of your own money before you can actually 

reap the benefits of other sources of capital. 

Chairman INOUYE. Is my interpretation of ETC wrong? 

Ms. WARREN-EDELMAN. I am not familiar with the ETC issues, 

other than what I have heard here today. 

Chairman INOUYE. What about Mr. Day’s 106 issue? 

Ms. WARREN-EDELMAN. I find it surprising and disturbing, highly 

disturbing that anyone goes on Indian lands, whether they are 

there walking across it, or surveying it, or doing anything other 

than working with the Tribe to help preserve that land in the 

name of their own business, especially when the business is not 

beneficial to the Tribe, nor is it something that the Tribe wants. 

All—all—interaction with the Tribe should go through the tribal 

council, be respectful of sovereignty, be cognizant of sovereignty 

and its jurisdictional issues, and work from there. 

Chairman INOUYE. I will await my second turn. Chairman Campbell. 

Senator CAMPBELL. Thank you, Mr. Chairman. Well, there is certainly some diverse testimony. I am sorry I missed Ms. Warren 

Edelman’s. I heard the rest of it, though. I guess certainly one of 

the agreements is we have got a problem, we need to find a solution. I do not know how many have lived without telephone service, 

but when I moved back to the reservation, just 20 years ago, 22 

years go, we had no phone service, and I can tell you that what 

maybe would have been considered years ago a luxury darned sure 

is not now. It is literally an absolute necessity as our lifestyle, our 

livelihood, and our safety in many cases is somehow related to our 

communication ability, so I appreciate your testimony. 

Sue, nice to see you here. We do not see you here as often testifying in front of the Committee as you did when you were president 

of NCAI. We miss you, but I know you are doing good work in California. I hope you will give my best regards to the Apina family. 

I used to teach them years ago in Indian school, taught them jewelry-making when I had a real life, as I sometimes tease, and they 

71

were terrific friends. And I was particularly interested in hearing 

Mr. Day’s comments, too, in that I had no idea, if that is actually 

happening, that the FCC or any company can just pretty much arbitrarily come on Indian lands and without the consent of Tribes, 

which surprised me, so let me maybe start with Mr. Day. 

Is that pile of information you have in front of you there, Mr. 

Day, that whole pile of documents, does that deal with promoting 

the telephone service on the reservation, or the roadblocks preventing it? 

Mr. DAY. No, sir. All of these are not on the reservation. 

Senator CAMPBELL. I see. 

Mr. DAY. That is the point, and Senator, if I may proceed, we are 

not attempting to be obstructionist in this at all. I get very frustrated when I used to come to Washington out of New Orleans on 

the train, only in Atlanta, Georgia I could use the phone, but when 

the train moved I had to wait till we get to Richmond because 

there were not any towers in there, so I am not opposed to the towers. 

What I am opposed to is the invasion of tribal sovereignty by 

these people, where—the FCC apparently does not understand 

what the law says is that we have a vested interest in aboriginal 

lands, and a right to assert ourselves in the protection of those sacred properties and traditional cultural properties, and these all 

deal with that issue. There is not a single one of these that deals 

with a cell phone tower on the reservation, although we have been 

trying to get one. 

Senator CAMPBELL. So it is your view that existing laws are not 

adequate to protect sacred sites, tribal sacred sites? 

Mr. DAY. Well, no, sir, they are not, and they are totally—they 

are really quite inadequate. The only thing we have is Executive 

Order 13007, which deals with sacred sites on Federal lands. 

There is, of course, as you are probably aware—the Senator from 

West Virginia is preparing some legislation on sacred sites, but 

there is also in section 106 and in the advisory council regulations 

provisions for us to be able to assert ourselves off the reservation 

in those areas. And sir, if I may, this little document—that little 

document is the Native American Historical Initiative with the National Guard, wherein we have established memorandums of understanding, and the very first programmatic agreement on a military installation that the advisory council—I think Ms. Hauser is 

sitting back there—has approved, that the Army has approved, 

that the Tribes have approved, so we all know what book we are 

reading from and what table we are sitting at, and it works fine. 

In fact, this has been used as a model across this country, not just 

by the military. 

We established the very first Keepsake Heritage Cemetery at 

Camp Beauregard in Louisiana, where the so-called culturally unidentifiable human remains, any human remains can be reinterred. 

We have now done the same thing with Fort Benning, a major 

Army Infantry training center. We are now doing it in Mississippi 

with the Mississippi National Guard, and incidentally we have a 

sacred site fully protected, fully understood in the direct middle of 

the major tank training range at Camp Shelby, Mississippi. That 

72

site is not disturbed. It does not interfere with the military mission, which is just as important. 

As the Senator said over there, do the Tribes have a role in this? 

You had better believe they do. Yes, we do. I am still in the State 

militia, Senator. 

Senator CAMPBELL. Who would have guessed? 

[Laughter.] 

Senator CAMPBELL. Thank you, Mr. Day. 

Ms. Masten, Sue, the Yurok Tribe, have you applied to these programs that are available like Life Link, Link-Up America, technology opportunities and things like that? 

Ms. MASTEN. Well, if you do not have a telephone, you do not 

have a use for those services, so for the Upper Reservation, no, but 

on the Lower Reservation, and that was one of my recommendations, was the carriers, the local carriers are not getting the word 

out to those who need it the most so that they are aware of the 

services and can take advantage of that, and I had asked for a recommendation to the FCC to encourage those local carriers to partner with the tribes to get the message out to those members who 

do have phones, so that they can take advantage of those services. 

Senator CAMPBELL. When I mentioned when I first moved back 

to the reservation, I remember experiencing difficulty in having a 

telephone put in. As I remember, they told me that it cost too much 

to put a phone in to where I lived. We finally had to get a bunch 

of other people, and it took about 2 years as I remember, that also 

wanted to be in that link-up, and we had the—what is it called 

when a number of people are on the same line? We had that for 

a long time before we got a private line, but you mentioned various 

telephone companies would not put phone lines on the reservation 

because it was not economically viable. That has been your experience, too. 

I can understand that at least from one perspective, because they 

are businesses. They have to make a profit, and I guess like the 

REA, in the olden days, that is why the Federal Government subsidized the REA to electrify the West, because it just could not be 

done with private incentive. 

Maybe, let me ask one or two more, one to Mr. Snowden. 

Ms. MASTEN. Senator, could I just add a point? 

Senator CAMPBELL. Yes, please do. 

Ms. MASTEN. Even wireless for the reservation, how is that going 

to work if we do not have power? So that is a concern, too, so that 

opportunity for anything else that may be out there to take advantage of. We are further disadvantaged by the fact that we do not 

have electricity, either. 

Senator CAMPBELL. Are you asking me how it was going to work? 

We get to ask the questions. 

[Laughter.] 

Senator CAMPBELL. Mr. Snowden. 

Mr. SNOWDEN. Yes, sir. 

Senator CAMPBELL. I hope you got Mr. Day’s message kind of 

loud and clear. It sure came clear to me. Let me ask you a couple 

of questions here. In the Administration’s budget this year, there 

has been a program reduction of the technology opportunities proVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00076 Fmt 6633 Sfmt 6601 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
73

gram from $45.4 million to $15.5 million. How do you justify that 

huge cut? 

Mr. SNOWDEN. That is actually the Department of Commerce. 

Senator CAMPBELL. Oh, excuse me. It is in the Department of 

Commerce? 

Mr. SNOWDEN. I will gladly give that to them. 

Ms. WARREN EDELMAN. I am not them any more. 

[Laughter.] 

Senator CAMPBELL. Well, who would like to answer that on behalf of the Government? You are the only one here, are you not? 

[Laughter.] 

Mr. SNOWDEN. In all due respect, I think I will defer to my colleagues in the Commerce Department to answer that question for 

you. 

May I address something that you brought up with Mr. Day——

Senator CAMPBELL. Yes. 

Mr. SNOWDEN.—with respect. The commission has been very 

clear that companies must get permission from the tribal leaders 

before they go on to tribal lands, and I am not sure where the 

breakdown is with understanding that, but that is clearly one of 

our rules that we have put in place, so the issue that we see, we 

are seeing some difficulties when the Tribes want to go off the tribal lands, and that is some of the challenges. 

Senator CAMPBELL. As I understand the sacred sites law, that if 

there are sacred sites designated, identified and designated, even 

if it is not on tribal land, there has to be some consultation with 

the tribes——

Mr. SNOWDEN. Correct. 

Senator CAMPBELL.—before the Federal Government can do that. 

Let me ask you about incentives. What are incentives given to 

provide groups like Bell South, Verizon, or some other companies? 

Are there incentives now from the FCC to encourage them to go 

onto reservations? 

Mr. SNOWDEN. Well, the Lifeline Link-Up program itself, the universal service program itself is an incentive for carriers to actually 

go onto these reservations and provide, particularly in high cost 

areas. A piece of the universal service program directly talks to 

high cost areas, and the reason that was put in place was so that 

they would have the incentive, because they know they could go 

into a reservation where it is a high cost area at a reduced price, 

or a price that is lower, comparable to an urban area. 

Senator CAMPBELL. Mr. Strand, as I understood your testimony, 

you would like to see the FCC hold public hearings on designating 

eligible telecommunications carriers for entering reservations. 

What are your objections to FCC preemption? Has that already 

been answered? I heard you mention that in your testimony a little 

bit. 

Mr. STRAND. Mr. Chairman, Senator, our objection to the FCC 

doing these reviews is that the process they have is not conducive 

to fully developing a record on whether the carrier’s representations in their application are true. 

One thing I want to emphasize as much as I possibly can is how 

important ETC designation is. This is the lifeline that people have 

to the national network. In Montana, with a very sparse population 

74

distributed across the State and terrible weather conditions, especially in the winter, universal service is what people rely on to get 

emergency services out to rural ranches and farms. The State Public Service Commission has to be assured that phone service is 

going to work. 

In the case, for example, of a wireless service that is served by 

backup batteries, those batteries typically last about 8 hours. If you 

have power out for 3 or 4 days, the Public Service Commission is 

going to be understandably reluctant to say, ‘‘by all means you (the 

wireless provider) be the universal service provider in this rural 

area, and if the power goes out, the folks are just out of luck.’’

Senator CAMPBELL. You mentioned the investment. I wrote in my 

notes here, $2 million investment when you set up telephones on 

the Crow Reservation. Well, how do you end up with a profit if you 

have to make an investment like that on the reservation? 

Mr. STRAND. Well, first of all we are nonprofit telephone cooperatives. 

Senator CAMPBELL. I see. 

Mr. STRAND. And the other way we fund our operations is using 

universal service dollars. 

Senator CAMPBELL. Well, it sounds like that could be a model for 

other places. Are there reasons why that cannot be used on other 

reservations? 

Mr. STRAND. No. In fact, that is being used on the other reservations in Montana. 

Senator CAMPBELL. You mentioned the ones in Montana. 

Mr. STRAND. As I mentioned in my testimony, U.S. WEST sold 

most of their reservation areas in their 14-State region, is my understanding, across the West. Particularly when they sold properties to cooperatives such as the ones I represent and other cooperatives in Montana, Wyoming, North Dakota, South Dakota and 

so forth, the reservations in those areas are seeing the same kind 

of results that we have seen at Project. Therefore, it is very important to differentiate the different circumstances that exist on different reservations. 

Some of the horror stories that you have heard today are quite 

true, but with regard to other reservations, the information that is 

available on the FCC Web site, for example, is hopelessly outdated. 

Senator CAMPBELL. Ms. Edelman, I am sorry I did not hear your 

spoken testimony, but looking through my notes here, you mentioned the price of telecommunications equipment and a very limited amount of Government grant money, only a few Tribes getting 

benefits from these modest grants. What is the solution to that, 

that we just try to put more money into the FCC for the grant program? 

Ms. WARREN EDELMAN. I would say through some of the programs that are working already that have a proven record. make 

sure that they continue to be funded. And again, some of those that 

I listed, that is just a partial list. The FCC does need to have some 

funding I think for their tribal liaison to be able to travel to Indian 

country, I think. You know, assuming that Tribes are going to call 

in to get information it is kind of a silly point, you know. There 

are no phones out there to find out about that. Again, access on the 

Internet, that is beside the point. There is no access. 

75

Senator CAMPBELL. Ms. Masten testified—she mentioned, I heard 

her say something about three businesses on your reservation have 

no phone service, which I cannot imagine, running a business with 

no phone service in this day and age. But do you have any information on businesses that have succeeded or failed on reservations because of the access, or lack of it, to phone service? 

Ms. WARREN EDELMAN. Just anecdotal information, things that 

I have been told, basically things like, you know, our one telephone 

line we have to use for a fax, and then we have to use it to try 

to e-mail documents out to people. We cannot keep up with the 

competition. Same kind of thing, if you want to take it to another 

level with e-Government, and especially with the Federal Government doing work with the Tribes and sending funding applications 

and all that, you cannot do that if you do not have access. 

And the more we move towards e-Government, which sounds fantastic for the rest of the country, the more we leave Tribes behind, 

even for the basic grants and necessities that they need, so it is a 

serious situation, but it is going to get worse as the time goes on. 

I think the rest of the country forgets that there are these corners 

of the United States that are worse than Third World conditions. 

You need that infrastructure in order to keep up and in order to 

prosper, period. 

Senator CAMPBELL. Thank you, Mr. Chairman. I will wait for another round. 

Chairman INOUYE. Mr. Strand, in your response to one of the 

questions you said that the wireless may be dependent upon electricity and battery and when there is a huge snowstorm it might 

be tied up for hours, if not days, and therefore the quality of service may not be the very best. How do they get any service whatsoever if we take that attitude? 

Mr. STRAND. When you say ‘‘they’’ you mean Native Americans? 

Chairman INOUYE. Yes. 

Mr. STRAND. I think when you asked earlier whether you were 

correct on the ETC issue. You were sort of right and wrong. When 

we have an Indian reservation that has terrible service today and 

there is no wire line provider willing to provide service, then absolutely wireless service has to be the next step. 

But when you have a reservation, for example, like the Crow 

Reservation that already has 85 percent penetration and improving, and the service quality is ten times better than what they are 

going to be able to get from a wireless provider, then the question 

becomes, what sense is there in designating a second ETC to serve 

that area? 

And of course, backup power is only one of the issues. Congestion 

is another issue. 

Chairman INOUYE. Well, Crow has 85 percent. What about Navajo? 

Mr. STRAND. I am not familiar with the Navajo Reservation. I am 

only familiar with the Montana reservations. 

Chairman INOUYE. Well, according to numbers that are provided 

to us, although it is said that adequate data is not available, what 

little data we have would indicate that about half the homes in Indian Country have no telephones, and less than 30 percent have 

any access to Internet or computers. How do we cope with that? 

76

Mr. STRAND. I absolutely agree that if there is no wire line provider that is willing to provide service—that would be the preference, because wire line service is going to give them the high 

speed connection to the Internet. Wire line service is going to give 

them reliability. Wireline is going to give them redundancy. But if 

there is no wire line provider that is willing to provide service, then 

wireless is their only alternative. 

Chairman INOUYE. Well, we have been advised that it is not fair 

to give wireless people the grants, universal service grants because 

the cost is less than the wire line operators, and if that is the case, 

we will never have service. 

Mr. STRAND. Allow me to explain. The wireless service costs less 

than wire line service. However, wireless service is not as robust 

as wire line service. We are talking about apples and oranges. 

Chairman INOUYE. It may be apples and oranges, but in the end 

it is communication, is it not? 

Mr. STRAND. In the end it is communication and as I have said, 

where a reservation is served well by a wire line provider, that is 

the preference. If there is no wire line provider willing to provide 

service, then by all means a wireless provider should be providing 

service there. 

Chairman INOUYE. Then you would say it is okay to have wireless service go into Navajo land now? 

Mr. STRAND. I have no problem and never have had any problem 

with wireless going into Navajo land. 

Chairman INOUYE. Any other place where you do not have wire 

line services? 

Mr. STRAND. Right. If there is no wire line provider willing to 

provide service, I have no problem with wireless service. 

Chairman INOUYE. So you have no objection to the Yuroks getting wireless service? 

Mr. STRAND. Absolutely none. I would like to see the Yuroks get 

wire line service because I think it is so much more robust, but not 

if there is nobody willing to provide it, and my small 5,000-line 

company in Montana is probably not going to go to Northern California. 

Chairman INOUYE. Mr. Stanton, what is your position on ETC, 

the thing we have been discussing here? I am sorry I was not here 

to listen to your testimony. 

Mr. STANTON. I would be happy to respond, Senator. We view our 

company to be deeply committed to providing services on Native 

American lands. ETC is an indispensable part of that. The ETC 

process is broken, in my view. The 1996 act was intended to make 

services available, competitive services available to all, as I understand it, and the ETC process delegated to the States—excuse me, 

the act delegated to the States responsibility in rural areas, where 

certainly within Western Wireless’s area all of the Native lands are 

in rural areas, as defined by the Congress and the FCC. 

We have suffered in many States—we applied 4 years ago in 14 

States. There are still 2 States that have not acted upon our ETC 

applications. 

Chairman INOUYE. In 4 years? 

Mr. STANTON. There are a number of States—excuse me. 

Chairman INOUYE. How long, 4 years? 

77

Mr. STANTON. Four years. As many as 4 years, and in fairness, 

Senator, some States acted much more promptly. 

In South Dakota, for example, it took us two round trips to the 

State supreme court and Federal court in order to finally get granted as an ETC in the State in rural areas. We have continually been 

bombarded with requests, and I want to correct a misstatement 

that you did not hear, Senator, but Senator Campbell did, that in 

Montana we had a request for 465 different interrogatories, and I 

attributed it to Mr. Strand’s organization, and he corrected me, 

quite politely told me it was not his company, ITA. It was instead 

MTA that made the 465 requests. 

But the example still stands, that to get a relatively simple request, to get 465 interrogatories over an application to provide 

service is in my estimation ludicrous, but what it does, I was saying to one of my lawyers this morning, it is like the two guys in 

the woods with the bear coming, right, that as a practical matter 

for us we have limited resources, and when the bear is running 

through the woods, and the one guy starts running off, and the 

other guy puts on his tennis shoes and he says to his friend,I am 

putting on my tennis shoes because I do not have to outrun the 

bear, I just have to outrun you. 

As a practical matter, what is happening is that the more litigious independent telephone companies are chasing us out of their 

jurisdictions and into jurisdictions where it is less difficult. 

Lastly, with respect to the FCC on tribal lands, we have made 

applications, including in the Crow Reservation, where Mr. Strand 

was taking about the great progress his wired company has made, 

that has been pending for nearly 2 years at the FCC, we have gotten the FCC’s grant of ETC status on the Pine Ridge Reservation 

in South Dakota, but it took a lot of litigation at the State level, 

and then we had to reach an agreement with the Tribe, which we 

did in our agreement which was signed in this room 2 years ago, 

in order for us to finally get authority to go in. 

So the State, Federal, and litigation hassles are delaying the implementation of service. 

Chairman INOUYE. I went to law school. Maybe we have too 

many lawyers. 

[Laughter.] 

Mr. STANTON. I did not say that. 

Chairman INOUYE. Do you suggest any amendments to the law? 

Mr. STANTON. I suggested a couple of things. Number 1, the 1997 

amendment to the 1996 act, which I believe is section 214(e)(6)—

someone behind me will correct me if I am wrong. Someone behind 

you is nodding—was, as I understand it, intended to clarify that on 

Indian lands that if the States did not act, that the FCC was authorized to act, and it is my understanding that the FCC views 

that to be unclear, at least in some of the discussions we have had 

with the staff, the lack of clarity slows down actions on Indian 

land. 

Second, frankly, the delegation——

Chairman INOUYE. How would you clarify it? 

Mr. STANTON. Well, I am not a lawyer, but I would defer to the 

FCC and your staff to provide the clarity. All I am interested in 

is being able to get my applications processed promptly. 

78

Second, to either set standards or limitations in terms of the 

amount of time to be considered, both at the State and Federal 

level. As I have indicated we are waiting years in some cases on 

applications that affect Indian and non-Indian lands at the State 

level. They are being held up because of litigiousness and manipulation of the process by the telephone companies, but also, frankly, 

because of staffing and prioritization decisions being made at the 

State level. 

The Feds, the FCC is slow for reasons having to do with their 

heavy work load, which is understandable, but if this is, in truth, 

a priority, then there ought to be some deadline. I cannot argue as 

to whether 6 months or 1 month is reasonable, but frankly, Senator, I would be thrilled with 6 months, given that some things are 

pending for as long as 2 years. 

Chairman INOUYE. I am not an expert on cell phones, but is the 

service that bad in rural areas, as suggested? 

Mr. STANTON. You know, I have spent my entire career doing 

nothing but wireless communications, and we have provided—as I 

indicated in my opening statement, my companies have built systems in places like Haiti, Ghana, Ivory Coast, as well as in rural 

America, as well as building the Voice Stream business here in the 

United States, all businesses that I have had the pleasure of cofounding. The quality of telecommunications service is better. 

If I may give you an example, last night I was at the Willard 

Hotel. The data speeds in the hotel are between 14.4 kilobits per 

second, or 28.2, probably the same speeds you would get at home. 

I connected my laptop to the Internet via this card, and I got between—depending on the time, between 48 and 56 kilobits per second, two to three times that I would have gotten if I had used the 

wired connection, just a simple laptop computer. Moreover, whereas if you connect to a wired line you are using that circuit, you are 

consuming that circuit, if you will, for all of the time you are on 

your laptop, so for example, if you want to respond to a message 

while you are typing before you push the send button, you are paying for the time. 

With a packetized data services, which most wireless companies 

have or are introducing, you have the ability to only pay for the 

messages you deliver, and so for us, we have the ability and have 

introduced services in rural and urban areas that offer high-speed 

data services. 

The quality is improving. The new services that are being introduced by other carriers and by ourselves will eventually, within a 

couple of years, offer 2 megabits per second. The ability to offer one 

technology called 802.11—the marketing people did not come up 

with that name—offers up to 11 megabits per second. 

I can respond to Mr. Strand’s comments about reliability and 

power consumption if you would like, but fundamentally the quality of wireless service in my estimation can be whatever the carriers are willing to invest. And if carriers are doing things on the 

cheap, clearly if you do not have battery backup, or if you only 

have battery backup in areas where there is a weakness in the 

power grid, the system can go down. 

Most of our sites where there is a weakness in the power grid 

have generators, and we have generators with the ability to provide 

79

power for long periods of time which in rural areas unfortunately 

happens, and is unfortunately necessary. 

Chairman INOUYE. Any other suggestions on our laws? 

Mr. STANTON. I guess the other suggestion I would make that I 

made in my prepared comments really goes back to ensuring that 

the systems that provide support are open and nondiscriminatory. 

Many of the subsidies that support the wired telecom network, 

with which I take no argument, are buried deep in very complicated accounting systems, so when you say, we subsidize rural 

areas, you may well be right, but it is very difficult to get to what 

that number is. 

Wireless is almost always, in areas below 10 people per square 

mile, a more economic way of providing telecommunications services. And as a consequence, if you go into rural areas, and my company, Western Wireless, provides service in the vast majority of 

areas within the continental U.S. that have less than 10 people per 

square mile, you go into rural areas and wireless economics almost 

always dominate wired economics. 

But what happens in Senator Dorgan’s home town of Regent, 

North Dakota, where we launched service, we were offering service 

for about $15 a month. Our competing wired telephone company 

was offering—I am sorry, the competing wired telephone company, 

the company we competed against, was offering service for about 

$15 a month. They were receiving subsidies embedded in the system of over $180 per customer, per month. 

Now, our costs are dramatically below that, and we can, for probably about half to a quarter of their cost be able to provide them 

services, but the subsidy systems are difficult to figure out. There 

is an opportunity for consumers to get better service, and for the 

Federal Government and industry to save money by simply making 

those subsidies more apparent, making them explicit, making them 

nondiscriminatory, and promoting competition. 

The last comment I will make, and I apologize for monopolizing 

the microphone, Mr. Strand made, I thought, a very impressive 

statement about the things that his company has done on the Crow 

Reservation, and I was unaware of them, and I applaud them, but 

fundamentally all consumers benefit from competition. If you allow 

us to introduce service, I would assert that we will make the competitors that we have in the markets where we serve better. We 

will push them. 

In Regent, North Dakota, for example, the competitor began providing more service opportunities, more service offerings after we 

launched our service, and I think what we have seen in American 

industry is the introduction of competition almost universally 

forces people to get better, and that is what I think introduction 

of wireless on a fair and nondiscriminatory basis can allow in 

telecom. 

Chairman INOUYE. Are you receiving universal services subsidies 

in any of your operations? 

Mr. STANTON. We are. We service between 12,000 and 13,000—

I cannot give you the exact number—fixed, what we call our wireless residential service, WRS service, and in most of those we receive either State and/or Federal subsidies in those programs. But 

frankly that is only a small fraction of the areas where we would 

80

like to provide service, and it is only where we have been designated as an ETC, and where there are universal service subsidies 

available. 

Chairman INOUYE. Thank you very much. Mr. Strand, do you 

have any comment? 

Mr. STRAND. The only two points I guess I would make with regard to a couple of statements Mr. Stanton made, number 1, they 

do have generator backups for a lot of their tower sites in Montana. 

Unfortunately, that does not do the customer any good. That keeps 

the signal going out, but the customer at their home has their 

hand-held device, or their wall-mounted wireless device. That has 

a backup battery system that is plugged into the wall. After 8 

hours of standby it is done. There is no more power. So the fact 

that there is a generator at the tower site does not do the customer 

any good. 

The other issue is with regard to Mr. Stanton’s discussion of all 

the interrogatories and discovery that has been promulgated. Just 

to give you an example, when they filed their application in Montana, they claimed to provide cellular service across the State. As 

evidence of that they attached an exhibit that took an 81⁄2 by 11 

piece of paper with an outline of the State of Montana, and somebody had taken a black marker and filled in the whole State. 

That was the single piece of evidence to show that they provided 

service throughout the State, and then they claim to be surprised 

by all the interrogatories that are fired at them. The State public 

service commission wanted to know, well, where are your towers, 

where are your service areas, where are your dead spots? You cannot just give us a map that has been colored in with black marker 

and tell us that you serve the whole State. 

So those are the only two points that I would make. Thanks. 

Chairman INOUYE. Well, Mr. Day, you have started something 

here. Do you have anything to add? 

Mr. DAY. Yes, sir, I do, and I appreciate the opportunity, and 

again it goes back to Mr. Snowden’s references to trust responsibility, sovereignty, and especially Government to Government. 

The Federal Communications Commission convened a coalition of 

cell phone representatives, their attorneys, State historic preservation officers, and others to produce what is known as a programmatic agreement on colocation towers, the installation of additional antennas. There was not one single Indian interest involved 

in that development of the programmatic agreement. 

We found out about it almost at the last second. We were not 

even privy to the fact that it was going on till the last second, and 

a number of the Tribes did provide comments on what we were 

able to read, because we realized that they were grandfathering in 

all of these towers that had been built without adherence to section 

106, and that they would not have to go back in and resurvey or 

relicense. They could just go ahead and stick these antennas up, 

although there would be in many instances ground disturbances 

that would require a 106 survey. 

That was rammed through the advisory council at its meeting in 

Arkansas. I was told by a member of the advisory council that the 

Indian comments were not only not included, they were not allowed, and that became a programmatic agreement which is affectVerDate 0ct 09 2002 13:13 May 25, 2004 Jkt 091301 PO 00000 Frm 00084 Fmt 6633 Sfmt 6601 S:\WPSHR\GPO\DOCS\91301.TXT JACK PsN: JACKF
81

ing everybody in this country, and now the FCC has put together 

another coalition of peoples, again State historic preservation officers, attorneys for the cell phone companies, cell phone company 

representatives, again, no Indians, on a programmatic agreement 

on new locations, and how that will be done. 

And although we do have a stake in that, we have not been included in any of these wonderful programmatic agreement Committees, or whatever you wish to call them, and our understanding 

further is that they intend to ram this new programmatic agreement without our involvement through the June meeting of the advisory council here in Washington, D.C., and Senator, we beg and 

implore of you to please tell these people to stop and desist until 

everybody is included, then we have some voice in this, and this 

does not become another programmatic agreement which shuffles 

us off to pre-Custer. 

Chairman INOUYE. Thank you. Senator Campbell. 

Senator CAMPBELL. Just a couple of closings, Mr. Chairman, 

thanks. 

Mr. Day, are there remedies now through the courts when Tribes 

are not included in agreements locating towers or anything of that 

nature on lands that may be in sacred sites that are not on reservations? You mentioned there was no tribal involvement or people asked to participate in that. 

Mr. DAY. Well, sir, at the risk of seeming to be facetious, the impediment we have is the cost of attorneys. I literally went around 

the circuit with my hat in my hand saying, can you put a few dollars in so I can hire Gregg Smith over there to represent us here. 

Now, as you well understand, and well know, there are some 

very wealthy Tribes here in the South and East, but there are an 

awful lot of us who are still poor as Job’s turkey, and the fact of 

the business is that it takes money to go to court, and it takes 

money to prosecute something successfully. 

Now, we have offered—more than offered, please let us sit down 

and work out something where it is mutually beneficial to everyone, and that we do not have this strife, and we hear that they are 

wanting to work with Indians. Fine, I am offering, hey, here I am. 

I volunteer. I can give you a few more, that gentleman sitting right 

there by you, I believe they would work with you, too. 

We happen to believe, wrongly or rightly, as we tell archaeologists, we are human, too. We are not your specimens anymore, and 

we would like to be treated—you asked, Senator, what would you 

ask of the Government and had that wish, I would ask one simple 

thing for Indian people: respect. 

Senator CAMPBELL. Thank you, Mr. Day. Certainly your words 

are well taken by anybody who is close to the Indian community, 

but aside from that, the question of land line phones versus cellular phones, that has been an interesting discussion, Mr. Chairman. I am not an engineer, so I do not certainly pretend to understand a lot of the variable things, but I kept wondering in my own 

mind if there are not some common threads. 

The Navajo reservation, the Crow Reservation came up a number 

of times, and I have been on both of them a lot of times, a lot. My 

dad was in Crow Agency Boarding School, and I lived near the 

Navajo Reservation now, and they have several similarities. One is 

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that neither one have many—maybe none, 14,000-foot peaks as we 

do in Colorado, that makes some real complications with cell 

phones, even though they are making terrific progress. 

I can remember 5 years ago there were many places in Colorado 

I could not use one. Now there are very few places that I cannot, 

unless I am right in the middle of some of those peaks, so that is 

one commonality. 

The other is that they both have proximity to pretty good size 

towns on one part of the reservation, Hardin and Billings for the 

Crow, and Gallup for the Navajos, and another one is, they both 

have interstates that go through the reservations. I think it is 

Interstate 90, if I am not mistaken, that would be Crow, and I forgot whether it is 40 or something through the Navajo Reservation, 

and you probably do not have this, and it is kind of a rhetorical 

question, but I would think that because they are also very large, 

in the millions of acres, that some places land line phones would 

seem to me more logical to use. In other places, cellular phones 

would be more logical to use, too. 

I just throw that out without asking for a question. It just seems 

to me that there are places for both. Clearly, as Ms. Masten mentioned, there are some places you have to build roads to get the 

towers, and you have to make a lot of land changes, and a lot of 

Indian people are somewhat suspicious about those land changes, 

too, but I would just say the way technology is improving, there is 

hopefully going to be room for both that are going to help the lives 

of Indian people throughout the Nation with each passing year. 

Thank you, Mr. Chairman. I have no further questions, and 

thank you for appearing today. 

Chairman INOUYE. I thank all of you for your patience in being 

with us. Mr. Snowden, my apologies to you. I realize you are a liaison officer, and you do not make policy here, but I just wanted you 

to convey certain messages to the FCC, and I am certain you will. 

Mr. SNOWDEN. I appreciate the opportunity, Senator. 

Chairman INOUYE. All of you, thank you very much. 

[Whereupon, at 12:15 p.m., the Committees adjourned.] 

(83)

APPENDIX

PREPARED STATEMENT OF HON. TIM JOHNSON,

U.S. SENATOR FROM SOUTH DAKOTA

I want to thank Chairman Inouye and Chairman Hollings for holding this important Joint Indian Affairs and Commerce Committee hearing on Telecommunications 

Issues in Indian Country. As those of us who represent large Native American populations know, it is imperative that we do more to address the needs of Indian Country to create a level playing field for all our citizens. 

I am pleased we have the opportunity today to address a significant problem facing many Native Americans—the lack of reliable, affordable telecommunications 

services. The vast majority of Americans take their telephone service for granted. 

When they need to call their neighbor, a relative living half way across the country, 

or 911, their telephone service is there. That isn’t the case for all Native Americans. 

Unfortunately, market conditions contain few incentives for private sector investment in basic infrastructure on reservations. Meanwhile, we spend much of our time 

here in Washington debating how to deploy exciting new technologies to our communities, while neglecting the basic needs of so many of our residents. Basic phone 

service isn’t a cutting-edge topic, but all Americans deserve basic telephone service. 

I am pleased that the Committee understands our responsibility to address current 

inadequacies, and to work together with the private sector to create conditions that 

make deployment of telecommunications to rural areas a win-win situation for everyone. 

I’m pleased by the diverse panel we will hear from today. I especially look forward 

to Mr. John Stanton’s testimony as it relates to Western Wireless’ investment in the 

Pine Ridge reservation in South Dakota. 

PREPARED STATEMENT OF M. TERESA HOPKINS,

VICE-PRESIDENT, INDIGETEC, INC. 

SITE SPECIFIC MARKET ANALYSIS: 

There are several ways to approach a solution to the dilemma of ‘‘connectivity’’ 

within Tribal Communities. There is a need for a specific focus on discussing tribal 

governmental telecom policy initiatives that involve development and sustainable 

funding. The potential regulatory hurdles, security and interference issues and the 

need for ubiquitous coverage are severely magnified on Indian reservations. 

As part of the federal trust responsibility to tribes, U.S. wireless carriers need 

more attractive market—based federal incentives to enable public wireless access in 

Indian Country in a manner that is sensitive to the users’ locations and data needs. 

Quite understandably, U.S. wireless carriers use business models that leverage 

broad coverage wireless data offerings in densely populated areas. These business 

models are antithetical to Indian Country, i.e. increased spending by the existing 

subscriber base will improve profitability. In response to the need to deploy in the 

fiercely competitive wireless market, there are now many small wireless participants working to deploy in strategic locations, in what basically amounts to a ‘‘land 

grab’’ of unconnected hotspots. The Navajo Nation, with over 25,000 square miles 

in the Four Corners Area, is one of these hotspots. 

Within one to two years, I expect the ‘‘land grab’’ phase will be over and one of 

two things will happen: the mid-sized players will consolidate to create a national 

or regional footprint or one of the larger aggregators will corral the smaller carriers 

under one extremely anti-competitive umbrella. In the meantime, the federal government must ensure that each wireless players’ business model is responsive to the 

needs of grassroots native communities and provide companies an incentive to see 

the value of investing in what are some of the most unique low penetration markets 

in the world. 

84

RECOMMENDATIONS: 

• Basic, terrestrial and further exploration of affordable, supportable, and sustainable broadband wireless solutions should be examined. In most cases, a tribal policy and tribal—based telecom planning and deployment initiative should 

be made available to tribes that determine entry into network service, perhaps 

in combination with common carrier services.

• Other tribes with a small land bases may consider service enhancements and 

upgrades by agreement with the various service providers.

• Tribal telecom planning funding should be made available to include costs for 

assessment, business planning/modeling, and engineering. Funds for planning 

and development would include packaging, loan development and business development options.

• Tribal Colleges, in the collective, should develop a training model whereby staff, 

can attend and learn network support skills, applications, and distance education methods; this might include Microsoft certification for advanced networking support and the like.

• Training should be supported via distance education tools as well as provide for 

onsite training options to tribal participants.

• A component for development, research, and engineering should be developed, 

to include a tribal legal review component. This is important to ensure what 

is proposed technically or engineering wise, meets the standard for legal operation under fully developed tribal telecom policy or utility codes. In theory, this 

will provide technical assistance for tribal legal code development, enforcement, 

and implementation.

• To develop opportunities for tribal community networking and incorporating 

tribal technology centers; training or courseware can be for credit or noncredit; 

develop community networking models; and earned income strategies for individuals, coops, and community development corporations located and serving Indian reservations.

• Develop a federal coordinating council for existing federal grants to ensure 

there is a leveraging impact of existing federal programs; explore allowing federal dollars to be used as a match for reservation areas in other than 93–638 

exceptions in the amendments.

• Delineate tax credit benefits under IRS rules to include incentives for telecom 

providers to establish facilities, networks, and services on Indian reservation 

land areas, and to create jobs associated with deployment plans.

• Develop a policy and evaluation workgroup to report on various activities supported by Congress and appropriate federal agencies.

• Reevaluate the subsidies and incentives for technology that are provided either 

through the states or the federal government. You probably will find that very 

little of these subsidies actually go back into infrastructure for Native or rural 

communities on reservation lands. There still is little effort to connect ‘‘the last 

mile’’.

• Address the unresolved issue of sovereignty and tribal rights to telecom resources including spread spectrum.

• Examine the issue of tribal rights to unused military spectrum or excess spectrum. 

NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE

Wyoming, Rhode Island, May 10, 2002

Hon. DANIEL INOUYE, 

Senate Committee On Indian Affairs, 

Washington, DC .

FOR THE RECORD: Need For Sect. 106 Consultation Between FCC & Tribes On 

Celltowers

Asco Wequassin (Greetings), Senator Inouye:

The Narragansett Indian Tribe is a member nation of the United South and Eastern Tribes. The *core ancestral territory of the Narragansett Indian Tribe is now 

known as the state of Rhode Island. As Tribal Historic Preservation Officer and a 

85

Tribal Councilman of the Narragansett Indian Tribe, it is with great concern that 

I address the issue of cell tower development policies and the government-to-government consultations between Indian Tribal Nations and the Federal Communications 

Commission (FCC). Indian Tribal sites of significant ancestral cultural resources, 

sacred sites and sacred landscapes have been under increased threat from sacrilege 

and destruction caused by cell tower construction excavation. 

Pursuant to Section 106 of the National Historic Preservation Act, the FCC, as 

the federal licencing agency with oversight in the development and use of cell towers, has the responsibility to consult with Federally Recognized and Acknowledged 

Indian Tribes regarding the protection of these sites from such sacrilege and destruction by cellular carriers and their cell tower developers. 

For the past several years, it has been our experience that the FCC has stood 

aloof from the task of exercising its consultation and regulatory responsibilities in 

this crisis. FCC has allowed cellular carriers to operate as though FCC had the 

right to delegate and had, in fact, delegated its government-to-government consultation and permitting responsibility to the cellular carriers themselves. Under the 

guise of such ‘‘consultation’’, cellular carriers have hired environmental consulting 

firms to minimally and crudely address the protections afforded by Section 106 to 

Tribal sacred and significant sites. The 24 Federally Recognized Tribes of the 

United South and Eastern Tribes, with ancestral lands east of the Mississippi, have 

been bombarded with thousands of letters from the ‘‘environmental scientists’’ of 

these consulting firms. These environmental scientists demand sacred site information with no Federal policy in place to protect that information from misuse and 

abuse. 

The letters have often demanded such timetables as ten day information turnarounds with the expectation that beyond their arbitrary time frames their clients 

are free from Tribal concerns regarding proposed site excavations. The Narragansett 

have only begun to truly assess the the degree of sacrilege and destruction to our 

more remote ancient sites caused by the rapid gearing up and onslaught of the early 

years of cell tower development. 

The Narragansett, apparently, do have the good fortune of being in the smallest 

of the United States where cell tower proliferation is a Tribal issue. As a result, 

changes for the good can quickly take hold. Sacred and significant site defense 

stategies which were honed in the Culture and Heritage Committee of the USET 

under the chairmanship of Bill Day have begun to stem the tide of cell tower sacrilege and destruction against our precious and non-renewable sites of ancient heritage.

In Rhode Island, cellular carriers have begun to acknowledge that gathering 

site information from the Narragansett should be done in a manner that respects our sovereign status, our oral history tradition, and the amount of work 

necessary to facilitate the research requests of carriers and developers. This is 

not the case in the majority of the other 23 USET Tribal ancestral territories.

In Rhode Island, where warranted by Tribal knowledge of areas of ancient sensitivity, the carriers and their tower developers have begun to institute archaeological investigations to confirm the immediate presence or absence of sites to 

be avoided. Further, they employ our on-site monitoring of the archaeological 

investigation within the excavation footprint of the tower compound and access 

road as the means to best protect areas of concern from inadvertant acts of sacrilege and destruction. This is not the case in the majority of the other 23 USET 

Tribal ancestral territories.

In Rhode Island, the carriers and their developers have acknowledged that our 

oral history research, archaeological scope of work advice and monitoring services, now, merit compensation as just another one of the many tower development services. This is not the case in the majority of the other 23 USET Tribal 

ancestral territories.

*(This has not been the case in those parts of Massachusetts and Eastern Connecticut where the Narragansett have Tribal ancestral territories.)

These small shifts toward the positive have been the exception, not the rule, in 

the experience of the majority of the 24 USET Tribes in the Northeast, Eastern and 

Southern United States. 

The majority of cell tower developers operate as though they are immune from 

even the ‘‘delegation’’ of the FCC’s Section 106 consultancy responsibility with Indian Tribes. Only a very small percentage of the cellular towers currently in existence have been erected with any consideration at all for the need to exercise protocols that protect the sacred and culturally sensitive localities of the Native Nations 

86

from sacrilege, damage and destruction. What has America needlessly and irrevocably lost in the bargain? 

The Narragansett Indian Tribal Historic Preservation Office (NITHPO), on behalf 

of the Narragansett Indian Tribe, vigorously supports Bill Day, Chairman of USET’s 

Culture and Heritage Committee, in his call for the FCC to consult with Indian 

Tribes regarding the establishment of protocols for formalizing the role of Indian 

Tribes in the safeguarding of our sacred sites, sacred landscapes and other cultural 

sites of significance from wanton destruction by continued un-monitored cell tower 

construction. 

Clearly, under Section 106 of the National Historic Preservation Act, the Advisory 

Council on Historic Preservation regulations thereof, and the active policy for government-to-government consultations with Indian Tribes, the Federal Communications Commission has the responsibility to consult, negotiate and enter into an 

agreement to resolve these issues with the 24 Federally Recognized and Acknowledged Tribes of the United South and Eastern Tribes (USET). 

Tau-botdan-tamock Wut-che Wa-me (We are giving thanks for all things). 

JOHN BROWN, 

Tribal Historic Preservation Officer, 

Narragansett Indian Tribe. 

cc: Sen. Reed, Sen. Chafee, Rep. Kennedy, Rep. Langevin 

PREPARED STATEMENT OF RICHARD WATKINS,

GENERAL MANAGER, CELLULAR ONE

Thank you Mr. Chairman and Members of the Committee on Indian Affairs and 

The Communications Subcommittee of the Senate Committee on Commerce, Science 

and Transportation for this opportunity to submit testimony on the issues addressed 

at today’s hearing. 

My name is Richard Watkins. I am the general manager of Cellular One of Northeast Arizona. I am the chief operating officer of the company’s cellular and PCS operations. I have lead responsibility for the filing and management of the company’s 

applications for designation as an eligible telecommunications carrier (‘‘ETC’’). 

I. Background 

Our company is licensed by the FCC to provide cellular and PCS services to rural 

areas within Arizona, New Mexico, Colorado, and Utah. We have served Arizona 

and New Mexico for over 10 years and have recently acquired licenses to serve the 

other two states. Our service area includes the Navajo Nation, the Hopi Tribe, the 

White Mountain Apache and the Pueblo of Zuni. 

In April of 1999, we applied for ETC status in Arizona. That application was finalized on May 15, 2001 and on June 1, 2001 we commenced providing a new service 

on the Navajo and White Mountain Apache tribal lands, called VisionOne TM, which 

provides residents with telephone service for a monthly access fee of $1. Our service 

permits local calling throughout our network, which currently covers over 15,000 

square miles and is increasing as we construct additional cell sites in newly acquired areas. In addition to 911 service, we also provide customers with a long list 

of health, educational and other community organizations which can be called toll 

and air time free at any time. 

In April of 1999, we applied for ETC status in New Mexico. That application is 

expected to be finalized in early June, 2002 and we plan to commence providing 

VisionOne TM service on the Zuni lands on June 15, 2002. Our service offering will 

be identical to what we have in place in Arizona. 

We have recently acquired PCS licenses to expand our service on reservation 

lands, and have filed, or plan to file soon, applications to extend our ETC service 

in New Mexico, Arizona and Utah. 

II. Without ETC for Competitors, There Will be No Service on Reservation 

Lands Any Time Soon 

Incumbent carriers would have the Committee believe that their networks provide 

customers with the only acceptable level of service. We disagree. 

In the first year since being designated as an ETC in Arizona, we have signed 

up over 17,000 new customers, most of which have never before had telephone service. In most of these areas, wireline service is available. Today these people can take 

advantage of the basic telephone functions that the rest of the country takes for 

granted. 

The barrier to telephone service is economic—plain and simple. Before enhanced 

Lifeline benefits were available, we marketed a lifeline-type service that was priced 

87

at $10 per month. That offering failed in the marketplace because the price was 

simply too high. With enhanced Lifeline, our VisionOne TM offering has been an 

enormous success, and telephone penetration levels in our service areas have increased dramatically. 

Since October of 2000, incumbents have had the benefit of enhanced Lifeline and 

Link-Up benefits adopted by the FCC, but with few exceptions, they have never actively marketed low cost service to the Indian communities they serve. It is therefore time for everyone to agree that incumbent carriers have generally failed to deliver service to Native American communities. Only now, when the prospect of 

competition has arisen, have incumbent carriers even started to acknowledge that 

they can do more. In those few areas where incumbents have successfully increased 

telephone penetration, competitive entry will not harm them, and will only help consumers. 

The enhanced Lifeline and Link-Up benefits now available to all eligible carriers 

are excellent tools to increase telephone penetration levels on reservation lands. We 

ask Congress to make those tools available to competitive carriers who see untapped 

markets instead of people that don’t generate substantial vertical service revenues. 

Unless the ETC process is reformed to encourage competition, the number of people 

without telephone service will not decline. 

III. The ETC Application Process 

As evidenced by the fact that our applications in Arizona and New Mexico took 

two and three years, respectively, to be granted, it is apparent that the process for 

obtaining ETC status is seriously flawed. Neither Congress nor the FCC ever intended for applicants to be subjected to a process that amounts to a barrier to entry 

for all but the most persistent applicants. The standard for obtaining ETC status 

is rather simple—a carrier must meet the nine point checklist of services 

provided by the FCC, and in rural areas it must demonstrate that a grant would 

be in the public interest. 

There is little argument that wireless carriers meet the checklist. In no case that 

I’m aware of has the checklist been a significant point of litigation simply because 

wireless carriers do provide, or can provide, each of the checklist items on their existing networks today. 

Whether the public interest would be served is an entirely different matter. Incumbent carriers would have state commissions believe that only when an incumbent wireline company can’t possibly serve an area should a wireless alternative be 

considered to be in the public interest. What they want is to retain their monopoly 

over both their services and government subsidies supporting those services. 

Congress commanded state agencies to grant ETC status to competitive carriers. 

The FCC implemented its Congressional mandate by enacting rules which make 

very clear that ETC status is to be granted in a competitively neutral and technologically neutral fashion. That more than one carrier may compete for customers has 

long been found to be in the public interest. That more than one carrier might be 

subsidized was intended by Congress when it said in Section 254(b)(3) of the 1996 

Act:

Consumers in all regions of the Nation, including low-income consumers and 

those in rural, insular, and high costs areas, should have access to telecommunications and information services, including interexchange services and 

advanced telecommunications and information services, that are reasonably 

comparable to those services provided in urban areas and that are available at 

rates that are reasonably comparable to rates charged for similar services in 

urban areas.

It is beyond dispute that in many rural areas, especially Native American tribal 

lands, access to services reasonably comparable to those provided in urban areas is 

not being provided today. If this provision is to have any meaning, high cost support 

must be made available to competitive carriers in a technologically and competitively neutral fashion. 

We call upon the Congress to reform the ETC application process so that incumbent carriers can no longer turn what should be a relatively simple process into a 

multi-year litigation. On Native American lands, and on near reservation lands, 

Congress can clarify Section 214(e)(6) of the Act to empower the FCC to make such 

grants, and command the FCC to do so within six months of application. 

IV. The Payment of Subsidies to Competitive Carriers is Appropriate 

Incumbent carriers distort the high cost subsidy program when they claim that 

a competitive wireless carrier is paid more than the incumbent. In fact, the opposite 

is true. The high cost ioop support program pays incumbent carriers’ costs are on 

88

a ‘‘per line’’ basis. When a competitor enters the market, it is required to accept the 

‘‘per line’’ subsidy paid to the incumbent, notwithstanding that the competitive carrier has far fewer lines. In most cases, the competitive carrier is under compensated, 

and will be for a substantial period of time until it obtains enough customers to 

cover its costs. 

The FCC is the expert agency charged with seeing to it that the high cost loop 

funds available in the universal service program are properly spent. The agency continues to monitor and review this important issue—and has a Federal-State Joint 

Board on Universal Service to advise it in this regard. The incumbents do not seek 

to work with the FCC to more accurately target funds so that the program remains 

solvent in the long term, but instead they are spending all their efforts seeking to 

shut off the flow of funds to wireless carriers altogether. 

Congress must permit the FCC, which is the agency charged with managing the 

universal service program, to carry out its mission. There is absolutely no record 

evidence that the FCC is failing in this regard. How much high cost support the 

government should provide to rural areas can and should be debated. But for now, 

the Congress has mandated that high cost support be provided to more than one 

monopoly carrier in rural areas and that mandate should be carried out for the 

public’s benefit. 

V. The Quality of Service Provided by Wireless Carriers is More Than Sufficient 

We have heard incumbents raise fears that wireless networks experience, for example, network congestion, cell site outages, short back up battery life, that will 

somehow cause Native Americans to get ‘‘substandard’’ telephone service. To this we 

ask, compared to what? Compared to no service? 

We obviously cannot comment on the quality of service being provided by other 

carriers throughout the country, wireless or wireline. From our perspective, we believe that our service is superior to wireline service, however one has to look at it 

not from the wireline perspective but from the customer’s. 

To give one example, incumbents argue that a wireless phone battery may die and 

a customer would not be able to make an emergency call. This is true. It is also 

true that if a house catches fire a customer with a mobile phone can run outside 

and call for help. In short, if a customer values a wireline phone more, then they 

will choose the wireline phone. On the other hand, if a customer believes that it 

is more valuable to have a mobile phone so that it is available whenever and wherever an emergency strikes, then that customer may choose the wireless alternative. 

While we believe that mobility alone gives a wireless phone far more utility in an 

emergency, our point is that each alternative has its strengths, and it is the customer who should be able to decide what’s best. It should not be imposed by an incumbent monopoly. 

With respect to overall quality, we have constructed our network to provide customers with first rate service. In addition, the provision of high cost support funds 

will enable us to improve our network in ways that would never be possible without 

such funding. We have substantially advanced our timetable for cell site construction, addition of channel capacity, and our digital upgrade. Within the next two 

years, we will introduce wireless high speed internet access which will be competitive with wireline networks. We believe that just the prospect of this happening will 

induce incumbents in our area to respond by rolling out competitive offerings, all 

to the customer’s benefit. 

VI. Enhanced Lifeline and Link-Up Benefits Should be Extended to Near 

Reservation Lands 

In 2000, the FCC announced that enhanced federal Lifeline and Link-Up benefits 

would be made available to all qualifying persons living on Native American Reservations and on Near Reservation lands which have been designated by the Bureau 

of Indian Affairs (‘‘BIA’’) without regard to race. Shortly thereafter, the FCC announced that it was suspending its decision, primarily because it was discovered 

that the BIA had designated areas such as Phoenix, Las Vegas, and several other 

large cities as Near Reservation lands. Limiting Lifeline and Link-Up benefits to 

only Native Americans on Near Reservation lands is not a good option because it 

would likely be unsustainable under the Supreme Court’s Adarand decision, which 

makes race classifications in federal programs subject to strict scrutiny by federal 

courts. 

We suggest legislation that would require the FCC to undertake a two pronged 

analysis to determine eligibility for enhanced Lifeline and Link-Up benefits. First, 

the area must be within a county that has a population density lower than 100 persons per square mile. Second, the subscriber’s billing address must be within 50 

89

miles of a Native American reservation. We suggest using the billing address because it is what the FCC uses to determine a mobile subscriber’s location for purposes of determining eligibility for universal service benefits. See 47 C.F.R. § 307(b). 

We believe that this proposal will include the vast majority of Native Americans living in underserved areas near our nation’s reservations. 

Such a qualification is race-neutral and serves the purpose of the federal Lifeline 

and Link-Up program. Most low income individuals living in major cities have more 

service options than people living in rural areas. Adding benefits to people who are 

served by multiple carriers and have significantly more choices than persons living 

in rural areas would not be a productive use of government resources. Congress can 

provide for the rare instance where a Native American tribe is located within a 

densely populated county by permitting the FCC to waive the rule for good cause 

shown. 

Conclusion 

Wireline companies have attempted to force a wireless competitor seeking ETC 

status to prove that its network is complete and free of any defect, as defined by 

the incumbent. To this we respond as follows: The high cost support program was 

enacted to encourage development of service in remote areas. The program has 

never required landline companies to complete their networks before being eligible 

to receive high cost funding. In fact, without high cost support, most wireline companies would not have constructed lines to a substantial portion of the high cost 

areas even today. 

It should be obvious that without high cost support there is no business plan 

which supports infrastructure deployment (wireline or wireless) to substantially all 

of the high cost areas of the country. Congress commanded the FCC to encourage 

competitive choice in these areas through the use of ETC status. It is now time, 

after 6 years of experience, to recognize that changes must be made to encourage 

competitive entry. 

The enhanced Lifeline/Link-Up benefits implemented by the FCC on reservation 

lands are an essential element in increasing telephone penetration and have an 

been an excellent use of government resources to the public’s benefit. By refining 

the statute, this nation’s telephone penetration rate can increase even more. We 

have proven in Arizona that enhanced Lifeline/Link-Up can make dramatic improvements and we are certain it can happen throughout this country. 

Once again, I thank you for this opportunity to submit this testimony.

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