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S. HRG. 108–466

REORGANIZATION WITHIN THE BIA

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

PROPOSED REORGANIZATION OF MAJOR AGENCIES AND FUNCTIONS

RELATED TO INDIAN TRUST REFORM MATTERS WITHIN THE DEPARTMENT OF THE INTERIOR

MARCH 10, 2004

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

Statements:

Anderson, Dave, assistant secretary for Indian Affairs, Department of

the Interior .................................................................................................... 7

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, chairman,

Committee on Indian Affairs ....................................................................... 1

Daschle, Hon. Thomas A., U.S. Senator from South Dakota ........................ 11

Frazier, Harold, president, Great Plains Tribal Chairman’s Association .... 25

Hall, Tex, president, National Congress of American Indians ..................... 16

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Committee on Indian Affairs ............................................................................... 1

Marshall, Clifford Lyle, chairman, Hoopa Valley Tribal Council ................. 27

Shirley, Joe, president, Navajo Nation ........................................................... 20

Swimmer, Ross O., special trustee for American Indians, Department

of the Interior ................................................................................................ 2

Thomas, Edward, president, Central Council Tlingit and Haida Indian

Tribes of Alaska ............................................................................................ 23

APPENDIX

Prepared statements:

Anderson, Dave (with attachment) ................................................................. 59

Frazier, Harold ................................................................................................. 37

Hall, Tex (with attachment) ............................................................................ 44

Marshall, Clifford Lyle ..................................................................................... 33

Shirley, Joe ....................................................................................................... 35

Swimmer, Ross O. (with attachment) ............................................................. 59

Thomas, Edward ............................................................................................... 77

(1)

REORGANIZATION WITHIN THE BIA

WEDNESDAY, MARCH 10, 2004

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC.

The committee met, pursuant to notice, at 9:30 a.m. in room 485,

Russell Senate Building, Hon. Ben Nighthorse Campbell (chairman

of the committee) presiding.

Present: Senators Campbell and Inouye.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. The committee will come to order.

Good morning and welcome to today’s oversight hearing on what

is going on within the Department of the Interior regarding trust

management reform.

In June 2003, Senator Inouye and I laid out our vision for overcoming the challenges before us in trust matters. The four elements that we envision are enacting the Indian probate reforms to

help stop land fractionation; launching a large-scale buy-back of

fractionated lands to return those parcels of lands to the tribes; settling the Cobell v. Norton case; and building a forward-looking

trust management system that is state-of-the-art and can be tailored to the many differences between tribes in terms of their

needs, and one that respects Indian self-determination. I am happy

to see that on the first three of these elements, probate reform, the

buy-back and settling Cobell, we have indeed been making

progress.

Today’s hearing is about the last element and we will hear from

the Department and Indian country on whether the reorganization

is going the right direction or not.

In the interests of time, I will submit my complete testimony for

the record and yield to Senator Inouye for any opening statement

he may have.

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

HAWAII, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

Senator INOUYE. I thank you, Mr. Chairman.

I, too, in the interest of time would like to submit my full statement for the record. However, I wish to assure the witnesses today

that I reviewed their submissions to their committee following the

trust summit that was held on February 25. I think it is safe to
2

say that there is strong opposition in some regions of Indian country to the Department’s proposal.

Mr. Chairman, I also want to say on behalf of our colleague Senator Johnson, who is at home recuperating from surgery, that he

wants to assure the witnesses today that he will reading all of

their testimony and he is sorry that he cannot be here in person

today.

So with that, Mr. Chairman, thank you very much.

The CHAIRMAN. Senator Daschle has requested time. He has a

very, very tight schedule, so we may interrupt the first panel’s testimony when he comes in, if you do not mind. Until he gets here,

we will go ahead and proceed with panel 1, Dave Anderson, the

aAssistant secretary of Indian Affairs. He is accompanied by Ross

Swimmer, the special trustee for the American Indians.

If you would like to go ahead, Dave, please proceed. Your full

written testimony will be in the record. Are you going first, Ross?

Mr. SWIMMER. Mr. Chairman, if you do not mind, I would like

to proceed with a review of where we are with the different reform

initiatives, and Secretary Anderson would follow then with some

comments that he would like to provide to the committee as well.

The CHAIRMAN. That would be fine.

Mr. SWIMMER. We have a joint statement that was prepared and

we offer that to the committee for its acceptance. We would like to

have that put into the record.

The CHAIRMAN. Your complete testimony will be included in the

record.

STATEMENT OF ROSS O. SWIMMER, SPECIAL TRUSTEE FOR

AMERICAN INDIANS, DEPARTMENT OF THE INTERIOR,

WASHINGTON, DC

Mr. SWIMMER. Mr. Chairman and Senator Inouye, it is a pleasure to appear before you today.

We appreciate the opportunity given us to present at these hearings and to inform the Congress on the progress that we are making regarding the subjects that you discussed in your opening statement, probate reform, land consolidation, the Cobell matter and the

reform of the fiduciary trust.

I want to thank the committee and I want to recognize the extraordinary work being done by the committee and the staff of the

committee to develop the uniform probate bill and to resolve many

of the problems that have plagued us since the 2000 amendments

on the Indian Land Consolidation Act. There is probably nothing

that is more important in terms of trust reform than figuring out

how we can resolve fractionation, the buy-back at least, or the reconsolidation of many of the fractionated land interests held by

tens of thousands of Indian individuals in Indian country.

This has been an extraordinary work that has been done by the

committee staff. We recognize that and we think we are making

tremendous headway in getting legislation that is going to substantially improve on the current operations. We have a few concerns

yet about the bill, but we feel that those can be resolved and we

appreciate the opportunity of working with the staff on this committee because it is extremely important.
3

Mr. Chairman, in March 2003 the first comprehensive trust management plan was developed by the Department of the Interior to

address those issues that were cited by the Cobell court for almost

8 years prior. It was a requirement of the special trustee in the

1994 legislation to develop such a comprehensive plan. It was done

and it followed in the footsteps of a 1-year long consultation that

was held with tribes, many, many meetings throughout the country

attended by the highest level officials in the Department of the Interior.

Several components of the comprehensive plan include, first, the

organizational structure or realignment, as we like to say, of some

of the offices within the Department of the Interior, within the Bureau of Indian Affairs [BIA], and within the Special Trustee’s office. The realignment is there to focus on the need for resources to

reform the fiduciary trust management. Where those resources are

to be placed is critically important.

We are trying to put them where the need is greatest at the local

agency, but at the same time within the BIA to create a clearer

focus on the fiduciary trust obligations of the Government; to segregate those trust operations, if you will, from other service bureau

operations and from the education operations within the BIA that

have already been separated out for purposes of greater focus on

those particular issues.

We think that the streamlining that is being done within the

BIA, having direct line authority for trust operations from the

agency, with deputy superintendents reporting to deputy regional

directors, reporting to senior officials in the central office for trust

operations is a significant improvement so that people understand

where they are in the structure and what their responsibilities are,

and what they are supposed to be doing.

The structure also includes an addition to the Office of the Special Trustee in the form of fiduciary trust officers. These are positions that have been criticized by some as, well, they are not necessary, they are just additional management, they are people who

are not there really to perform day-to-day activities.

There is nothing further from the truth. We have now scattered

throughout all of the agencies individual Indian money management clerks who are basically supervised out of Albuquerque. That

is not a good way of doing business. Much of the work that has to

be done at the agency offices has to then be approved by someone

in Albuquerque. We hear this regularly.

Well, it had to go to Albuquerque; it had to go to the central office; it had to go to the regional office.

The idea of having trust officers and deputy superintendents for

trust at the agency level is so that nothing has to go out of that

agency. Decisions can be made right there. The trust officers would

have the delegated authority to sign off on matters that previously

would have to go up the chain to get approval by a higher level.

In addition, the trust officers are what I call worker bees. They

are not there to manage just the IM clerks. They are there to provide access to beneficiaries. So when a beneficiary walks into the

agency office, they are able to get their questions answered. They

are able to get information on their land accounts, on their financial accounts. They are able to ask questions, when is my check
4

due; what happened to my last check; how much land do I own;

where do I own land; someone in my family just died, what is the

status of the probate.

The trust officer, like a trust officer in a commercial operation,

will we hope with the technology available, and even without it,

manually, be able to search the records to find that information

and provide it to the beneficiary.

In addition, as issues come up at the agency that may require

approval by a trust officer or superintendent, that approval can be

made right there. There may be spending plans, for instance, for

miners that need to be approved. Today, they go in some instances

all the way to Washington. We are hoping to get that resolved right

there at the agency.

Other initiatives involved in the plan include new funding requested to support the BIA agency operations, as I said, with the

addition of the trust officers, deputy superintendents and the support staff. Nearly all of year 2002 was spent documenting trust

business processes. The one thing that had not happened previously as we worked on trust reform and as was ordered by the

court, was an assessment of where we are now in the process; how

does fiduciary trust work; how do we lease the land; how do we

lease the minerals; how do we collect revenues that are due from

the leases of the land; how do we cut the timber; how do we cruise

the timber; how do we account for the timber; what do we do after

it is cut; how do we do our financial operations; what happens

when money is collected; does it go immediately into the bank; is

it held at the agency; does it have to be mailed to the regional office.

All of these kinds of issues we said we have to know how business is done today and that is what we called the ‘‘As-Is’’ trust

business processes. We spent 2002 mapping those trust business

processes. Virtually 1,000 pages of material came out of that,

where we went out to every region, most of the agencies and the

tribes. We said, we want to know how you do business, literally

from moving this piece of paper to this person to that person;

where do you go when you go out to cruise timber; who does it;

what are the certifications required; what kind of lease people do

we have; what is required if you are approving a farm and ranch

lease; what kind of skills are necessary; and who is doing the job

today.

After we completed that exercise in year 2003, we began the effort of creating a model that we call the ‘‘to be’’ model. We went

back to the same people and said, you have told us how you do it

and here is how we have mapped it out. Now, you have 15 steps

to do this activity; can we do it in five steps; can we reduce either

through technology; either through better training or some other

activity; can we cut out many of these steps that it takes to get

from A to B to C to D?

What we have found is that there is great receptivity out there

to do things better and to do things in a much more organized and

standardized way within the BIA and the Special Trustee’s Office.

Such things as probate, leasing, mineral production, accounting,

ownership, information technology, records management, some of

the very fundamental things it takes to run any business, but par-
5

ticularly a trust business, are the kinds of things that we are talking about reengineering in the ‘‘to be’’ process; things as simple as

what is a records retention schedule.

This is a big issue in the Cobell case. They said that over the

years, the Bureau of Indian Affairs did not keep its records very

well. We did not have a system of records. We did not have retention schedules. We did not have anything that tells a superintendent, here is how long you are supposed to maintain this particular

record. We do have those things now and they came about because

of the reengineering that I am talking about, the things that we

have done.

One thing I do want to emphasize, however, is that for the most

part the reengineering of the trust business processes in the Department of Interior are internal to the operations of the Department. The idea is to improve the overall fiduciary trust management of the Department of the Interior, whether it is Minerals

Management Service, the Bureau of Land Management, the USGS,

BIA, Special Trustee, Office of Hearing and Appeals. Whoever

touches trust, we are trying to reengineer where necessary to improve the process that we use now to administer that trust.

This is not to say, nor have we proposed in any form or manner,

that an Indian tribe must adopt our business process. We recognize

that Indian tribes have a unique position in the management of

their trust assets when they accept that responsibility. They may

have systems that work extremely well on their reservation, yet

they may not be adaptable to the universe at large, whereas the

Bureau of Indian Affairs and Special Trustee in the Department is

looking at it nationwide.

We are trying to work out the processes that work across the

board, making allowances for those unique instances through law,

regulation or tribal statute, that may require a particular way of

doing business in a particular area, but the tribes are still able,

and will continue to be, to adopt the systems that they think fits

their way of doing business.

Trust is only one of the areas the tribes operate. They are in economic development. They are doing things in social services. Tribes

are out building roads. They are doing educational activities. They

may have systems that work in a unified manner that they use for

their trust business processes as well. We do not have any intention of asking them or forcing them into a process that we may

choose that works for the Bureau or the Special Trustee.

It is not to say that those systems are not available. One example of that would be the new title system that we are developing

now. We want a title system that allows a person to go into the

system, look up a name, and find out what they own. That sounds

pretty simple. You would think we could do that today. Well, we

almost can on a case-by-case basis, but give me 400,000 names, it

would take a long time.

We have people that own land on many different reservations. I

can go into a title plant in Anadarko and I can tell you who owns

what in Anadarko. But that person may own land on Rosebud. He

may own land in the State of Washington. He may own land out

in Arizona. Those will not show up on the title plant in Anadarko.

The title plant and the title system that we are implementing right
6

now and hopefully will have fully converted by the end of the year

or shortly thereafter, will allow us to go in and look at the nationwide ownership and be able to do those things that are basic to a

beneficiary’s needs, where do you own land; what is the legal description; how much do you own; what are the encumbrances

against it; if it is leased, how much money is coming in on it;

whether it is in Rosebud, South Dakota; whether it is in the State

of Washington; or whether it is in New Mexico or Arizona.

The tribes most likely would want to align their title system if

they are operating one, and we have a couple that do, with that

title system so they could have the same ability, because people on

their reservation own property on other reservations as well. There

may be other areas where the tribes would want to join our system,

so to speak, but that is their choice. I might add, however, that we

will continue to require the tribes who operate or manage fiduciary

trust activities, to meet the same trust standards required of the

Secretary when those tribes assume responsibility through contract

or compact. The organizational structure that has been the subject

of much discussion in the last two years is now in place. There is

no such thing as stopping organizational realignment or reorganization. It is done. Most of the remaining jobs at the agencies that

the trust officers and some of the deputy superintendents will be

filled by the end of this calendar year. They are presently being advertised on the street right now.

The purpose of this organizational alignment that we have chosen for the BIA and Special Trustee and other Interior offices is to

create an organization that is transparent to the beneficiaries of

the trust, yet provides beneficiaries with the services not previously

available. When I say ‘‘transparent,’’ what we want is when a beneficiary walks into an agency office, they do not go to the OST or

the BIA or the MMS. When they walk into the agency office, they

ask a question and they get an answer. They do not care who that

particular person is being paid from, or what budget. They want

an answer to a question. That is what we want to give them. So

we do not want this division to be apparent. We want it to be a

team approach. I think that Secretary Anderson has fully committed to that, as previously others in the BIA.

This did not happen easily, this organization that we are talking

about. Thousands of hours of meetings and countless man hours

have brought us to the point where we truly believe that the trust

initiatives that I have discussed are what we must have if we are

to correct the problems of trust management and move this trust

program into the 21st century.

We do not want to stop there. We want the tribes to enjoy the

benefits of these initiatives, including the organization. They also

spent considerable time attending consultation sessions, reading

the thousands of pages of the ‘‘as is’’ and the thousands pages of

the ‘‘to be’’ reports, and providing us with valuable comments. We

also recognize the fear of change and that not everyone is likely to

get on board until they see the evidence that our trust initiatives

will do the job.

We also recognize that there is a finite amount of money to

spend for anything. While I am convinced that the money has not

been taken from existing service programs to fund trust reform,
7

one cannot help but wonder whether $109 million as requested for

historical accounting is not affecting the budgets of all Interior programs.

We are very grateful for the role this committee has played to

help during the Cobell to bring the parties to the mediation table.

We embrace this effort and we believe it is an opportunity to resolve the accounting issue, which even the plaintiffs have publicly

stated they do not really want. Again, your help with this process

is greatly appreciated.

I might add that several of the tribes that have been most vocal

about the proposed trust initiatives and trust reform are also those

tribes that have lawsuits pending against us for breach of trust.

The status quo is not the answer before and it is not the answer

now. Well thought-out planned initiatives that have gone through

an extensive consultation process are, we believe, the way to have

true trust reform. We believe we have done that. We have spent

21⁄2 years doing just that, careful planning; lengthy consultation;

meetings after meetings throughout Indian country; engaging

tribes; engaging employees and beneficiaries in this process.

We appreciate the time the committee has given us this morning

and again I compliment the committee and its staff on the work it

is doing on trust reform. I would be pleased to answer questions,

or Secretary Anderson may make his statement at this time.

[Prepared statement of Mr. Swimmer appears in appendix.]

The CHAIRMAN. Thank you, Ross.

Mr. Assistant Secretary, if you have comments go ahead and proceed.

STATEMENT OF DAVE ANDERSON, ASSISTANT SECRETARY

FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR,

WASHINGTON, DC

Mr. Anderson. Thank you. Mr. Chairman and Vice Chairman

Inouye and other members of the committee and the tribal representatives here, good morning.

First of all, I would like to start out by saying that I am grateful

for the support that everyone in this room has shown me in support of my new position. I thank you all for that.

Today, we are here to discuss a major effort on behalf of the BIA

and the Office of Special Trustee to meet the need for a change

within the BIA to provide better services to the tribes. While I may

be new at this since I have been on board only for a few weeks,

a lot of my time has been spent with the staff in reviewing all of

the work that has been done before my time, to better understand

this reorganization.

One of the things that I have come to realize is that change has

to happen. In just watching the day-to-day activities, many times

I have stopped and asked, why are we doing things like this? Another one of my questions is, has this been the same for other assistant secretaries who have been here before me? And then I

asked, at what point do we stop the merry-go-round and call timeout and say things have to change? Because many times when I

am looking at how things get processed, it is no wonder that sometimes things take 6 months to 1 year to go through the system.
8

I really believe that we have a responsibility to Indian tribes as

well as Indian individuals to provide services the same way that

I am used to providing services in the outside world. I believe that

can happen. I believe that the people within the BIA and the Office

of Special Trustee all have a recognition to provide better services

in their heart. I believe that we all understand that change has to

happen.

In better understanding the Cobell lawsuit, many of the problems that have been pointed out by this case is that many times

in the past it has been difficult to identify who specifically was responsible to carry out these tasks, which is one of the reasons why

I think things appear sometimes to be mismanaged. I really believe

that in looking at this reorganization that we are and have attempted to identify positions that would be specific to providing

trust services to tribes and individuals in a timely manner and in

an organized fashion, where we can provide the best services possible.

One of the most important things that has come out of this reorganization is better computer systems for accountability. I am

amazed as I go through my daily activities, how many times our

different regions are on different automated systems. Then, I am

even more amazed at how many of the different departments within the agencies are on different automated systems. I really believe

that this reorganization provides the standardization that we need

to see come into play in order for us to enter the 21st century.

What has happened in the past can no longer continue. The BIA,

I believe when I came on board that historically there has almost

been a certain mustiness to this thing, and things have always

been done this way. There is a good-old-boy system of doing things

and things have worked like this for many years; why do we have

to change? This is often the comment that I hear, well, things are

working fine out here in the field; why do you have to change it

up there, because you do not really understand what is happening

out here, and things have been going on all right. But in fact, when

we look at the picture on the whole, things have not been happening for the benefit of Indian people the way they should have.

I think change, at times, is difficult. It has been said if you always did what you always did, you are always going to get what

you always got. And then a lot of us when looking at the way we

do business, people often shake their heads at the way we have

done business. It reminds me of the definition of insanity. If you

do the same thing day in and day out and expect different results,

it is going to result in insanity.

I think for too long we have been doing the same things day in

and day out, and expecting different results. Tribes have come to

us and have asked us to be more accountable. Tribes have asked

us to provide services in a more timely fashion. We have not been

able to do this.

I believe that standardization has to become a way of life for us.

We have to be able to communicate with our different offices out

in the field. I have talked with tribal leaders and they have commented many times that we do not believe that we should be

standardized because we are different; our needs are different; we

are different people here; our regions are different. I understand
9

that. We are not trying to standardize tribes, but we do have a

need to standardize the computer systems that we communicate.

I really believe that today in this age of change we have seen

more change happen globally in an unprecedented fashion than we

have ever seen before. We are living in a day of change where more

change is happening in 1 day of your life than in 10 years of your

parents’ lives. I really believe that today we have to be about the

business of change. We have to understand change so that we are

no longer victims of change, but we become the architects of our

destiny.

I really believe that today we need to bring uniformity. We need

to bring standardization of the computer systems that will provide

us the accountability so that we can provide better services to our

tribes.

Is this change good? I believe it is. Does everyone agree with this

change? No, I think the answer could be very definitely no. You

will hear testimony where it is. But the one thing that I know

today is that, again, we must be about the business of change. I

really believe that the people who have worked many long hours

to try and figure this out, in their hearts believe that we are doing

the right things.

I believe that we have listened to the tribes. It is very difficult

to take what some tribes think is appropriate for them in one area,

and what other tribes believe is appropriate for them in another

area, and then try to bring it all together and make sense. It has

been very difficult.

Today, I believe that what we have to offer has been the best

that we have been able to do to bring this all together so that we

can bring about the change we all recognize needs to happen. With

that, I do not believe that this is the end of it. I believe there is

tweaking that has to go along with it, and I believe that we are

open to listening. I believe that we are open to working with the

tribes so that we can make the work that we have to do be appropriate for what has to happen out there.

I believe that in my new position and my new job that one of the

things that I represent is the change that has to happen in Indian

country. When I came on board, I said, what am I going to do differently than what has been recognized by the other assistant secretaries? I believe there has to be a breath of fresh air, to be about

the business of change.

When I go out and start visiting with the tribes, that is one of

the things that I make sure that I do is to not only talk to tribal

leaders, but get out into the school systems and let our Indian

youth know, because they are the leaders of tomorrow, that in this

great country we live in, that as Indian people our children can

have dreams, and they can accomplish their dreams, and they believe in themselves. If they are going to believe in themselves, they

have to understand that they have to stop the cycle of what has

been happening heretofore. Today is a brand new day, and today

if things are going to change, we have to be about the business of

change.

Thank you for your time in listening to me. Thank you.

[Prepared statement of Mr. Anderson appears in appendix.]

The CHAIRMAN. Thank you.
10

Senator Inouye had the double hearing this morning. He had to

leave early. If he has any questions, he will submit them to you

in writing, as other members who may or may not appear this

morning. But thank you to both of you for your detailed testimony.

I agree in one respect, and that is very clear that 150 years of

what has happened to Indian tribes certainly has not made things

better for them from the standpoint of, as you said Dave, helping

our children grow.

I was interested in your definition of insanity. It clearly parallels

and describes some of the legislative process around here. The two

of you might know that.

You also talked a great deal about change. I certainly do not

blame tribes for being very, very careful about change, knowing the

Federal Government’s past record in dealing with American Indians. The Indian tribes, probably more than any other group in

America, they have seen almost every change as reducing their sovereignty or reducing the status they once had.

I sometimes look at Indian people in terms of what are just generally called ‘‘minority movements’’ in America. But most minorities in America when they came to this country, it was really for

upward mobility in some respects. They looked for a better life.

They tried to gain things that the majority culture had, whether

in modern society it is a house and a car and a good job, or something of that nature, in the olden days maybe a piece of land to

farm.

I think Indian people are probably the only ones in the Nation

that had nothing to gain and everything to lose, and they have lost

and they have lost and they have lost. And 150 years of dependency on the Federal Government clearly has not worked very well

for them. They just continually lose, so I can understand why they

are very, very careful about change.

Ross, you mentioned in detail the amount of consultation process

that is going on, and I appreciate that. But I have been here long

enough to know, and maybe this is not just with Indian people, but

no matter how much you consult, somebody will say afterwards,

you did not ask me; or I was not at the table; or I didn’t know

about it, or something. So I just encourage you to do much more

of that in every step of the process of reorganization.

We are going to hear some comments today that people that are

not at all thrilled about it because they think it is top-heavy, creating many more jobs at the top level and not enough actual workers,

but we will get into that in a few moments.

I notice that Senator Daschle, our distinguished Minority Leader,

has been able to show up. So before I ask any questions, I would

like to ask Senator Daschle to sit down and make a statement.

Senator Daschle has been a great supporter of Indian programs, as

most of the people in this room know, and we are delighted to have

him here in front of the committee.

Senator DASCHLE. Mr. Chairman, just on a personal note, let me

say that I know you have had to make a very difficult decision

about your career in the Senate. On a bipartisan basis, as I said

to you in person, I know I speak for everybody in this room and

the entire Senate in congratulating you on a remarkable Senate career.
11

The CHAIRMAN. Thank you.

Senator DASCHLE. I just want you to know you have friends here

for as long as you live, and we hope that your next year will be

every bit as productive as the last years you have served in the

Senate. We are proud to call you our friend, and I am honored to

be here before you this morning.

The CHAIRMAN. Thank you.

I got a call from our tribe right after I made that decision. They

said it is clear that I need to go to the mountain, and I think I do.

[Laughter.]

Senator DASCHLE. Having read your book, I know what that

means. So, thank you.

STATEMENT OF HON. TOM DASCHLE, U.S. SENATOR FROM

SOUTH DAKOTA

Senator DASCHLE. Two weeks ago, tribal leaders from nearly

every Indian nation in America traveled to America, Mr. Chairman, as you know, for a meeting of the National Congress of American Indians. Their urgent plea to all of us was that the Federal

Government work with native people to find an honorable and equitable solution to the Indian trust fund dispute. This hearing is

a first step in honoring that request, and I applaud you for holding

the hearing. I want to thank others on the committee as well for

their leadership in scheduling it so quickly, especially Senator

Inouye.

I represent South Dakota, home of the great Sioux Nation. More

than 30,000 men and women in South Dakota are individual Indian money account holders. Most are elders in their sixties, seventies, eighties, and even ninties. Many have lived all their lives in

the kind of grinding poverty that most Americans don’t even know

exists in this Nation. When their land is leased, it is usually for

grazing rights. Those rights do not produce much income, but for

many Indian trust account holders in South Dakota, it is half of

their annual income.

Maida LeBeau is one of the 30,000 trust account holders in my

State. She lives in Eagle Butte on the Cheyenne River Reservation.

She is the matriarch of an extended family that includes more than

40 kids. She considers them all her grandchildren. Last year, Mrs.

Lebow had planned to use a good part of her annual lease payment

to buy Christmas presents for the children. She expected her check

to arrive in October, as it has for several years. By December, there

was still no check and no explanation. Mrs. Lebow spent hours on

the telephone trying to reach someone in the Office of Special

Trustee who could help, but she could never get beyond the endless

voicemail messages. So in her words, Christmas did not come this

year for her grandchildren.

In early January, Ross Swimmer the Special Trustee for American Indians, who I am delighted and honored to join on of this

panel held a meeting on trust reform in Rapid City, SD. On January 13, Mrs. LeBeau drove more than 3 hours to get to that meeting. She then waited another 8 hours as nearly 100 other account

holders stood up and one-by-one described problems they were having with their accounts. Finally after all of that, Maida LeBeau got
12

a few minutes to plead her case. Weeks later after Mr. Swimmer’s

personal intervention, Mrs. LeBeau’s check finally arrived.

Mr. Chairman, there are 300,000 Indian trust account holders in

our country. Most of them do not have Maida LeBeau’s strength.

Many are in fragile health. They cannot drive 3 hours to speak directly to the head of the Office of Special Trustee to resolve problems with their trust accounts, and they should not have to.

For years, Congress has deferred to the executive branch, administrations of both political parties, to resolve the Indian trust management dispute. Yet the problems are no closer to being solved

now than they were a decade ago, when Congress first directed the

Interior Department to conduct an accounting of trust assets. It is

time for Congress to admit that this hands-off approach is not

working and accept our share of the responsibility for planning a

fair and timely solution.

This morning before this committee, Chairman Tex Hall, the

president of the National Congress of American Indians, will call

on Congress to become a more active participant in the effort to

broker a just and equitable solution to the trust management problem. He is right. When I look at the long history of the trust management problem, I see three basic paths to its resolution. Congress, the Interior Department and the tribes can work together as

co-equal partners to fashion a consensus solution. We can seek a

mediated solution to the problem. Or, we can throw our hands up

in despair and allow the issue to be resolved in the courts. These

paths are not mutually exclusive. They are three distinct routes to

the same goal.

I am here today to offer some specific suggestions for how I believe we can move the trust management issue forward in a constructive way. First, congressional meddling in the Cobell case

must end. Interventions such as the rider blocking Judge Lambert’s

ruling do not simply delay justice for Indian trust account holders,

they undermine the delicate balance of power that is at the heart

of our system of government.

Second, as soon as possible, I believe this committee should initiate three-way discussions involving Congress, the Administration

and tribal leaders to search for a consensus solution to the trust

dispute. I know the Interior Department maintains that its reorganization has been shaped at least in part by ‘‘listening sessions’’ it

held in Indian country. Yet the fact remains that tribal leaders

around the country do not accept the premise that those meetings

represent true consultation. And neither do I. This problem cannot

be solved by Interior Department officials simply by redrawing

lines on a BIA organizational chart. The search for a settlement

must include real, meaningful, ongoing consultation with tribes

and tribal leaders. It is, after all, Indian people’s money.

Congress should become more of an active partner in the efforts

to broker such a consensus solution. I suggest that putting on the

table the Interior Department’s plan, the Great Plains regional proposal for trust reform outlined today by Chairman Harold Frazier,

and the bill introduced by Senators McCain and Johnson, would be

a good place to start.

At the same time, all parties should seriously explore the possibility of a mediated settlement. I commend Chairman Campbell
13

and Vice Chairman Inouye for the leadership that they have shown

in beginning this mediation process. It is my view that in order for

the mediation process to be effective, it should be headed by leaders of great stature who are experienced in difficult negotiations

and whose integrity is unquestioned. The Indian trust dispute is

not a partisan issue, and resolving it must not be viewed as a political effort. For that reason, I strongly urge that the mediation process be cochaired by a prominent Republican and a prominent Democrat.

Finally, Congress must begin budgeting now for the eventual resolution of this dispute. Last year, I introduced the Indian Payment

Trust Equity Act [S. 1540], which would create a $10-billion fund

to begin making payments to trust holders who have received an

objective accounting of their trust assets. The fund could be expanded if necessary.

So I ask the committee to begin now to look seriously at that proposal or perhaps others. Many people who are owed money are elders. They cannot wait for years to learn their account balances

and years more to receive their money. They do not have that

many years. Maida LeBeau should not be forced to worry about her

next Christmas. There should be a mechanism in place to issue

regular payments to account holders in case negotiation or mediation fails to produce a consensus solution.

Nearly 1 year ago, the distinguished chairman and vice chairman

of this committee wrote a letter to the parties in the Cobell case

expressing their concern that continuing the litigation would only

further delay justice for trust account holders. I would like to read

one paragraph from that letter, quote:

We believe that the most effective and equitable way to resolve this threshold

matter is to engage the services of an enhanced mediation team that will bring to

bear trust accounting and legal expertise to develop alternative models that will resolve the Cobell case fairly and honorably for all parties. If within a reasonable

amount of time there is no progress made on such a resolution, we intend to introduce legislation that will accomplish the goal of resolving the Cobell matter in a mediated fashion.

The time has come for Congress to become a more active partner

in the search for a just and equitable settlement.

So Mr. Chairman, again I want to thank you and members of the

committee for holding this hearing. I look forward to working with

the committee, the Administration and the tribes to find a solution

that all parties can support.

Thank you very much.

[Prepared statement of Senator Daschle appears in appendix.]

The CHAIRMAN. Thank you for your testimony. I am sure you are

aware that we have introduced a bipartisan bill, S. 1770, and I

know I am speaking for Senator Inouye when I say that we certainly would appreciate your support in helping us craft final legislation that can go to the President to resolve this problem.

I would also say before you have to run, because I have so many

relatives in your State, Senator Daschle, I know very well a lot of

the problems and often use the plight of Indian people in South Dakota when we hear a dialog on, say, unemployment at 5 or 6 percent nationwide, and I suggest maybe they go to Eagle Butte and

see what it is like to live with a 60-percent unemployment; or when

we talk about problems that our youngsters are facing and I sug-
14

gest maybe they go to Pine Ridge and see how many youngsters

are driven to suicide or try it because of the lack of opportunity;

or when we talk about health, I suggest maybe they go to Rosebud

and see what it is like to see people who have lost their limbs because of diabetes where the diabetes rate is probably near 50 percent. The problems Indian people face are just horrendous compared to the population at large. I just wanted to thank you for all

your efforts in trying to help our people. Thank you.

Senator DASCHLE. Thank you very much, Mr. Chairman.

The CHAIRMAN. I do have a few questions for our witnesses, if

I can get back to those for a little bit. Ross, you did speak at length

about how this is going to be reorganized, but there is some question, as you know, I think you alluded to it, that some tribes are

saying that this is really going to be a top-heavy bureaucracy, and

that there are few new dollars for staff at the local level. Would

you care to respond to that again?

Mr. SWIMMER. Certainly. It is everything but top heavy. I do not

know of any jobs created at the central office level, for instance,

and very few at the regional office. Most of the new jobs that are

created are at the agency offices, and that is where we need the

most.

The CHAIRMAN. Would that result in more or less 638 contracting?

Mr. SWIMMER. It should not have any impact on 638 contracting.

We have that as a major goal within the trust management plan.

We encourage it. We want it to happen. We do believe that the

tribes will have to be held accountable if they assume trust management activities, but we want them to take those activities over

to the greatest extent possible.

The CHAIRMAN. Did I understand that you are consulting with

the tribes on the decisions regarding staffing levels, too?

Mr. SWIMMER. The overall organizational plan that was presented includes staffing levels at the agencies, particularly the

trust officers and the deputy superintendents and the staff that

would be there. That has been discussed at quite some length on

the way in which they would perform their activities.

The CHAIRMAN. And for new staffing levels, will that be Indian

preference staffing?

Mr. SWIMMER. It is except in the Office of the Special Trustee for

the offices that would be added or the work that would be added

at the BIA level, it would be Indian preference.

The CHAIRMAN. Okay, thank you.

Frankly, I think a lot of the questions I had, you actually answered in your testimony, so I do not want to belabor it. It is the

committee’s understanding and maybe I do not have it right, but

under the reorganization, there are certain functions that were

once handled at regional level that are going to be pulled back to

the central office here in Washington, DC at the BIA. Is that true

or not?

Mr. SWIMMER. That is true. It is not the function per se. It is the

authority for making the decision. For instance in the area of administration, some of the ultimate authority is at central office, and

it is simply to get the standardization. It is not pulling jobs up to

the central office. The people are still in place at the regions and
15

the agencies. But when they spend the money, so to speak, it is important that we know where it is being spent and how it is being

spent, and that we use systems that are standardized so that we

get reports back from the regions and the agencies that we can

make sense out of, and the bureau can.

So what the bureau did is that they elevated the ultimate responsibility for some of these activities to the central office. It has

been a point of contention because in the past, the regions particularly have pretty much run the regions independent of each other.

If we are going to have effective and efficient management, we

have to have some standardization in the processes. I think this is

the basis for which the BIA restructured that line authority within

those administrative functions.

The CHAIRMAN. You touched on one other thing while I was writing some notes here, and I know it is a concern to Senator Inouye

and I both, and that is that we do not want money that goes into

the reorganization to take away from other areas that are extremely important in Indian health or Indian education or so on.

It is my understanding from both of you that that will not be the

effect. Is that true?

Mr. SWIMMER. It is not our intention to reprogram existing mon- eys beyond what we had asked for in the original $5 million last

year. We have asked for new money for new positions, and we do

have that money for 2004 and we have I think it is a total of about

between the two agencies around $7 million that we are asking for

in 2005 to finish up the rest of the employment.

But the organizational structure is not itself taking money and

we do not expect to have an obligation.

The CHAIRMAN. Okay. I thank you both for appearing. I will

probably have a few additional questions that I will submit in writing, as will other members, too. If you could get those back to us

at your earliest convenience, I would appreciate it. Thank you for

being here.

Mr. ANDERSON. Senator, if I could just take a quick minute to respond briefly to Senator Daschle. I am very familiar with the case

that he mentioned. What I would like to say is that the reorganization and the trust reform initiatives we are talking about does exactly what he asked for. It takes care of the Maida LeBeaus. She

could get an answer at the agency and she would not have to come

to the Special Trustee.

The CHAIRMAN. Good.

Mr. ANDERSON. Thank you very much.

The CHAIRMAN. Perhaps the staff, if they are still here, can carry

that message to him.

Now we will proceed to panel 2, which will be Tex Hall, president

of the National Congress of American Indians, I do not see Tex

here, but would you look out in the hall? Perhaps he is out there;

Joe Shirley, president of the Navajo Nation from Window Rock; Edward Thomas, president of the Central Council of Tlingit and

Haida Indian Tribes in Alaska; Harold Frazier, president of the

Great Plains Tribal Chairman’s Association from Eagle Butte; and

Clifford Marshall, chairman of Hoopa Valley Tribe in California.

If you gentlemen would all sit down. We will start in that order

with President Tex Hall beginning. Nice to see you Tex. I did not
16

see you in the audience. I was worried that you might not be able

to appear this morning. I am glad you are here.

All of your complete written testimony will be in the report for

all of our colleagues to read, so you do not need to read that thing

word for word because most of us, we can read pretty well.

We will do that. So if you would like to abbreviate or ad lib some

of your comments, please feel free to do so.

Tex, why don’t you go ahead and begin.

Mr. HALL. Good morning, Senator Campbell and Senator Inouye

and members of the committee. Thank you for holding this hearing.

I would like to make just a quick plea to you to reconsider running again. Really, we are shocked that you are not running, and

really appreciate your leadership, Senator Ben Nighthorse Campbell.

The CHAIRMAN. Thank you.

Mr. HALL. So if you could reconsider at some time, we really

would encourage you to do that.

The CHAIRMAN. I appreciate that. After 38 years of marriage, my

wife says she has been a single mom for 22 years and been married

at the same time. [Laughter.]

Three of my grandchildren do not know who I am and I have a

dog that growls at me when I come home. [Laughter.]

So I think it is perhaps time to get back to Colorado and back

to the pow-wow circuit if nothing else. Thank you, though, for your

nice thoughts.

Mr. HALL. Thank you.

STATEMENT OF TEX HALL, PRESIDENT, NATIONAL CONGRESS

OF AMERICAN INDIANS

Mr. HALL. Again, I want to thank the committee for having this

hearing today. On February 25, of course, NCAI held a trust reform summit in this very room to talk about this very important

issue. We heard from all 12 regions and they all opposed the current reorganization as the way it is presented. So we specifically

asked each region as they presented. They wanted to develop agency-specific plans versus the top-heavy bureaucratic plans. So again,

all tribes in all regions are opposed to the reorganization plan.

So we feel that DOI has focused its efforts on the top of the organization, rather than on the bottom, on the local grassroots level

where reorganization should really begin. So this ongoing reorganization at the top-heavy bureaucratic level is really now at the expense of local agencies and Bureau of Indian Affairs programs. A

top-heavy organization does not address the desperate need for

trust account resource management at the agency and local level.

Trust management requires people and systems at the agency

level addressing resource management, range unit compliance, inspections, enforcement, title, appraisal and probates. This work

cannot be done by bureaucrats and accountants in Washington, DC

or Albuquerque, NM. It has to occur at the agency level.

Tribes have always been and continue to be willing to work with

DOI on trust reform, but DOI has chosen to shut the tribes out of

the consultation process. Tribal leaders want change, contrary to

what you may here. We want change. We want improvement in the

system and in the way DOI manages trust funds and trust re-
17

sources. However, tribal comments and suggestions concerning reorganization have fallen on deaf ears. We believe now is the time

for congressional intervention. We are really at the crossroads, Mr.

Chairman. We really feel that it is so important now that Congress

take the lead in this because we simply are not getting anywhere.

If I could add up the number of dollars that have been spent on reorganization since the last 12 years, we would probably exceed $1

billion. Yet, what are the results? What are the results of the reorganization? We have not seen those moneys, those $1 billions really

effect change at the local level, and that really the critical crying

point that tribes come to appeal to the committee today. That is

really where we need to go.

The second thing is the money that is being shifted from BIA

that is jeopardizing programs that are so critical, human services,

Indian child welfare, education, resource management.

These are people behind those cuts that are being taken from the

BIA funds to fund OST and the reorganization.

So as was mentioned earlier, I heard Senator Daschle’s testimony

about one IM account holder in Eagle Butte. There are so many

people like that, and so many people are passing on and their estates are not being processed, and still looking to see where their

check is at, still not knowing what that check was appraised at,

how much was that resource done.

So we actually did a needs assessment on Fort Berthold, Mr.

Chairman. We have actually studied this on Fort Berthold. Many

of the tribes are now looking at needs assessment at the agency

level. At one point at Fort Berthold, we employed 23 people in

range alone. Today, we have three people in range. This shortfall

in staff is a direct result of the neglect of providing adequate appropriations.

For example, 25 CFR 166.305 requires the BIA to conduct a

range assessment on every range unit on a reservation prior to

issuance of a permit. The last range assessment completed on Fort

Berthold was in 1982. So we have been neglected since 1982. 25

CFR 166.312 requires the BIA to develop a conservation plan for

each range unit. No conservation plans have been developed or approved by the BIA despite the issuance of grazing permits. So we

continue to issue permits without conservation plans.

Range technicians are responsible for ensuring permit compliance and policing the ranges for trespass and overgrazing. We have

one range technicians to manage over 1 million acres, with the

river and the lake, as you know, that runs right in the middle of

Fort Berthold, with grazing lands spread over 1,376 square miles,

and again, one range technician. There is no way that they could

make sure that the IM account or the tribal lands are in compliance.

There is no appraiser at the Fort Berthold agency, despite the

fact that appraisals are required for farm pasture leases, grazing

permits, right-of-ways, oil and gas leases, land exchanges, land

sales, gift deeds, land consolidation and trespass damage. Appraisals for the Great Plains region are presently handled by one appraiser out of Rapid City and he does it with a desktop appraiser.

He does not do an on-site appraisal. Again, in our local agencyspecific plan, it requests an appraiser on each of our reservations.
18

There is a 3-year backlog of over 150 probate cases at the Fort

Berthold agency. It takes approximately 2 years to pay out the estate proceeds to heirs after the case is decided. There is only one

probate specialist at the agency. We estimate that the Fort

Berthold agency needs three additional probate specialists to handle the backlog of cases and estate distributions.

The Fort Berthold agency handles approximately 1,000 title

records annually. Certified title requests take 6 months to complete

because they are done at the regional office.

Finally, the Fort Berthold agency has a approximately 300 oil

and gas leases, 100 pending on the reservation. There is a huge

delay in leasing and in payouts of lease income. Although my tribe

is in the middle of a known oil field, the Williston Basin, and oil

fields are developed all around us, the Fort Berthold agency has no

professional staff to handle mineral and oil and gas transactions.

Other regions, Cheyenne River Sioux Tribe, Winnebago Tribe in

Nebraska are all developing agency-specific plans. DOI itself has

acknowledged that personnel resources are inadequate to address

the current workload that is being done at the agency office today.

DOI actually stated this in their fiduciary compliance plan submitted to the Federal district court in January 2003.

So rather than making plans to hire the necessary workers, the

Office of Special Trustee has announced it will hire six regional

trust administrators and 60 trust officers and related support staff.

The BIA is planning to hire 25 deputy regional directors for trust

and a number of deputy trust superintendents in 2004.

It is difficult to tell exactly the amount from the budget that has

been submitted, but it appears that OST and BIA have substantial

funds budgeted to hire staff to fill these supervisory positions. I

simply ask, who are these managers going to supervise? We do not

need more managers at the agency level. We need workers to fulfill

these trust transactions.

So as tribes are looking to develop an agency-specific plan, the

Great Plains Region and the Rocky Mountain Region both have

passed and adopted resolutions to do that. We have not gotten the

support of OST or BIA. So again, we are coming to the committee

to ask for the Senate Committee on Indian Affairs to assist tribes

in this manner and we are very hopeful that we can move toward

a resolution.

We feel, in closing that this reorganization is obviously putting

the cart before the horse and we have some great principles that

we think will help fix the system, but again, Senator Campbell, we

are shut out of the consultation process.

Thank you for giving me the opportunity to present.

[Prepared statement of Mr. Hall appears in appendix.]

The CHAIRMAN. Thank you.

Since I do not have questions for all of the committee, I will go

ahead with a couple for you, President Hall. It is clear you do not

believe that the tribes have been involved enough in the consultation process. So that is correct, right?

Mr. HALL. That is correct.

The CHAIRMAN. Have the concerns that you have addressed to

the committee right now been made known to the bureau or the

Special Trustee during any of the consultation process?
19

Mr. HALL. On January 13, I believe was the exact date in Rapid

City, Senator. I wanted to attend for that specific reason, to put it

on the record because it was a taped consultation on the ‘‘to

be’’reengineering. I asked Ross Swimmer. I said I just have a simple question, and my question is, as tribes we are looking to develop agency local specific plans because of all the issues that I

said in my testimony; would you support it? And his answer was

no. I said, well then we have no other recourse but to talk to Congress about seeing if we can get a plan that looks locally at developing it, versus top-heavy.

The CHAIRMAN. You mentioned that the Great Plains Region, I

think it was maybe the Tribal Chairman’s Association, passed a

resolution concerning the reorganization, and that was then sent to

the Administration, to the agencies. Is that correct?

Mr. HALL. Yes; Harold Frazier is the chairman of the Great

Plains Chairman’s Association.

The CHAIRMAN. Okay. And did you get a response from that after

you turned that in?

Mr. HALL. No.

The CHAIRMAN. You did not get a response.

Mr. HALL. I have not.

The CHAIRMAN. You mentioned a big concern about allocation of

manpower. I think you probably were not in the room when Special

Trustee Swimmer testified that most of the manpower that we are

dealing with, and I think I asked him specifically about where it

was going, he said it would be going to local levels. You believe,

however, it will not be. It is still going to be too centralized.

Mr. HALL. They will be managers and they will not be people

that will actually do day-to-day trust transactions, so we disagree

with that.

The CHAIRMAN. Also, I asked specifically about if there would be

any movement of existing funds from other programs, and was assured in testimony by the earlier panel that there would not. You

still have a concern about that, too, that it might raid other needed

programs to children or elders or whatever.

Mr. HALL. Absolutely. Mr. Chairman, when we are talking to the

National Indian Education Association and all of the school administrators and the school boards, they are all upset that $65 million

is being taken from school construction because of the backlog, as

we all know. So they are very concerned about that, as well as the

Indian Child Welfare Act, the Water Settlement Act and all of

those funds that are being taken away, and of course the overall

$52 million that is being taken from BIA in 2005. People are very

upset that there is money being eroded from the BIA budget.

The CHAIRMAN. I note with interest that people from the Administration are still in the room. Do you believe that there is still an

opportunity to have a dialog to try to work some of these differences out between the tribes and the Administration?

Mr. HALL. Mr. Chairman, I would hope so, but I really feel that

we are at that crossroads right now. We have been trying to, but

we were virtually shut out of the consultation process. So we would

hope that Congress would help us, the committee would help us

with an intervention.
20

The CHAIRMAN. We will try to. Thank you very much for your

testimony.

President Shirley, if you would go ahead and continue. All your

testimony will be included in the record, by the way.

STATEMENT OF JOE SHIRLEY, PRESIDENT, NAVAJO NATION

Mr. SHIRLEY. Thank you, Senator Campbell, chairman of the

committee, Vice Chairman Senator Inouye, and members of the

committee.

I am honored to present testimony today on behalf of my Navajo

people. The issue under consideration, the proposed reorganization

of major agencies within the Department of the Interior related to

Native American trust is complex, and its results will have a tremendous impact on Navajo people. We appreciate the opportunity

to express our position to the Senate Committee on Indian Affairs.

Thank you.

There are five objectives that must be met before any proposed

reorganization, as we see it: First, commitment from Congress to

fund any proposed reorganization with new dollars, do not do it at

the expense of Native American programs; second, commitment to

a full, complete and good faith government-to-government consultation with Native American nations; third, the establishment of

clear trust standards; fourth, identification of major agencies to

confirm whether reorganization is necessary; and fifth, to be cognizant of the fact that Native American nations differ dramatically

in government structure and land base, in order to avoid the onesize-fits-all approach to reorganization.

Regarding a commitment to appropriate new dollars, a reasonable inference drawn from the President’s budget request for fiscal

year 2005 is that the Administration is committed to reorganizing

the BIA and funding the Office of Special Trustee with Native

American program dollars. The Navajo Nation was informed by the

Administration that there would not be such reallocated funding.

However, our inference is drawn from the request to decrease Indian health facilities construction by $52 million and BIA education

construction by $65 million, while within the same fiscal year 2005

request, increase the Office of the Special Trustee’s budget by $130

million.

The Navajo Nation believes that the objective that must be met

is Congress’ commitment to appropriate new dollars and not use

Indian program dollars for any proposed reorganization. We seek

this committee’s support for such a commitment.

Now, regarding the full, complete and good faith consultation, we

feel the foundation of our government-to-government relationship

with the United States has not been adhered to. The Navajo Nation

appreciates those members of Congress and those departments

within the Administration who try their best to meet the obligation

of government-to- government consultation. The recent reorganization at the BIA and the Office of Special Trustee indicates that government-to-government consultation is replaced with the process

that limited notice, inadequate response time, and the replacement

with presentation of the reorganization for consultation about the

reorganization. Full, complete and good faith consultation with all
21

Native American nations is essential to any successful reorganization.

The Navajo Nation seeks Congress’ commitment to such consultation, and seeks this committee’s support in securing such a

commitment. The task of proposing the reorganization of major

agencies affecting Native American trust is daunting, but it is a

task that together we can accomplish.

Regarding the establishment of clear trust standards, the next

question that must be answered before any proposed reorganization

is what are the trust standards. The Navajo Nation continues to

argue that the Secretary of the Interior has the trust responsibility.

We also continue to ask for accountability to this trust responsibility, but the U.S. Government continues to sway on the clear definition of trust responsibility. The Cobell litigation is a backdrop for

the discussions of trust reform. Although we support those individuals in asserting their claims before the courts, we recommend

Congress, not prematurely proposed trust reform, in reaction to

such litigation.

Although Congress and the Administration may not agree with

all Native American nations and vice versa on trust standards, we

would like Congress’ commitment to entertain trust standards that

the government and all Native American nations can agree to,

prior to any proposed reorganization of major agencies. Without

clear trust standards, any reorganization would be based on a system that lacks responsibility and accountability. Thus, any proposed reorganization would falter and result in the same lack of responsibility and accountability. Let us work together on the proposed trust reform. Who better to provide you with what works and

what does not work than the trustee of this relationship?

Regarding the reorganization of the major agencies under the

Department of the Interior, in the past we have worked with the

government in a way where the Navajo Nation reacted to the government’s proposals, rather than be proactive. The Navajo Nation

believes today is truly historic. This committee is providing us the

opportunity to proactively work with the government’s proposals by

allowing us to provide suggestions prior to proposing trust reform.

The Navajo Nation requests a list of those major agencies that may

be proposed for reorganization.

We also recommend Congress provide adequate time for Native

American nations to review the list. The Navajo Nation would be

greatly impacted because we work with several agencies within the

Department of the Interior, like the Bureau of Land Management

and the Bureau of Reclamation. It is also important to know when

an agency is working as intended, not requiring reorganization. Let

us work together and know when reorganization is not the answer.

Regarding the avoidance of the one-size-fits-all approach, finally

the Navajo Nation stresses to this committee and Congress to avoid

a one-size-fits-all approach to any proposed reorganization. As Vice

Chairman Senator Inouye noted in his statement at the NCAI legislative summit 2 weeks ago, we must be wary of any trust reform.

We must take a thorough look at all differences among all Native

American nations. What works for one Native American nation

may not work for another. Let us not go down the road of dividing

Native Americans by proposing a one-size-fits-all approach. Let us
22

work together to identify the differences and address those differences through meaningful consultation. Congress and Native

American nations will then realize our common goal: trust responsibility and accountability.

In summation, I want to reiterate those points of utmost concern

to Navajo people, and if addressed appropriately, will ensure a successful reorganization and improve relations between the Native

American nations and the Federal Government. First, we seek a

commitment from Congress to fund any proposed reorganization

with new dollars. Do not do it at the expense of Native American

programs. Secondly, we seek a commitment to full, complete and

good faith government-to-government consultation with Native

American nations. Third, together we must establish clear trust

standards or our labor will be for nothing.

Fourth, we must work together to identify those major agencies

subject to reorganization, to confirm that reorganization is necessary. Finally, as we begin this journey, let us be mindful that Native American nations differ dramatically in government structure

and land base. A sure road to failure will be to attempt a cheap

or quick fix. We must avoid a one-size-fits-all approach to reorganization.

Thank you.

[Prepared statement of Mr. Shirley appears in appendix.]

The CHAIRMAN. Thank you. I think you have made a very important observation in this statement about one size fits all, and

maybe it is the weakness of the Federal Government that we often

forget here that all those individual treaties, even though they

were all broken, they were not made with one monolithic Indian

group nationwide. They were made nation to nation, with each

tribe being their own entity and land base and character, as you

have mentioned, which is the equivalent of signing contracts or

agreements or treaties with foreign nations.

If we apply that logic that one size fits all, that would say that

maybe the treaties we have signed with France and England and

Germany and Australia and wherever, we should treat them all

alike. We do not. They are different countries. They are different

nations. They have their own structure. I think we need to remember that more in the Federal Government when we are trying to

seek resolution to differences between tribes and the Federal Government. They are all different and should be treated accordingly,

with the dignity each tribe has as a nation in itself.

I understand, however, the difficulty of doing that. Not so difficult with the Navajos because they have 280,000 or more people,

but in other States like the Dakotas with maybe 30,000 Lakota, as

was mentioned. But there are some tribes in America that only

have five members or four members, and I can understand the difficulty in dealing with some that have very few members, but still

that is the deal. If there were individual treaties, they should treat

them individually as nations in their responsibility to it.

Thank you for your testimony.

We will now move to the Honorable Ed Thomas, the President

of the Tlingits. Thank you for being here, Ed. Okay, you first. Why

don’t you go ahead. I would note that Senator Murkowski sent a

message over. She is occupied in two other hearings this same
23

time, and she apologizes for not being here to hear your statement,

but she sent a note that said she will read it very carefully.

STATEMENT OF EDWARD THOMAS, PRESIDENT, CENTRAL

COUNCIL TLINGIT AND HAIDA INDIAN TRIBES OF ALASKA

Mr. THOMAS. Thank you very much. Thank you very much, Mr.

Chairman, first for having this hearing and your deep commitment

to our problems.

I am going to recite a little bit of my background, not to toot my

own horn, but just to kind of give you an overview of my involvement in this issue. First of all, I have been president of my tribe

since 1984. We have 25,000 citizens. I represented Alaska on the

BIA Reorganization Task Force that ran from the mid- to late1980’s to the early 1990’s. It was through that process that I became aware and my tribe became aware of the problems in trust

fund management. We were one of the first tribes to join the Inter–

Tribal Monitoring Association. This association worked toward legislation to fix those trust management problems.

One of the proposals we put forth back at that time was to take

or remove the entire program from out of the BIA to repair it, fix

it, put it in order and put it back again. We got the idea from what

happened when the Federal Government addressed the issue of the

savings and loan scandal at the very same time, and saw how

quickly and efficiently the Federal Government addressed those

problems, appropriated dollars and fixed those problems with the

savings and loans, and now it is operating like it should.

I must state that we all know that the trust management system

within the BIA is broken and has been for quite some time. So

while I am not going to talk a lot about that since other testifiers

have, I will zero in on a couple of other issues. One is the issue

of reorganization. Back when we talked about the reorganization

efforts in the 1980’s and early 1990’s, tribes and tribal leaders were

very hesitant to buy into the reorganization plan put forth at that

time, for several reasons. Pardon me if some of this sounds like

BIA bashing. It is not intended to. It is simply a reciting of what

we went through back then.

First of all, it was clear that in most organizational problems are

hardly ever solved simply by moving boxes around on the organizational chart. It appeared that that was what was happening. There

were a couple of statements that came forward. One was, Indian

tribes are tired of seeing people rotated throughout the system. It

is like rotating worn out tires. That was one statement. The other

one is that when you do any reorganization in government, the

deadwood always floats to the top. People that once could not do

the job down on lower levels then become escalated and becomes

the ones in charge at the upper levels. We have seen that happen

more than once, so I wanted to point those things out.

Now, there is no doubt that in the minds of many of us, the funding for trust reform comes from BIA tribal programs, those programs you talked about in your comments. When you see the overall BIA budget just barely keeping flat and you see one line item

increase and the others go down, it becomes very apparent to us

in a finite budget that the money shifted from one program to another.
24

Now, is that a big deal? The $109 million that Special Trustee

Swimmer spoke of sounds like a lot of money, and it is when it

comes from a finite underfunded BIA budget. But when you compare it to what happened in the savings and loan scandal issue,

they were not talking about millions, they were talking about billions. And these appropriations, I think the lowest one that I recall

was about $5 billion and the highest was about $82 billion, appropriated all in the span of 1 year to fix the savings and loan problem.

So I maintain that if the Federal Government had funded tribal

programs at least to keep pace with inflation, we would not be so

worried about the extra dollars being used to reorganize the BIA

and to fix the Federal trust problems.

When I look at the way land and resources are managed by

States and other entities, I see that the moneys that are put aside

for these tasks in the BIA and even in BLM is very, very meager

compared to what is being used to fund land management by

States or dollars being managed by Federal bank systems for nonIndians.

The point being is that even if we were to fully fund our programs as presented by the Special Trustee or the Secretary, I do

not personally believe that is enough money to manage these resources. We need more resources to manage all of those properties

all the way down to the tribe/agency level. That has to happen at

some point in time.

So Mr. Chairman, once again I thank you for your dedication to

our issues over your tenure here in Congress. I join others in saying I am sorry that you have made your choices, but I certainly understand them, particularly with the dog growling. [Laughter.]

But I think that your history from our point of view will be a

kind history, and I want to say that. I hope that as we leave this

era in our relationship with the Federal Government that we can

see some of those dollars restored to make whole, if you may, the

tribal programs and to create enough of a system so that our trust

resources can be managed in a professional manner and adhere to

the standards that are being adhered to by other parts of this government for non-Native assets.

Thank you very much.

[Prepared statement of Mr. Thomas appears in appendix.]

The CHAIRMAN. Thank you. I want to tell you that in my last

year as the chairman of this committee, I intend to do everything

I can to make sure that we leave it a little better for Indian country than we found it. I know I can speak for Senator Inouye, too,

who may also be leaving the committee.

Thank you.

Mr. THOMAS. There are other parts of my written testimony that

I hope you will read that builds on some of the comments.

The CHAIRMAN. Yes; we will. It will be included in the record and

we will read it very carefully. Thank you.

Now, we will go to President Frazier, please.
25

STATEMENT OF HAROLD FRAZIER, PRESIDENT, GREAT

PLAINS TRIBAL CHAIRMAN’S ASSOCIATION

Mr. FRAZIER. Thank you. Good morning, Mr. Chairman and honorable members of the committee.

I am honored to be here today to testify on the Department of

the Interior’s reorganization. I thank you for holding this hearing.

I am here representing not only the Cheyenne River Sioux Tribe,

but the Great Plains Tribal Chairman’s Association, in which there

are 16 tribes in the Great Plains region. They encompass the

States of North Dakota, South Dakota, and Nebraska. We are treaty tribes and many of us have large land bases. We know that we

will suffer greatly under the current reorganization plans of the

Department of the Interior. We tribes are unique, and we know

that one size does not fit all.

Trust comes from treaties and it is time that our treaties are

honored. Trust functions cannot be separated. The current Department of the Interior reorganization plan is a waste of money and

resources which are much needed at the local agency levels to provide trust functions. Every day, we see problems multiplying because of fractionation of line authority. I could go on and on and

tell you stories to justify that, but I believe that the people who testified earlier, their stories are similar and are throughout Indian

country.

Presently, many of our people cannot access their records in a

timely manner. When they call the Special Trustee office in Albuquerque, they get phone recordings. We need the face-to-face relationship restored, which our people depend upon.

Trust officers from the Office of the Special Trustee will be only

duplicating services that the BIA superintendents are currently

providing. We also see that they will be operating independently

from local control. We question, who are they going to be accountable to? Upper-level bureaucracy will be creating delays and backlogs in trust functions. Right now, the way the BIA reorganization

was explained to us, the computer specialist on the Cheyenne River

agency, his boss sits here in Washington, DC. And before he is to

do any work, he has to get a work order from Washington, DC.

The system that they are trying to impose on our people relies

heavily on a computer system. So we know and we foresee a lot of

delays in transactions and for our people to find out the status of

their assets. We know that policies and plans need to come from

local grassroots levels up, not from upper-level down. The solutions

are in Indian country. We know what is best for our people. Our

plan was developed in Indian country, by Indians, for Indians. Only

a few trust functions can be nationalized. The others need to be

modified to fit appropriate regions, because one size does not fit all.

Based on 2001 statistics, the Great Plains region had over 67,000

IIM accounts, more than any other regions. We have a plan. We

are requesting a pilot program similar to the legislative rider that

the Self Governance Tribes received in the 2004 Interior appropriations bill. Our plan would give more authority, funding and functions back to local agencies.

Based on article V and article XI of the 1868 Fort Laramie Treaty, the United States guaranteed that they would provide services

at the local level to our people and reimburse the tribes for any
26

services lost. Right now, as you heard President Hall speak about

backlogs in appraisals, I want to say that also, that right now in

the Great Plains region, there is one appraiser. We need one at

every agency.

There are probate backlogs. We agree that there needs to be a

nationalized system that reports all asset transactions at all agencies. But more importantly, we need more positions at the local levels to input data into the systems. We need range and soil conservationists, lease compliance officers, realty, probate, rights-ofway specialists, and accountant positions to better manage our assets.

Also in our plan, the Office of Special Trustee will be only given

functions that were intended for them in the 1994 Trust Reform

Act. They would only provide monitoring and oversight of trust reform, not operational functions. Our agency superintendents would

be given back all authorities, including education and law enforcement because in our treaties, all of these functions are trusts.

We request your support for our plans and we ask that the reorganization be driven to benefit Indians in Indian country, not bureaucrats in Washington, DC, Albuquerque, or Virginia. Remember, one size does not fit all.

Thank you.

[Prepared statement of Mr. Frazier appears in appendix.]

The CHAIRMAN. Thank you.

We have had some contact with the committee. You mentioned

the 1994 Act that authorized the Office of Special Trustee. That

was supposed to be a temporary position until we resolve this problem, but some of the contacts we have had are telling us it appears

that it is becoming an institution of government now, and there is

some concern about it.

Let me ask you about consultation. Mr. President, I assume you

do not feel there was adequate consultation with the Great Plains

Tribal Chairman’s Association or individual tribes. Is that correct

or no?

Mr. FRAZIER. Yes; I heard about this ‘‘to be,’’these meetings going

around when I was in an ITMA meeting in Las Vegas. I was quite

amazed that in the Great Plains region, there were no meetings

scheduled for our region, even though we have the highest amount

of IIM accounts.

The CHAIRMAN. There was no meeting scheduled at all?

Mr. FRAZIER. No; not at that time.

The CHAIRMAN. So you, as tribal chairman within your association, have not had any meetings with them?

Mr. FRAZIER. No; we had to bring that issue up, and then they

did come on January 13 to Rapid City, but we do not view that as

consultation. It always seemed like we are always defending issues.

They come to the table and say, they inform us of what they are

going to do, and there is no dialogue there, I believe.

The CHAIRMAN. I see. Okay. Thank you. I appreciate your testimony and there will be probably some written questions to you,

too.

Mr. FRAZIER. Thank you.

The CHAIRMAN. We now move to Clifford Marshall, chairman of

the Hoopa Valley Tribal Council.
27

STATEMENT OF CLIFFORD LYLE MARSHALL, CHAIRMAN,

HOOPA VALLEY TRIBAL COUNCIL

Mr. MARSHALL. Thank you, Mr. Chairman.

Mr. Chairman, members of the committee, I am Clifford Lyle

Marshall, chairman of the Hoopa Valley Tribe. I thank you again

for inviting me to testify on trust reform.

I last testified before this committee on May 21, 2003 on the subject of trust reform. I testified on behalf of the California Consortium on Trust Reform, a consortium of seven tribes in California,

including Hoopa. At that hearing, I presented an attachment with

my testimony, the operating agreement between the BIAs’ Pacific

Regional Office and the California Trust Reform Consortium.

At that time, I testified about the positive activities that the Consortium and the BIA Pacific Regional Office had undertaken and

that the Consortium tribes had collectively found ways to work

with the BIA to successfully implement one of the most progressive

trust resource improvement programs that exists anywhere in Indian country today. I also testified that other tribes, like the Salt

River Pima Maricopa in Arizona, the Confederated Tribes of Salish

and Kootenai, and the Chippewa Cree of Rocky Boy Montana had

accomplished positive trust reform through their own unique working relationships with their respective BIA agencies.

I asked at that time that the California Consortium be allowed

to continue implementing our BIA–Consortium effort and work collectively to solve trust management problems at the local level. I

also asked that the committee consider establishing a tribal trust

reform pilot project that would preserve and protect these established working relationships between these tribes and the BIA.

Last year, this pilot project was established in section 139 of the

Department of the Interior and Related Agencies Appropriations

Act of 2004. This act provided that the California Consortium,

which includes Hoopa, the Salish and Kootenai, Rocky Boy, and the

Salt River Pima Maricopa Tribes, were designated by Congress to

operate separate and apart from the Department of the Interior’s

trust reform reorganization.

Section 139, however, had a proviso added that it stated that the

tribes referred to in section 139 had to demonstrate to the satisfaction of the Secretary of the Interior that they had the capability to

carry out the responsibilities under the same fiduciary standards

as those to which the Secretary of the Interior is held. I believe you

heard Mr. Swimmer say that today.

We were told that this meant that we had to meet the Secretary’s proper discharge of trust responsibilities to the United

States as set forth in part 303, chapter two of the departmental

manual for the Department of Interior. In discussion with Interior

staff prior to the introduction of section 139, we believed that this

would be a cursory review of our most recent trust evaluations and

audits. However, we were later informed that we would be assessed, and our assessment would be as against the ‘‘as is’’ and ‘‘to

be’’ models. We felt that this was entirely unfair and imposition of

the department’s trust management infrastructure, and what we

felt was a clear violation of the intent of Congress, which was that

the tribes remain separate and apart from trust reform.
28

We countered that under the Self-Governance Act, self-governing

tribes were required to comply with Federal law and standards set

forth in Federal regulation. Between December 2003 and February

2004, each of the 10 tribes were visited by an assessment team of

the Office of Special Trustee for Indian Programs, Office of Trust

Review and Audit. The teams consisted of four to six auditors and

attorneys. The assessments lasted 1 to 4 days. Hoopa’s review

lasted 2 days. When asked what we were being evaluated against,

the response was they were not sure, but they were there to collect

information. We were later told that we were being compared to a

trust company.

Our fiscal management program policies and procedures, records

management program policies and procedures, and our land and

resource management program policies and procedures were scrutinized. On March 8, 2004, the Hoopa Valley Tribe received the final

draft of the Department of the Interior’s assessment. The Hoopa

Tribe now has 30 days to provide comments. For forestry, the assessment concluded that no discrepancies were noted in the timber

sales transaction file review. For wildland fire protection, the assessment noted that the fire suppression unit is sound, but funding

level is one-third of what is necessary to protect the timber resource. The assessment noted that our roads department maintains

108 miles of road, but is funded at 11 percent of need. The assessment also noted that the Pacific Region has not processed one probate for a Hoopa Indian in the last 7 years.

For the records management, the assessment noted that the tribe

maintains all California Indian rolls from the 1920’s and census

records on Indian rancherias going back to 1882; have a record

schedule policy for all departments; maintain a records inventory;

uses a Doc Star computer system to electronically store records on

CD rom discs; and uses an interdisciplinary approach for developing new policies and procedures. The assessment concluded that,

‘‘in appearance, all records are well organized, labeled and secured.’’

The assessment of our fiscal department concludes that the fiscal

department appears to have excellent records management systems

and superior internal controls operation. Regarding information

technology, the assessment states that Hoopa uses a fully integrated fund accounting system, Windows 2000 server with sonic

wall firewall software, trackit software to keep an inventory of the

software and hardware used; perform security testing, maintains

strict controls on software installation; maintains virus scanning

updates; and backs up and stores its data weekly on CD rom disc

and stores it in a safety deposit box in a fireproof safe at a local

bank.

The executive summary concludes that the tribe is capable of

performing trust functions. It goes on to say the tribe had some

minor weaknesses that need attention, but do not prevent them

from meeting section 139 requirements. Specifically, the tribe

should seek an external evaluation of their information technology

systems, policy, and procedures to certify compliance with applicable information security mandates.

I would like to address these alleged weaknesses. First, there are

no section 139 requirements. Section 139 specifically said that the
29

139 tribes were to remain separate and apart from trust reform.

Second, there are no applicable information security mandates.

Third, the BIA and OST do not have an information technology

system that works. OST has spent over $70 million on the TAMS

system that has never worked, is not on line, and the BIA is still

operating without Internet access. Fourth, the Department of Interior has paid $60 million on external evaluations to produce the ‘‘as

is’’ and ‘‘to be’’ models, and are not any closer to implementing a

system.

In fiscal year 2003, like every previous year for the past 15

years, the Hoopa Tribe was audited by a certified accounting firm,

evaluated by the Pacific Regional Office pursuant to the Self Governance Act, and assessed by the Office of Special Trustee. It is

hard to understand why OST would now conclude that we need another external evaluation. Hoopa considers the OST assessment an

external evaluation.

It appears that OST is holding us to a standard that the BIA and

the Secretary have never achieved. Hoopa Tribe’s computer systems, used to manage 57 departments, have been an investment

that has accumulatively over the past 10 years cost hundreds of

thousands of dollars. We have put our funding into developing an

infrastructure and developing our capability. We have used our

funds to build a system that works for us. It also works for our

auditors and it works for the BIA regional office who does our trust

evaluations. Why does Hoopa need another evaluation? More importantly, who is going to pay for it? If there are minor weaknesses

in Hoopa’s management, and I do not read in the assessment any

finding that there is, it is because of inadequate funding. I believe

that the other section 139 tribes would say the same.

I believe that the section 139 assessment was in fact an application of the trust reform ‘‘to be’’ model and turned the intent of section 139 on its head. But the importance of section 139 is that it

shielded the section 139 tribes from trust reform reorganization

changes and preserved the operating agreements and working relationships of the 10 tribes and their agencies. Section 139 required

that the tribes demonstrate to the Secretary that they have the capability to meet the fiduciary duties of the Secretary.

I am proud to say to this committee today that Hoopa’s assessment and, to my knowledge, all the other section 139 tribes state,

the tribe is capable of performing trust functions. We passed this

arduous test and proved our capability.

In conclusion, since trust reform continues to be a mystery

wrapped in an enigma to most of us, and the section 139 tribes

have shown that they are managing at the same level or above that

of the BIA, I ask that you support extending section 139 for another year. The purpose of section 139 was to maintain what is

working now in Indian country.

Thank you for this opportunity to speak to you today.

[Prepared statement of Mr. Marshall appears in appendix.]

The CHAIRMAN. Thank you. Let me ask you a couple of questions,

Chairman Marshall.

Just as a sidebar, do you know the Risling family out there?

Mr. MARSHALL. I will tell you a story, sir.
30

The CHAIRMAN. You better not do that. It is on the record here.

[Laughter.]

Mr. MARSHALL. I have known you for many years. When I was

in law school and clerking here in Washington, DC and when I was

a tribal councilman, I would shake your hand and you would say,

‘‘where are you from?’’ And I would say, ‘‘I am from Hoopa.’’ And

you would always say, ‘‘Do you know the Risling family?’’

The CHAIRMAN. Well, tell them hello.

Mr. MARSHALL. ‘‘And do you know David Risling?’’ And I would

always answer, ‘‘That is my uncle.’’

The CHAIRMAN. Yes; I am sorry. I forgot that. We were on the

board of D–Q University years and years ago together and he is a

fine man, as is the family. Give them my best. I promise not to ask

you the next time I see you if you know the Risling family. [Laughter.]

Mr. MARSHALL. I appreciate that you connect me. [Laughter.]

The CHAIRMAN. Okay.

Your tribe has been operating under the so-called ‘‘section 139

pilot project,’’ you spoke about, for several months now, and I assume that you want that to continue in the future. Based on your

experience so far, what changes would you recommend to make it

a better project for your tribe and do you think it could be replicated for other tribes, the pilot project that has worked for you,

without getting into this so-called one-size-fits-all syndrome?

Mr. MARSHALL. The program that we operate under is the Self

Governance Act. I believe it is a very successful piece of legislation,

and in fact 46 percent of all tribes now are Self Governance tribes.

I am concerned that the way that trust reform is restructuring

the bureau, that decisionmaking is being moved to being centralized within the Beltway, that our relationships that we have developed over the past 15 years with our local and regional offices, that

the decisions that have been made to make the program successful,

those decisions will not be able to be made at the local or regional

level.

So I guess that is what section 139 was about as a pilot project.

Keep what the tribes have developed, and what the tribes are saying loudly are working at the local level, in place. I believe that a

lot of tribes would come forward and say the same thing.

The CHAIRMAN. You heard the testimony of the agencies. As I

understand them, there will be more people at the local level, but

it is your position that even though there may be more people at

the local level, the decisions still will not be made at the local level.

They will be filtered to a central decisionmaking process. Is that

correct?

Mr. MARSHALL. I heard the testimony today that these would be

worker bees. I know that everyone at this table, and what would

exist in California, is understaffed and underfunded. The way that

the Consortium tribes and the Hoopa Tribe makes things work is

that they have to take what little they get from the bureau, what

we get from the bureau, and we have to find other sources of funding and then we build programs. We use indirect cost money, compact money, and tribal revenues, as well as other grant funding.

Trust evaluation, we asked, what are you evaluating? Are you

evaluating just what the bureau gives us or are you evaluating the
31

rest of the program? I mentioned our roads program. We get 11

percent of our funding from the bureau. The rest of it comes from

a business that the tribe built, an aggregate plant that the tribe

built, and from timber sales contracts, maintaining roads for timber sales.

Are you evaluating the money against the money that we put

into it or the money you give us? Salish Kootenai used the example

of a fisheries program where they get $60 from the BIA and put

$200,000 more into the program.

What is the trustee going to evaluate, the special trustee? And

is he there to evaluate us or help us or provide us with a service?

We are not sure. We know that at this point, what we do and the

decisions we make, work. So we are really not sure if they can help

us.

The CHAIRMAN. Okay. I thank you. We will followup with some

written questions. President Shirley, just so you will know that the

only friends that I have are not just at Hoopa, please tell the Benn

family, old spiritual leaders and sand painters at Navajo, I am still

here and look forward to seeing them again back when I am in my

private life. Thank you.

With that, we will keep the record open for 2 weeks and we certainly appreciate everybody appearing.

This hearing is adjourned.

[Whereupon, at 11:20 a.m. the committee was adjourned, to reconvene at the call of the Chair.]

(33)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF CLIFFORD LYLE MARSHALL, CHAIRMAN, HOOPA VALLEY

TRIBE

Mr. Chairman, members of the committee, I am Clifford Lyle Marshall, chairman

of the Hoopa Valley Tribe. I thank you for again inviting me to testify on Trust Reform. I last testified before this committee on May 21, 2003 on the subject of Trust

Reform. I testified on behalf of the California Consortium on Trust Reform, a consortium of seven tribes in California including Hoopa. At that hearing I presented

as an attachment with my testimony the ‘‘Operating Agreement Between the Bureau of Indian Affairs Pacific Regional Office and the California Trust Reform Consortium.’’

At that time I testified about ‘‘the positive activities that the Consortium and BIA

Pacific Regional Office had undertaken,’’ and that ‘‘the Consortium Tribes had collectively found ways to work with the BIA to successfully implement one of the most

progressive trust resource improvement programs that exists anywhere in Indian

country today.’’ I also testified that other tribes like the Salt River Pima Maricopa

in Arizona, the Confederated Tribes of Salish and Kootenai, and the Chippewa Cree

of Rocky Boy Montana had accomplished positive trust reform through their own

unique working relationships with their respective BIA agencies. I asked, at that

time, that the California Consortium ‘‘be allowed to continue implementing our BIA/

Consortium effort and work collectively to solve trust management problems at the

local level.’’ And I also asked that the committee consider establishing a Tribal

Trust Reform Pilot Project that would preserve and protect these established working relationships between tribes and the BIA.

Last year this pilot project was established in sec. 139 of the Department of the

Interior and Related Agencies Appropriations Act of 2004. This Act provided that

the California Consortium which includes Hoopa, the Salish and Kootenai, Rocky

Boy, and the Salt River Pima Maricopa Tribes were designated by Congress to ‘‘operate separate and apart from the Department of the Interior’s trust reform reorganization.’’

Sec. 139, however, had a proviso added to it that stated that the tribes referred

to in sec. 139 had to ‘‘demonstrate to the satisfaction of the Secretary of the Interior

that they have the capability to carryout their responsibilities under the same fiduciary standards as those to which the Secretary of the Interior is held.’’ In discussions with Interior staff prior to the introduction of sec. 139 we believed that this

would be a cursory review of our most recent trust evaluations and audits. However,

we were later informed that we would be assessed, and our assessment would be

as against the ‘‘As-Is’’ and ‘‘To-Be’’ models. We felt that this was entirely unfair, an

imposition of the Department’s trust management infrastructure, and what we felt

was a clear violation of the intent of Congress which was that the tribes remain

separate and apart from trust reform. We countered that under the Self Governance

Act, Self Governance tribes are required to comply with Federal law and standards

set forth in Federal regulations.
34

Between December 2003, and February 2004 each of the 10 tribes were visited

by an assessment team of the Office of Special Trustee for Indian Programs, Office

of Trust Review and Audit. The teams consisted of four to six auditors and attorneys, the assessments lasted for 1 to 4 days. Hoopa’s review lasted 2 days. When

asked what we were being evaluated against the response was that they weren’t

sure; that they were there to collect information. We were later told that we were

being compared to a trust company. Our fiscal management program, policies and

procedures, records management program, policies and procedures and our land and

resource management programs, policies, and procedures were scrutinized.

On March 8, 2004 the Hoopa Valley Tribe received the final draft of the Department of the Interior’s assessment. The Hoopa Tribe now has 30 days to provide comments. For Forestry, the assessment concluded that ‘‘no discrepancies were noted in

the timber sales transaction file review.’’ For Wildland Fire protection the assessment noted that ‘‘the fire suppression unit is sound’’ but funding level is one-third

of what is necessary to protect the timber resource. The assessment noted that our

Roads Department maintains 108 miles of road but is funded at 11 percent of need.

The Assessment also noted that the Pacific Region has not processed one probate

for a Hoopa Indian in the last 7 years.

For records management the assessment noted that the tribe maintains all California Indian Rolls from the 1920’s, and census records on Indian rancherias going

back to 1882; have a record schedule policy for all departments; maintain a records

inventory, uses a Doc Star computer system to electronically store records on CD

Rom disks; and use an interdisciplinary approach for developing new policies and

procedures. The assessment concludes that, ‘‘in appearance, all records are well organized, labeled, and secured.’’ The assessment of our fiscal department concludes

that ‘‘the fiscal department appears to have excellent records management system

and superior internal controls operation.’’ Regarding information technology the assessment states Hoopa uses a ‘‘fully integrated fund accounting system; windows

2000 server with sonic wall firewall software; trackit software to keep an inventory

of the software and hardware used; performs security testing, maintains strict controls on software installation; maintains virus scanning updates; and backs up and

stores its data weekly on CD Rom disc and stores it in a safety deposit box in a

fireproof safe at the local bank.

The executive summary concludes that, ‘‘The Tribe is capable of performing trust

functions. The tribe had some minor weaknesses that need attention but do not prevent them from meeting section 139 requirements.’’ Specifically, the tribe should

seek an external evaluation of their information technology systems, policy, and procedures to certify compliance with applicable information security mandates.’’

I would like to address these alleged weaknesses. First, there are no sec. 139 requirements. Sec. 139 specifically said the 139 tribes were to remain separate and

apart from trust reform. Second, there are no ‘‘applicable information security mandates.’’ Third, the BIA and OST don’t have an ‘‘information technology system’’ that

works. OST has spent over $70 million on the TAMS system that has never worked,

is not on line, and the BIA is still operating without internet access. Fourth, the

Department of the Interior has paid $60 million on external evaluations to produce

the ‘‘As Is’’ and ‘‘To Be’’ models and aren’t any closer to implementing a system.

In fiscal year 2003, like every previous year for the past 15 years, Hoopa was audited by a certified accounting firm, evaluated by the Pacific Regional Office pursuant to the Self Governance Act; and assessed by the Office of Special Trustee. It

is hard to understand why OST would conclude that we need another ‘‘external

evaluation.’’ Hoopa considers the OST assessment an external evaluation.

It appears that OST is holding us to a standard that the BIA and the Secretary

has never achieved. The Hoopa Tribe’s computer systems, used to manage 57 departments, have been an investment that has accumulatively over the past 10 years

have cost hundreds of thousands of dollars. We’ve put our funding into developing

an infrastructure and developing our capability. We’ve used our funds to build a system that works for us. It also works for our auditors and it works for the BIA Regional Office who does our evaluations. Why does Hoopa need another evaluation?

More importantly, who is going to pay for it? If there are minor weaknesses in

Hoopa’s management, and I don’t read in the assessment any finding that there is,

it’s because of inadequate funding. I believe that the other sec. 139 tribes would say

the same.

I believe that the sec. 139 assessment was, in fact, an application of the trust reform ‘‘To Be’’ model and turned the intent of sec. 139 on its head. But the importance of sec. 139 is that it shielded the sec. 139 tribes from trust reform/reorganization changes and preserved the agreements and working relationships of the 10

tribes and their agencies. Sec. 139 required that the tribes demonstrate to the Secretary that they have the capability to meet the fiduciary duties of the Secretary.
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I am proud to say to this committee today that Hoopa’s assessment and, to my

knowledge, all the other sec. 139 tribes state, ‘‘The tribe is capable of performing

trust functions.’’ We passed this arduous test and proved our capability. In conclusion, since Trust Reform continues to be a mystery wrapped in an enigma to most

of us, and the sec. 139 tribes have shown that they are managing at the same level

or above that of the BIA, I ask that you support extending sec. 139 for another year.

The purpose of sec. 139 was to maintain what is working now in Indian country.

Thank you for this opportunity to speak today.

PREPARED STATEMENT OF JOE SHIRLEY, PRESIDENT, NAVAJO NATION

Chairman Nighthorse Campbell, Vice Chairman Inouye and members of the committee, I am honored to present testimony today on behalf of the Navajo people. The

issue under consideration, the proposed reorganization of major agencies and functions related to Native American trust reform matters in the Department of the Interior, is complex and its results will have a tremendous impact on the Navajo people. We appreciate the opportunity to express our position to the Senate Committee

on Indian Affairs. The Navajo Nation requests that the following written testimony

be submitted in the record:

There are five objectives that must be met before any proposed reorganization:

No. 1. Commitment from Congress to fund any proposed reorganization with new

dollars, not at the expense of Native American Programs.

No. 2. Commitment to full, complete, and good faith government-to-government

consultation with Native American Nations.

No. 3. Establishment of clear trust standards.

No. 4. Identify the ‘‘major agencies,’’ and their ‘‘functions,’’ and confirm whether

reorganization or reform is necessary.

No. 5. Be cognizant of the fact that Native American Nations differ dramatically

in government structure and land base, in order to avoid a ‘‘one size fits all’’ approach to reorganization.

A reasonable inference drawn from the President’s Budget Request for fiscal year

2005 is that the Administration is committed to reorganizing the Bureau of Indian

Affairs, and funding the Office of the Special Trustee, with Native American Program dollars. Navajo was informed by the Administration that there would not be

such reallocated funding. Our inference is drawn from the request to decrease Indian Health Facilities Construction by $52 million, and BIA Education Construction

by $65 million, while within the same fiscal year 2005 request, increase the Office

of the Special Trustee’s budget by $42 million. The Navajo Nation believes that one

objective that must be met is Congress’ commitment to appropriate any proposed

reorganization only with new dollars and not Indian Program dollars, and we seek

this committee’s support of such commitment.

The foundation of our government-to-government relationship with the United

States, specifically the Congress and the Administration, we feel, has not been adhered to. The Navajo Nation appreciates those Members of Congress and those departments within the Administration who try their best to meet the obligation of

government-to-government consultation. However, the recent reorganization of the

BIA and OST indicates that government-to-government consultation is replaced

with a process of limited notice, inadequate response time, and the replacement

with ‘‘presentation’’ of the reorganization for ‘‘consultation’’ about the reorganization. Full, complete, and good faith consultation with all Native American Nations

is essential to any successful reorganization, and Navajo seeks Congress’ commitment to such consultation, and seeks this committee’s support in securing such commitment. The task of proposing the reorganization of the major agencies and functions affecting Native American trust is daunting; but it is a task that together we

can accomplish.

The next question that must be answered before any proposed reorganization goes

forward, is WHAT ARE THE TRUST STANDARDS? We, along with other Native

American Nations continue to argue that the Secretary of the Interior has a Trust

Responsibility. We also continue to ask for accountability to this Trust Responsibility, but we, including the U.S. Government continue to sway on the clear definition

of this Trust Responsibility. The Cobell litigation is a backdrop for these discussions

of reorganization and trust reform and, although we support those individuals in asserting their claims before the courts, we recommend Congress not prematurely propose reorganization and trust reform in reaction to such litigation.

Although the Congress and the Administration may not agree with all Native

American Nations, and vice-versa, on the Trust Standards, we, at a minimum,

would like Congress’ commitment to entertain Trust Standards, and possibly estab-
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lish clear trust standard, that may be in agreement by the Government and all Native American Nations, prior to any proposed reorganization of major agencies and

their functions or trust reform. Without clear trust standards, any reorganization

or reform would be based on a system that lacks responsibility or accountability.

Thus, any such proposed reorganization or trust reform would still falter, and result

in the same lack of responsibility or accountability. Let us work together in any proposed reorganization or trust reform. Who better to provide you with what works

and what doesn’t work, than the trustee of this relationship.

In the past, we have worked with the Government in a way where we, the Navajo

Nation reacted to your proposals rather than proactively with your proposals. The

Navajo Nation believes that today is truly historic. This committee is providing us

the opportunity to proactively work with any of your proposals, by allowing us to

provide suggestions, prior to approaching proposed agency and function reorganization and trust reform. The Navajo Nation requests a list of those major agencies

and functions that may be proposed for reorganization. Further, we recommend the

Congress provide adequate time for Native American Nations to review the list and

functions. The Navajo Nation would be greatly impacted, as we, along with other

Native American Nations, work with several agencies within the Department of the

Interior, that is, the Bureau of Land Management, Bureau of Reclamation, and

Parks and Service, to name a few.

It is also important to know when an agency and its functions are working as intended, thus, not requiring reorganization. Let us, the Congress and Native American Nations, as we work together, know when reorganization is not the answer and

hold steadfast in our possible agreements to not reorganize an agency or its functions.

Finally, the Navajo Nation stresses to this committee, and the Congress, to avoid

a ‘‘one size fits all’’ approach to any proposed reorganization or trust reform. As Vice

Chairman Senator Inouye noted in a statement at the NCAI Legislative Summit 2

weeks ago, we must be wary of any trust reform. We must take thorough look at

all the difference among all Native American Nations. What works for one Native

Amen*can Nation may not work for another. Let us not go down the road of dividing

us by proposing a ‘‘one size fits all’’ approach. Let us work together to identify the

differences and address those differences through meaningful consultation, which I

commented on earlier in my testimony. We, both Congress and Native American Nations, will then realize our common goal. Trust Responsibility and Accountability.

In summation, I want to reiterate those points of utmost concern to Navajo People

and, if addressed appropriately, will ensure a successful reorganization and improved relations among the Native American Nations and the Federal Government.

First, We seek a commitment from Congress to fund any proposed reorganization

with new dollars, not at the expense of Native American Programs. Second, we seek

a commitment to full, complete, and good faith government-to-government consultation with Native American Nations. Third, together we must establish clear trust

standards or our labor will be for naught. Fourth, we must work together to identify

those ‘‘major agencies,’’ and their ‘‘functions,’’ subject to reorganization to confirm

that reorganization or reform is necessary. Finally, as we begin this journey, let us

be mindful that Native American Nations differ dramatically in government structure and land base. A sure road to failure will be to attempt a cheap or quick fix;

we must avoid a ‘‘one size fits all’’ approach to reorganization.

Thank you.
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