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[Senate Hearing 107-1024]
[From the U.S. Government Publishing Office]

                                                       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

91-301              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
____________________________________________________________________________
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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

              ERNEST F. HOLLINGS, South Carolina, Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
JOHN D. ROCKEFELLER IV, West         TED STEVENS, Alaska
    Virginia                         CONRAD BURNS, Montana
JOHN F. KERRY, Massachusetts         TRENT LOTT, Mississippi
JOHN B. BREAUX, Louisiana            KAY BAILEY HUTCHISON, Texas
BYRON L. DORGAN, North Dakota        OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon                    SAM BROWNBACK, Kansas
MAX CLELAND, Georgia                 GORDON SMITH, Oregon
BARBARA BOXER, California            PETER G. FITZGERALD, Illinois
JOHN EDWARDS, North Carolina         JOHN ENSIGN, Nevada
JEAN CARNAHAN, Missouri              GEORGE ALLEN, Virginia
BILL NELSON, Florida
               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            BEN NIGHTHORSE CAMPBELL, Colorado
HARRY REID, Nevada                   FRANK MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii              JOHN McCAIN, Arizona
PAUL WELLSTONE, Minnesota            PETE V. DOMENICI, New Mexico
BYRON L. DORGAN, North Dakota        CRAIG THOMAS, Wyoming
TIM JOHNSON, South Dakota            ORRIN G. HATCH, Utah
MARIA CANTWELL, Washington           JAMES M. INHOFE, Oklahoma
        Patricia M. Zell, Majority Staff Director/Chief Counsel
         Paul Moorehead, Minority Staff Director/Chief Counsel

                            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

 
                    TRIBAL TELECOMMUNICATIONS ISSUES

                              ----------                              

                        WEDNESDAY, MAY 14, 2002

        U.S Senate, Committee on Commerce, Science, and 
            Transportation, Meeting Jointly With the 
            Committee 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 economic 
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 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 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:]*
---------------------------------------------------------------------------
    * The information referred to was not available at the time this 
hearing went to press.
---------------------------------------------------------------------------
    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 California. 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.
    [The prepared statement of Senator Thomas follows:]*
---------------------------------------------------------------------------
    * The information referred to was not available at the time this 
hearing went to press.
---------------------------------------------------------------------------
    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 sovereignty 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 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 recognized 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 Commission'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.
    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, 
particularly 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 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 2\1/2\ 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.
    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 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 much-needed 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.
    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 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;

   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 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. 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 high-band 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 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 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 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 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.
    ``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 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

   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 long-term 
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 
immediately 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 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 
Link-Up 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 offering 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.
    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.
    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.
    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 2\1/2\ 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 service. 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.
    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 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 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 
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 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.

   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 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 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.
    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. Carleton's email goes on to describe 
in some detail his experience with an FCC-sponsored 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-to-government 
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), 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.

    (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-to-government 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.

    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 modicum 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 (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
    \1\ One 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.
    \4\ See discussion at Section III, below.
    \5\ Pub. L. No. 95-341, Section 1, 92 Stat. 469 (1978)(codified at 
42 U.S.C. Section 1996 (1988).
    \6\ Pub. L. No. 101-601, Section 2, 104 Stat. 3048 (1990)(codified 
at 25 U.S.C. Sections 300-13 (Supp. III 1991).
    \7\ Pub. L. No. 96-95, Section 2, 93 Stat. 721 (1979)(codified at 
16 U.S.C. Sections 470aa-70mm (1988).
    \8\ OMB 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.

    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.
---------------------------------------------------------------------------
    \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.''
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \2\ The 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.
---------------------------------------------------------------------------
    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 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 Review 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-person 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 extended 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 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.
    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 recommendations 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 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-to-government 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.
    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.
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:

        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 affected 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
        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 agreed-upon 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.

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
    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 federally-recognized 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 
        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
    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 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. 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 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 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 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 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 program 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 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.
    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?
    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?
    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.
    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 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 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 8\1/2\ 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 
affecting 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 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.]

                                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.
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 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 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 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 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 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. Sec. 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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