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66–350 PDF 2011

S. HRG. 112–32

S. 546, THE LITTLE SHELL TRIBE OF CHIPPEWA

INDIANS RESTORATION ACT OF 2011; S. 636,

A BILL TO PROVIDE THE QUILEUTE INDIAN

TRIBE TSUNAMI AND FLOOD PROTECTION, AND

FOR OTHER PURPOSES; AND S. 703, THE

HELPING EXPEDITE AND ADVANCE

RESPONSIBLE TRIBAL HOMEOWNERSHIP ACT

OF 2011

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

APRIL 14, 2011

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

DANIEL K. AKAKA, Hawaii, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

LORETTA A. TUELL, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III)

C O N T E N T S 

Page 

Hearing held on April 14, 2011 .............................................................................. 1

Statement of Senator Akaka ................................................................................... 1 

Statement of Senator Barrasso ............................................................................... 2

Statement of Senator Cantwell .............................................................................. 5

Statement of Senator Tester ................................................................................... 3

WITNESSES

Causley, Cheryl A., Chairwoman, National American Indian Housing Council 61

Prepared statement .......................................................................................... 63

Cleveland, Hon. Bonita, Chair, Quileute Tribe ..................................................... 36

Prepared statement with attachments ........................................................... 38

Gottschalk, K. Jerome, Staff Attorney, Native American Rights Fund .............. 24

Prepared statement with attachment ............................................................. 27

Laverdure, Donald ‘‘Del’’, Principal Deputy Assistant Secretary, Indian Affairs, U.S. Department of the Interior ................................................................ 7

Prepared statement .......................................................................................... 8

Sinclair, Hon. John, President, Little Shell Tribe of Chippewa Indians of 

Montana ................................................................................................................ 20

Prepared statement .......................................................................................... 21

Skibine, George T., Deputy Assistant Secretary For Management, Indian 

Affairs, U.S. Department of the Interior ............................................................ 10

Prepared statement .......................................................................................... 11

Tippeconnie, Robert, Southern Plains Area Vice President, National Congress 

of American Indians ............................................................................................. 56

Prepared statement with attachments ........................................................... 57

APPENDIX

Cherokee Nation, prepared statement ................................................................... 74

Puyallup Tribe of Indians, letter and Tribal Council Resolution No. 210411-

A ............................................................................................................................ 71

(1)

S. 546, THE LITTLE SHELL TRIBE OF CHIPPEWA INDIANS RESTORATION ACT OF 2011; 

S. 636, A BILL TO PROVIDE THE QUILEUTE 

INDIAN TRIBE TSUNAMI AND FLOOD

PROTECTION, AND FOR OTHER PURPOSES; 

AND S. 703, THE HELPING EXPEDITE

AND ADVANCE RESPONSIBLE TRIBAL

HOMEOWNERSHIP ACT OF 2011

THURSDAY, APRIL 14, 2011

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:20 p.m. in room 

628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. DANIEL K. AKAKA,

U.S. SENATOR FROM HAWAII 

The CHAIRMAN. The Committee will come to order. 

This afternoon, the Committee will hold a legislative hearing on 

three bills that will have, without question, a significant impact on 

the lives of individual Indians and will improve how tribes are able 

to use their own resources. 

The first bill, S. 546, the Little Shell Tribe of Chippewa Indians 

Restoration Act of 2011, was introduced by Senator Tester. In fact, 

if I recall correctly, this is the first bill that Senator Tester introduced when he became a United States Senator. This bill would extend recognition to the Little Shell Tribe of Chippewa Indians and 

make them eligible for all the rights and privileges afforded to federally-recognized tribes. 

Senator Tester has been a great champion of this bill, and I am 

sure he will have more to say about the importance of the bill in 

his opening statement. 

The second bill we will discuss today is S. 636, the Quileute Indian Tribe Tsunami and Flood Protection Act. Senator Cantwell introduced this bill, that will allow the Quileute Tribe to settle longstanding boundary issues and move their people to safer ground 

outside a tsunami and flood zone. 

2

And the third bill we will discuss is S. 703, the Helping Expedite 

and Advance Responsible Tribal Homeownership Act of 2011. This 

legislation is known as the HEARTH Act. I was pleased to be an 

original co-sponsor of this bill with my partner, Vice Chair and 

good friend, Senator Barrasso. The HEARTH Act will streamline 

the leasing process for tribes and individuals. This will help tribes 

use their resources in a more efficient way, and to provide economic development, education, housing and other opportunities for 

their members. 

Today we will hear from the Administration, the affected tribes 

and Indian organizations on these bills. I encourage any other interested parties to submit written comments to the Committee. The 

hearing record will remain open for two weeks from today. 

Senator Barrasso, I would like to ask you for your opening statement. 

STATEMENT OF HON. JOHN BARRASSO,

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you very much, Mr. Chairman. I 

thank you for holding the hearing today, and I greatly appreciate 

your willingness to direct the Committee’s attention to my bill, S. 

703, commonly referred to as the HEARTH Act. 

I want to thank you and Senators Tester and Johnson and Thune 

and Udall for agreeing to co-sponsor this piece of legislation. As 

you know, this Act has been a priority of the Committee for a number of years now. During the 111th Congress, the Committee approved by voice vote a virtually identical bill. This Act provides Indian tribes with an alternative process for long-term leases of 

lands, a process that would not require the Secretary of the Interior to approve leases of surface lands. I think that would eliminate 

a lot of red tape. 

I must say, Mr. Chairman, with regard to S. 546, the bill which 

would recognize the Little Shell Tribe, I understand and appreciate 

how important this measure is to Senator Tester, and I know it is 

important to the Little Shell members who support it. I do feel 

compelled to reiterate the comments that I made at the Committee’s business meeting last week with regard to the Chairman’s Native Hawaiian bill. In my view, the significance of recognizing a 

tribal group is far-reaching for the tribe, for its members and for 

the United States. 

That is why we have an exacting administrative recognition process to determine which native groups should be recognized by the 

Federal Government and which native groups should not. The Executive Branch is better suited, in my opinion, than the Congress 

to perform the factual and historical analysis necessary to reach 

the right decision in these cases. That has been and continues to 

be my position on the tribal recognition bills that have been referred to the Committee. 

In this particular case, I understand that Little Shell has pursued the recognition process and is now appealing a negative decision by the Department. I don’t know if it is good policy for Congress to second-guess the Department in these difficult decisions, 

and for those reasons I cannot support this bill. 

3

Finally, Mr. Chairman, I want to thank our witnesses for traveling long distances to be here today, and I look forward to hearing 

their testimony. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator. 

Now I would like to call on Senator Tester. 

STATEMENT OF HON. JON TESTER,

U.S. SENATOR FROM MONTANA 

Senator TESTER. Thank you, Mr. Chairman, and I want to thank 

Ranking Member Barrasso for his honest thoughts about the recognition bill. I do want to get into a little bit of the history to refresh and maybe give some additional information. But most importantly, I want to thank you, Mr. Chairman, for holding this hearing 

not only on the Little Shell bill, but also on the HEARTH Act. I 

think the HEARTH Act is critically important to folks in Indian 

Country, particularly in the west. 

As we have discussed in past years, Federal recognition of the 

Little Shell Tribe of Montana is long overdue. They have been a 

part of Montana’s history and culture for generations. The tribe is 

recognized by the people of Montana, our State government, all of 

our tribal governments, in fact, the Montana-Wyoming Tribal 

Leaders Council just faxed me a letter of support yesterday. I 

would ask, Mr. Chairman, that we could include that in today’s 

Committee record. 

The CHAIRMAN. Without objection, so ordered. 

Senator TESTER. Thank you. 

[The information referred to follows:]

4

Senator TESTER. The Native American Rights Fund and other 

national Indian advocacy groups also recognize them as an American Indian tribe. Apparently, the only group who doesn’t recognize 

the Little Shell of Montana is the U.S. Department of the Interior. 

And actually, in 2000 they did recognize them. That was the year 

they issued a positive decision stating that in its petition for Federal recognition, the tribe met all seven of the mandatory criteria. 

Let me repeat that. In the year 2000, the Department of the Interior found the Little Shell Tribe of Montana had met all seven of 

the mandatory criteria. 


414d1.eps
5

But the Department wanted more paperwork, so the tribe submitted 10,000 pages of additional documents and the agency reversed their decision. That is why we are here today. 

So Mr. Chairman, I understand the Department of the Interior 

is doing a lot of important things. I have friends all over that Department, some of them here today. For the most part, we work 

very, very well together. But on this issue, I think we can do better. 

So let me be clear about one thing. I would much rather have 

the tribes get recognition through the administrative process, as 

the Ranking Member indicated. These critical decisions should be 

based on history and science and culture, rather than the politics 

of today. 

However, we do have alternative ways for recognition of tribes, 

because the administrative process isn’t always perfect. It doesn’t 

always work the way it was intended, and the Little Shell Tribe 

is a good example of one of the few times Congress should override 

the administrative process. We have held hearings on past versions 

of this bill, and the broken recognition process in general. 

People familiar with the Little Shell are well aware of their efforts to gain recognition. Early in the late 1800s, early 1900s, Congress appropriated money to purchase a land base for the tribe, but 

the BIA didn’t do it. In 1934, after Congress passed the Indian Reorganization Act, the BIA told Little Shell it couldn’t recognize 

them because the tribe had no land base. 

In 1940, the BIA told them that although they deserved recognition, the agency didn’t have the money any more. And if you fast 

forward to 1978, six months before BIA even issued its final regulations that created the Federal acknowledgment process, the Little 

Shell Tribe submitted its application. For 14 years, this homeless, 

impoverished Indian tribe in rural Montana collected documents 

and other evidence to prove their historical evidence. Despite their 

persistence, and a lot of help from good advocates, the administrative process failed them once again. 

In 2009, nine years after the announcement of a preliminary 

positive decision, and collecting even more evidence of them as a 

tribe, the BIA changed its mind and wrongly denied their petition 

for recognition. My bill simply seeks to right that wrong. Mr. 

Chairman, the bill simply requires the Department of the Interior 

to treat the members of the Little Shell Tribe the same way they 

treat every other American Indian Tribe in our State and in our 

Nation. Recognizing the Little Shell Tribe of Montana is the right 

thing to do, and from my perspective, it is long overdue. 

So I want to thank you again for holding this hearing, and thank 

you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Tester, for your 

opening statement. 

Senator Cantwell, I recognize you for an opening statement. 

STATEMENT OF HON. MARIA CANTWELL,

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman, and I want to 

thank you and Vice Chairman Barrasso for holding this important 

6

hearing, particularly on the Quileute Tribe Tsunami Protection bill, 

and for doing so so quickly. 

I also want to thank all the witnesses for coming here today, especially Chairwoman Bonita Cleveland for coming all the way from 

La Push, in my home State of Washington, to testify on the second 

panel. She not only had to fly 2,000 mile but also had to drive four 

hours and take a ferry ride to get here from the Quileute Reservation. 

The Quileute reside on a one square mile reservation surrounded 

by the Olympic National Park, and bluffs. And the Quileute have 

one of the most beautiful beaches in the world. While the setting 

may be very picturesque, the tribe faces danger every day. Because 

of the small size of the tribe’s reservation, most of their tribal facilities, including their day care center, elder center, tribal office 

and home sites sit directly in the path of a potential tsunami. 

Just a few weeks ago, in the early morning, the Quileute tribe 

evacuated several hundred people to higher ground because of the 

potential tsunami caused by the large quake in Japan hours earlier. Fortunately, the tribe had hours of advance warning to start 

the evacuation and the tsunami that eventually arrived was small. 

However, a tsunami caused by an earthquake on the Cascadia 

Subduction Zone Fault, just off Washington coast, would arrive 

much more quickly and without warning. So the tribe would only 

have minutes to evacuate hundreds of people. 

In an effort to help itself, the tribe has moved as many people 

to higher ground as possible. But there is very little usable space 

left within the reservation that is not within a tsunami flood zone. 

So there is no safe, buildable land on the reservation. 

The goal of this legislation is to help the tribe move all of its tribal facilities out of the tsunami zone and away from the threat of 

flooding from the river. And this sensible legislation would increase 

economic opportunity and safeguard the Quileute families and 

their property from the devastating tsunami and floods. This legislation is the product of government-to-government negotiations between the Quileute and the National Park Service, with the goals 

of helping the tribe and moving forward in the region. 

Included in this legislation, through negotiations with the tribe 

and the Park, is an agreement that fixes the northern border of the 

reservation, and ensures Park visitors access to some of the most 

beautiful beaches on the Washington coast. Helping the Quileute 

Tribe move their facilities 800 feet up and out of the tsunami zone 

is the primary purpose of this legislation. However, it will ensure 

visitors access to Second Beach, Rialto Beach, and preserve thousands of acres of Olympic National Park as wilderness. 

Again, I thank the Chairman and the Vice Chairman for holding 

this hearing. I look forward to hearing from the Department of the 

Interior on this legislation. 

The CHAIRMAN. Thank you very much, Senator Cantwell, for 

your opening statement. 

With that, I welcome the witnesses. I know that many of you 

have traveled far to be with us today, and we greatly appreciate 

your willingness to testify in this hearing. We will have three panels to hear from today, so I ask that you limit your oral testimony 

7

to five minutes. Your full written testimony will be included in the 

record. 

I welcome our first panel of witnesses to the Committee today. 

Mr. Donald Laverdure, the Principal Deputy Assistant Secretary of 

Indian Affairs at the Department of the Interior. And Mr. George 

Skibine, the Deputy Assistant Secretary of Management, at the Department of the Interior. 

I understand that Mr. Laverdure will testify on the HEARTH Act 

and the Quileute legislation, and Mr. Skibine will testify on the 

Little Shell legislation. Mr. Laverdure, will you please proceed with 

your testimony? 

STATEMENT OF DONALD ‘‘DEL’’ LAVERDURE, PRINCIPAL

DEPUTY ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S.

DEPARTMENT OF THE INTERIOR 

Mr. LAVERDURE. Thank you, and good afternoon, Mr. Chairman, 

Senator Tester. My name is Donald ‘‘Del’’ Laverdure, and I’m the 

Principal Deputy Assistant Secretary for Indian Affairs at the Department of the Interior. I am pleased to be here today to present 

the Department’s views on these two bills. 

The first is S. 636, which is a bill to provide the Quileute Indian 

Tribe tsunami and flood protection through conveyances of land 

from the National Park Service. And the second bill, S. 703, is the 

HEARTH Act, the Helping Expedite and Advance Responsible Tribal Homeownership Act. 

First, on the Quileute bill, the Department supports S. 636. We 

know that the Quileute is a smaller, federally-recognized tribe in 

the State of Washington. The tribe’s current reservation consists of 

approximately 880 acres and is home to approximately 375 residents. The reservation is bordered to the north by the Quileute 

River and to the east and south by Olympic National Park. Most 

of the reservation is located within the flood zone. And much of the 

tribal infrastructure, as described earlier, including their administration buildings, schools, the elder center and housing, is within 

the tsunami zone. 

Recent tsunamis in the Pacific Ocean, including the one which 

struck Japan last month and created a huge disaster, clearly demonstrate the risk faced by the tribe and its citizens and the need 

to move housing and infrastructure inland. Therefore, this legislation would make available to the Quileute Tribe 785 acres of land 

currently within the boundary of Olympic National Park, in order 

to facilitate the tribe’s move to new lands on higher ground and 

away from the frequent flooding and tsunami risk that the tribe 

must currently contend with. 

S. 636 also seeks to protect the natural resources of the land removed from the park, to encourage agreements between the National Park Service and the tribe on matters related to the land, 

and to designate approximately 4,100 acres of Olympic National 

Park lands as wilderness. The National Park Service has worked 

collaboratively with the tribe over many years to address numerous 

issues. As such, the Department supports S. 636 in its balance of 

tribal safety and protection of park resources as well as visitor access. 

That concludes my statement on S. 636. 

8

The Department also strongly supports S. 703, the HEARTH Act, 

which would amend certain sections of 25 U.S.C. Section 415, also 

known as the Indian Long-Term Leasing Act, to permit tribes that 

choose to develop their own leasing program to approve and enter 

into certain leases without prior express approval from the Secretary of Interior. Under this legislation, willing tribes would initially submit their own leasing regulations to the Department for 

approval. 

Following secretarial approval of such leasing regulations, tribal 

governments would process leases for tribal trust land at the local 

level pursuant to their own laws, and without a requirement for 

further approval by the Secretary. This has the potential to significantly reduce the time it takes to approve leases for homes and 

small businesses. 

Pursuant to the HEARTH Act, leases would be limited to an initial term of 25 years, but could be renewed up to two additional 

terms of 25 years each. The HEARTH Act also requires the Department to review tribal leasing regulations within 120 days, but does 

provide us with the flexibility to extend this time period in consultation with the applicant tribe. 

The HEARTH Act also ensures that the Department will retain 

the authority to fill its trust obligation, to protect tribal trust lands 

through the enforcement or cancellation of leases approved under 

tribal regulations or the rescission of secretarial approval of tribal 

leasing regulations where it is appropriate. At the same time, the 

HEARTH Act ensures that the United States will not be liable for 

losses incurred as a result of leases approved under their own tribal leasing regulations. 

Finally, the HEARTH Act would require the BIA to prepare and 

submit a report to Congress regarding the history and experience 

of Indian tribes that have chosen to assume this responsibility for 

operating certain Indian Land Title and Records Office, or LTRO, 

functions from the Bureau. Such review would include consultation 

with the Department of Housing and Urban Development, Office of 

Native American Programs, and those tribes managing LTRO functions. The Department agrees with the factors to be considered in 

the review. 

Again, the Department strongly supports S. 703, and wants to 

continue our conversations with the Committee on further refinements to the text of the bill. In closing, I look forward to working 

with this Committee in continued support of tribal nations. This 

concludes my statement, and I am happy to answer any questions 

that you may have. 

[The prepared statement of Mr. Laverdure follows:]

PREPARED STATEMENT OF DONALD ‘‘DEL’’ LAVERDURE, PRINCIPAL DEPUTY ASSISTANT

SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

S. 636 

Mr. Chairman and members of the Committee, thank you for the opportunity to 

appear before you today to present the Department of the Interior’s views on S. 636, 

a bill to provide the Quileute Indian Tribe tsunami and flood protection, and for 

other purposes. 

The Department supports S. 636. This legislation would make available to the 

Quileute Indian Tribe 785 acres of land currently within the boundary of Olympic 

National Park in order to facilitate the tribe’s move to new lands on higher ground, 

9

away from the frequent flooding and the tsunami risk that the tribe currently must 

contend with. The legislation also seeks to protect the natural resources of the land 

removed from the park, to encourage agreements between the National Park Service 

and the tribe on matters related to the land, and to designate approximately 4,100 

acres of Olympic National Park as Wilderness. 

The Quileute Indian Tribe is a small, Federally recognized tribe in the State of 

Washington. The Quileute Indian Reservation, established in 1889, is located on the 

Olympic Peninsula along the Pacific Ocean. The reservation is bordered to the north 

by the Quillayute River and to the east and south by Olympic National Park. It consists of approximately 880 acres and is home to about 375 residents. Most of the 

reservation is located within the flood zone and much of the tribal infrastructure, 

including their administrative buildings, school, elder center, and housing is within 

the tsunami zone. Recent tsunamis in the Pacific Ocean, including the one which 

struck Japan last month, clearly demonstrate the risk faced by the tribe and the 

need to move housing and infrastructure inland. 

The 785 acres of land within Olympic National Park that would be held in trust 

for the tribe under S. 636 are in two parcels. The northern parcel, known as Thunder Field, is comprised of approximately 510 acres along the south side of the 

Quillayute River. A 275-acre parcel, 220 acres of which are designated wilderness, 

lies immediately south of the current reservation boundary. There are no parkowned facilities or trails in this area, and there are few opportunities for park visitors. 

In addition to providing for the 785 acres to be held in trust by the United States 

for the benefit of the Quileute Indian Tribe, and to excluding this land from the 

boundary of Olympic National Park, S. 636 also would:

• designate approximately 4,100 acres of new wilderness within Olympic National 

Park as additions to the existing Olympic Wilderness;

• provide for placing in trust for the benefit of the tribe the approximately 184 

acres of non-Federal land that the tribe has recently acquired;

• express the intent of Congress regarding preservation, protection and alteration 

of the 785 acres, and cooperative efforts between the National Park Service and 

the tribe.

• provide specific restrictions on the use of the 785 acres in order to protect the 

land’s resources; and

• provide for continued public access and use of park and tribal lands at Second 

Beach, Rialto Beach, and along the Quillayute and Dickey Rivers.

The National Park Service has worked collaboratively with the tribe over many 

years to address these issues. As such, the Department supports S. 636 and its balance of tribal safety with protection of park resources and visitor access. 

S. 703

Good afternoon Mr. Chairman and members of the Committee. My name is Del 

Laverdure and I am the Principal Deputy Assistant Secretary for Indian Affairs at 

the Department of the Interior. I am pleased to be here today to present the Department’s views regarding S. 703, the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act. 

This Administration continues to support tribal self-determination, and we recognize that tribal control over tribal resources is intrinsic to this policy. 

We understand that tribal homelands are essential to the health, safety, and welfare of the First Americans, and that it is important for Indian tribes to have the 

ability to determine how their homelands will be utilized. This is why the Department is in the process of revising our own regulations governing leasing on Indian 

lands. Our revisions will streamline the process by which leases of Indian lands are 

approved, thereby promoting homeownership, economic development, and renewable 

energy development on tribal lands. 

The HEARTH Act is consistent with this effort, and we are pleased to strongly 

support this legislation. S. 703 would amend certain sections of 25 U.S.C. § 415 (the 

Indian Long-Term Leasing Act) to permit tribes that choose to develop their own 

leasing program to approve and enter into certain leases without prior express approval from the Secretary of the Interior. Under this legislation, willing tribes would 

initially submit their own leasing regulations to the Secretary of the Interior for approval. Following Secretarial approval of such leasing regulations, tribal governments would process leases for tribal trust land at the tribal level, pursuant to their 

own laws, without a requirement for further approval of the Secretary. This has the 

potential to significantly reduce the time it takes to approve leases for homes and 

small businesses. 

10

Pursuant to the HEARTH Act, leases would be limited to an initial term of 25 

years, but could be renewed for up to two additional terms of up to 25 years each. 

Tribes could also approve leases for public, religious, educational, recreational, or 

residential purposes for a term of up to 75 years where permitted by tribal regulations. Tribal leasing regulations would not apply to mineral leases or leases of individual Indian allotments. 

As noted above, under S. 703, tribes that desire to develop and implement their 

own regulations governing leasing would be able to submit tribal regulations for approval by the Secretary of the Interior. The Secretary would be required to approve 

tribal regulations that are consistent with the Department’s own regulations governing leasing on Indian lands. The HEARTH Act requires the Department to review tribal leasing regulations within 120 days, but does provide us with the flexibility to extend this time period in consultation with the affected tribe. 

The HEARTH Act ensures that the Department will retain the authority to fulfill 

its trust obligation to protect tribal trust lands through the enforcement or cancellation of leases approved under tribal regulations, or the rescission of Secretarial approval of tribal leasing regulations, where appropriate. At the same time, the 

HEARTH Act ensures that the United States will not be liable for losses incurred 

as a result of leases approved under tribal leasing regulations. 

Finally, the HEARTH Act would require the BIA to prepare and submit a report 

to Congress regarding the history and experience of Indian tribes that have chosen 

to assume responsibility for operating certain Indian Land Title and Records Office 

(LTRO) functions from the BIA. Such review would include consultation with the 

Department of Housing and Urban Development Office of Native American Programs, and those Indian tribes managing LTRO functions. The Department agrees 

with the factors to be considered in the review. 

We anticipate that the HEARTH Act will ultimately reduce the costs of implementing tribal leasing programs for the Federal Government by allowing willing 

Tribes to assume control of leasing on tribal lands. By increasing efficiency in the 

implementation of tribal leasing programs, the HEARTH Act will go a great distance in promoting homeownership, economic development, and renewable energy 

development by restoring tribal authority over tribal lands. The Department strongly supports S. 703 and wants to continue our conversations with the Committee on 

further refinements to the bill text. In closing, I look forward to working with this 

Committee in continued support of Indian tribes. 

Thank you for the opportunity to present testimony on S. 703. I will be happy 

to answer any questions you may have.

The CHAIRMAN. Thank you very, very much for your testimony. 

Mr. Skibine, will you please proceed with your testimony? 

STATEMENT OF GEORGE T. SKIBINE, DEPUTY ASSISTANT

SECRETARY FOR MANAGEMENT, INDIAN AFFAIRS, U.S.

DEPARTMENT OF THE INTERIOR 

Mr. SKIBINE. Thank you very much, Mr. Chairman, Senator Tester. My name is George Skibine, I am the Deputy Assistant Secretary for Management, Indian Affairs at Interior. I am here today 

to provide the Administration’s testimony on S. 546, the Little 

Shell Tribe of Chippewa Indians Restoration Act of 2011. 

Essentially, the Department is not opposed to enactment of S. 

546. We recognize that Congress has the authority to recognize 

American Indian groups as Indian tribes with a government-to-government relationship with the United States. 

S. 546, the Little Shell Tribe, if enacted, would acknowledge the 

Little Shell Tribe of Chippewa Indians of Montana. This group is 

Petitioner Number 31 in the Federal acknowledgment process and 

has submitted its letter of intent a long time ago, back in 1978. I 

just want to point out that in 1978, I was in the second year of my 

career at Interior. I was a much younger man, just almost as good 

looking as Mr. Laverdure here. Those days are gone, so I am making that point to say that this has been a very long process for the 

11

Little Shell Band, and one that is, because of its length, is a cause 

of concern for our boss, Assistant Secretary Larry Echo Hawk. 

At any rate, the decision became final in 2009. It is not actually 

final for the Department, it was final for the Assistant Secretary. 

But under our regulations, the Little Shell Band filed a request for 

reconsideration before the Interior Board of Indian Appeals in 

2010. And from what I understand, all briefings before the Board 

have been completed, and a decision should be coming fairly closely. 

In its final determination, the Department denied Federal acknowledgment to the Little Shell Tribe because the evidence 

showed, in our view, that the group failed to meet three of the 

seven mandatory criteria. Nevertheless, having not been acknowledged, the tribe is seeking Congressional redress at this point. We 

agree that this Congress should only exercise this option sparingly, 

and only in instances where there is an overriding reason to bypass 

the regulatory process. But I think Senator Tester in his opening 

comment specified that this perhaps was one such instance. 

This concludes my comments on S. 546. We would like to work 

with the Committee as the bill moves forward regarding some technical issues we have with some of the findings in the bill. Thank 

you very much. 

[The prepared statement of Mr. Skibine follows:]

PREPARED STATEMENT OF GEORGE T. SKIBINE, DEPUTY ASSISTANT SECRETARY FOR

MANAGEMENT, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Good morning, Mr. Chairman and Members of the Committee. My name is George 

Skibine. I am the Deputy Assistant Secretary for Management—Indian Affairs at 

the Department of the Interior (Department). 

I am here today to provide the Administration’s testimony on S. 546, the Little 

Shell Tribe of Chippewa Indians Restoration Act of 2011. 

The recognition of another sovereign is one of the most solemn and important responsibilities delegated to the Secretary of the Interior. The Department believes 

that the Federal acknowledgment process allows for the uniform and rigorous review necessary to make an informed decision establishing this important government-to-government relationship. However, we also acknowledge that under the 

United States Constitution, Congress has the authority to recognize American Indian groups as Indian tribes with a government-to-government relationship with the 

United States. For this reason, we do not oppose enactment of S. 546. 

Background 

In 1978, the Department promulgated regulations for the Federal process for 

groups seeking acknowledgment as Indian tribes. These Departmental regulations 

are found at Part 83 of Title 25 of the Code of Federal Regulations (25 CFR part 

83) ‘‘Procedures for Establishing that an American Indian Group exists as an Indian 

Tribe.’’

To be acknowledged under the Department’s Part 83 regulations, petitioning 

groups must demonstrate that they meet each of seven mandatory criteria. The petitioner must:

1. demonstrate that it has been identified as an American Indian entity on a 

substantially continuous basis since 1900;

2. show that a predominant portion of the petitioning group comprises a distinct 

community and has existed as a community from historical times until the 

present;

3. demonstrate that it has maintained political influence or authority over its 

members as an autonomous entity from historical times until the present;

4. provide a copy of the group’s present governing document including its membership criteria;

5. demonstrate that its membership consists of individuals who descend from 

an historical Indian tribe or from historical Indian tribes that combined and 

12

functioned as a single autonomous political entity and provide a current membership list;

6. show that the membership of the petitioning group is composed principally 

of persons who are not members of any acknowledged North American Indian 

tribe; and

7. demonstrate that neither the petitioner nor its members are the subject of 

congressional legislation that has expressly terminated or forbidden the Federal 

relationship.

A criterion shall be satisfied if the available evidence establishes a reasonable 

likelihood of the validity of the facts relating to that criterion. A petitioner must satisfy all seven of the mandatory criteria in order for the Department to acknowledge 

the continued tribal existence of a group as an Indian tribe under the Part 83 regulatory process. 

The Department’s acknowledgment process provides the thorough and deliberate 

evaluation which must occur before the Department acknowledges a group’s tribal 

status. These decisions must be fact-based, equitable, and thus legally defensible. 

While Congress may grant recognition to Indian tribes, the Department’s position 

is that legislative action should be reserved for those cases where there is an overriding reason or reasons to bypass the Department’s regulatory process. 

S. 546, the Little Shell Tribe of Chippewa Indians Restoration Act 

S. 546, the Little Shell Tribe of Chippewa Indians Restoration Act of 2011 would 

acknowledge the Little Shell Tribe of Chippewa Indians of Montana. This group, Petitioner #31 in the Department’s Federal acknowledgment process, submitted its letter of intent to the Department in 1978, and completed documenting its petition in 

1995. A Final Determination against the federal Acknowledgment of the Little Shell 

Tribe of Chippewa Indians of Montana was issued on October 27, 2009, and published in the Federal Register on November 3, 2009, 74 Fed Reg. 56861. The decision is not final and effective for the Department because the Little Shell Tribe filed 

a request for reconsideration before the Interior Board of Indian Appeals (IBIA) on 

February 1, 2010. All briefings before the IBIA have been completed, and the matter 

is ready for a decision. 

In its Final Determination, the Department denied Federal acknowledgment to 

the Little Shell Tribe because the evidence showed that the group failed to meet 

three of the seven mandatory criteria in 25 CFR Part 83. Having been denied acknowledgment as an Indian tribe through the Department’s regulatory process, the 

Little Shell Tribe now has turned to Congress for federal acknowledgement, since 

there is no other avenue to obtain tribal status. It is the position of the Department 

that Congress should use its power to recognize American Indian groups through 

legislation sparingly, and only in instances where there is an overriding reason to 

bypass the Department’s regulatory process. 

In closing, if the Congress chooses to move forward with S. 546, we would like 

to work with the Committee on clarifying some issues related to the Department’s 

findings. 

This concludes my prepared statement. I am happy to answer any questions the 

Committee may have. Thank you.

The CHAIRMAN. Thank you very much, Mr. Skibine. 

Let me ask this question to Mr. Laverdure. Can you describe the 

steps that would be taken following enactment of this legislation to 

transfer the lands into trust for the Quileute Tribe? And comment 

on how long you think the process would take. 

Mr. LAVERDURE. Thank you, Mr. Chairman. In truth, in the language of the bill, it appears that the language would require mandatory acquisition as opposed to discretionary. And the transfer of 

those lands should, I couldn’t give a specific time period, but it 

should move expeditiously because they are already in Federal 

title, and the transfer would be from the National Park Service 

over to the Bureau of Indian Affairs on behalf of the Quileute Nation. 

The CHAIRMAN. When you say expeditiously, can you give me a 

time frame on that? 

13

Mr. LAVERDURE. I wish I could, Mr. Chairman, other than to say 

that we will move it as fast as we can, assuming the bill passes. 

The CHAIRMAN. Mr. Laverdure, if the HEARTH Act is enacted 

and tribes seek the authority it grants, is the Department prepared 

to put in place the internal processes to make sure the leasing regulations are reviewed in a timely manner? 

Mr. LAVERDURE. Yes, Mr. Chairman. In fact, the Department is 

undergoing consultation on the revision of our existing leasing regulations, which have been agricultural regulations and non-agriculture. And during this consultation period, we have had three 

sessions recently in the last few weeks. We are going to take a revision of these 50-year old regulations so that they reflect modern 

times for economic development, residential leasing and the like. 

Because of the significant changes, all of that will help us expedite and implement the HEARTH Act, should it be passed by Congress and signed by the President. 

The CHAIRMAN. Thank you. 

Mr. Skibine, at a hearing before this Committee in November 

2009, you stated that the Department is committed to reforming 

the acknowledgment process and is currently exploring ways to improve that process. Can you please provide the Committee with an 

update on your efforts to reform the acknowledgment process? 

Mr. SKIBINE. Yes, Mr. Chairman, thank you for this question. 

When Assistant Secretary Echo Hawk was before this Committee 

for confirmation, he made a commitment at the instigation of some 

of the members of the Committee to take a very hard look at the 

current process for acknowledgment and to essentially see what 

could be done. So he instructed me to start working on this process. 

And what we did over the past two years is develop potential appropriate amendments to the regulation in 25 C.F.R. Part 83 that 

would essentially streamline the process. We are trying to get a 

regulation that will have a definite beginning and where there will 

be a definite ending, so we will know exactly how long this process 

will take. Obviously, it is taking too long right now. 

So that is what we are developing. We are looking at the standard for review of the seven mandatory standards. We are taking a 

look at the standards themselves to see if those should be changed 

because of the issue that we have found with implementation of the 

standard. What I propose is to shorten the process by eliminating 

review before the Interior Board of Indian Appeals, which is where 

Little Shell is now. But that process in the past could take two or 

three years, in addition to where they are right now. 

So we are trying to eliminate that, and instead provide some sort 

of administrative forum before the Assistant Secretary makes a 

final decision. What I have found is in effect that, I think some of 

the groups that are petitioning also feel that it is not a fair process, 

or necessarily impartial. We want to inject an individual in there 

that would essentially be submitting a recommended decision to 

the Assistant Secretary that would be outside of the process right 

now. 

Also what I want to do is eliminate the endless extensions that 

are granted under the current regulations. Granted, they are 

granted both to the petitioner and to the Government. But essenVerDate 0ct 09 2002 08:19 Aug 05, 2011 Jkt 066350 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 S:\DOCS\66350.TXT JACK
14

tially what I have seen is that tends to lengthen the process considerably. 

So these are the kinds of things that we are looking to do. A 

draft has been developed by the staff. It is now under review by 

our political group. Mr. Del Laverdure is recused from the Little 

Shell matter, but in his official capacity as Principal Deputy he 

would be involved in that process of looking at the regulations 

overall. And potentially, then afterwards there would be some consultation with Indian tribes, then a proposed rule in the Federal 

Register and eventually a final rule. 

I think Assistant Secretary Echo Hawk is committed to have that 

process completed before the end of the first term of the Obama 

Administration. 

The CHAIRMAN. I am glad to hear you say that you also consulted 

with the tribes. Is this normally the practice of working on issues 

like this, to consult with the tribes? 

Mr. SKIBINE. Yes. We have a consultation policy at the Department of the Interior, and in Indian Affairs, where we definitely 

consult with Indian tribes on matters affecting them. So yes, we 

would do that normally. 

The CHAIRMAN. Mr. Skibine, can you tell me who the Obama Administration named as the lead person handling Federal recognition decisions at the Department? 

Mr. SKIBINE. The Assistant Secretary, Larry Echo Hawk, is the 

decision maker for Secretary Salazar on acknowledgment decisions. 

If he is recused from that matter, and he is recused from the Little 

Shell matter because of a family conflict, then essentially, at the 

time the decision was left to me as I was then the Acting Principal 

Deputy. Now Mr. Del Laverdure is the Principal Deputy, but he is 

also recused from Little Shell, because of family issues, I suppose, 

and as a result, that is why I am here before you today. 

The CHAIRMAN. Well, thank you very much for revealing that you 

do pay attention to the relationships. I really want to be sure we 

can cut back the persons that are handling this. 

Let me call on Senator Tester for his questions. 

Senator TESTER. Thank you, Mr. Chairman. I want to thank both 

Del and George for being here today. Del, it is always good to see 

you, whether it is here or back in Montana. I appreciate your service. 

The same with you, George. I appreciate your Service very, very 

much, even though we have a disagreement. Now that I know you 

are the decision maker, now we really know where to put the 

blame. 

[Laughter.] 

Senator TESTER. I would just say this. Back in 2000, in my opening statement I talked about the Department of the Interior got a 

positive finding for the Little Shell. They met seven out of seven. 

And I think if I heard your testimony correctly, they didn’t meet 

three out of seven. 

Have those seven things changed? 

Mr. SKIBINE. No, they have not. 

Senator TESTER. Okay, so what has changed? Did somebody blow 

it in 2000 and make a wrong decision? Have the facts changed 

around it? What has changed that ten years ago, a decision could 

15

be made that they met the criteria, and ten years later, they barely 

made half of them? 

Mr. SKIBINE. I think that what happened is that the staff at Interior, in examining the petition after 2000, and after the submission 

of comments, decided that in looking at the evidence that several 

departures from precedent that were made by Assistant Secretary 

Gover in his 2000 determination were in the opinion of the staff 

not warranted. And they went at length to explain why they didn’t 

feel those departures were warranted. 

That is why in the end there was a change in the decision. 

Senator TESTER. Yes, but the change wasn’t made in 2000, was 

it? 

Mr. SKIBINE. No. The decision in 2000 was a proposed decision. 

Then it went out for comment. And in the Federal Register notice, 

in fact, the Secretary at the time did ask for comments on the departure from precedent. In the end, we felt that the departure from 

precedents were not warranted, and that is why the final decision 

came about. 

Senator TESTER. Can you tell me what the three things they 

didn’t meet, what were they if you can tell me briefly? 

Mr. SKIBINE. Yes. The first one is that the petitioners were not 

identified as an Indian entity since 1900 on a substantially continuous basis. That is criterion A. The second one, that the Little 

Shell did not provide sufficient evidence of a distinct community 

from historical time to the present. And third, that the petitioner 

did not provide sufficient evidence of a political influence from historical time to the present. 

Now, I want to point out that because the decision is pending before the Interior Board of Indian Appeals, so the decision is not 

final for the Department, it is sort of an appeal process, I feel uncomfortable——

Senator TESTER. I understand that. I won’t pin you down on that, 

we can wait until later. Hopefully, it won’t be necessary, but we 

can wait until later. 

So when the facts are gathered, back in 2000 when the facts 

were gathered from the Little Shell and anybody else you are gathering facts from, and the information is sorted through, who makes 

the decision on those facts, you or the staff? 

Mr. SKIBINE. The ultimate decision maker is me as the Acting 

Principal Deputy at the time. 

Senator TESTER. Who is the real decision maker? 

Mr. SKIBINE. Well, the fact is this. The fact is that the staff of 

the Federal acknowledgment team essentially puts together the 

final decision package. They have a team of very qualified doctors 

in various fields. And essentially, the final decision, it is a document that is over 25 pages long with appendices. 

Senator TESTER. Is this full-time staff, or are these folks that 

work outside on a contract basis? 

Mr. SKIBINE. They are full-time staff. 

What I have found is, in fact, that by the time the decision comes 

to the Assistant Secretary, it is, in this particular case, we spent 

months going back reading and reading it again and going back to 

the staff. But in effect, it is essentially well nigh impossible to 

change that finding. 

16

Senator TESTER. It is impossible? 

Mr. SKIBINE. It is practically impossible. Because I am not an expert on history, on genealogy and stuff like this. So this is why, 

when we are proposing revisions to these regulations, I think we 

need to somehow alter the process to provide for a decision maker 

to have a somewhat more of a view from——

Senator TESTER. So is part of the process sorting through the information, was any political appointee involved in that process? 

Mr. SKIBINE. No, they were not. 

Senator TESTER. These were all hired folks? 

Mr. SKIBINE. Right. 

Senator TESTER. Okay. So you talk about the fact that it is very, 

very difficult to overturn or to undo what they have done. And I 

get that. 

Let me talk about the Indian Board of Appeals. Who serves on 

that? 

Mr. SKIBINE. There are administrative law judges that are appointed, they are not political appointments. They serve as the 

judges in the Office of Indian Appeals. 

Senator TESTER. Who staffs them? 

Mr. SKIBINE. They have attorneys, career attorneys who staff 

them. 

Senator TESTER. Are any of the people that staff them, or any of 

the people on the Board of Indian Appeals part of the group that 

makes the initial decision whether to recognize or not recognize? 

Mr. SKIBINE. No. 

Senator TESTER. Okay. So all these folks are outside the agency 

that you contract with them? 

Mr. SKIBINE. Yes. 

Senator TESTER. That are on the Indian Board of Appeals? 

Mr. SKIBINE. That is correct. 

Senator TESTER. How often are they turned over? Are they 

turned over per Administration or every two years or what? 

Mr. SKIBINE. The board members? 

Senator TESTER. Yes. 

Mr. SKIBINE. The Interior Board of Indian Appeals judges are 

permanent appointments. 

Senator TESTER. They are permanent appointments. So they 

were there in 2000? 

Mr. SKIBINE. Well, I don’t know that. I am not sure, maybe some 

of them were. I cannot answer that question. 

Senator TESTER. Okay. You could probably find me that answer, 

couldn’t you? 

Mr. SKIBINE. Of course. 

Senator TESTER. Okay. I would like to have that. 

Can you answer me if the Interior Board of Indian Appeals has 

ever reversed a negative determination on recognition? 

Mr. SKIBINE. I think they have. I think what they do is remand 

the matter back to the Assistant Secretary if they have issues with 

that. 

Senator TESTER. Could you tell me when they have done that? 

Mr. SKIBINE. I can provide that answer, but I am not familiar 

with the specific times when this has happened. 

17

Senator TESTER. Okay. The reason I ask is because I don’t believe they ever have. So if I am wrong on that, I would love to get 

the right information. 

Okay, first of all, I appreciate the fact that you are not opposed 

to the bill. And I also appreciate the fact that you came out with 

the decision, even though I think it was an incorrect decision. Ultimately, in the end, it still is ironic to me that a decision, first of 

all, there was a land base that was meant to be acquired back in 

1908, 1914 and 1925, BIA never did it. And this has been going on 

far longer, far longer than, and John Sinclair, the last time he was 

here to testify, his dad started this. Maybe even before that, maybe 

it was his granddad. 

And every political entity in the State of Montana, every tribe 

thinks this is the right thing to do. We have people that have been 

disqualified because they have to be connected with Little Shell 

somehow. And all this stuff just doesn’t make any sense if they 

haven’t been around forever. And they have been around forever. 

But we will continue this process, and I also appreciate the fact 

you are trying to streamline this process, because I think it is very, 

very tough. So that is good. 

Has the Department ever reversed a positive proposed finding on 

Indian recognition? 

Mr. SKIBINE. You mean besides Little Shell? 

Senator TESTER. Yes. 

Mr. SKIBINE. I am not aware of any, but I can also find that information. 

Senator TESTER. That would be good. 

[The information referred to follows:]

18

Senator TESTER. Thank you, Mr. Chairman. Sorry I took so much 

time. 

The CHAIRMAN. Thank you. We will have a second round on 

these questions, Senator Tester. 

Senator Cantwell? 

Senator CANTWELL. Thank you, Mr. Chairman. 

And Mr. Laverdure, thank you so much for your testimony. You 

are in support of this legislation S. 636, is that correct? 

Mr. LAVERDURE. That is correct. 


414d2.eps
19

Senator CANTWELL. And you believe that we have settled any 

concerns or the reservation and the northern boundary and all of 

that? 

Mr. LAVERDURE. All their concerns have been met. 

Senator CANTWELL. Good. That is all I actually had, Mr. Chairman. I will quit while we are ahead. My questions are for the next 

panel. Thank you. 

The CHAIRMAN. Thank you very much, Senator Cantwell. 

Mr. Skibine, let me follow up with a question that has been 

around for a while. This Committee and the Congress have a successful record of restoring and recognizing Indian tribes. Yet we 

have heard over the years many times about the administrative 

process as to how lengthy, burdensome, expensive and non-transparent it is. Will you tell the Committee what you are doing to rectify this process? 

Mr. SKIBINE. Well, as I think I have, in one of the questions earlier, what I said is we are in the process of revising the regulations 

in 25 C.F.R. Part 83, and in order, in the revisions, we have a draft 

that is now under review by the political team. The impetus, what 

we are trying to do, essentially, is to make it a finite process where 

there is a definite beginning, there is a definite end. We are trying 

to shorten the time frames, so that it doesn’t take so long. We are 

trying to eliminate some of the extensions that occur under current 

regulations. We are trying to also hopefully eliminate a BIA review, 

because that is an additional process that can take several years. 

And because, frankly, in my opinion, the review by the IBIA of 

an Assistant Secretary’s decision, that is the only time that the Interior Board of Indian Appeals reviews decisions that are made by 

the Assistant Secretary for Indian Affairs. In all other cases, the 

IBIA can only review decisions of regional directors or underlings, 

but not of the Assistant Secretary. So it is unique and not the common practice for the Board to review those decisions. 

We are also looking at the burden of proof. We want to clarify 

what the burden of proof is for meeting the standards. And I think 

we are also looking at, taking a very close look at the standards 

themselves, 1 through 7 or through A to whatever, especially the 

first three. The first one requires identification on a substantially 

continuous basis since 1900. I think the precedent indicates that 

this has to be every 10 years, it has to be identification from a nonIndian entity. In other words, we are taking a look at this to see 

if that really belongs in there. And then we are taking a look at 

what is in the other two standards also. 

So hopefully, by the time we are done, we will have a process 

that will be shorter, clearer and will essentially be easier to address for the petitioners. 

The CHAIRMAN. Federal recognition decisions are supposed to be 

made using ‘‘reasonable likelihood standard.’’ When you say that 

the Department has ‘‘uniform and rigorous review,’’ aren’t you 

heightening the standard, when the regulations clearly state that 

the conclusive proof is not required? 

Mr. SKIBINE. No, the conclusive proof is not required. And I 

agree with that. We are in fact taking a look at that burden of 

proof to see whether in fact that should be changed. And that is 

one of the things we are taking a look at. 

20

But even under the existing standard, conclusive proof is not required. The question is, it is not technically a legal standard that 

operates in other areas of the law. So should we replace that with 

a more certain standard that is more understandable for everyone, 

like preponderance of the evidence, which is not the normal standard. 

The CHAIRMAN. Yes. Well, as you can tell, we are trying to zero 

in on how we can move some of these decisions along. You point 

out that others with other knowledge and skills maybe need to be 

part of the process. Do you think, and I am trying to get at this, 

but do you think the process is so broken for tribes in seeking recognition that it is time for Congress and this Committee to step 

into the role of recognizing tribes? 

Mr. SKIBINE. Well, this Committee, first of all, you do have the 

authority to recognize tribes. That is why this bill is before you. On 

the other more substantive policy issue, I think that would be a 

question for our political leadership to respond to. 

The CHAIRMAN. Thank you. I thank you so much for your answers here, and I am looking forward to working together with you 

in trying to expedite the process. And as you can tell, I am trying 

to find out the best we can as to maybe how we can improve it. 

I am sure you are, too. I certainly want to keep trying on this, and 

look forward to working with you on trying to bring this process 

about. 

Thank you very much for your statements. 

I would like to invite the second panel to the witness table. 

Today, we have John Sinclair, President of the Little Shell Tribe; 

Kim Gottschalk, from the Native American Rights Fund; and 

Bonita Cleveland, the Chairperson of the Quileute Nation. I want 

to say welcome to our witnesses. Thank you for being here, and we 

look forward to your testimony. 

Mr. Sinclair, will you please proceed with your statement? 

STATEMENT OF HON. JOHN SINCLAIR, PRESIDENT, LITTLE 

SHELL TRIBE OF CHIPPEWA INDIANS OF MONTANA 

Mr. SINCLAIR. Good afternoon, I want to thank you and Senator 

Barrasso for bringing this legislation, as well as the rest of the 

Committee. I would also like to express my deep gratitude to Senator Tester for bringing this bill, and to Senator Baucus for cosponsoring S. 546. 

On behalf of the Little Shell Tribe of Montana, I thank you for 

the opportunity to testify in support of S. 546, legislation to confirm 

a government-to-government relationship between the Little Shell 

Chippewa Indians of Montana and the United States. My name is 

John Sinclair, and I am honored to serve the Little Shell Tribe, as 

my father and my grandfather have done before me. 

Congress began work on recognizing our tribe in 1908, more than 

100 years ago. In that year, and again in later years, Congress appropriated money to buy land for the tribe. A primary purpose for 

this land base was to allow the tribe to organize as a recognized 

tribe. 

Of particular importance after Congress passed the Indian Reorganization Act in 1934, Congress again appropriated money to purchase land for the Little Shell Tribe. Despite Congress’ intent that 

21

Little Shell organize on that land, it never happened because the 

money was spent to purchase land for the already-recognized 

tribes. We are asking that Congress finally complete the process it 

started in 1908 by enacting S. 546. 

There are two other tribes, the Little River Band and the Little 

Traverse band of Ottawa Indians, that have been recognized by 

Federalization on the basis that the BIA began, but never finished, 

organizing them under the IRA. We deserve and are overdue for 

the same kind of recognition legislation. 

However, there are even more reasons for Congress to enact special legislation for Little Shell. In 1982, Congress enacted the 

Pembina Judgment Act, which allocated funds now worth $3 million which were conditioned on our Federal recognition. Even the 

BIA has said that this unique situation could justify special recognition legislation for Little Shell. In the words of the final determination, referring to both the previous efforts to organize under 

the IRA and the distribution of the judgment funds, the Bureau 

said, ‘‘Congress could direct that they be used to purchase land for 

the group, as contemplated in the 1930s, should Congress choose 

to recognize the Little Shell petitioner.’’

These circumstances mean that Congress can and should enact 

S. 546. This is our last chance. Little Shell and Congress have been 

having this conversation now for more than 100 years. For too long, 

we have been refugees in Montana, waiting for the United States 

to fulfill its promises. 

Our neighbors, both Indian and non-Indian alike, all have recognized that we are a tribe. All seven recognized tribes in Montana 

support us. The two tribes in neighboring Wyoming, the Wind 

River and Northern Arapaho, support us. The State of Montana 

supports us. Our local counties support us. They know us better 

than the staff at the Bureau’s Office of Federal Acknowledgment. 

We urge Congress to fulfill its promises and join those who know 

us best by enacting S. 546. 

Thank you. 

[The prepared statement of Mr. Sinclair follows:]

PREPARED STATEMENT OF HON. JOHN SINCLAIR, PRESIDENT, LITTLE SHELL TRIBE OF

CHIPPEWA INDIANS OF MONTANA

Chairman Akaka, Vice Chairman Barrasso, our friends Senator Tester and Senator Baucus, and honorable members of this Committee on Indian Affairs, on behalf 

of the Little Shell Tribe of Montana, I thank you for the opportunity to testify in 

support of legislation that would confirm the federal relationship between the Little 

Shell Tribe of Chippewa Indians of Montana and the United States. 

My name is John Sinclair and I have the honor of serving as President of the Little Shell Tribe. Before me, my father and my grandfather also served our Tribe 

working to realize our people’s federal recognition. The Little Shell Tribe is organized under our 1977 Constitution. Our government consists of an elected Tribal 

Council (two year term) and Executive Board (four year term) and our tribal enrollment encompasses about 4,500 members. As a landless tribe my people are largely 

settled on the fringes of rural towns in Montana on the Front Range and along the 

Highline, as well as in the cities of Great Falls and Helena. 

The Little Shell Restoration Act of 2011 (S. 546) cosponsored by Senator Tester 

and Senator Baucus would finally end our long struggle for federal recognition, for 

which so many of my people have fought tirelessly over the past century. The Restoration Act is consistent with Congress’ and the Department of the Interior’s historical commitments to acknowledge our people and establish a land base for us. The 

need for congressional action has become absolutely necessary since the Department 

abandoned its July 24, 2000 proposed positive finding that the Tribe had met all 

22

the seven mandatory criteria of the Part 83 regulations and should be recognized. 

On October 27, 2009 the Department reversed this decision and found that the 

Tribe had not met the burden of proving all the regulatory criteria of recognition. 

I am here before you today, as I have been a number of times in the past, to urge 

that you exercise your plenary authority over Indian tribes and recognize the United 

States’ political relationship with the Little Shell Tribe of Chippewa Indians. We are 

Indians, we are a Tribe, and all we desire is the same recognition that you offer 

our sister tribes. 

Little Shell of Chippewa Indians Restoration Act of 2011, S. 546

The proposed Little Shell Tribe of Chippewa Indians Restoration Act of 2011 

would afford my people the federal recognition that has long been promised to us. 

S. 546 provides that we will be a duly recognized tribe just like our sister tribes 

in Montana and across the United States. The Act instructs the Secretary of the 

Interior to acquire 200 acres in trust so that we can finally have a tribal land base. 

It also explicitly states that we are eligible to acquire additional lands under section 

5 of the Indian Reorganization Act, an important provision given the 2009 Supreme 

Court decision in Carcieri v. Salazar. The Act would also right the wrong that was 

inflicted against us by the Department’s flawed decision not to recognize our Tribe 

based on the imperfect process established under the Part 83 regulations. 

Previous Congressional Efforts to Confirm the Federal Status of The Little 

Shell Tribe 

Congress has been aware of the Little Shell Tribe’s dilemma for years and several 

times has voiced its desire to legislate a solution for us. In 1934 Congress enacted 

the Indian Reorganization Act (IRA), which provided a mechanism for groups of Indians like ours to organize and apply for land. In December 1935, the Commissioner 

of Indian Affairs took steps to organize our people under the IRA. The Commissioner proposed a form to enroll our people, stating:

It is very important that the enrollment of homeless Indians in the State of 

Montana be instituted immediately, and it is proposed to use this form in the 

determination of Indians who are entitled to the benefits of the Indian Reorganization Act.

BIA Letter, December 23, 1935. This effort resulted in the Roe Cloud Roll, 

named after Dr. Henry Roe Cloud, an Interior official who played a large part 

in the project. Once the roll was complete, the Field Administrator clearly 

stated that the purpose of the roll was to settle our people and bring them 

under active federal supervision:

The landless Indians whom we are proposing to enroll and settle on newly purchased land belong to this same stock, and their history in recent years is but 

a continuation of the history of wandering and starvation which formerly the 

Rocky Boy’s band had endured.

Out of the land purchase funds authorized by the Indian Reorganization Act, 

we are now purchasing about 34,000 acres for the settlement of these Indians 

and also to provide irrigated hay land for the Indians now enrolled on Rocky 

Boy’s Reservation. The new land, if devoted wholly to that purpose, would take 

care of only a fraction of the homeless Indians, but it is our intention to continue this program through the years until something like adequate subsistence 

is provided for those who cannot provide for themselves. The first step in the 

programs is to recognize those Indians of the group who may rightfully make 

claim of being one-half degree, which is the occasion for presenting the attached 

applications. The fact of these people being Indian and being entitled to the benefits intended by Congress has not been questioned.

Roe Cloud Roll applications, 1937 (emphasis added). Even though the appropriation of funds for the Little Shell people was clear acknowledgment of our 

status as a tribe, one desperately in need of the federal protection extended 

to other tribes, the Department of the Interior was never able to fulfill this 

promise. The limited resources available to acquire land were expended for 

tribes already recognized.

In 1940, Senator James Murray formally requested that the Department fulfill 

the federal government’s promise to acquire land for the Little Shell Band. Assistant 

Commissioner Zimmerman responded that his office was ‘‘keenly aware of the pressing need of the landless Chippewa Cree Indians of Montana. The problem thus far 

has been dealt with only in a very small way. I sincerely hope that additional funds 

will be provided for future purchases in order that the larger problem remaining can 

be dealt with in a more adequate manner.’’ Unfortunately, despite the efforts of 

23

Congress the funds were never appropriated and the problem was never dealt with 

in anything resembling an adequate manner. 

Final Determination Against Recognition of The Little Shell Tribe 

On October 27, 2009, over thirty years after our initial petition, the Office of Federal Acknowledgment issued their final determination against acknowledgment of 

my people. Only an appeal to the Interior Board of Indian Appeals has prevented 

that decision from becoming effective. It could be years before the IBIA rules. Despite the fact that the Proposed Finding was in favor of recognition, that no substantive negative comments were received, and that we submitted thousands of additional pages of evidence to support our position, the OFA chose to reverse their 

decision. Their previous decision had taken into account historical circumstances as 

required by the regulations, and concluded that certain departures from precedent 

were justified. The Tribe was encouraged to submit additional information, not as 

a condition of being recognized, but merely to narrow what were viewed as the necessary departures from precedent. Imagine our surprise then, when OFA totally reversed its judgment and chose to strictly construe the requirements of the regulations so as to conclude that we failed criteria (a) recognition by outsiders during the 

period 1900–1935); (b) community from historical time to the present; and (c) the 

exercise of political authority from historic times to the present. Significantly, the 

finding concluded that our additional work had shown that 89 percent of our people 

trace from a historic tribe, thus meeting criterion (e) without any need to depart 

at all from precedent. In sum, we were told that we met the requirements, we 

worked in good faith to help the department, and then we were hit with a total reversal of policy. Is it any wonder that the Tribe has lost faith in the acknowledgment system? 

My people have spent the past thirty years fighting for our recognition through 

the lengthy and burdensome administrative recognition process imposed by the Department under the Part 83 regulations. In the course of this pursuit we have been 

truly lucky to have the assistance of the Native American Rights Fund (NARF), a 

legal aid organization devoted to the protection of indigenous people’s rights in the 

United States, pro bono. They agreed to work on our petition because, as an organization familiar with tribes and tribal rights, they had faith in Little Shell as an Indian tribe. NARF has expended over $1 million to retain historians, genealogists, 

and other expert consultants to provide the very technical and arcane information 

that the Office of Federal Acknowledgment often requires. 

The lengthy process also inflicts an immeasurable human cost, wherein the acknowledgment torch is passed from one generation to another. The task of securing 

professionals to assist us with our petition and the collection of documents from repositories across the United States, Canada and England was itself demanding, but 

it paled in comparison to the demands of providing for my people without the protection of federal recognition, without a land base. It is heartbreaking that now after 

nearly 30 years in the administrative process, in the politically charged atmosphere 

of Washington, D.C., the Department has reversed its proposed favorable finding 

and decided not confer federal acknowledgment. Now, we must look to Congress 

once again to enact legislation to confirm federal recognition of the Little Shell 

Band, recognition that Congress has presumed for generations was appropriate for 

Little Shell. 

Congressional Action Is Absolutely Necessary 

Congress has plenary power with regard to tribes in the United States. It is Congress then who has the final power and authority to recognize or terminate a relationship with a tribe, not the Department. Congress has not relinquished that authority to the Department of the Interior. The administrative regulations were 

adopted by the Department without benefit of legislation. As a result, Congress can 

and should act for the Little Shell since the administrative process cannot and has 

not worked for us. That is what the Little Shell people ask this body to do now 

through S. 546. 

Congress has enacted similar legislation for other tribes which, like Little Shell, 

have a history of congressional efforts to reorganize the tribe. Congress enacted such 

legislation for tribes such as the Little Traverse Bay Band of Odawa Indians and 

the Little River Band–tribes, like us, whom the Department attempted to recognize 

in the 1930s but because of the lack of appropriations, recognition was never completed. The Department of the Interior noted this unique history, even in its Final 

Determination against federal acknowledgment:

Congress has plenary power over Indian affairs and, considering two historical 

factors, could recognize this petitioner as an Indian Tribe. First, the Department initiated action under the Indian Reorganization Act of 1934 that affected 

24

the ancestors of a significant majority of the petitioner’s members. And second, 

Congress passed the Act of December 31, 1982 (96 Stat. 2022), conditionally allocating certain trust funds to ‘‘the Little Shell Tribe of Chippewa Indians of 

Montana’’ petitioner.

Notice of Final Determination, 74 Fed. Reg. 56861 (Nov. 3, 2009). The Department went on to note that more than $3 million remains in trust under the allocation act and offered that ‘‘Congress could direct that they be used to purchase land 

for the group, as contemplated in the 1930s, should Congress choose to recognize 

the Little Shell petitioner.’’ Id.

The existence of this judgment fund is another circumstance unique to Little 

Shell. As the Department noted, Congress allocated a portion of the settlement to 

the Little Shell Tribe. Some of these funds were distributed to our tribal members 

but roughly $3 million is still held in trust by the Secretary of the Interior pending 

possible federal recognition of our Tribe. The existence of this fund means that 

money is finally appropriated and available to purchase land for the Little Shell and 

the only thing that is needed is Congressional direction and permission to do so. 

It is also important to note that the proposed Congressional action to confirm federal recognition of the Little Shell Tribe enjoys broad support in Montana. My people enjoy the support of all the federally recognized tribes in Montana. I’m proud 

to state that not one negative substantive comment was received after the Department issued their initial proposed finding in favor of recognition of my Tribe. The 

support of the other tribes in Montana is indicative of the merits of our recognition. 

Who is in a better position to perceive who is a ‘‘real tribe’’ in the State of Montana, 

the other tribes of Montana or a career bureaucrat sitting in Washington, D.C.? Our 

sister tribes in Montana have intimate knowledge or our culture and history that 

spans the many years that we have resided in the same territory as them. 

We are also grateful to have the support of the State of Montana as well. Governor Schweitzer and the Montana State Legislature, by Joint Resolution, have expressed their support for our federal recognition. Hill, Cascade, Glacier and Blaine 

County as well as the City of Great Falls, the local governments most directly impacted by our recognition, have expressed their support of legislation to recognize 

the Little Shell Tribe. In fact, the State of Montana recently provided us with land 

from which we can provide essential governmental services—something the federal 

government had promised to do throughout the twentieth century but has yet to accomplish. 

Our neighbors, both Indian and non-Indian alike, have all recognized that we are 

a ‘‘tribe.’’ Many of them have petitioned Washington in support of our cause over 

the last century. They still stand with us today. Congressional recognition of our 

Tribe would not stir local animosity nor would it provoke strong sentiments against 

our cause. It would provide a sense of relief and closure for my people and for our 

friends in Montana who have tirelessly supported our cause and watched our plight 

over the past century. 

Conclusion 

Distinguished Senators, it is to you that I make my people’s final appeal. For too 

long we have been refugees without a homeland in our own aboriginal territory, unable to provide proper schools for our children or healthcare for our elders. Throughout this ordeal I have watched as tribal members have passed away without realizing our dream of recognition and I have seen new tribal members born without 

the protections that federal recognition entails. All I ask is that this body make good 

on the promises that have been made to the Little Shell Tribe over the past century 

and acknowledge your recognition of my people. 

I thank you for your time and for your consideration of S. 546. I am more than 

happy to answer any questions from the Committee.

The CHAIRMAN. Thank you very much, Mr. Sinclair. 

Mr. Gottschalk, will you please proceed with your testimony? 

STATEMENT OF K. JEROME GOTTSCHALK, STAFF ATTORNEY, 

NATIVE AMERICAN RIGHTS FUND 

Mr. GOTTSCHALK. Chairman Akaka and Senator Cantwell, thank 

you for the opportunity to speak today in support of S. 546. My 

name is Kim Gottschalk, I am an attorney at the Native American 

Rights Fund. We have been honored to represent the Little Shell 

25

Tribe in its administrative quest for recognition for more than 20 

years. 

I want to focus on just two very basic points in my talk today. 

One, that the summary of final determination against recognition 

of the Little Shell Tribe in no way means that they are not a tribe 

that should be recognized. And I think Mr. Skibine testified today 

they do not oppose it. I am somewhat puzzled as to why they are 

not supporting the bill. But that is point number one. 

Point number two, I do not think that this is even an instance 

of bypassing the administrative procedure in any way. I think this 

has been contemplated by them from the very beginning because 

they know that the regulations do not fit the situation. 

The Federal acknowledgment regulations, as they exist, propose 

a one size fits all, cookie cutter approach to Federal recognition 

that does not fit the historical reality of the Little Shell Tribe, who 

through a long part of their history were a tribe that hunted buffalo; they were migratory for large parts of the year. And when the 

buffalo played out, they were subject to immense economic, social 

and geographic disruption. 

Well into the 20th century, Little Shell members lived on the absolute fringes of society in abject poverty. They were referred to as 

trash heap Indians, breeds, half-breeds, and other similar non-complimentary terms. When faced with this historical reality and the 

paper-driven approach adopted by the regulations, you can see why 

there is not a good fit. This situation is not calculated for the Little 

Shell people to produce a paper trail or for outside observers to 

penetrate into their social situation. 

When faced with this situation, Assistant Secretary Gover said, 

okay, what do we do with this? The evidence clearly shows that 

they are an Indian tribe. We have to interpret these regulations 

with some flexibility and common sense. An example would be the 

requirement that you be recognized as an Indian entity by outsiders. The fact that they were recognized as individual Indians 

isn’t good enough. They expect the dominant society to have penetrated to the underlying social and political reality of the tribe, to 

recognize an entity. 

The same is true of showing community throughout history, political authority throughout history. Secretary Gover made the determination that you take the evidence that clearly establishes 

such patterns of community and political authority in certain time 

periods, and you presume, make a reasonable presumption, a reasonable likelihood that those persisted during other time periods. 

That is the reason for the positive proposed finding. 

I would like to point out that at the time this was going on, the 

Director of Federal Acknowledgment, Mr. Lee Fleming, wrote a 

memo to his superior in connection with Little Shell. He opposed 

coming out with a favorable finding, and I would just like to quote 

two short sentences: ‘‘Another alternative would be to recommend 

legislation to acknowledge this petitioner. This recommendation 

would be based on a finding that because of the unique and complicated nature of its history, this petitioner is outside the scope 

envisioned by the regulations, but nonetheless merits tribal status.’’

26

This is a natural follow-on from that conclusion. They had a 

choice to either be flexible and adopt a common sense approach to 

the regulations or adopt a mechanistic approach and realize that 

they were confessing that the regulations didn’t fit the situation. 

That is the situation we are in now. I want to make very clear that 

we did a lot of work on this after the proposed finding. We satisfied 

the Office of Federal Acknowledgment that 89 percent of Little 

Shell members trace to the historic Band of Chippewa Indians. 

This is well above the 80 percent guideline accepted by the Department for this criterion. So there is no doubt you are dealing with 

Indians and you are dealing with an Indian tribe. 

I feel I must address a couple of matters very briefly that Mr. 

Skibine mentioned. One of which is, he said they put out for comment after the proposed finding for comments on the departures 

from precedent, and then they changed their mind on the departures from precedent. The implication might be that there were 

some comments received that caused that change. There were no 

such comments. 

[The prepared statement of Mr. Gottschalk follows:]

27

PREPARED STATEMENT OF K. JEROME GOTTSCHALK, STAFF ATTORNEY, NATIVE

AMERICAN RIGHTS FUND


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The CHAIRMAN. Thank you very much, Mr. Gottschalk, for your 

testimony. 

Ms. Cleveland, will you please proceed with your testimony? 

STATEMENT OF HON. BONITA CLEVELAND, CHAIR, QUILEUTE 

TRIBE 

Ms. CLEVELAND. Thank you, Mr. Chairman. 

Mr. Chairman and other members of the Committee, on behalf 

of the Quileute people, thank you for allowing us to speak with you 

today about how our children and elders could be killed in a tsunami unless we move our village to higher ground. 


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Wa-ta-lich-ta asoos ta. Thank you, thank you, thank you from 

the bottom of our hearts. With me today, Mr. Chairman, I have our 

tribal council representatives, Mrs. DeAnna Hobson, Mrs. Carol 

Hatch, and our Executive director, Mr. Bill Peach, our legal advisor, Harold Bailey, and Jackie Jacobs. 

Although the Japanese tsunami is a very recent reminder of the 

destruction that happens after an earthquake in the ocean, our 

people have been living for decades among decades with the fear 

of a tsunami and our flooding. Our tribal council has prepared 

today to share a video with you and your Committee. If we could 

do that. 

[Video shown.] 

Ms. CLEVELAND. So as you have just seen from the video, our 

community knows that our school children, our elders will not get 

out in time. Our children are really worried, and I want to share 

with you a piece of artwork from one of our students that shows 

their fear. 

Because our village is located on only one square mile, Mr. 

Chairman, and we are between the Pacific Ocean and the Olympic 

National Park, we have nowhere else to go. There is only one road 

in and one road out of La Push. This road is usually under three 

to four feet of water when flooded. For decades my uncles have negotiated with the Olympic National Park to try and bring resolution to the dispute over the boundary of our reservation. Finally, 

last year, we were able to reach an agreement with the Park to settle this dispute. We would like to express our deepest appreciation 

to the Park Superintendent, Karen Gustin, for her hard work and 

her understanding of the dangers our tribe faces. 

Senator Cantwell’s legislation would allow the Quileute Tribe a 

permanent way out of the danger zone. For the many visitors to 

the Olympic National Park, including the Twilight fans, the bill 

will ensure permanent access to our beautiful beaches through the 

trailhead owned by the tribe. Senator Cantwell’s bill will also return our people a cultural and sacred site that we know as Thunder Field. Our people have utilized Thunder Field for many, many 

cultural activities, gathering our berries and placing our canoes to 

fish. 

An organization that understands our way of life is the National 

Congress of American Indians. I would like to express my appreciation for the NCAI to be here today with us. Mr. Chairman, I would 

like to submit two NCAI resolutions passed in 2008 and 2011. 

We have enjoyed a very close working relationship with the City 

of Forks, and we have consulted with the town of Forks on this bill. 

Mr. Chairman, I would also like to submit for the record a letter 

from Forks supporting this bill also. 

The time has come once again to make a difference for our people 

who have always had such close cultural ties with the land base 

since the beginning of time. Without this bill, Mr. Chairman, the 

tsunami could be very dangerous to our people. Mr. Chairman, I 

have been so honored to represent my people today before you. I 

hope the words and the video show our urgent and desperate need. 

Wa-ta-lich-ta asoos ta. Thank you. 

[The prepared statement of Ms. Cleveland follows:]

38

PREPARED STATEMENT OF HON. BONITA CLEVELAND, CHAIR, QUILEUTE TRIBE


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The CHAIRMAN. Thank you very much for your testimony, Ms. 

Cleveland. 

I know that it has been a long and difficult struggle for the Little 

Shell Tribe to try to obtain Federal acknowledgment. Mr. Sinclair, 

can you discuss the toll that this process has taken on the Little 

Shell Tribe? 

Mr. SINCLAIR. The toll is that we have not been able to supply 

the services that would help us to overcome the racist attitudes 

that have held us back for so long. One of the reasons that we don’t 

fit into this cubby hole that the OFA process tried to put us in is 

because we have not been able to use our resources we have to educate our children so that we can do something like that, educate 

our children, keep our people healthy. It is just something that 


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without the support of groups like NARF and Patton Boggs, we 

wouldn’t be able to be here today. It is sad that we have to depend 

on charity from others, but that is just kind of the lot that we have 

been led into. 

The CHAIRMAN. Mr. Gottschalk, your testimony highlights several flaws and inconsistencies within the Federal acknowledgment 

process. What recommendations do you have to improve this process? And do you think the process can be improved, or does Congress need to act? 

Mr. GOTTSCHALK. I believe Congress probably will need to act. 

There are many things that need to be improved. You yourself 

raised the issue of transparency with Mr. Skibine. I would like to 

point out that after our last submissions were made, the Bureau 

sent a researcher out for more than three weeks to do additional 

on the ground research. There was no provision in the regulations 

that allowed us to have that information and comment on it prior 

to final decision. 

To add insult to injury, when we asked for the information, we were required to pay $5,000 for copying costs. We have appealed 

that decision, but it hasn’t been decided. So we had to put up that 

money to get the documents that related to our very petition for 

recognition, plus no opportunity to comment on them. That to me 

is not transparency. 

One of the people that they interviewed was an expert on Metis 

people, and Little Shell in particular. We used him in our IBIA appeal to write a document on our behalf. And his testimony was totally positive. We saw no reflection of it in the outcome, in the final 

determination. That does not instill confidence in the process. I 

think there has to be recognition of the fact that the requirements 

are extraordinarily onerous. 

I think criteria A, which says that outside observers must consistently recognize the group as an Indian entity, cannot possibly 

be a requirement. It could be possible evidence of the existence of 

community or political authority. It can’t possibly be an independent requirement, because that would mean if a tribe met all 

the substantive requirements to be a tribe, they were in fact a 

tribe, but outside observers didn’t notice that, then they are not a 

tribe. 

Can that really be the state of our law today? And yet that is 

one of the seven mandatory criteria in the Federal acknowledgment 

regulations. I think it needs to be simplified. It needs to have more 

transparency and it needs to involve tribes more. There has to be 

an opportunity perhaps for give and take, perhaps for direct examination, cross examination of the experts in OFA. Those are my 

thoughts for right now. 

The CHAIRMAN. Thank you for your answers. 

Ms. Cleveland, I want to say thank you so much for showing us 

the video, to show us where the tribe’s reservation is located. It 

was a very powerful showing of how precarious your situation is. 

Ms. CLEVELAND. Yes. 

The CHAIRMAN. Can you tell us what type of warning the tribe 

would get in the event of a tsunami and how the evacuation plan 

would be carried out, with only one road, as you mentioned, in and 

out of the reservation? 

55

Ms. CLEVELAND. Yes, Mr. Chairman. We have an evacuation tsunami warning that goes off for our village that can be heard, sometimes can be heard and sometimes cannot be heard. So we have 

had several evacuation warnings and it has taken our tribal members approximately six to seven minutes to get out of the lower village. And that is loading the children in the buses. These are practice warnings, may I remind you. And we won’t get out in time 

from the lower village. 

The CHAIRMAN. And as you mentioned, there is just one road in 

and out? 

Ms. CLEVELAND. Yes. We have one road into our village and one 

road out. If we were hit by a tsunami and that road was destroyed, 

we would have no way out. We would be trapped. 

The CHAIRMAN. Thank you very much for your responses. 

Senator Cantwell? 

Senator CANTWELL. Thank you, Mr. Chairman, and thank you 

for asking these questions. I think you do see by the video the precarious situation that the Quileute are in. Thank you, Chairperson 

Cleveland, for your testimony and bringing the spirit of the 

Quileute people to this hearing room today. 

I wanted to ask, you have done a good job of showing the impact 

of the Pacific, and we probably didn’t emphasize enough for people 

about this most recent warning system was in Japan. But obviously something that would happen on the Cascadia Subduction 

Zone, right off our coast would be an immediate impact. That is 

why you are emphasizing the time to evacuate would be very minimal. 

But can we also talk about the Quileute River, and its impact? 

Because I know that it is also part of your boundary area. And 

with the heavy rains and the fact that you are right next to a temperate rain forest, you have a lot of issues with flooding from the 

river. Could you comment on that, channels for the river and how 

that impacts the reservation and how moving to a bluff would alleviate that issue? 

Ms. CLEVELAND. Yes. We are impacted by the river, our lower 

village, we are on one square mile. And our lower village is surrounded on one side by the river, and then the other side is surrounded by the Pacific Ocean. Behind us, we are surrounded by the 

Olympic National Park. So during the winter months, our river is 

overflowing into people’s homes and we are having to move the 

people out of their homes, they are flooded. Their homes are flooded, every winter, winter after winter after winter this is occurring 

with our tribal people. And it really impacts our people and it creates a hardship for them because they have nowhere to go. They 

have to move in with relatives, to higher ground somewhere else 

until we can get their houses cleaned up again, Mr. Chairman. 

Senator CANTWELL. So this land trade with the Department of 

the Interior will allow you to relocate to that higher ground. But 

it also preserves or actually, I would say probably even enhances 

the continued access of a larger community to the magical places 

of La Push and Rialto and everything else for the region, is that 

correct? 

Ms. CLEVELAND. That is correct, yes it is. 

56

Senator CANTWELL. So could you comment a little bit about the 

importance of that and continuing to have access to those places 

that you get to enjoy every day? 

Ms. CLEVELAND. I guess number one priority would be giving us 

access to higher ground and it would allow people safety and protection and being able to live at ease. And it would allow people 

to enjoy the beautiful beaches that we are surround by and able 

to continue our fishing on the rivers, as we have done for centuries. 

Senator CANTWELL. Thank you. Again, thank you, and could you 

just emphasize, you mentioned the Twilight tribe. Could you expound on that for a minute? Some people may have one impression, 

so maybe you could comment. 

Ms. CLEVELAND. Our tribe is known for the movie, Twilight. We 

have a lot of tourism that comes to our community because it is 

a famous movie that is out there, Twilight. They come and tour our 

village to see the actors that were in the Twilight movie. So we 

have many, many visitors that come to our village to stay. This 

would protect all the tourists also. 

Senator CANTWELL. Thank you. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Cantwell. 

I want to say thank you to this panel for coming here and testifying on these bills. As you know, we are trying as a Committee 

to try to move the decisions on these as we can. Thank you for 

helping us with the information you have given us, and also to 

work on a process of speeding up some of the decision making that 

we face now. 

So thank you very much for your testimony. 

I would like to invite the third panel to the witness table. For 

the third panel, we have Robert Tippeconnie, from the National 

Congress of American Indians, and Cheryl Causley, Chairperson of 

the National American Indian Housing Council. 

Thank you very much for being here at this hearing. We look forward to your testimony. 

Mr. Tippeconnie, please proceed with your statement. 

STATEMENT OF ROBERT TIPPECONNIE, SOUTHERN PLAINS 

AREA VICE PRESIDENT, NATIONAL CONGRESS OF

AMERICAN INDIANS 

Mr. TIPPECONNIE. Good afternoon, Chairman Akaka. My name is 

Robert Tippeconnie, from the Comanche Nation. I am also the 

Southern Plains Area Vice President of the National Congress of 

American Indians. 

The National Congress of American Indians strongly supports S. 

703, the HEARTH Act, because it promotes tribal self-determination and the management of tribal lands, and would allow tribes 

to lease their own lands without the delay and the bureaucracy 

that happens within the Bureau of Indian Affairs. 

The legislation is also optional. So each tribe may elect to go 

under this Act or not. Many tribes desire to manage their own 

lands and promote economic development and are in the best position to do that, to decide for themselves whether the Act suits their 

needs. 

We attached the National Congress of American Indians resolution, PSP 09–0116, in support of the legislation. The provisions of 

57

the legislation are straightforward. A tribe would be able to lease 

its own land without approval of the Secretary of the Interior if the 

lease is executed under tribal government regulations that are approved by the Secretary of the Interior. 

Tribal leasing regulations must be consistent with the Secretary’s leasing regulations and must provide for an environmental 

review process. NCAI supports the legislation and offers one suggestion for clarification. The waiver of Federal liability could include situations unrelated to the lease. For example, a Federal surveying error could result in a trespass of a third party. We therefore believe the intention here is to exempt the U.S. from liability 

for the terms of the lease, because the Secretary of Interior would 

have no role in reviewing those terms. 

We would urge, therefore, the Committee to consider narrowing 

the Federal waiver of liability appropriately. National Congress of 

American Indians supports this legislation and in the future, we 

would encourage the Congress to continue to develop more legislation that will support tribal self-determination and in the management of tribal lands. 

On S. 636, the bill to provide the Quileute Tribe with tsunami 

and flood protection, this hearing also includes the consideration of 

this bill. We support the legislation and we attach a recent resolution from the National Congress of American Indians. The Quileute 

Tribe and their members live in a very exposed area, as we have 

heard, on the northwest coast, and have a great need for an immediate solution following the tsunami that caused catastrophic damage in Japan. 

The geographical situation of the Quileute creates a similar risk 

for disastrous events. And we urge the Congress to act now, while 

the need for action is fresh in our minds. 

NCAI views passage of S. 636 as another step in fulfilling the 

Federal trust responsibility and inclusion of Native people in national emergency preparedness that all citizens should have in this 

U.S. Country. Thank you for your favorable support for this timely 

legislation. 

In conclusion, the primary purpose of both bills is to empower Indian tribes to control their own lands. The National Congress of 

American Indians supports this purpose very, very strongly. We 

thank you for your diligent efforts on behalf of Indian Country and 

on these and many other issues. 

[The prepared statement of Mr. Tippeconnie follows:]

PREPARED STATEMENT OF ROBERT TIPPECONNIE, SOUTHERN PLAINS AREA VICE

PRESIDENT, NATIONAL CONGRESS OF AMERICAN INDIANS

On behalf of the National Congress of American Indians, thank you for the opportunity to provide our views on this important legislation. NCAI supports the legislation, and we appreciate today’s hearing because it will draw more attention to the 

bill. NCAI particularly appreciates the Committee’s attention to the longstanding 

problems of land management and economic development on Indian lands. 

The bill has been titled as an Indian housing bill, but it is broader legislation. 

It is essentially a set of amendments that would expand the Navajo Leasing Act of 

2000 to all federally recognized tribes. NCAI strongly supports the bill because it 

promotes tribal self-determination in the management of tribal lands, and would 

allow tribes to lease their own lands without the delay and bureaucracy of approval 

within the Bureau of Indian Affairs. The legislation is also optional; each tribe 

would decide for itself whether or not to take advantage of the Act. Many tribes deVerDate 0ct 09 2002 08:19 Aug 05, 2011 Jkt 066350 PO 00000 Frm 00061 Fmt 6633 Sfmt 6621 S:\DOCS\66350.TXT JACK
58

sire to manage their own lands and promote economic development, and are in the 

best position to decide for themselves whether this Act suits their needs. We attach 

NCAI Resolution PSP–09–016 in support of the legislation. 

The provisions of the Navajo Leasing Act, 25 U.S.C. 415(e), and this legislation 

are straightforward:

1) Leases on tribal land do not require approval if they are executed under tribal government regulations approved by the Secretary of Interior;

2) Tribal leasing regulations must be consistent with the Secretary’s leasing 

regulations, and must provide for an environmental review process;

3) The terms of tribal leases can be expanded considerably—up to 25 years with 

2 renewals for business or agricultural leases, and up to 75 years for public, 

religious, educational, recreational or residential leases;

4) Direct payment to the tribe is permitted, but the tribe must provide documentation of lease payments to the Secretary;

5) The United States is not liable for losses sustained by any party to a lease 

executed pursuant to tribal regulations;

6) Interested parties may petition the Secretary to remedy any violations of the 

tribal leasing regulations.

NCAI supports the legislation and offers one suggestion for clarification. Under 

the trust responsibility section of the legislation, it states that the ‘‘The United 

States shall not be liable for losses sustained by any party to a lease executed pursuant to tribal regulations under paragraph (1).’’ We do not believe that such a 

broad waiver of federal liability was intended, because it could include situations 

unrelated to the lease. For example, a surveying error by the Bureau of Land Management could result in a trespass by a third party. We believe the intention here 

is to exempt the U.S. from liability for the terms of the lease, because the Secretary 

would have no role in reviewing those terms. We would urge the Committee to consider narrowing the federal waiver of liability appropriately. 

As a final note, NCAI supports this legislation because it is an extension of existing law that can be made rapidly available to encourage tribal self-determination 

in surface leasing and because it is voluntary to each tribe. In the future we would 

encourage Congress and the Administration to continue to develop more comprehensive legislation that will support tribal self-determination in the management of 

tribal lands. 

S. 636, A Bill to Provide the Quileute Tribe with Tsunami and Flood

Protection 

This hearing also includes consideration of S. 636, legislation to assist the 

Quileute Tribe. NCAI also supports this legislation, and we attach our recent resolution. The citizens of the Quileute Tribe have lived on the northwest coast for thousands of years. Due to current boundary limitations the tribal population resides 

within a coastal flood plain which includes a community school, elder center, and 

tribal administrative buildings. Passage of S. 636 would enable the Tribe to move 

up to a safer location. 

Quileute citizens have expressed the need for an immediate resolution following 

the tsunami that caused catastrophic damage to Japan. The geographical situation 

of Quileute people creates similar risks for disastrous events, and we urge Congress 

to act now while the need for action is fresh in our minds. 

NCAI views passage of S. 636 as another step in fulfilling the federal trust responsibility and inclusion of native peoples in the national emergency preparedness 

that all citizens should have in this great country. Thank you for your favorable 

support for this timely legislation. 

Conclusion 

The primary purpose of both bills is to empower tribes to control their own lands 

and NCAI supports this purpose very strongly. We thank you for your diligent efforts on behalf of Indian country on these and many other issues. 

ATTACHMENTS

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The CHAIRMAN. Thank you very much, Mr. Tippeconnie, for your 

testimony. 

Ms. Causley, will you please proceed with your testimony? 

STATEMENT OF CHERYL A. CAUSLEY, CHAIRWOMAN, 

NATIONAL AMERICAN INDIAN HOUSING COUNCIL 

Ms. CAUSLEY. Good afternoon, Chairman Akaka. 

I want to thank you for your leadership in introducing S. 703. 

My name is Cheryl Causley, and I am the Chairwoman of the National American Indian Housing Council. 


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NAIHC is the only national non-profit organization solely dedicated to advancing housing, physical infrastructure and economic 

development in American Indian, Alaska Native and native Hawaiian communities. I am an enrolled member and director of housing 

for the Bay Mills Tribe of Chippewa Indians. 

Mr. Chairman, you have my prepared statement, so let me just 

highlight a few things regarding S. 703, better known as the 

HEARTH Act, that we think are most important. 

On tribal trust lands, one of the biggest barriers to home ownership is the delay in getting a residential lease approved. We believe 

this is simply unacceptable and if passed, the HEARTH Act is a 

step in the right direction to address this problem. 

As I mentioned in my written testimony, the Indian Home Loan 

Guarantee Program, also known as Section 184, which is administered by HUD, guarantees loans for Native American individuals, 

families, tribes and tribal housing programs that are made to private sector lenders. The goal of this program is to address lack of 

mortgage lending in tribal communities. 

While this program has been very successful off-reservation, I 

need to point out that due to lease delays, only 18 percent of these 

loans have been provided on tribal trust land. In addition, when we 

have tribal members qualify for a conventional mortgage, delays in 

the leasing process often result in mortgages being closed with a 

much higher interest rate, sometimes adding thousands on the 

terms of the overall mortgages for our people. 

Because real property on Indian lands cannot be sold, there is no 

real estate market to speak of, and land leasing is often the only 

and the best way to generate capital for capital-starved tribal 

economies. The bill, if enacted, gives tribes the freedom to choose 

whether to tribalize the surface leasing program or continue to go 

through the secretarial approval process. As it did last year, we expect the Congressional Budget Office to find this bill will be a zero 

cost proposal and in fact, may save money by transferring activities 

from the Federal to tribal governments. 

In my recent visits with many Congressional offices, I have received the same message: Congressional leaders believe in our mission and would love to help us, but with limited Federal resources, 

they seek solutions with little or no cost to the Federal Government. Members of this Committee, the HEARTH Act is exactly 

that, a solution to overcoming a barrier to home ownership in tribal 

communities with little or no cost to the Federal Government. 

Finally, NAIHC’s official position, supported by resolutions from 

the Affiliated Tribes of the Northwest Indians and the United 

Southern and Eastern Tribes, is to support an efficient environmental review process. We feel that an overly burdensome process 

is an imposition on tribal authority and sovereignty, and will slow 

down rather than expedite the tribal surface leasing process. In the 

111th Congress, NAIHC held a series of meetings and negotiations 

with officials of the BIA, the Interior’s Solicitor’s Office, HUD, leadership from the Senate Committee on Indian Affairs and Congressman Heinrich, the sponsor of the original HEARTH bill. 

The result was language on the environmental review portion 

that has been included in S. 703. It is this language that NAIHC 

fully supports. 

63

The goal of the HEARTH Act is to put tribes in the decision making role and expedite surface leasing so development can occur in 

tribal communities. These are the most important elements as we 

see, Mr. Chairman. I am happy to answer any questions that you 

may have. 

[The prepared statement of Ms. Causley follows:]

PREPARED STATEMENT OF CHERYL A. CAUSLEY, CHAIRWOMAN, NATIONAL AMERICAN

INDIAN HOUSING COUNCIL

Introduction 

Good morning Chairman Akaka, Vice Chairman Barrasso, and distinguished 

members of the Senate Committee on Indian Affairs. My name is Cheryl Causley 

and I am the Chairwoman of the National American Indian Housing Council 

(NAIHC), the only national Indian non-profit organization dedicated to advancing 

housing, physical infrastructure, and economic development in tribal communities 

in the United States. I am also the Executive Director of the Bay Mills Housing Authority and an enrolled member of the Bay Mills Indian Community. 

I want to thank Vice Chairman Barrasso and Chairman Akaka for their leadership in introducing S. 703, and for the opportunity to appear today and provide my 

views regarding the ‘‘Helping Expedite and Advance Responsible Tribal Homeownership Act’’ (S. 703), which was introduced in the Senate on March 31, 2011. 

Native American Housing Assistance and Self-Determination Act 

Despite recent improvements in the delivery of housing assistance, Indian housing 

is still substandard when compared with housing available to other Americans. An 

estimated 200,000 housing units are needed immediately in Indian Country and approximately 90,000 Native families are homeless or under-housed. Overcrowding on 

tribal lands is almost 15 percent, and 11 percent of Indian homes lack complete 

plumbing and kitchen facilities. 

Before I present my views on S. 703, allow me to describe the framework in which 

Indian tribes provide housing and housing related community development through 

the Native American Housing Assistance and Self Determination Act (NAHASDA). 

NAHASDA is grounded in the solid foundation of Indian Self-Determination. Enacted in 1996, NAHASDA was a result of the combined efforts of Indian tribes, tribal housing authorities and Federal policymakers who came together to lay out a new 

vision for building strong tribal communities by providing quality and affordable 

housing and related physical infrastructure. 

The objective of NAHASDA is to consolidate into a single block grant, once-disparate Federal housing funding programs, and to assign tribes the responsibility of 

program decision-making rather than the Department of Housing and Urban Development. 

While the delivery of housing has improved since 1996, many challenges remain, 

including working with Indian tribal trust lands which are held in common and cannot be collateralized to attract private capital. In most tribal areas, inadequate or 

non-existent physical infrastructure and weak economic conditions in general hinder 

if not rule out a robust housing sector. 

Without a doubt, NAHASDA is the single biggest source of housing capital for Indian people and its success is dependent on how tribes can adequately address these 

other challenges. 

Indian Trust Lands and the Indian Long-Term Leasing Act of 1955

Most Indian tribal land is held in trust or restricted status by the United States 

for the beneficial ownership of Indian tribes or individual Indians. Trust lands may 

not be sold but may be leased for a variety of purposes under applicable law. The 

Indian Long-Term Leasing Act of 1955 (the 1955 Act) requires the approval of the 

Secretary of the Interior (Secretary) for certain types of leases of Indian trust and 

restricted Indian lands. Any lease that is not approved by the Secretary is invalid. 

Timely processing of lease documents is critical not only for housing but also for 

Federal loan guarantee programs. One program—the Indian Home Loan Guarantee 

Program—also known as the Section 184 Program, addresses the lack of mortgage 

lending in tribal communities by offering mortgage financing to eligible Native 

American individuals, families, tribes and tribally-designated housing entities. The 

Section 184 Program, administered by HUD, guarantees these loans that are made 

by private sector lenders. 

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Because tribal trust lands may not be foreclosed upon, borrowers are obliged to 

have a valid leasehold, which is also subject to the approval of the Secretary. In the 

event of a default, the physical structure and leasehold interest are subject to foreclosure. The requirement of secretarial review and approval for these leases, in this 

instance, is time-consuming and is a contributing factor to the low homeownership 

rate in Native communities. 

Current law authorizes leases for up to 25 years with an option for one additional 

25-year term for a total 50-year term for ‘‘public, religious, educational, recreational, 

residential, or business purposes . . .’’ NAHASDA authorizes lease terms for ‘‘housing development and residential purposes’’ for 50-year terms, but retains the requirement of secretarial approval to render the lease valid. 

The Secretary, acting through the Bureau of Indian Affairs (BIA), administers the 

land leasing process which can become lengthy, taking months—and sometimes 

years—hindering housing, infrastructure, and related economic development on 

trust lands. Because of these delays, and the desire by individual Indian tribes for 

more authority and tribal control in the leasing of their own lands, 45 Indian tribes 

have sought relief from the 1955 Act by petitioning Congress for specific, tribe-bytribe Federal legislation. 

Most recently, the Navajo Nation succeeded in amending the 1955 Act to develop 

and manage its own surface leasing ordinance. The amendments were made in 

2000, and as a result the Navajo Nation may enter into lease agreements and renewals of leases without the Secretary’s review or approval. 

The HEARTH Act 

In 111th Congress, the HEARTH Act was introduced in the House of Representatives by Representative Martin Heinrich and introduced in the Senate by Senator 

Byron Dorgan. During its review and consideration by the Senate Committee on Indian Affairs, the bill was modified to include provisions related to tribal environmental review that were negotiated by the Senate Committee on Indian Affairs 

leadership, the Bureau of Indian Affairs, the U.S. Department of the Interior’s Solicitor’s Office, Representative Heinrich, and the NAIHC. 

The bill as modified was passed by the Senate Committee on Indian Affairs and 

it is this version that the NAIHC supports. 

In March 2011, Vice Chairman Barrasso, together with Chairman Akaka and 

Senators Tester, Udall, Thune, and Johnson introduced S. 703, the HEARTH Act 

of 2011. The House companion bill, H.R. 205, was introduced by Representative 

Heinrich in January 2011. 

The HEARTH Act will offer capable and willing Indian tribes the authority to 

enact their own tribal leasing regulations and to negotiate and enter into certain 

leases without the approval of the Secretary. It will go a long way in strengthening 

tribal self-determination and tribal economies at the same time. 

As both H.R. 205 and S. 703 provide, it is crucial that any such proposal be made 

available to Indian tribes on a voluntary basis, leaving the decision as to whether 

to participate with the tribes themselves. 

In addition, the HEARTH legislation directs the BIA to prepare and submit to the 

Congress a report detailing the history and experience of Indian tribes that have 

chosen to assume responsibility for administering the Indian Land Title and 

Records Office (LTRO) functions from the BIA. 

Conclusion 

The NAIHC strongly supports S. 703 because it respects and fosters Indian tribal 

decision-making, expedites what can often be lengthy Federal administrative processes, and will improve the delivery of Federal housing assistance and expand economic opportunity in tribal communities. 

Thank you and if you have questions I would be happy to answer them.

The CHAIRMAN. Thank you very much, Ms. Causley. 

Mr. Tippeconnie, the National Congress of American Indians has 

supported the HEARTH Act in the past, and has taken a position 

that it will reduce the Federal costs involving approving leases for 

tribes. Can you describe how this particular legislation will reduce 

Federal costs? 

Mr. TIPPECONNIE. The area in which costs can be reduced is the 

fact that it takes years. If you look at the record of circumstances, 

I can think of a tribe in the northwest who attempted to get a 

lease, it took over a year and a half. Now, expenses are made on 

65

the side of the nation, the Indian nation, as well as on the side of 

the Federal Government. Because they have to affect time, effort 

and staffing to review these things. 

And of course, I would say from the National Congress of American Indians’ posture that it is very, very expensive to the Indian 

nations themselves. And it is a real difficult thing, because the result may be, in the effort to attempt to get a lease, one of the 

tribes, again, Swinomish of the northwest, they were hopeful to 

gain a million dollars a year in a lease. And that lease took over 

one and a half years to kind of work on. 

Well, what we find out in Indian Country, those persons that 

want to do business with a nation, they don’t have that time. They 

are looking at a place where they can effect some return on their 

investment as well as that is what the Indian nations are attempting to do. 

The CHAIRMAN. Mr. Tippeconnie, can you describe to the Committee how the current bureaucratic delays in the leasing process 

have affected economic development opportunities for the tribes? 

Mr. TIPPECONNIE. Yes. As I cited earlier, I cited the Swinomish 

taking that time where they could have, hopefully, gained a million 

dollars revenue to the nation. But because it was taking such time 

delays to get approval from Interior, they lost out on that. 

Also there have been the wind power opportunities in the Plains 

area, like on the Rosebud in the Dakotas. They too, wanting to effect leases, there comes a point when the parties that want to venture or work with Indian nations just lose patience. Because again, 

you can’t sit on these financial kinds of matters. They are very, 

very necessary to effect quickly. 

So that is a result, it is just too much time. If the nations had 

this law passed, you can see that it expedites. It is in the hand of 

the Indian nation itself and can be hopefully expedited in time. 

The CHAIRMAN. Ms. Causley, in your testimony you state that an 

estimated 200,000 housing units are needed in Indian Country. In 

your opinion, how will enactment of the HEARTH Act help to address the need for housing units in Indian Country? 

Ms. CAUSLEY. For tribal members who are qualified to go out and 

obtain a mortgage, what we do is we take them in, we usually do 

some type of credit counseling and we fit them into a slot. I hate 

to put it that way, but that is what we do in my particular office. 

We see if they are better for a rental program, if they can obtain 

a conventional mortgage, if they need a 184 program, or perhaps 

a USDA product. 

If we go the conventional mortgage route, or even the 184 route, 

the time constraints on our reviewing the mortgage and the leasehold process really, really affects the bank’s interest. You also have 

the time involved of the housing authority staff trying to put these 

products out. When you are talking two and three years in some 

instances, they are on the phone the majority of the time saying, 

‘‘where are we with this lease,’’ and the progress is stopped. 

So the quicker administratively that we can put forth these 

things, the more houses we can put on the ground and the more 

interest we can get from the banks. 

The CHAIRMAN. Thank you for your responses. Would you have 

an idea of why there is such a delay on these decisions on a lease? 

66

Ms. CAUSLEY. I think there is so much housing needed throughout Indian Country, and they are severely understaffed, undermanned. They have other situations that they have been dealing 

with. It is just a slow, cumbersome product that I believe the majority of our tribes, if they wish, could do much more efficiently. 

The CHAIRMAN. Thank you. 

Senator Barrasso? 

Senator BARRASSO. Thank you very much, Mr. Chairman. I just 

want to follow up on the lead that you had set with these questions. It is a concern when you hear the shortage of 200,000 housing units and the impact on economic activity and opportunities, as 

well, as you both testified. 

If I could ask you, Mr. Tippeconnie, we talked about how this has 

affected economic opportunities. Do you think if we got this passed, 

it would actually be able to expand economic activity? 

Mr. TIPPECONNIE. Oh, yes, I could envision that. Because those 

that would like to venture in a relationship of economic opportunity 

to the nations, they can see the time frame may be considerably 

reduced, and that they have a party that they directly relate to. 

Yes. 

Senator BARRASSO. So the overall question then is, can you kind 

of characterize what interest there is out there among Indian tribes 

in taking advantage of the HEARTH Act, if we are able to get this 

successfully passed and signed into law? 

Mr. TIPPECONNIE. I think there is a great anxiousness. If you go 

across the Country, every tribe is attempting, I can’t speak and say 

just generally, every tribe, but I would like to imagine that they 

do, as we hear it, they are wanting a diverse enterprise or economic opportunity. Some don’t have that, and some sit, as I mentioned, with wind power opportunities or energy options. They 

would like to see those expedited. 

So if it is in their hands, you can see the party with whom they 

were working, they are more of a willing partner. Because time is 

of the essence when you get into financial relationships. 

Senator BARRASSO. Ms. Causley, I saw you shaking your head. 

Is there anything you would like to add to that? 

Ms. CAUSLEY. Investors have a very, very short time frame. They 

are also dealing with short terms of tribal governments. So when 

they come and they offer you a product, it is necessary that you are 

able to say, ‘‘yes, I can do that and I can do it now.’’ Otherwise, 

you will not maintain their interest for very long. And the same 

goes for bankers. 

Senator BARRASSO. In your written testimony, I think you did a 

very nice job of explaining that the BIA’s ‘‘land leasing process can 

be lengthy, taking months and sometimes years,’’ and you went on 

to say ‘‘hindering housing infrastructure and related economic development on trust lands.’’

I don’t know if you could maybe provide the Committee either 

now or maybe later in writing some details on the causes of such 

a time-consuming land leasing process, and thoughts that you have 

on that. 

Ms. CAUSLEY. The current leasing process is so overly burdensome. We all have to support the HEARTH Act, because it creates 

an efficient means for tribes who have capacity to basically operate 

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and manage their surface leasing process on their tribal lands. It 

is time for the Federal Government to support tribal self-determination, allow tribes the opportunity to achieve our own visions 

for our communities. And they can’t do that without complete tribal 

control. 

We believe the overly burdensome environmental review process 

defeats the goals of the HEARTH Act, and requires a tribe to fully 

implement a NEPA-like process for every residential lease, even 

those homes that are privately financed. It is an imposition on tribal authority, on sovereignty, and will slow down, rather than expedite, home ownership on tribal land and any kind of economic development. 

Senator BARRASSO. I want to ask a question for both of you to 

respond to. The long-term leasing act limits the authority of most 

Indian tribes to enter into surface leases with the approval of the 

Secretary to a primary term of up to 25 years, and then a one-time 

renewal of up to 25 years. So for decades, Indian tribes have 

sought and obtained from Congress some exemptions from the Act’s 

restrictions on the duration of these leases. The Act has been 

amended a number of times over the years to add the names of Indian tribes to a list of tribes authorized to enter into the surface 

leases, with the approval of the Secretary, for a term as you know 

up to 99 years. 

The HEARTH Act would authorize tribes to enter into business 

and agricultural leases without the approval of the Secretary, 

which is what we want, for a primary term of up to 25 years and 

then two renewal terms of up to 25 years each, so for an additional 

50 years. Do you believe that restriction of the two 25 year terms, 

is that an appropriate number for us to look at? 

Mr. TIPPECONNIE. Of course, it always depends upon the tribe 

itself. Because if you look into the circumstances, I think the term 

is a great option. It gives the nation that flexibility to continue 

with some enterprise or some financial relationship. 

But again, I would say, it is dependent. And of course, it would 

take due diligence on the part of the nation to be sure that when 

they enter into something that they would extend beyond. Of 

course, when you get into these relationships, financial, they want 

more than the 25 years, especially when you look at something that 

is very profitable, it is really an enterprise that will generate a 

great return to both parties. They want a term that is greater than 

the 25 years. And of course, if they could extend and they are successful in the marketplace, each of us in that relationship, then 

certainly the longer term is greater. 

Senator BARRASSO. I will ask another part of the question, because you’ve made me think about this, and you can respond to the 

whole thing, just give me your best thoughts. Do you anticipate 

that there are tribes which have the authority to enter into the 

surface leases for that term of up to 99 years, if they would be discouraged from taking advantage of the HEARTH Act? I would be 

happy to hear from either or both of you on that. 

Ms. CAUSLEY. I don’t think they would be discouraged. Currently 

right now, the BIA is going through some revisions of the residential leasing regulations. And NAIHC has been working with them 

on those year terms. So hopefully our member tribes and the tribes 

68

at NCAI and all of the ones that have set forth their resolutions 

can come to an agreement and we will all push forward with the 

same number. 

Senator BARRASSO. Is there anything else that you would like to 

share with the Committee? We will make this part of the permanent record, anything we may not have asked that you would like 

to share with us? 

Mr. TIPPECONNIE. One thing I would like to share is the fact that 

the Secretary’s regulations, you somewhat have to be in compliance 

with. So we would hope we have a relationship in that effort. 

But also, I want to express the fact that there is this environmental process. And I want to make the point that Indian nations 

are very strong about that as well. If we get into something that 

is necessary to be smart in the eyes of our adjoining public as well 

as our own Indian nation and our peoples, I just want to bring on 

the record that yes, we will be smart about that. 

Senator BARRASSO. Ms. Causley, anything else on your mind that 

you would like to share with us? 

Ms. CAUSLEY. I would just like to go back to the 2009 testimony 

of a Navajo man that actually provided testimony on this Act. He 

stated right now that we have a lot of what he referred to as our 

soccer moms and dads leaving the reservation Because we have no 

place to bring them back to, because it is so difficult to gather 

housing that they qualify for. They are not low income, we can’t 

help them. If they cannot get a lease and build their own, they are 

not coming back. 

Unlike other places, we tend to teach our youth from our examples and our teachings are more than just books. We need to find 

a way to keep our talented young role models within our communities and back home. And I appreciate you helping us do that. 

Senator BARRASSO. Mr. Chairman, I think we have certainly 

heard, through your leadership, a compelling case for support of 

the HEARTH Act, which we have multiple co-sponsors on this 

Committee. 

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

Ms. CAUSLEY. Thank you for all your support. 

The CHAIRMAN. I want to thank my partner, friend and Vice 

Chairman for his part in this. We will look forward to working with 

him. 

I also want to thank our witnesses for participating in today’s 

hearing. I know many of you have traveled a long way, and we 

thank you for that. I also want to thank the Administration for 

providing their views on these very important bills, and for us to 

continue to try to find ways of working together, and trying to improve the processes that are now in place. 

I appreciate your testimony on the struggle you have faced in 

trying to bring Federal recognition to your tribes. As you are probably aware, I am fighting for the native people of Hawaii to receive 

recognition and have the same rights as federally-recognized tribes. 

So I fully understand how important this legislation is to the people of Little Shell Tribe, and I look forward to working with Senator Tester on moving this bill. 

I also understand the concerns of the Quileute Tribe and their 

people. I want to thank you for coming here today to share your 

69

story with the Committee. In Hawaii, we are all too aware of what 

it is like to live under the threat of a tsunami, and to deal with 

the devastating effects. This is an important bill and we look forward to working with Senator Cantwell to move the bill through 

Congress. 

As we have heard today, the HEARTH bill will improve the ability of tribes to manage their own resources. I really want to thank 

Senator Barrasso for his leadership on this bill. I will continue to 

work with him on this bill that is so important to tribes across our 

Country. 

I want to remind any interested parties that the hearing record 

will remain open for two weeks for any additional comments or 

questions they may have. And also for the members, as well. 

So again, thank you for all your valuable testimony and responses. I look forward to continuing to move these bills that are 

important to the people of America as well as the Senators that are 

on the Committee. Thank you very much. This hearing is adjourned. 

[Whereupon, at 4:15 p.m., the Committee was adjourned.] 

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APPENDIX


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PREPARED STATEMENT OF THE CHEROKEE NATION


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