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42–606 PDF 2008

S. HRG. 110–475 

THE STATUS OF BACKLOGS AT THE DEPARTMENT 

OF THE INTERIOR 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MAY 22, 2008 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

LISA MURKOWSKI, Alaska, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

JOHN MCCAIN, Arizona 

TOM COBURN, M.D., Oklahoma 

JOHN BARRASSO, Wyoming 

PETE V. DOMENICI, New Mexico 

GORDON H. SMITH, Oregon 

RICHARD BURR, North Carolina 

ALLISON C. BINNEY, 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 May 22, 2008 ............................................................................... 1 

Statement of Senator Barrasso ............................................................................... 5 

Statement of Senator Dorgan ................................................................................. 1 

Statement of Senator Murkowski ........................................................................... 4 

WITNESSES

Artman, Hon. Carl J., Assistant Secretary for Indian Affairs, U.S. Department of the Interior ............................................................................................. 5 

Prepared statement .......................................................................................... 7 

Chicks, Robert, Vice President for the Midwest Region, National Congress 

of American Indians (NCAI); President, Stockbridge Munsee Band of Mohican Indians ........................................................................................................... 10 

Prepared statement with attachments ........................................................... 11 

Nash, Douglas, Director, Institute for Indian Estate Planning and Probate, 

Seattle University School of Law ........................................................................ 20 

Prepared statement .......................................................................................... 22 

Svanda, Gary, Council Member, City of Madera, California ............................... 17 

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

APPENDIX

Bigelow, Frank, Board of Supervisors, County of Madera, letter, dated May 

22, 2008 ................................................................................................................. 42 

Rhodes, William R., Governor, Gila River Indian Community, prepared statement ...................................................................................................................... 39 

(1) 

THE STATUS OF BACKLOGS AT THE 

DEPARTMENT OF THE INTERIOR 

THURSDAY, MAY 22, 2008 

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

The Committee met, pursuant to notice, at 9:31 a.m. in room 

562, Dirksen Senate Office Building, Hon. Byron L. Dorgan, Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. We will call the hearing to order this morning. 

This is a hearing of the Committee on Indian Affairs in the United 

States Senate. It is an oversight hearing to follow up on the status 

of the backlogs at the Department of the Interior. 

Last October, the Committee held a hearing to examine the backlogs in five areas at the BIA: land into trust applications; environmental impact statements; probate; appraisals; and lease approvals. 

As we heard from witnesses last fall, these are issues that greatly impact the ability of tribes to develop their land and develop 

their communities. Delays in the processes at the BIA impede the 

ability of tribes to provide housing, economic development, and essential Government services to their members. 

These delays can also impact the larger communities on Indian 

reservations. What the Committee has learned is that there are 

significant delays in most of these areas. There were 1,211 land 

into trust applications pending at the Department. Some were filed 

over 20 years ago. Every region of the BIA had a backlog in appraisals, with the largest backlog being in Alaska. 

At the hearing, the Department could not provide us with any 

specific numbers on pending appraisals, environmental impact 

statements, or commercial leases. The Committee also learned at 

the hearing last fall that there were no tracking systems and no 

consistent standards being implemented for most of these matters. 

Indian probates were the only matter where the Department, the 

BIA, had a comprehensive tracking system to monitor the performance of each case. However, this apparently was because the Department hired outside contractors to handle Indian probates. 

The state of affairs at the Department last October was, in my 

view, not at all acceptable to any of us. Assistant Secretary Carl 

Artman described it best when he said it was ‘‘creating havoc for 

2 

the tribes.’’ Though it does create havoc, more than that it affects 

the lives of thousands and thousands of American Indians. 

Let me provide an example of how the Department’s delays are 

impacting the Indian community. I showed this example last fall, 

but I think it illustrates my point. Last September, the Department 

published its decision to take lands into trust for the Shakopee Indian community in Minnesota. The Tribe had waited 11 years for 

that decision. 

I have two photographs that will show the impact of that delay. 

Photograph one shows what the tribal and surrounding land looked 

like in 1997—that is the year the tribe submitted its application to 

the Interior Department. The red outline describes the land the 

Shakopee Tribe was attempting to take into trust. 

The second chart will show you how the tribal and surrounding 

land looked in 2005. You can see that the surrounding land has 

been substantially and intensively developed. A lot of development 

has occurred on the non-Indian land, but almost no development 

has occurred on Indian land because the Department had not made 

a decision on the tribe’s application. Again, look at that. That tribe 

wanted the opportunity to develop its land; it submits a request, 

an application, and it sits 11 years without a decision. 

Meanwhile, others are developing all around that land, and this 

tribe is, in my judgment, cheated of an opportunity to develop its 

land. The Shakopee Tribe is a fairly wealthy tribe, but you can see 

the Department’s failure prohibits even that tribe from developing 

its surrounding communities. 

Last fall, I made two points: The Department needed to become 

more transparent with its processes so we could understand what 

it is doing and it needed to expedite its decision-making. We are 

not trying to force the BIA to make specific decisions. That is, we 

are not describing to them what kind of decisions they should 

make, but we are insisting that they expedite decision-making. 

I know that Assistant Secretary Carl Artman took my words to 

heart, and the words of my colleagues on this Committee. My staff 

has been following this matter since last fall and I believe some 

progress has been made. But it is clear there remain many obstacles that we will talk about today. 

As many of you know, Assistant Secretary Artman is now going 

to be leaving his post, effective tomorrow. I am terribly disappointed by that. I have expressed that disappointment directly to 

Mr. Artman and also to the Secretary of the Interior. Mr. Artman 

was the third Assistant Secretary for Indian Affairs under this Administration and the third to resign. For two years during this Administration, there was no Assistant Secretary. Now, I wonder how 

long it will take to get another Assistant Secretary. 

I think this is undermining the interests of Indian tribes across 

this Country, and I am very upset about it. I don’t understand it 

at all. This Committee, as its first action, took a lot of time to make 

sure Mr. Artman, was confirmed because that position had been 

vacant for two years. It ultimately required a roll call vote on the 

Senate Floor, but we finally got it done. 

In light of Mr. Artman’s imminent departure, it seemed appropriate to invite the witnesses from last fall’s hearings to come back 

and provide this Committee with a status report on what is hapVerDate Aug 31 2005 13:48 Sep 02, 2008 Jkt 042606 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\DOCS\42606.TXT JACK PsN: JACKF
3 

pening with the backlog. I know that two of the previous witnesses 

were not able to be with us today: Ron His Horse Is Thunder, who 

is Chairman of the Standing Rock Sioux Tribe; and Governor William Rhodes from the Gila River Indian Community in Arizona. 

Governor Rhodes has submitted written testimony that describes 

what has happened on his reservation since last fall. 

I want to mention one additional point. On Sunday late afternoon about 4:30 or 5 o’clock, I was in a van driving north of Dickinson, North Dakota, about 50 miles north of Dickinson to an oil rig 

in the Bakken Shale. 

In the Bakken Shale formation, which the USGS has said there 

is now estimated to be 3.6 billion to 4.3 billion barrels of recoverable oil, the largest assessment they have done anywhere in the 

United States in the lower 48. So there is and there is going to be 

a lot of oil activity in that region of western North Dakota and 

eastern Montana. 

About 4:30 or 5 o’clock last Sunday afternoon, I was driving 50 

miles north of Dickinson with someone who is an expert in these 

areas, taking me to see the Bakken Shale rig. These rigs go down 

10,000 feet, make a big curve, and drill out 10,000 feet. It is very 

sophisticated drilling. Ten thousand feet below, they are trying to 

find a 100 foot seam of shale, and they want to divide that seam 

into thirds, and they want to be drilling in the middle third of a 

100 foot seam 10,000 feet down, and 10,000 feet out. 

This person said to me there is something unusual going on, 

however. He said in the central area of North Dakota, where there 

is unbelievable development, we have close to 80 oil rigs right now 

and it is very aggressive, and there are many more rigs promised 

in the weeks ahead. There is almost no drilling on the Indian reservation, which is right smack dab in the middle of it all! 

There is drilling all around the reservation, wells with 1,800 barrels a day, 1,000 barrels a day, but on the Indian reservation there 

is virtually no activity, almost none. It is unbelievable. They, too, 

are being cheated once again. I asked him why. Well, because you 

have to go through 100 hoops, he answered. It starts at the BIA 

and then goes to BLM. The fact is, these approvals are not forthcoming. 

So, in an area that is prime development for these oil wells, 

which are popping up in every direction around that Indian reservation, this community is not able to enjoy the benefits. It is not 

because the folks on that reservation don’t want it to happen, I 

guarantee you. 

But again Sunday night, as I was taking a look at all that, it just 

makes me furious. Once again, the bureaucracy intervenes to decide others can enjoy this opportunity, can participate in it, can 

benefit from it, but American Indians don’t quite have that same 

opportunity. 

That is why we held a hearing last fall, and it is why we are 

holding another hearing now to find out what on earth has happened since then. Can we finally rely on a BIA that starts to get 

a few things done, instead of having to wait a dozen years or more 

to even review and then give approval to some of these requests? 

We have votes starting at 11:30. We only have four witnesses. 

My hope is we will finish this in an hour and a half. I appreciate 

4 

our Vice Chairman, Senator Murkowski is here, and Senator 

Barrasso. 

Senator Murkowski, would you like to make an opening statement? 

STATEMENT OF HON. LISA MURKOWSKI, 

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

I appreciate the opportunity for a follow on. It seems that so 

often around here we will have Committee meetings where we have 

an opportunity to ask the tough questions. Sometimes we get full 

and complete answers. Other times, we are told we will get back 

with you. Oftentimes when it is something where we are trying to 

find out what is the problem of the delays, what can we be doing 

better, and we get some good suggestions that come out of the 

Committee. But more times than not, we don’t come back to you 

in a Committee setting and say, so, how are you doing, and how 

are we doing, and together how are we making things better for 

the process. 

So I appreciate the Chairman’s initiative in calling you back, and 

I appreciate your return appearance. We know that while the Department continues to have problems with the backlogs in the 

areas of the fee to trusts and the leasing approvals and the EISs, 

I have heard that there has been some good progress. I am looking 

forward to hearing some of the specifics on that this morning. 

Mr. Secretary, last time you were here, you assured us that the 

current probate backlog would be eliminated by Fiscal Year 2009. 

I would like to know whether you believe that estimate still holds 

true. 

The Chairman has mentioned some of the delays that have been 

caused, that play out, if you will, in the use or development of Indian lands for minerals and energy. Again, this is an area where 

we have just not seen a level of satisfaction. So if there are any 

updates or any good news that you can share, or any ideas as to 

how we can make the system better, we would certainly welcome 

that. 

Mr. Artman, I want to take just a moment to thank you for your 

tenure as Assistant Secretary for Indian Affairs. We know that the 

backlogs that we have been looking at, they are not your fault. 

They were certainly there prior to your time. I think I was one of 

many that was very hopeful that you might just be the one that 

would make many of these problems disappear. 

I am sure that you have had a positive impact on some of these 

troubling issues and I appreciate your efforts. I am disappointed 

that you are leaving, but we understand what goes on out there. 

So I just wanted to have an opportunity this morning to thank you 

for your willingness to serve. 

With that, Mr. Chairman, I look forward to the comments. 

The CHAIRMAN. Senator Murkowski, thank you very much. 

Senator Barrasso? 

5 

STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

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

While I don’t have those wonderful pictures that you showed, 

they very clearly demonstrate the delays and the problems that it 

has caused. I have the exact same experience when I talk to my 

friends. These issues are of great importance to the folks of the 

Eastern Shoshone and the Northern Arapaho Tribes in Wyoming. 

In case after case, whether it is fee to trust; whether it is NEPA 

analysis; whether it is probate, where the delays are paralyzing the 

realty system; whether it is the leases, and when you look at that, 

it seems outdated and inefficient; whether it comes down to appraisals that are inefficient and slow. And there is just a list of 

problems that we are having in Wyoming. 

It really does seem that the government’s role in this process is 

filled with red tape, with administrative barriers. I know there is 

a lot of hard work going on at the local level at the Wind River 

Reservation. I see those efforts being lost because of a massive bureaucratic system. 

So it is very important that the Bureau’s administrative process 

be reformed to remove barriers to the development that all of us 

need with our tribes. So I look forward to discussing the opportunities for these reforms with you today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Barrasso, thank you very much. 

We will have four witnesses. We will begin with Assistant Secretary Carl Artman; we will conclude with the other three witnesses. I think, with the permission of the other Members, we will 

have all four witnesses testify first. Mr. Artman, are you able to 

stay? 

Mr. ARTMAN. Yes, of course. 

The CHAIRMAN. All right. Let me thank you for being here, and 

we thank you for your work. Let me express again my disappointment that you are leaving, but I do appreciate the work that you 

have done. I hope your report is a good one. 

Mr. ARTMAN. Thank you. 

STATEMENT OF HON. CARL J. ARTMAN, ASSISTANT 

SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF 

THE INTERIOR 

Mr. ARTMAN. Good morning, Mr. Chairman, Madam Vice Chairwoman, Senator. It is a pleasure to be back here today as a followup to this Committee’s oversight hearing last October on land into 

trust applications, environmental impact statements, probates, and 

appraisals. 

My statement today will focus on our accomplishments since the 

last hearing. I would like to submit the full statement for the 

record, with your permission. 

With regards to probate cases, I am pleased to report that we are 

still on track to eliminate the probate backlog. Our office is currently tracking the probate cases with our ProTrac system, which 

currently tracks 58,600 cases of which 16,336 are moving through 

the probate process, and 42,264 have either been distributed or 

6 

closed, or have determined to have no trust assets requiring a Federal probate process. 

In October, we stated that 98 percent of our backlog cases were 

ready for adjudication and distribution of assets. As of April 30, 

2008, 99 percent of our backlog cases have completed the case preparation phase and are ready for adjudication and distribution of assets. Eighty-eight percent of the backlog cases have been closed. 

These numbers demonstrate that the BIA is still on track to 

clear the probate backlog by the end of 2008, and by 2009 the BIA 

staff should be able to handle the probate cases without any further help from outside contractors. 

With regards to the acquisition of land into trust for non-gaming 

purposes, significant progress has occurred in the land into trust 

requests. We have implemented a fee to trust tracking system. We 

prioritized applications and completed 62 percent of our identified 

priority applications, and we are on track for completing the remaining priority applications. Further, as of April 28, 2008, we received 1,489 total requests. Of those requests, 215 applications 

were prioritized last fall in October, 2007 because the 215 applications were determined to have sufficient information for us to actually proceed with the regulatory procedures of bringing that land 

into trust. 

Of the 1,489 requests received to date, 89 have been completed, 

266 have been determined, and the only difference between those 

two is title work, and 90 of them have been withdrawn. Six hundred and thirteen pending requests lack sufficient information for 

us to proceed with the application. Of the remaining 363 land into 

trust applications, 178 applications are waiting on local government comments or tribal responses to those questions; 45 are undergoing a NEPA analysis; and 35 are being surveyed for hazardous material impacts. One hundred and five are being reviewed 

to determine if there are any title-related issues that must be resolved before a land into trust determination can be made. 

It is important to highlight that this detailed breakout does not 

include the 68 gaming and gaming-related applications in the April 

28th inventory. The proportion of applications in the NEPA compliance stage has decreased by 50 percent, while the proportion of applications in the hazmat survey has decreased by 73 percent. As of 

April 28th of this year, determinations have been made for 128, or 

62 percent, of these applications. We have also made determinations on an additional 277 applications. The 128 applications that 

I referred to, that is 128 of the 215 prioritized applications. 

While in previous years approved transfers of land into trust 

were nominal, I am proud to say that under my tenure in office we 

have been able to take approximately 53,027 acres of land into 

trust. In addition, we released the fee to trust handbook earlier 

this week which will promote consistent processes and best practices in each region. 

The BIA currently has no off-reservation files pending at the central office for review. This is a reduction of 42 applications that we 

had in October, 2007. All of the applications have been returned to 

the regional office with recommendations, and the final actions will 

take place or have taken place at that level. 

7 

1The backlog is defined as all estates where the decedent’s date of death was prior to 2000 

or whose date of death was unknown and the estate was part of the managed inventory as of 

September 30, 2005. 

Moving on to EISs, at this time there are currently no DEIS 

draft environmental impact statements ready for publication. The 

BIA is current on its processing of all EISs and in its publication 

of them for the Federal Register. This backlog has been eliminated. 

With regards to appraisals, currently the OST has 2,564 appraisals pending. Of this number, approximately 1,300 can be disposed 

of rather quickly. The Department is reviewing our appraisal process and the method of recording the appraisal backlog. Through the 

use of mass appraisal technology and consistency of the method of 

reporting the backlog, we believe that this number can be reduced 

significantly in the near future and we have been working closely 

with OST to do so. 

With regards to lease approvals, currently we have 93 commercial leases pending approval. That is down from 300 in October of 

2007. In our 12 regions, we have three regions with no backlog at 

all: the Southern Plains Region, the Eastern Region, and the Eastern Oklahoma Region. The remaining regions have leases that 

have been pending for over 30 days. 

This concludes my testimony, and I will be happy to answer any 

questions that you may have. Thank you. 

[The prepared statement of Mr. Artman follows:] 

PREPARED STATEMENT OF HON. CARL J. ARTMAN, ASSISTANT SECRETARY FOR INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Good morning Mr. Chairman, Madam Vice Chairwoman, and members of the 

Committee. It is a pleasure to be back here today as a follow up to this Committee’s 

October 4, 2007 oversight hearing on land into trust applications, environmental impact statements (EIS), probates, and appraisals. Since my previous testimony included an overview of each item and the procedures that we follow as set forth in 

statute and regulation, my statement will focus on our accomplishments since the 

last hearing. 

Probate 

We are still on track to eliminate the probate backlog. 1 As we mentioned in our 

October 4, 2007, testimony, there are four phases for the completion of a probate 

case. Using the ProTrac system, BIA monitors the performance of each case at each 

phase all the way through distribution of assets to the heirs. These phases are: (1) 

Pre-Case Preparation; (2) Case Preparation; (3) Adjudication; and (4) the Closing 

Process. The ProTrac system contains 58,600 cases of which 16,336 are currently 

moving through the probate process as of April 30, 2008 and 42,264 have either 

been distributed and closed or determined to have no trust assets requiring a Federal probate. 

In October, 98 percent of our backlogged cases were ready for adjudication and 

distribution of assets. As of April 30, 2008, 99 percent of the backlog cases have 

completed the case preparation phase and are ready for adjudication and distribution of assets. Eighty-eight percent of the backlog cases have been closed. 

These numbers demonstrate that the BIA is still on track to clear the probate 

backlog by the end of 2008. By 2009, BIA staff should be able to handle the probate 

cases without help from outside contractors. 

Trust Land Acquisitions for Non-Gaming Purposes 

Significant progress has occurred in processing land-into-trust requests. We have 

implemented a fee to trust tracking system, we prioritized applications, completed 

62 percent of identified priority applications, and are on track for completing the 

remaining priority applications. 

As stated in the October 4, 2007 testimony, the basis for the administrative decision to place land into trust for the benefit of an Indian tribe is established either 

by a specific statute applying to an Indian tribe, or by Section 5 of the Indian ReorVerDate Aug 31 2005 13:48 Sep 02, 2008 Jkt 042606 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 S:\DOCS\42606.TXT JACK PsN: JACKF
8 

2These applications were either opened after October 10, 2007 or were in our possession as 

of that date and have not yet been completed. 

ganization Act of 1934 (IRA), which authorizes the Secretary to acquire land in trust 

for Indians ‘‘within or without existing reservations’’. The Bureau is further guided 

by the ‘‘151’’ regulations (25 CFR Part 151) that govern land acquisition. The Secretary applies his discretion under these authorities, unless the acquisition is legislatively mandated. 

There are two primary types of land acquisitions under this category which are 

processed for Indian landowners by the Bureau of Indian Affairs (BIA): on-reservation; and off-reservation. The number of current applications fluctuates as we continually receive new requests to bring land into trust and process current applications. 

Regulatory procedures require environmental and hazardous material surveys to 

determine the status of lands for which the Secretary is requested to assume a trust 

responsibility. Environmental analysis is governed by the National Environmental 

Policy Act (NEPA). NEPA analyses help us make sound land transfer and management decisions and involves the time and effort proportional to the issues raised by 

a particular land transfer. Depending on the type of environmental review done, 

this process can take months or years. A Categorical Exclusion (CE) is available for 

meeting NEPA responsibilities when there has been previous environmental documentation or there will be no change in land use for compliance with NEPA. This 

allows us to proceed with an efficient NEPA environmental analysis. 

As of April 28, 2008 we have received 1,489 requests, 2 including the 215 applications that were prioritized in October 2007. Of the 1,489 requests received to date, 

89 have been completed, 266 have been determined and 90 have been withdrawn. 

613 pending requests lack sufficient information for us to proceed with the applications. Of the remaining 363 land-into-trust applications: 

• 178 pending applications are waiting on local government comments or tribal 

responses to those questions; 

• 45 are undergoing NEPA analyses; 

• 35 are being surveyed for hazardous materials impacts; and 

• 105 are being reviewed to determine if there are title-related issues that must 

be resolved before a land-into-trust determination can be made. 

716 of the pending non-prioritized requests are for land located within, or contiguous to, the tribe’s reservation boundaries and are non-gaming. The remaining requests were either submitted by individuals, located off-reservation, or by tribes 

with no historical reservation lands, or were for gaming or gaming-related purposes. 

In October 2007, 215 requests were determined to have sufficient information for 

us to proceed with regulatory procedures for bringing land into trust. At that time, 

26 of the 215 priority land-into-trust applications were in the NEPA Compliance 

stage and 66 were in the Hazardous Material Survey stage. As of April 28, 2008, 

10 of the remaining 79 undetermined prioritized applications were waiting on NEPA 

analyses and an additional 12 were undergoing Hazardous Material surveys. The 

proportion of applications in the NEPA Compliance stage has decreased by 50 percent, while the proportion of applications in the Hazardous Material Survey stage 

has decreased by 73 percent. As of April 28, determinations have been made for 128, 

or 62 percent, of these applications. We have also made determinations on an additional 227 other applications and have approved the transfer of approximately 

40,027 acres of land into trust status. 

While applications for off-reservation lands must go through a review before Central Office before they are returned to the Regional Offices for decision-making, this 

review is no longer a logjam for pending requests. The BIA currently has no offreservation files pending at Central Office for review. We had 42 applications in October. All applications have been returned to the Regional offices with recommendations and the final actions will take place at the regional level. 

Environmental Impact Statements 

In our October 4, 2007, testimony, we provided extensive comments on the Environmental Impact Statement process whereby an Indian tribe submits a request to 

the BIA to fund, issue a permit for, or approve an undertaking. When such a request is received, the BIA reviews it to determine whether it qualifies for a CE or 

Finding of No Significant Impact (FONSI) under NEPA or whether an EA or EIS 

is needed to help inform a federal decision. The most common BIA ‘‘federal actions’’ 

are lease approvals and transfers of land into or out of trust status. 

9 

In that testimony, we stated that there are three occasions during the EIS process 

that require a notice in the Federal Register: (1) the ‘‘Notice of Intent to Prepare 

an EIS’’ at the start of the process, (2) the ‘‘Notice of Availability of a Draft EIS’’ 

when a draft EIS is completed and issued, and (3) the ‘‘Notice of Availability of the 

Final EIS’’ at the time the final EIS is completed and issued. When the BIA is the 

lead agency, it prepares and issues the ‘‘Notice of Intent to Prepare an EIS.’’ At this 

time, there are no pending DEIS ready for publication. 

The length of time necessary to prepare an EIS depends on the complexity of the 

proposed project. In addition, public comment may point out weaknesses in the EIS 

that require further studies or assessments before the Final EIS may be issued. Additional time may be required to coordinate and meet other agency needs and requirements on the EIS. Delays also occur when the Federal EIS is stalled because 

the tribe alters the project plan or scope. 

The BIA is current on its processing of all EISs and in its publication of them 

in the Federal Register. This backlog has been eliminated. 

Appraisals 

In prior testimony, we stated that in FY 2002, pursuant to Secretarial Order, the 

management and operation of the real estate appraisal function was transferred 

from the BIA to the Office of the Special Trustee for American Indians (OST). This 

transfer was conducted to eliminate the appearance and potential for a conflict of 

interest that could arise in response due to the reporting structure that required 

appraisers to report to the BIA Regional Directors who were requesting the appraisal. In FY 2005, funding for the program likewise was transferred to the OST. 

Appraisals are requested by the BIA when required for a trust transaction. The 

BIA issues the appraisal request to the OST Office of Appraisal Services (OAS) 

which conducts the appraisal and returns the completed valuation to the BIA for 

its use. OAS appraisers aim to complete appraisals to meet the due dates requested 

by BIA. 

Currently, the OST has 2,564 appraisals pending. Of this number approximately 

1,300 can be disposed of rather quickly. DOI is reviewing our appraisal process and 

the method of recording the appraisal backlog. Through the use of mass appraisal 

technology and consistency of the method of reporting backlog, we believe this number will be reduced significantly in the near future. 

Lease Approvals 

In October 2007, we provided comments on commercial development leases and 

stated they may involve tribal land, allotted land, or both. These leases are typically 

negotiated by representatives of the parties. As a result, the appraisal needed to establish an acceptable ‘‘Minimum Rent’’ and the documentation needed to comply 

with NEPA, are often not obtained by the lessee until after the basic lease terms 

have been agreed upon. We recommend that to expedite the process, appraisals may 

be obtained with the cost to the lessee, and submitted for review and approval by 

the Department’s Office of Appraisal Services. 

Currently, we have 93 commercial leases pending approval. In our twelve Regions, 

we have three Regions with no backlogs: the Southern Plains Region, Eastern Region and the Eastern Oklahoma Region. The remaining regions have leases that 

have been pending for over 30 days backlog as follows: Alaska Region—1, Navajo 

Region—1, Midwest Region—1, Great Plains Region—8, Rocky Mountain Region— 

8, Pacific Region—9, Western Region—19, Northwest Region—22, and the Southwest Region—24. 

This concludes my testimony. I will be happy to answer any questions the Committee may have. Thank you. 

The CHAIRMAN. Mr. Artman, thank you very much for your testimony. 

Next, we will hear from Robert Chicks, who is the NCAI Vice 

President for the Midwest Region, and President of the Stockbridge 

Munsee Tribe of Mohican Indians. 

Mr. Chicks? 

10 

STATEMENT OF ROBERT CHICKS, VICE PRESIDENT FOR THE 

MIDWEST REGION, NATIONAL CONGRESS OF AMERICAN 

INDIANS (NCAI); PRESIDENT, STOCKBRIDGE MUNSEE BAND 

OF MOHICAN INDIANS 

Mr. CHICKS. Good morning, Mr. Chairman, and thank you for inviting NCAI to return and testify today. 

The previous hearing was very important, we think, in pushing 

the Bureau to focus on its fundamental mission in managing tribal 

land transactions, and we hope that this hearing will continue in 

that same direction. 

First, we want to acknowledge Mr. Artman’s efforts to address 

the backlog over the last seven months. He made a good start in 

identifying problems and setting priorities. But we are concerned 

that Mr. Artman is now leaving the BIA with so much left to be 

done. I would urge the Senate Committee on Indian Affairs to play 

a strong oversight role in the coming months to make sure that 

this progress continues. Although the Bureau has made an effort 

in addressing backlogs, it is only a start. The vast majority of realty transactions are still sitting in limbo waiting for action. 

Though Mr. Artman just provided a new set of numbers and updated them, the numbers that were shared with the tribes just a 

few weeks ago showed us that there were about 1,310 applications 

and that 125 had been decided, and the Bureau was claiming 

progress on about 57 percent. 

The CHAIRMAN. What category is that? 

Mr. CHICKS. Land to trust applications. 

From our perspective, that is less than 10 percent because the 

great majority of applications have been disqualified as incomplete. 

This might help the Bureau’s numbers, but it is not any help to 

the affected tribes. 

The real problem is that there has been no communication with 

the tribes on the status of our applications, and many tribes have 

had applications pending for so long that we really doubt if they 

were even included in the tracking system to begin with. For example, as you mentioned, Mr. Chairman, the Chairman of the Standing Rock Sioux Tribe testified that his tribe had 10 applications for 

land into trust that had been pending since 1992. We contacted the 

tribe to find out if any progress had been made in the last seven 

months and they told us that not only has no progress been made 

of any kind, but they have not been contacted by the Bureau. My 

own tribe, the Stockbridge Munsee, the last time that we had land 

put into trust it took 10 years, and we currently have applications 

that are pending that are more than six years old. 

I have also attached to my testimony a letter from the Southern 

Ute Tribe to the BIA. The Southern Ute Tribe has 20 pending applications, of which 15 have been pending for more than eight 

years. These types of delays are simply unacceptable. 

The Bureau must take next steps and communicate with the 

tribes about pending applications. It also needs to establish time 

frames and a system of accountability for responding to our applications. We certainly would like to work with the Bureau to make 

this happen. 

We also have serious concerns that one of the ways the Bureau 

has addressed the backlog was to issue sweeping new rules to deny 

11 

applications. As you know, on January 4th of this year, the Department issued a guidance document establishing a new rule that land 

acquisition for gaming is not in the best interests of the tribe if the 

land in question is greater than a commutable distance from the 

reservation. On the same day, the Department used its new rule 

to deny 11 pending applications. 

While NCAI does not take a position for or against any tribe’s 

application for land into trust for gaming, it is extremely important 

that each tribe has an opportunity for fair consideration of its applications. We are gravely troubled by the process that Interior 

used to establish new guidance and, I might add, with no consultation as required by law. 

Land into trust is only one area where we have concerns about 

how much actual progress has occurred. Long delays in title and 

leasing have not changed. In particular, we would urge the Committee to investigate the status of the TAAMS title system and how 

it is working. 

Finally, we would encourage the Committee to review our earlier 

testimony which contained suggestions for addressing the issues in 

BIA realty. More importantly, the system needs more funding and 

staffing. The backlog of decision-making in BIA realty has been a 

leading concern for tribal leaders for many, many years. 

NCAI strongly encourages the Bureau to continue to take action 

in consultation with tribal leadership, and we applaud this Committee for pushing this issue so strongly. 

Thank you. 

[The prepared statement of Mr. Chicks follows:] 

PREPARED STATEMENT OF ROBERT CHICKS, VICE PRESIDENT FOR THE MIDWEST

REGION, NATIONAL CONGRESS OF AMERICAN INDIANS (NCAI); PRESIDENT, 

STOCKBRIDGE MUNSEE BAND OF MOHICAN INDIANS

Chairman Dorgan, Vice Chair Murkowski and members of the Committee, thank 

you for the opportunity to return and testify today on this important topic. NCAI 

provided testimony seven months ago on our concerns about the backlog of realty 

functions at the Bureau of Indian Affairs, and the negative impacts on tribes. The 

Bureau of Indian Affairs’ core mission is the management and restoration of the 

tribal lands where tribal communities live and govern their own affairs. Indian land 

is critical to tribal economies and cultures. Our testimony focused on proposed solutions to improve the performance of the BIA on realty functions. 

First, we want to acknowledge Assistant Secretary Carl Artman’s efforts to address the backlog over the last seven months. We tend to view the BIA’s backlog 

problems as systemic—arising from understaffing and increasing work loads. We 

have been impressed with the way that leadership can also make a difference. Mr. 

Artman set priorities, managed the available staff and worked to expedite decision 

making. It gives us some optimism about the future that leadership can make a difference at the BIA. 

Second, we are concerned that Mr. Artman is now leaving the BIA with so much 

left to be done. The Bureau of Indian Affairs has suffered significantly from instability in management during this Administration. Mr. Artman is the third Presidential appointee to hold the position, he was on the job for only one year, and the 

position was vacant for over two years prior to his confirmation. The NCAI leadership has met with Secretary Kempthorne to discuss our concerns, and we would 

urge the Senate Committee on Indian Affairs to play a strong oversight role in the 

coming months. 

Third, although the BIA has made an effort in addressing the backlogs, it is only 

a start. The BIA Realty office has developed some management tools so that they 

can track the progress on realty transactions. That is a good development, but the 

vast majority of realty transactions are still sitting in limbo waiting for action. 

12 

We also have questions about the methods that the BIA is using to show progress 

on the backlog. For example, the following numbers on land to trust requests come 

from a BIA Realty presentation in March: 

Where We Started—October 2007 

• 1,310 pending land-into-trust requests representing 1,070,000 acres 

• 217 applications ready to be processed 

• Inconsistent procedures 

• No accountability 

Where We Are—March 10, 2008 

• 57 percent (125/217) priority cases decided—Enough information to make a decision 

• 25 percent (55/217) priority cases complete—Land has been conveyed 

• 37,368 acres approved for trust status 

This is a funny kind of math. 1,310 applications, 125 have been decided, and the 

BIA claims progress on 57 percent. The problem is that the great majority of applications have been disqualified as incomplete or not ready to be processed. This may 

help the BIA’s numbers, but it is no help at all to the affected tribes. There has 

been no communication with the tribes on the status of their applications; there are 

no guidelines on what is a complete application; and there has been no progress at 

all on 90 percent of the tribal applications. Even worse, a huge number of applications are now categorized as incomplete and will see no action by the Bureau of Indian Affairs. We are also not confident that the 1,310 number is accurate. Many 

tribes have had applications pending for so long that they were unlikely to be included in the tracking system. 

The BIA must take the next steps and communicate with the tribes about pending 

applications to identify incomplete information and about the status of applications 

that may not be in the system. The BIA also needs to establish time frames and 

a system of accountability for responding to applications. We would like to work 

with the BIA to make this happen, but our overall point is that the BIA is just getting started. 

For example, at the previous hearing on this topic Chairman Ron His Horses 

Thunder from the Standing Rock Sioux Tribe testified that his tribe has ten applications for land into trust that have been pending since 1992. We contacted the Standing Rock Tribe to find out if any progress has been made in the last seven months. 

They report that there has been no progress of any kind, nor have they been contacted by the BIA about the status of their applications. 

Standing Rock is just one of many examples. At Stockbridge Munsee, the last 

time we had land put into trust it took ten years. We currently have applications 

pending that are over six years old. I am also attaching a letter from the Southern 

Ute Tribe to the Bureau of Indian Affairs. The Southern Ute Tribe has 20 pending 

applications, of which 15 are have been pending for over eight years. They have received no action since they sent this letter to the BIA well over a year ago. These 

types of delays are unacceptable and must be addressed by the Bureau of Indian 

Affairs. 

We also have a serious concern that one of the ways the BIA has addressed the 

backlog was to issue sweeping new rules to deny applications. On January 4 of this 

year, the Department issued a document entitled ‘‘Guidance on taking off-reservation land into trust for gaming purposes,’’ establishing a new rule that land acquisition for gaming is not in the best interest of the tribe if the land in question is 

greater than a ‘‘commutable distance’’ from the reservation. The document justifies 

this decision by reference to the Secretary’s discretionary authority to take land into 

trust under Section 5 of the IRA. On the same day, the Department used this new 

rule to deny eleven pending applications. 

NCAI is an organization made up of over 250 tribal governments, and we do not 

have a position for or against any tribe’s application for land into trust for gaming 

purposes. However, as a matter of federal policy it is extremely important that each 

tribe has an opportunity for fair consideration of their application on its own merits 

based on the laws passed by Congress. We are gravely troubled by the process that 

Interior used to establish new guidance and the manner in which it used this new 

policy to summarily reject so many pending applications. In addition, this new policy was created absent consultation and with no discussion about its implications 

for non-gaming acquisitions of land under Section 5 of the Indian Reorganization 

Act (IRA). Indian tribes regularly seek to place off-reservation land into trust for 

purposes of economic development, natural resources protection, and cultural and 

religious use. Because of the history of removal and tribal land loss, it is not uncomVerDate Aug 31 2005 13:48 Sep 02, 2008 Jkt 042606 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 S:\DOCS\42606.TXT JACK PsN: JACKF
13 

mon that these lands are greater than a ‘‘commutable distance’’ from existing reservations. 

Land to trust is only one area where we have concerns about how much actual 

progress has occurred. Long delays in title and leasing have not changed to our 

knowledge, and we do not have any way of assessing the claims that the Department is making about progress. In particular we would urge the Committee to investigate the status of the TAAMS title system and how it is working. The BIA has 

made a huge investment in TAAMS, and it is the backbone of the entire realty system. The BIA claims to have met a number of recent milestones, but we do not yet 

have any independent evaluation of how TAAMS is working, whether it will streamline realty processes, and how it interfaces with other critical components of the system such as accounts receivable and leasing. 

Finally, we would urge the Committee to review our earlier testimony with suggestions for addressing the systemic issues in BIA Realty. The system desperately 

needs more financial resources and staffing to accompany process improvements. We 

also believe Congress should revisit Title III of S. 1439 from the 109th Congress, 

which would increase tribal control over reservation land management. Indian reservations vary widely in their needs for land management services, and under these 

plans Indian tribes would be able to create reservation-specific land management 

plans and allocate the available funding according to the needs of that particular 

reservation. 

Conclusion 

The backlog of decision making in BIA realty has been a leading concern of tribal 

leaders throughout the country for many years. NCAI strongly encourages Congress 

and the Administration to take action on these issues, in close consultation with 

tribal leadership. We thank you in advance, and look forward to working with you. 

14 

Attachments 


522a1.eps
15 


522a2.eps
16 


522a3.eps
17 

The CHAIRMAN. Mr. Chicks, thank you very much. 

Next, we will hear from Mr. Gary Svanda. Mr. Svanda is a Council Member of the City of Madera in Madera, California. 

Mr. Svanda, thank you for being here. 

STATEMENT OF GARY SVANDA, COUNCIL MEMBER, CITY OF 

MADERA, CALIFORNIA 

Mr. SVANDA. Thank you Chairman Dorgan and distinguished 

Members of the Committee. On behalf of the City Council of 

Madera and the Madera County Board of Supervisors, I appreciate 

the opportunity to provide the Committee with an update from 

what was reported to you at the October 3rd hearing on the status 

of the draft environmental impact statement for the project proposed by the North Fork Rancheria at a location north of the City 

of Madera in Madera County. 

Before I do that, I would like to acknowledge two important political leaders from my area, that being Elaine Bethel Fink, the Tribal Chairperson for the North Fork Mono Tribe, and also Mary Ann 

McGovern, the Treasurer of the North Fork Tribe. 

The CHAIRMAN. Thank you. We welcome them here. 

Mr. SVANDA. I am happy to report that the draft EIS was finally 

published on February 15, 2008. Publication of the draft was followed by a 45-day public comment period and a public hearing on 

March 12th. The public hearing received considerable local attention and was a very well-attended affair. Most striking in my mind 

was the overwhelming support of the project voiced by nearly two 

dozen current and former local officials, and that both supporters 


522a4.eps
18 

and opponents were provided an opportunity to sing the praises or 

voice their concerns about the project. 

The BIA’s public hearing on the draft EIS was one of more than 

a half dozen opportunities that the public has had to weigh in on 

this project in a formal public setting. Still, it was an important 

step in the Federal process since it was the first time since the 

scoping report back in November, 2004 where the public could comment directly on the environmental review process. 

This is not to say that the local community has not been actively 

engaged in addressing local concerns about the EIS or the project. 

Long before the public hearing on the draft EIS in March, the tribe 

entered into mitigation agreements with the County and the City 

of Madera and the Madera Irrigation District. Further, both the 

city and the Irrigation District are serving as cooperating agencies 

for the EIS. 

I am quite certain that all this public input will result in the 

most thorough environmental review ever prepared as a project in 

the history of Madera. All told, publication of the draft EIS was delayed a full year. The Committee is probably as interested as we 

were in understanding this delay. 

Early in January of this year, we learned that the North Fork 

Rancheria’s project was caught up in a comprehensive BIA review 

of more than 30 off-reservation requests pending nationality. Sometime last year, the Department of the Interior developed a new internal policy and then applied that new policy to each of the pending requests before publicly announcing the new policy in early 

January. The North Fork Rancheria’s application was one of only 

six off-reservation requests nationally that were allowed to continue under the BIA’s new policy because the proposed trust acquisition is within a commutable distance of North Fork. Because the 

tribe’s proposed development is consistent with planned land use 

for the immediate area around the site, and because the project enjoys very strong local support, the BIA found that the tribe should 

be allowed to proceed through the next stages of the Federal review. 

Shortly after it announced the new policy, the BIA published the 

draft EIS. As Supervisor Frank Bigelow explained at the October 

3rd hearing, both the County and the City of Madera have strong 

interest in seeing the Federal process move forward. In many ways, 

the North Fork project has moved from being merely a tribal 

project to a community project, a true collective effort, as was clearly evidenced at the public hearing. 

Both the city and the county have devoted considerable time, energy, and resources in working with the North Fork Rancheria to 

ensure that the proposed project benefits both the tribe and the entire community. 

Madera is now also considering annexing land within our urban 

growth boundary near the proposed site and is in discussions with 

other developers who may be willing to invest in our community so 

long as the tribe’s project moves forward and is able to provide the 

good-paying jobs and the economic engine to jump start our longstagnant economy. In this way, the tribe’s project is helping to pave 

the way for further economic growth to our region. 

19 

Finally, this past April, we learned that yet another community 

will benefit from this project under two compacts recently signed 

by Governor Schwarzenegger with the North Fork and Wiyot 

Tribes. Under the compacts, the North Fork Rancheria would allocate a portion of the revenues from its resort to a State-administered fund that will allow the Wiyot Tribe to forego gaming on its 

environmentally sensitive reservation located along the beautiful 

Northern California coast of Humboldt County. Not only does this 

benefit the environment, it also means that the North Fork project 

will now directly benefit nearly 2,300 tribal citizens that comprise 

the two tribes, in addition to the County of Madera, the Cities of 

Madera and Chowchilla, and indeed many other residents of the 

Central Valley and Humboldt County. 

Again, I would like to thank this Committee for your efforts in 

moving the Federal process forward. I would be very happy to answer any questions regarding my statement. 

[The prepared statement of Mr. Svanda follows:] 

PREPARED STATEMENT OF GARY SVANDA, COUNCIL MEMBER, CITY OF MADERA, 

CALIFORNIA

Chairman Dorgan, distinguished members of the Committee, on behalf of the City 

Council of Madera and the Madera County Board of Supervisors, I appreciate the 

opportunity to provide the Committee an update from what was reported to you at 

the October 3rd hearing on the status of the draft environmental impact statement 

(EIS) for a project proposed by the North Fork Rancheria at a location north of the 

City of Madera in Madera County. 

I am happy to report that the draft EIS was finally published on February 15, 

2008. Publication of the draft was followed by a 45-day public comment period and 

a public hearing on March 12. The public hearing received considerable local attention and was a well-attended affair. Most striking in my mind was the overwhelming support of the project voiced by nearly two dozen current and former local 

officials and that both supporters and opponents were provided an opportunity to 

sing their praises or voice their concerns about the project. The BIA’s public hearing 

on the draft EIS was just one of more than a half dozen opportunities that the public has had to weigh in on this project in a formal public setting. Still, it was an 

important step in the federal process since it was the first time since the scoping 

report hearing in November 2004 where the public could comment directly on the 

environmental review process. This is not to say that the local community has not 

been actively engaged in addressing local concerns about the EIS or the project. 

Long before the public hearing on the draft EIS in March, the Tribe entered into 

mitigation agreements with the County and City of Madera and the Madera Irrigation District. Further, both the City and the Irrigation District are serving as cooperating agencies for the EIS. I am quite certain that all this public input will result in the most thorough environmental reviews prepared for any project in 

Madera’s history. 

All told, publication of the draft EIS was delayed a full year. The Committee is 

probably as interested as we were in understanding this delay. Early in January 

of this year we learned that the North Fork Rancheria’s project was caught up in 

a comprehensive BIA review of the more than thirty off-reservation requests pending nationally. Sometime last year, the Department of the Interior developed a new 

internal policy, and then applied that new policy to each of the pending requests 

before publicly announcing the new policy in early January. The North Fork 

Rancheria’s application was only one of six off-reservation requests nationwide that 

were allowed to continue under the BIA’s new policy. Because the proposed trust 

acquisition is within a commutable distance of North Fork, because the Tribe’s proposed development is consistent with planned land use for the immediate area 

around the site, and because the project enjoys strong local support, the BIA found 

that the Tribe should be allowed to proceed through the next stages of federal review. Shortly after it announced the new policy, the BIA published the draft EIS. 

As Supervisor Frank Bigelow explained at the October 3 hearing, both the County 

and City of Madera have a strong interest in seeing the federal process move forward. In many ways, the North Fork project has moved from being merely a tribal 

20 

project to a community project and a true collective effort, as was clearly evident 

at the public hearing. Both the City and County have devoted considerable time, 

energy, and resources in working with the North Fork Rancheria to ensure that the 

proposed project benefits both the Tribe and the entire community. The City of 

Madera is now also considering annexing land within our urban growth boundary 

near the proposed site, and are in discussions with other developers who may be 

willing to invest in our community so long as the Tribe’s project moves forward and 

is able to provide the good paying jobs and economic engine to jump start our long 

stagnant economy. In this way, the Tribe’s project is helping to pave the way for 

further economic growth to our region. 

Finally, this past April, we learned that yet another community will benefit from 

this project under the two compacts recently signed by Governor Schwarzenegger 

with the North Fork and Wiyot Tribes. Under the compacts, the North Fork 

Rancheria would allocate a portion of the revenues from its resort to a state-administered fund that will allow the Wiyot Tribe to forego gaming on its environmentally 

sensitive reservation located along the beautiful Northern California coast in Humboldt County. Not only does this benefit the environment, it also means that the 

North Fork project will now directly benefit the nearly 2,300 tribal citizens that 

comprise the two tribes, in addition to the County of Madera and the Cities of 

Madera and Chowchilla, and indeed many other residents of the Central Valley and 

Humboldt County. 

Again, I want to thank this Committee for your efforts in moving the federal process forward. 

The CHAIRMAN. Mr. Svanda, thank you very much for your testimony. 

Finally, we will hear from Douglas Nash, Director of the Institute for Indian Estate Planning and Probate. 

Mr. Nash, you may proceed. Thank you very much for being 

here. 

STATEMENT OF DOUGLAS NASH, DIRECTOR, INSTITUTE FOR 

INDIAN ESTATE PLANNING AND PROBATE, SEATTLE 

UNIVERSITY SCHOOL OF LAW 

Mr. NASH. Thank you, Mr. Chairman. I appreciate the opportunity to be here. Mr. Chairman and Members of the Committee, 

I would like to express my appreciation to Mr. Artman as well for 

the time and work that he has put in, and to join the many other 

who regret his departure from that position. 

Mr. Chairman, from anecdotal evidence and personal experience, 

I believe that little has changed since the last hearing about eight 

months ago, at least in terms of the backlogs that plague the probate process. It is my prediction that little progress will be realized 

in the future unless the Bureau of Indian Affairs and/or Congress 

takes some decisive steps to support the mechanisms that have 

been created by the American Indian Probate Reform Act to 

proactively address and reduce the fractionization of tribe trust 

lands. 

The backlog in the probate of Indian estates is a multi-faceted 

systemic problem with one common denominator: the fractionated 

ownership of trust lands. The sheer number of fractionated interests, combined with the current and outstanding historic probates, 

the complexity of those probates as measured by the number of undivided interests held by individual decedents, the lack of a central 

and robust land title record system that would support timely and 

accurate multi-jurisdictional title reports, and finally the lack of estate planning and buy-back resources which have proven successful 

in reducing fractionization and removing interests from the probate 

process are all part of the problem. 

21 

All of these factors contribute to the backlogs in probate now and 

the continuation of backlogs in the future. 

The Probate Reform Act is intended to address the issue of fractionation through intestate succession. If fully implemented and 

resourced, the Act will substantially and significantly reduce fractionation given time. There are no quick fixes to address an issue 

that has evolved and grown exponentially over 120 years. 

The Act’s intestacy laws will stop the further fractionation of 

small interests, those of less than 5 percent. However, the Act will 

continue to fractionate all lands greater than 5 percent until that 

highly fractionated threshold of 5 percent is reached. The new interests will require additional management resources and contribute to the continuation of the probate backlog. 

Hundreds of thousands of new interests and owners will be created by the Act without the intervention of estate planning and 

buy-back programs authorized by the Act. The Act contains specific 

provisions and authorizations for estate planning and buy-back 

programs, which reduce fractionation and promote reconsolidation 

of trust lands. Funding for these programs has been stalled and 

stymied. 

I know from our experience at the Institute, where we designed 

and administered a program under a one year estate planning pilot 

project contract from Interior in the fall of 2005 in the amount of 

$519,000. The project’s purpose was to determine if there was a 

need for estate planning in Indian Country, and if so, whether estate planning would reduce fractionation of trust lands. The answer 

to both is unequivocally yes. 

The pilot project provided full-time estate planning services to 

Legal Services programs in Washington and South Dakota, serving 

specified reservations. The pilot project ended in September, 2006, 

and an extension of the contract for unspent funds was denied. For 

reasons unknown to us, a few within the Bureau have characterized the results of that project as having a neutral to negative effect on fractionation. This is contrary to the Bureau’s own audit report, our statistical findings, and our experience with other projects 

we have operated since 2004. 

After the completion of the project, the BIA auditor reviewed client files that were developed in the course of the project with appropriate safeguards to protect confidentiality. The auditor concluded that 83.5 percent of the project wills reduced fractionation. 

Will drafting not only prevented further fractionation of small interests, but stopped the fractionation of thousands of new interests 

that would have otherwise been created under AIPRA’s intestacy 

rules. 

Under the project, 2,600 trust interests were transferred by will 

to a single heir or as a joint tenancy with the right of survivorship. 

Of these 2,600 interests, 780 interests were greater than 5 percent, 

and without estate planning AIPRA’s intestacy laws would have 

further fractionated those into 4,640 new interests and heirs. One 

hundred percent of the pilot project’s inter vivos instruments such 

as gift deeds totally stopped fractionation. 

Equally significant, 519 interests were permanently removed 

from any further probate proceeding through pilot project conveyances to tribes or buy-back programs, saving the Bureau of Indian 

22 

Affairs substantial dollars in what otherwise would have been the 

continuation of administration probate and management costs. 

These results are from just one program providing services fulltime for nine months and for under $500,000. 

Our Institute is the only entity attempting to provide estate 

planning legal services to Indian people on a national basis. We develop programs and oversee projects in several States using a number of different models and methods. We have described in our testimony those models and methods that we have used and the results that we have achieved. We believe that the expansion of estate planning services in Indian Country is going to be essential to 

stop the fractionation problem that contributes so heavily to the 

backlogs in the probate process. 

We have also encouraged in our testimony a reconsideration of 

the Bureau of Indian Affairs’ decision not to store wills, and we understand just recently that that decision has been reconsidered. It 

is a small, but significant, factor, we believe, that contributes to the 

backlog. 

Finally, Mr. Chairman, we have had an opportunity to review 

and look at the technical amendments that have been proposed to 

the Probate Reform Act. We have commented on a couple of those 

and strongly support those amendments, and believe they will be 

a help and an improvement. 

Thank you very much. 

[The prepared statement of Mr. Nash follows:] 

PREPARED STATEMENT OF DOUGLAS NASH, DIRECTOR, INSTITUTE FOR INDIAN ESTATE

PLANNING AND PROBATE, SEATTLE UNIVERSITY SCHOOL OF LAW

Mr. Chairman, members of the Committee, my name is Douglas Nash. I am the 

Director of the Institute for Indian Estate Planning and Probate at Seattle University School of Law (http://www.indianwills.org). The Institute is a project of the Indian Land Tenure Foundation which is a non-profit corporation in Little Canada, 

Minnesota (www.indianlandtenure.org). I appreciate the opportunity to participate 

in the follow-up session to the October, 2007, hearing on the issue of probate and 

backlogs within the Bureau of Indian Affairs. 

I. Probate Backlog 

From anecdotal evidence and personal experience, I believe that little has changed 

since the last hearing about eight months ago—at least in terms of the backlogs 

that plague the probate process. It is my prediction that little progress will be realized in the future unless the Bureau of Indian Affairs and/or Congress take some 

decisive steps to support the mechanisms created by AIPRA to proactively address 

and reduce the fractionation of trust lands. 

The backlog in the probate of Indian estates is a multi-faceted, systemic problem 

with one common denominator, fractionated ownership of trust lands. The sheer 

number fractionated interests, combined with the current and outstanding historic 

probates, the complexity of those probates as measured by the number of undivided 

interests held by each individual decedent, the lack of a central and robust LTRO 

record system that would support timely and accurate multi-jurisdictional title reports, and finally, the lack of estate planning and buy back resources which have 

proven success in reducing fractionation and removing interests from the probate 

process entirely. All of these factors contribute to the backlogs in probate now and 

the continuation of backlogs in the future. 

The American Indian Probate Reform Act (AIPRA) is designed and intended to 

address the issue of fractionation through intestate succession. If fully implemented 

and resourced, the Act will substantially and significantly reduce fractionation given 

appropriate time. There are no quick fixes to address an issue that has evolved and 

grown exponentially for over 120 years. The Act’s Intestacy laws will stop the further fractionation of very small interests, those less than 5 percent. However, the 

Act will continue to fractionate all lands greater than 5 percent until the highly 

fractionated threshold of 5 percent is reached. The new interests will require addiVerDate Aug 31 2005 13:48 Sep 02, 2008 Jkt 042606 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 S:\DOCS\42606.TXT JACK PsN: JACKF
23 

tional management resources and contribute to the continuation of the probate 

backlog. 

Hundreds of thousands of new interests and owners will be created by the Act 

without intervention of the estate planning and buy back programs authorized by 

the Act. The Act contains specific provisions and authorizations for estate planning 

and buy back programs which reduce fractionation and promote reconsolidation of 

trust lands. Funding for these programs have been stalled and stymied. 

I know this as Director of The Institute for Indian Estate Planning and Probate. 

We designed and administered a program under a one year Estate Planning Pilot 

Project Contract from Interior awarded in the fall of 2005 and in the amount of 

$519,000.00. The Pilot Project’s purpose was to determine if there was a need for 

estate planning of trust lands and if so, would estate planning reduce fractionation 

of trust lands. The answer to both was unequivocally yes. 

The pilot project provided full time estate planning services to selected tribes in 

Washington and all tribes in South Dakota utilizing four specially trained legal 

service attorneys and two legal service paralegals. The Pilot ended in September, 

2006 and an extension of contract for unspent funds was denied. For reasons unknown to us, a few within the BIA have characterized the results as having a ‘‘neutral to negative’’ effect on fractionation. This is clearly contrary to the BIA’s own 

auditor report, our statistical findings, and our experience with other projects we 

have operated since 2004. After completion of the Pilot, a BIA auditor reviewed client files developed in the course of the pilot project, with appropriate safeguards in 

place to protect confidentiality. 

The BIA auditor concluded that 83.5 percent of the pilot project wills reduced fractionation. Will drafting not only prevented further fractionation of small interests, 

but stopped the fractionation of thousands of new interests that would have otherwise been created under AIPRA’s intestacy rules. Under the Pilot, 2,600 trust land 

interests were transferred by will to a single heir or as joint tenancy with a right 

of survivorship which vests title in only the last survivor. Of these 2,600 interests, 

780 interests were greater than 5 percent and AIPRA’s intestacy laws would have 

further fractionated these into 4,640 new interests and heirs. 100 percent of Pilot 

Project’s inter vivos instruments, such as gift deeds, stopped fractionation. Equally 

significant, 519 interests were permanently removed from any future probate proceeding through Pilot conveyances to tribes or buy back programs, saving the Bureau of Indian Affairs substantial dollars in what otherwise would have been the 

continuation of administrative, probate and management costs. These results are 

from just one program providing services full time for 9 months and for under 

$500,000. 

Our Institute is the only entity attempting to provide estate planning legal services to Indian people on a national basis. We develop programs and oversee projects 

in several states, using a number of different models, based upon available funds. 

Our programs provide estate planning services to Indian people at no cost. We currently have four projects in operation that deliver very limited estate planning services on approximately 20 reservations in six states and these projects are funded 

by private foundations and tribes. Adequate funding of estate planning will address 

and eliminate fractionation. Funding is the only obstacle to the expansion of our 

current projects and the development of new projects. We have resolutions from numerous tribes as well as tribal organizations in support of our work and tribes requesting services but who are waiting until additional funding is secured. Having 

substantial and long-term funding commitments from the BIA or Congress will 

greatly facilitate the delivery of estate planning services, and as a result, successfully stem the tide of fractionation and reduce the backlogs in probate. 

Our projects utilize a number of different models designed to fit both needs of the 

communities and the private funding limitations we face. These include the use of 

specially trained, law student interns who are paid to work on reservations over the 

summer months; law student externs who receive college credit in lieu of a salary; 

contracting with legal services programs and training legal services attorneys to 

work exclusively on estate planning issues for tribal members; a law school clinical 

program at Seattle University School of Law; paralegal providing services under appropriate supervision; and an evolving volunteer pro bono program. All project personnel are trained to provide community education on AIPRA, fractionation and 

land tenure issues, as well as offer clients alternatives with regard to the disposition 

of their interests in trust land—alternatives that minimize or eliminate further fractionation or, in some cases avoid probate all together. Testamentary transfers include leaving whole interests to individual heirs, leaving interests to multiple heirs 

as joint tenants with a right of survivorship, leaving other assets in lieu of land to 

some heirs and developing consolidation agreements. Project personnel also provide 

24 

information and assistance with life time transfers, such as gift deeds and sales 

which eliminate the need for probate entirely. 

The purpose and intent of AIPRA is thwarted without estate planning services 

and land consolidation options authorized under the Act. Estate planning services 

cannot be provided without adequate funding from the BIA or alternately, from appropriations authorized under the Act. Section 2206(f)(4). Unless these services are 

provided, the benefits that are contained within AIPRA will not be realized and 

backlogs will continue to increase. 

II. Will Storage 

When the BIA announced that it would no longer draft wills, it simultaneously 

announced that it would no longer store wills for tribal members as had been their 

previous practice for many decades. Withdrawal of will storage services has a significant impact on probate backlogs. A thoughtful estate plan to reduce fractionation 

is worthless if the family cannot find the will after death and the Bureau has no 

record of its existence. Additional time is spent in federal probate proceedings when 

judges must determine the legal sufficiency of a copy submitted when the original 

cannot be found. 

Our project personnel counsel clients about safeguarding and storing originals of 

wills and providing copies to appropriate individuals. Inevitably, some wills will be 

lost, destroyed or otherwise unavailable at the time of the decedent’s death. Delays 

in probate will be encountered as a result. Challenges to intestate proceedings in 

cases where family or friends recall the deceased having done a will are likely to 

increase, as will arguments for or against uncertified copies. Each will consume time 

and therefore, expand costs for the probate. Storing Indian wills at the local BIA 

agency marries well with that same agency’s duty to prepare the probate package 

for hearing. Any additional burden, if any, of will storage would be offset by the 

time and costs encountered as a result of not providing the service. We encourage 

reconsideration of the decision of the BIA to not house wills. 

III. Technical Amendments 

We have had an opportunity to talk with committee staff and review additional 

technical amendments currently in Senate draft form (S. 2087). We believe the 

changes proposed will clarify important provisions of AIPRA and further the effective implementation of the Act and reduce potential problems and claims arising 

from inaction. None of the proposed amendments alter the Acts provisions in a way 

that would increase the expense of implementation or administration of the Act. 

There are several important changes to the Act under this floor draft bill. To be 

brief, I will only highlight two of the proposed issues and reasoning for change. 25 

U.S.C. § 2201(7) defines lands to include any permanent fixture attached. There is 

no differentiation between lands held by the Secretary in trust for the tribe or the 

individual. The result is, at worst, merger of HUD and Mutual Help Homes onto 

tribal trust lands contrary to existing federal lending agreements and contracts. At 

best, the existing language creates a gray area that the probate courts will inevitably have to decide—what is the nature of these homes. The amendment would remove the 2201(7) definition and provide an intestate provision for distribution under 

25 U.S.C. § 2206 for those homes where the decedent has an ownership interest in 

the underlying land. Existing federal and tribal contracts, as well as tribal housing 

codes would be unaffected for those homes tribal trust lands. 

Purchase options at probate, 25 U.S.C. § 2206(o), is a consolidation mechanism of 

the Act where a co-owner, heir or the tribe can request to purchase an interest in 

a parcel during the probate process. For interests greater than 5 percent or any interest passing by a will, consent of the putative heir is required. For interests less 

than 5 percent passing under intestacy, no consent of the heir is required for sale 

unless the putative heir lives on that parcel at the time of death. The Act currently 

measures these interests, not as the interest in probate of the decedent, but as the 

future expectancy of the heir. The result is that large trust interests of the decedent 

would be open to forced sale under the provisions of the Act. A simple scenario is 

an individual dying intestate with a 20 percent interest with five children. The Act’s 

intestacy rules will fractionate this large interest, giving 4 percent interest to each 

child or the child’s estate; and then, the same Act measures the putative heir’s 

unvested land interests at probate for sale without consent at probate. The amendment corrects the Act to measure only the interest of the decedents’ at probate, and 

remove the potential for numerous property and due process claims that would otherwise arise. 

IV. Conclusion 

I would like to thank you Mr. Chairman, and the Committee, for the opportunity 

to share this information in testimony today and for your interest in this subject 

25 

and this Act which is critically important to many across Indian Country. We would 

be happy to provide any additional information that we have that would be of interest to the Committee. 

Thank you. 

The CHAIRMAN. Mr. Nash, thank you very much. We appreciate 

your testimony. 

Mr. Artman, let me start with the question that was raised by 

Mr. Svanda. Chairman Ron His Horse Is Thunder testified about 

the 10 applications they have had pending since 1992 about land 

into trust status. Has anything happened on those? 

Mr. ARTMAN. We just spoke with Chairman His Horse Is Thunder yesterday about those, as well as with our people that were in 

the field on that. Since the hearing that took place in October, we 

tried to identify which applications he was speaking about specifically. From what we have been able to gather from both the Standing Rock Sioux people and our people is that, indeed, we can’t find 

these in the system. They are sending us the information to help 

us track it better. Perhaps it is in the system and we just aren’t 

using the right key words or the right identifiers. 

Nevertheless, we are working closely with the Standing Rock 

Sioux to make sure that if they are not in the system, to get them 

into the system and get them processing quickly. 

The CHAIRMAN. I think we held our hearing eight months ago. 

Why would you wait until yesterday to contact this tribe? 

Mr. ARTMAN. We were just giving Chairman His Horse Is Thunder an update on where we were on this as well. 

The CHAIRMAN. I understand. But my point is, he raised that in 

a hearing eight months ago and they have heard nothing from the 

BIA apparently until yesterday? 

Mr. ARTMAN. No. We have been working with them before that. 

In saying that we spoke with Chairman His Horse Is Thunder yesterday, that was by way of where we were, giving him an update 

on what we were doing. 

The CHAIRMAN. If these exist, you can’t find them in the system. 

Let me tell you that you are the third Assistant Secretary in this 

Administration. All have lasted about one year or a year and a 

half. The last Assistant Secretary, Dave Anderson, said he resigned 

because he felt ‘‘stymied’’ in his position and did not receive support from his subordinates or political higher-ups. 

Is there validity to Mr. Anderson’s comments? 

Mr. ARTMAN. I am not sure what Mr. Anderson’s reasons were 

for resigning. I haven’t spoken with him about it. If by implication, 

you are putting his comments on me, I think that the work that 

we have accomplished in advancing probates, leases and fee to 

trust, that is a team effort. In fact, just about a month ago I spoke 

with 700 of our fee to trust employees, LTRO employees, realty 

specialists, managers, regional directors, everyone who contributes 

to the system, at a trust conference in Denver. The enthusiasm 

around the room for the work that they were doing was excellent. 

I have heard a lot of comments from folks that say that they are 

excited to be able to process the applications, to be able to get them 

into trust. It has been stated clearly that we do want to take land 

into trust. By putting the performance standards on our regional 

directors, and those performance standards are pushed down 

26 

through their ranks, this is not only something that is being said 

in words, but it is also being exhibited through actions as well. 

Probates and leases, again having a two-thirds reduction in the 

number of commercial leases and staying on track to complete the 

probates by Fiscal Year 2009, I think shows enthusiasm. So stymied from below, certainly not. That takes everyone, and Secretary 

Kempthorne has shown strong support for economic development 

which the fee to trust applications, probate, and commercial leases 

all plays into that economic development as well. 

The CHAIRMAN. But Mr. Nash says, ‘‘from anecdotal evidence and 

personal experience, I believe little has changed since the last hearing eight months ago.’’ Mr. Chicks says that the land into trust 

charts you put up are a funny kind of math. You started in October 

of last year with 1,310 pending land into trust requests and 125 

have been decided out of 1,310. That is 8 percent or 9 percent. And 

yet you come up with the number of 57 percent because you say 

217 applications are ready to be processed. 

Your response? 

Mr. ARTMAN. Yes. One of the things that we did last year, one 

of the first things I mentioned in the October hearing on backlogs, 

is I mentioned that if you were to ask us what we have in trust 

in any category that is in the pipeline, I wouldn’t be able to tell 

you. One of the first things that we did when we were preparing 

for that hearing, starting at the preparation point for that hearing, 

and you have been seeing it up to now, is making sure that we 

know exactly what we have in the pipeline. 

That is not just the number that we have in the pipeline, but 

also the categories, the kinds of applications that we have in the 

pipeline. It is not funny math to say that a certain number of applications don’t have sufficient information. You can break it down 

into any number of categories looking through the 151 regulations, 

be it 151(10) and 151(11), and say that you need maybe 10 or 15 

boxes checked off, if not more, if you are going to get down to the 

sub-levels of the fee to trust process. 

If you don’t have those boxes checked off prior to being submitted 

to the BIA, it simply can’t be processed. There is nothing that we 

can do about it. There may have been a point in time in the history 

of fee to trust where you could submit a description of the land 

along with a resolution from the tribe to take the land into trust, 

but because of regulations, guidelines, court cases, laws, statutes, 

or legislation passed into law, new restrictions have been created 

or new processes have been created, everything from NEPA, 

Hazmat, to communications with the local folks. All those things 

have to be taken care of before we get there. Those are things we 

can’t do. 

When we do get them, what we do now is we are able to say, 

okay, of those approximately 1,400, we had 215 that we could do 

right away, and those we have been addressing consistently. I 

think we have approximately 62 percent of those done. Those are 

the ones we could do. 

Of the other ones, we have been working closely with the tribes 

when possible. I say when possible, because I have heard anecdotal 

evidence out of the agencies, out in the regional level, that there 

27 

has been bad communication. But for the most part, I would say 

that that is the exception, and not the rule. 

The CHAIRMAN. Mr. Artman, you indicated that, and I hate to 

use North Dakota as an example, but you indicated that you can’t 

even locate the 10 that were submitted in 1992 presumably by the 

Standing Rock Sioux Tribe. So of the 1,310 pending, that is how 

many you know are pending. 

First of all, it is gross incompetence that prior to you getting 

there, there was not a tracking system. That is stunning incompetence. I mean, I don’t know why we pay salaries of people that 

don’t understand you have to have a tracking system. How do you 

keep track of things when they come in if you don’t have a tracking 

system? 

Second, you say there are now 1,310 pending as of October of last 

year, but the 10 that one of the witnesses described in front of this 

Committee last October you say that you have no record of them. 

So how do you know the 1,310 represents the population of applications or requests? 

Mr. ARTMAN. Well, I think you state a very important point, that 

you can’t have progress if you can’t measure. And that is one of the 

first things that we try to do is put into place a foundation for 

measurement. 

With regard to the 10 out of North Dakota, and I know Chairman His Horse Is Thunder well, and I am not happy that those are 

missing. I am not happy that any would be missing in the system. 

We went through an extensive data call last fall to try to round up 

everything. With that, we have to assume that the number that we 

are working with, and it is 1,489 that are in the pipeline now, that 

that is what we have in the pipeline. I think after speaking with 

Standing Rock and getting the requisite information, it is maybe 

1,499, but we do have our limitations in terms of determining exactly what is out there. There may have been mistakes in the past 

in how this information was collected and catalogued, but we are 

working to correct those I think quickly. 

The CHAIRMAN. Mr. Artman, let me ask about the point, and 

then I will turn it over to my colleagues, that I made at the opening. Driving up near an Indian reservation and seeing oil development all around it, but none on the reservation, despite the fact 

that the oil industry told me they want to be drilling on that reservation, but cannot. So the Indians on that reservation are cheated, in my judgment. 

We raised this issue last fall. The agency is short-staffed, so the 

regional office submitted in February a request for more permanent 

employees. Limited detailed employees were provided by other 

agency offices but for a short period of time. Other regional offices 

have two to three times the realty staff. Someone asked me this 

weekend, why are they trying to do this out of Aberdeen? First of 

all, they don’t have the capability and the experience. Why don’t 

they do this out of Denver, where they do have the experience? 

The point of it is this: You tried to put some resources in there, 

but it was just a small amount of resources for a short period of 

time. We have an Indian reservation that is very much like the 

building I showed you last year—a building that sat open for over 

a year. It was a beautiful, new building built by a tribe, and they 

28 

are proud of it, but they couldn’t get anybody in it because the BIA 

wouldn’t approve the lease. So, the building sat for a year completely empty. Complete incompetence. 

It seems to me there is complete incompetence here with respect 

to this. The largest oil play in this Country, in the lower 48, right 

now is in eastern Montana and western North Dakota. That oil 

play is aggressive, except the Indian reservation, which is right in 

the middle of it, is experiencing none of it. They can’t drill wells 

there for 100 reasons that deal with the bureaucracy. 

I do not understand it. If I sound angry, I am. I sometimes think 

that we ought to abolish this agency and just start from scratch, 

hiring people who understand if you are going to have applications 

coming in on anything, maybe you should track them, give them 

a number, give them a locator number. 

When I got my MBA and my first job, I put together a system 

in the first place I worked and I understood that. It is not rocket 

science. It is unbelievable to me the staggering incompetence here. 

You have been there for a year. You, I think, have made some 

progress, but frankly I think it is less than you suggest. That is 

for us to discuss I think in greater detail. 

I have other questions, but let me call on my colleague, Senator 

Murkowski. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Mr. Artman, I want to go back to what Mr. Chicks has described 

as funny kind of math. In his statement, he provides that the problem is that the great majority of applications have been disqualified as incomplete or not ready to be processed. This may help the 

BIA’s numbers, but it is no help at all to the affected tribes. 

Is there accuracy to Mr. Chick’s statement in your opinion? What 

really is going on? 

Mr. ARTMAN. I would correct two words in Mr. Chicks’s quote. It 

is not the majority. It is 613 so far that have not been disqualified, 

but that we have simply informed the tribe that we don’t have 

enough information for us to process the application. We need for 

the tribe to submit more information. 

Senator MURKOWSKI. Then once you have made that determination that you don’t have sufficient information, do you then kick it 

out and say we have tackled that one? 

Mr. ARTMAN. No. 

Senator MURKOWSKI. How does that count? 

Mr. ARTMAN. The agency or the region, depending upon which 

tribe it is, works with the tribe to get that information, to inform 

them of what they need to do. In many cases, depending on which 

agency and which tribe, there is technical assistance offered to 

work them through the process. Most of the tribes out there have 

sophisticated land offices, real estate offices, and know this process 

well, so oftentimes it is just a noting of the fact that we may not 

have a certain letter from the community, or we may not have a 

tax statement, or we may not have a lien statement. That is all it 

is, and then the application is resubmitted. 

We are not looking at these in terms of lineal progression. It is 

not a first-in/first-out, but we are looking at this in terms of what 

can we do now, and that is why we have the fee to trust tracking 

system. 

29 

Senator MURKOWSKI. I just want to make sure that I understand. 

When you say first-in/first-out, is it kicked out then for lack of sufficient information? Then when they submit that information that 

is deemed to be sufficient, do they start all over? 

Mr. ARTMAN. No, ma’am, and it is not a first-in/first-out system. 

The way that we have set up our fee to trust tracking system now, 

we have categories. Once those categories are completed, it will 

move into our stage where we can now take over the application 

and finish it. The onus is now on us to complete it. 

They are not kicked out. They are not disqualified. They are not 

termed inactive. The case is still open. It just hasn’t hit that stage 

where we take it over. Like I said before, we work with the tribes 

to make sure that we can collect sufficient information to bring it 

up to the stage where we can now consider it. 

Senator MURKOWSKI. Let me ask you a question, Mr. Nash. For 

decades, the BIA had provided technical assistance for Indian estate planning. Just a few years ago, the Department then announced that it would no longer store Indian wills or give the willwriting assistance to Indian landowners. 

I believe that Mr. Artman said this morning that, and I think 

you phrased it that outside contracting may not necessarily be 

needed. I don’t know if it is in the area of estates. 

Do you believe, Mr. Nash, that there is still a need to provide 

funding to outside organizations to provide for, for instance, the estate planning services? 

Mr. NASH. Yes, Senator, I believe that very strongly. With the 

Bureau no longer providing estate planning or will drafting services as they did in the past, with the passage of the Probate Reform 

Act, the Act complicates estate planning for Indian people who own 

interests in trust land. 

The Bureau previously drafted wills for people who had trust interests. As you know, many Indian people own non-trust real property, as well as personal property. In our experience, many times 

a client has a need for a will that will comply with Federal and 

State, as well as tribal laws regarding probate and wills. So it has 

become very complicated. Very few people, attorneys throughout 

the Country whether in Legal Services or private practice, are 

trained on the details and intricacies of the Probate Reform Act. 

Consequently, we believe that unless there is funding for estate 

planning services such as the project that we oversee and provide, 

the estate planning process in addressing fractionation is just going 

to continue to get worse. 

Senator MURKOWSKI. Mr. Artman, I was just informed yesterday 

that the BIA has decided that the Alaska region would no longer 

have its own education program people, and that the Education 

Program Office that serves Alaska has been consolidated with the 

Portland region. My office has also been getting some complaints 

that we have a number of Alaska school districts that were expecting to receive Johnson- O’Malley money pursuant to certain tribal 

resolutions, and they haven’t received anything this year. 

When they made contact with the BIA, basically BIA told them 

we will look into it. It is my understanding that the amount of 

money we are talking about here is in excess of $300,000. I just 

wanted to ask if you were aware of this situation and, if not, if you 

30 

can see that it is looked into. As I say, I just learned about this 

yesterday, but it is something that causes me concern in these 

eight different areas. 

Are you familiar with this? 

Mr. ARTMAN. I am not familiar with either one of those, Vice 

Chairwoman, but we will look into this and get a response back to 

you today or tomorrow. 

Senator MURKOWSKI. I would appreciate that. 

And then I have also had an opportunity in the past to ask you 

about the situation that the Association of Village Council Presidents in Bethel, they had a situation with regard to their Indian 

reservation roads funding. There had been, well, I don’t know if 

there was a typographical error or whether there was an error in 

somehow or other communicating the funds that would be made 

available. I am wondering if you have any update on that situation? 

Mr. ARTMAN. Yes, ma’am. Our stated goal was to get that situation corrected. It has been corrected and our target date to get that 

money into the account and transferred over to the village is June 

11th, I believe. We do think it will happen sooner than that, 

though. 

Senator MURKOWSKI. Okay. Well, if you have any more specific 

details that you want to provide me or my staff, I would appreciate 

that. 

Mr. ARTMAN. We will get you a written confirmation of that. 

Senator MURKOWSKI. And then just one last quick question. I am 

kind of cleaning up here, knowing that you are on your way out. 

We have long had conversations about the situation with the BIA 

office, the Alaska Regional Office there in Juneau, and the prospect 

of that office moving from Juneau to Anchorage. Do you have any 

update on that situation for me? 

Mr. ARTMAN. We were looking for some additional information. 

I believe that Niles Caesar, our Regional Director in that area, is 

in the process of preparing that. I have not signed off on any transfer of the regional office from Juneau to Anchorage. 

Senator MURKOWSKI. Do you believe that that is eventually what 

happens with that office? 

Mr. ARTMAN. From the economic data that we were looking at, 

I would think that someday that will happen. 

Senator MURKOWSKI. Can you define some day? 

Mr. ARTMAN. I don’t know. 

[Laughter.] 

Mr. ARTMAN. I suppose it will depend upon the next person, what 

he or she may want to do, or the person after that. I don’t have 

a date on that. I don’t have any outlook on when that may occur. 

Senator MURKOWSKI. Well, as you know, that is an issue for us 

in the State that we are concerned about. Juneau is having a pretty tough time right now, and the loss of a regional office like this 

moving to Anchorage is not something that helps Juneau. We had 

hoped that we would not be seeing that there would be certainly 

regional offices that are not maintained in that south central area 

in the capital. So I would like to think that we are not going to 

be seeing that someday. 

31 

Mr. ARTMAN. Okay. I will pass that along, and I will also pass 

along to the next person, as I committed to you, that before we do 

anything that we will communicate that with the entire delegation. 

Senator MURKOWSKI. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Barrasso? 

Senator BARRASSO. Thank you, Mr. Chairman. 

Mr. Chairman, last week the three of us, along with Senator 

Tester, discussed the idea that the government in Indian Country 

should just put people in a position to succeed, and then get out 

of the way. And then you here these comments and look at these 

delays and you know that once again the government has gone 

astray from that role. 

Mr. Artman, I have concerns. I know your office is working on 

streamlining processes. I appreciate that very much. Let me read 

you what I know is happening in Wyoming right now. This has to 

do with NEPA, the National Environmental Policy Act. Currently, 

all NEPA work in Wyoming is suspended. All NEPA work is suspended on the Wind River Reservation because personnel there and 

at the Rocky Mountain Regional Office in Billings believe that 

none, none of them possess the qualifications to certify NEPA documents under the current BIA regulations, none of them. 

The BIA personnel report is that this suspension was prompted 

by an order, probably coming from your office, to try to simplify the 

process. The BIA personnel claimed that the process has been so 

streamlined that it requires an expert to make the decisions and 

there is no such expert available in either Wyoming or Billings, 

Montana to deal with it. So it is all suspended. Nothing is being 

done. Things have come to a complete stop. 

Do the requirements that come forth now, are they requiring 

more training or more certification for the personnel? We talk 

about the unintended consequences of government action, and it 

seems that a good plan to streamline something has now brought 

things to a complete shutdown. 

Any comments on this? 

Mr. ARTMAN. Senator Barrasso, the situation that you are talking about comes from not anything that has happened recently, but 

has come from the DOJ standards and the standards that have 

been promulgated by our office and the solicitor’s office previously 

on what needs to be done under NEPA review. The individual up 

there who was in charge of that feels that he doesn’t have the 

qualifications to do that. While we might debate on what his qualifications are, I actually think he is a very well qualified individual. 

He is concerned about the issue, about his own qualifications. 

So with that concern, we are trying to work with that office to 

be able to deal with that issue, be it bringing in people on detail 

or sending out the work elsewhere for that. Many times with these 

NEPA reviews, it is putting the person onsite sometimes for as little as five minutes or even an hour to look at it and to walk 

around. It is as easy as that. 

We have well-qualified people throughout the system, and in 

other areas it is continuing on. This is one of those situations 

where that has come up. It is an obstacle and we are trying to deal 

with that. 

32 

Senator BARRASSO. So when can I tell my people in Wyoming 

that they are going to have the training or the personnel that they 

need on the Wind River Reservation? 

Mr. ARTMAN. I don’t have a date for you today, Senator Barrasso, 

but it is something that we are acutely aware of and that we are 

working on. I will make sure that we do get a date to you when 

we have some better information. 

Senator BARRASSO. Obviously, the sooner the better. It is unfortunate that in your efforts to streamline the situation, we resulted 

in absolutely nothing happening. 

Let me go to the next question. The Wind River Reservation does 

not have a resource management plan. This presents some difficulties for completing a NEPA analysis. Local staff report that lack of 

funding and manpower for the project prohibit them from moving 

froward to draft a resource management plan. 

It seems that preparing a plan like that would be a good way to 

gain efficiency for the future. The Bureau could spend money up 

front and save the time, save the money on subsequent analysis. 

Is that sort of investment encouraged by the agency to go ahead 

and draft a resource management plan? How can the Wind River 

Agency move forward to get that done? 

Mr. ARTMAN. Resource management plans are a good investment 

because it does help to knock down obstacles into the future. It 

does help to streamline the process because individuals are working within the parameters that they understand, that have been 

set for them. We will be happy to work with the Billings office to 

make sure that that does happen along with this. 

Senator BARRASSO. Finally, last week Mr. Cason was here. I discussed a project that is ongoing on the Wind River Reservation to 

update the irrigation system. The project was appropriated $7 million a couple of years ago. So far, only $200,000 has been spent. 

When you hear the story of problems with archaeological studies, 

problems with contracting, problems with disbursement, it seems 

that the agency is creating hoops to jump through. The Chairman 

earlier said it seems like there are 100 hoops to jump through. It 

is not just one hoop. It just goes on and on and on. 

Mr. Cason indicated that the Department would get me an update, and I don’t know if you can update me on the project today. 

What is the schedule? What has been planned? 

Mr. ARTMAN. I don’t have that update for you today, Senator. 

Senator BARRASSO. Well, I know it is your final day and you are 

probably doing other things, but I would ask that your agency 

move forward and get back on track with that and get a report 

back to me as quickly as possible. 

Mr. ARTMAN. Yes, Senator. 

Senator BARRASSO. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Mr. Nash, you indicated that you felt that the report by Mr. 

Artman was not in concert with what you think is happening. You 

indicated that you don’t see the same progress. Describe that. 

Mr. NASH. Yes, Mr. Chairman. Without having delved into numbers or developing statistics, it is our experience from talking with 

individuals and the inquiries that we get that there are still delays 

33 

in the probate process. If there is progress being made on backlogs, 

it is not one at least we hear about from individuals who contact 

the programs that we oversee or contact us directly. 

A particular personal example, if I may offer that, my aunt who 

passed away on June 20, 2006, ironically the date that the Probate 

Reform Act took effect, was an enrolled member at Pine Ridge, and 

a resident of Nez Perce Reservation in Idaho where she owned interests in five or six different trust allotments. Her death certificate was delivered the very week that she passed away, the probate file being developed there at the northern Idaho agency at 

Lapwai. No word having come from that office for sometime, an inquiry was made and the probate file had been sent from the Nez 

Perce Reservation to Pine Ridge where she was enrolled, but where 

she owned no land interests. 

That is now almost two years ago. The most recent inquiry indicated that ownership records in two different systems maintained 

by the Bureau were in conflict. One showed her owning interests 

that the other system said she did not known, and vice versa, 

which raises the specter we are fearful that her father, my grandfather’s estate, has not yet been finally probated and he passed 

away in 1974. 

So just a personal example that I think it is a story that others 

share, others who have family member estates who are involved in 

the probate process. 

The CHAIRMAN. Mr. Nash, thank you. 

Mr. Chicks, you indicated in your testimony that the Southern 

Ute Tribe has 20 pending applications, I believe that is land into 

trust. Of which, 15 have been pending for over eight years. They 

have received no action since they sent this letter to the BIA well 

over a year ago. Tell me about that. You say that you have personal knowledge of this, that the Ute Tribe has received no response? 

Mr. CHICKS. We attached a letter from the Southern Ute Tribe. 

It should have been included in the testimony. With it is a list of 

a number of pending applications, and shows how many years they 

have been out there. What I am looking at, it shows a minimum 

of nine years going up to eleven years. 

The CHAIRMAN. In the letter, it says nine of the twenty properties are blocked at the preliminary title opinion phase of the 

process. 

Mr. Artman, how could that be the case? It seems to me that 

title opinions, you just ratchet your way through those and find the 

people to do the search and make the judgment. How can that be 

blocked for eight years? 

Mr. ARTMAN. Without seeing the records in front of me, we are 

not going to stop something at the PTO level unless there is something wrong with it. There may be conversations going on with the 

Southern Ute Tribe on the title status of those specific lands. Oftentimes, there may be liens. There may be encumbrances or other 

issues associated with the title that won’t allow it to come into 

trust. 

The CHAIRMAN. There is always an answer for these things, but 

it is never one that is very satisfactory. If you have 20 applications 

that are filed and pending for over eight years, most of them for 

34 

over eight years, and the first step, which is the title opinion, is 

not even completed. 

You know what? It seems to me like we have just an unbelievable mess down there. I will be the first to say that you perhaps 

have made some marginal improvement in the last eight months, 

but it doesn’t sound to me like we have it together. I don’t have 

an inventory of these cases; I have only asked you about two. I 

know about the Standing Rock issue. I asked you about the Ute 

Tribe. And in both cases, well, you know, we don’t know about that. 

At any rate, I remain very frustrated by the BIA. I think there 

are tribes out there that are very disadvantaged. I am not insisting 

on what the answer should be. When someone files a request to the 

BIA, I believe that the tribe has a right not to wait a median of 

six years, which I think the previous GAO report suggested. That 

is just untenable. It makes no sense. That is a terrible disadvantage to Indian tribes who are struggling to try to deal with desperate poverty and other issues, and get some economic development going. What they discover is that the Bureau of Indian Affairs is a stumbling block for them, rather than providing assistance to them. 

Mr. ARTMAN. If I may, Mr. Chairman? 

The CHAIRMAN. Yes. 

Mr. ARTMAN. And I completely understand where you are coming 

from. Having been on the other side and having focused on fee to 

trust when I was working with the United Tribes of Indians of Wisconsin as their Chief Counsel, that was certainly an issue that we 

focused on quite a bit, was how do we make the process work better. So I understand the tribes’ frustration, and I certainly understand the frustration of the Senate as well. 

Since our last hearing on this issue eight months ago, we have 

made a lot of improvement. In that time, we have managed to take 

into trust 53,000 acres of land, which is far more than ever before. 

Like I said, what makes this happen is not what happens here. 

This is only part of it. What makes it happen are the folks that 

are in the agencies, that are in the regions, that are out in the field 

every day working eye to eye with the tribes and trying to get 

these applications through. It is an extremely dedicated staff. 

While we may find examples where we may not have an application or things may have taken a long time, the people at the agency 

level understand what is going on there, understand the problems, 

and are probably working to resolve it. I think that certainly in the 

last year, the folks at the field level have been given the indication 

that this is not lip service, but that we expect results in the fee to 

trust area and in other areas. They have delivered those results to 

us. 

So I think that even though we do have these situations, overall 

there is going to be improvement and it will continue to improve. 

The CHAIRMAN. If we don’t even have tracking systems, which 

was the case up until you started one in this area, it is staggering 

incompetence to me. So I am probably less generous in my assessment of what kind of resources exist. But you are not asking for 

additional resources. At least you don’t tell us you are asking for 

them. So the Administration sent us a budget and we will limp 

35 

along here and there will be oil development in my State, all except 

on the Indian reservation where there is the greatest need. 

I don’t know. I think that Senator Murkowski and I and others 

ought to try to think it through. How do you penetrate this bureaucratic mess? I think it is a mess and it has been a mess a long, 

long time. 

Let me just ask you one quick question. If I am a tribe and I file 

an application today on land into trust, is there any guideline that 

would suggest that somebody ought to make at least the initial decision on the title opinion before two years elapse or four years 

elapse or six years elapse? Is somebody going to be dealing with a 

guideline that you have put in place? 

Mr. ARTMAN. Yes, they will be. 

The CHAIRMAN. What is the guideline for a land into trust application for the first step to be completed, which is the title opinion? 

Mr. ARTMAN. That is one of the first steps. What we don’t have 

in this handbook are the time lines in which they are to be done, 

for a number of reasons, one of which you mentioned, which is 

staffing. But also because this is a foundational level handbook. As 

we begin to implement these processes, one mandate of the handbook is to also have annual conferences with the tribes and the regions, to look at exactly what is happening there and making sure 

that we are doing things correctly. 

The PTO process should not take two years. With the overwhelming majority of these applications, it hasn’t taken two years 

nor will it continue to take two years. I am not sure why the 

Southern Ute have that issue. It may even be with the Southern 

Ute as to why it is taking two years. Maybe they can’t get a lien 

or an encumbrance waived or dislodged from the particular title. 

But we do work closely with the tribes in doing that. 

Having been on both sides of it, I can say that certainly the folks 

who are on the frontlines of this are very conversant. There is communication between the tribes and the BIA on these applications. 

The CHAIRMAN. Well, Mr. Artman, I wish you well. I know that 

today is your last day and I regret that, but I think we are going 

to try to work through it. I am going to try to take just a couple 

of these examples and work through them and see is there some 

extraneous issue that has these things pending for ten years or six 

years or eight years. Is this really a dedicated group of understaffed people who don’t even understand the need for tracking systems? I am going to try to understand this some, because we don’t 

stand a ghost of a chance of fixing any of it unless the processes 

are right and unless we have adequate staffing. That is just a fact. 

Senator Murkowski? 

Senator MURKOWSKI. It makes me wonder, Mr. Chairman, as we 

talk about the BIA and the processes and the problems that just 

seem to be inherent and the inefficiencies, recognizing that so 

much of the system is kind of interconnected or interrelated. 

Mr. Chicks, you acknowledged this when you were here in October, recognizing that you have all these steps, and if one part of 

the process gets kind of sidelined for whatever reason, the backlog 

just accumulates almost exponentially. 

It makes me wonder, and I will pose this to all of you, if it would 

help if the Indian tribes had more or greater control of the whole 

36 

process along the way, similar to what we are trying to do with the 

new Indian energy law. Do you think that that would help? 

Mr. Nash? 

Mr. NASH. Senator, speaking primarily in the probate area, the 

Probate Reform Act does cause a change in tribal authority and 

rules in probates, most significantly in terms of developing tribal 

probate codes that can alter some provisions of the Probate Reform 

Act. Tribes can, for example, establish their own rules of intestate 

succession and have that apply at probates of their members’ estates as opposed to the provisions of the Act itself. That is a good 

step. It is a step forward. 

However, it is one segment, and because the Probate Reform Act 

and the Federal probate process focuses and deals with trust interests, that system is always I think going to be there, so all of the 

problems involved in the development of probate files at the Bureau of Indian Affairs, the acquisition of land title records, all of 

those problems that we see now I think will continue in the probate process. The delivery of some authority to tribes, while helpful, isn’t going to have any major impact on that. 

Senator MURKOWSKI. Probate is pretty distinct that way. 

Mr. Chicks, what do you think? 

Mr. CHICKS. Well, you know, a couple of things here. There is not 

any real meaningful interaction between the Bureau and the tribes 

over the land in trust process. Now, you know, Mr. Artman said 

that they issued a handbook this week. I am not sure what is in 

there or what that will solve, but there is no set way that a tribe 

is instructed to submit an application. There is not an application 

form. It is really difficult as a user to try to understand how we 

ought to be submitting these applications so that they don’t get 

bumped out of the system or they don’t get disqualified. 

I think that what we learned today is really disturbing, all the 

numbers. And when I call it a funny kind of math, I think that is 

true, to learn that with the Standing Rock Tribe that they are not 

even able to identify where those 10 applications are. I don’t think 

that is just an anomaly. I think it is probably just the tip of the 

iceberg. 

I said in my testimony that we are very suspicious of this original 1,310 number because we just don’t think that many of the applications were even included in the tracking system. There is no 

way. If the Bureau can’t identify where they are, where does that 

leave us? If we call up and ask what is the status of our application, we are never given any kind of direct answer at all. 

It is a difficult system for a user to use. You can see that it is 

an impossible system for the owner to manage. There is no real 

communication. I think it stems from the minute the application is 

submitted to when it is approved. There are many benchmarks 

along the way that many times the tribes aren’t even aware of, 

that their application is being assessed and judged and they have 

no knowledge or no way or assessing that information and helping 

to improve the chances of moving that application. 

Senator MURKOWSKI. Mr. Artman, let me ask one last question 

of you. Recognizing that you are departing the BIA, and knowing 

that you won’t have to implement this, what would be the one 

thing that you had hoped that you could have done, but weren’t 

37 

able to do? You don’t need to explain why you weren’t able to do 

it, whether it is funding or staffing or whatever. But if you could 

have done one thing that would have helped this process, what do 

you think would have helped to make a difference? 

Mr. ARTMAN. I think in the comments that have been made here 

today on both sides that it is clear that we do have some issues 

in the fee to trust process. Those are some older regulations based 

on an old law and the times have changed and quicker procedures 

are needed. 

It is inherently a trust function, and it makes it difficult to hand 

something like that over to the tribe. Obviously, we are currently 

going through a number of lawsuits right now on just that very 

issue, on managing trust. So there needs to be a way that we can 

do it faster and better. I think that we made some headway in that 

area, but it would be nice to be able to make additional headway 

in it. 

One of the things we considered early on was do we tear the entire system down and build it up from anew, starting with the regulations, and then the next course would be actually implementing 

not just the regulations, but also the goal of those regulations. 

Maybe you do need to tear down the entire fee to trust system and 

bring it back up. By issuing guidelines, by issuing the handbook, 

we are hoping that this is going to be a sufficient way to deal with 

some of these issues, but I know it is not going to be enough to accomplish all of it. Again, as the Chairman has mentioned, there 

has been some chaos and havoc over there, but we are beginning 

to get a handle on it, and hopefully that trend will continue. 

Senator MURKOWSKI. Thank you. 

The CHAIRMAN. Senator Murkowski, thank you very much. 

We thank the witnesses for appearing today. 

This hearing is adjourned. 

[Whereupon, at 10:55 a.m., the Committee was adjourned.] 

(39) 

A P P E N D I X 

PREPARED STATEMENT OF WILLIAM R. RHODES, GOVERNOR, GILA RIVER INDIAN

COMMUNITY

I. Introduction 

Chairman Dorgan and distinguished Members of the Committee, thank you for 

the opportunity for Gila River Indian Community (‘‘the Community’’) to provide an 

update on the status of issues raised by the Community during the October 4, 2007 

hearing on ‘‘Backlogs at the Department of Interior.’’ As detailed in the Community’s written testimony for that hearing, the Community has, over the years, experienced a variety of communications difficulties and delays concerning the responsibilities of the Bureau of Indian Affairs (BIA) for lease approval, rights-of-way documentation, and land appraisal that have posed challenges to the Community’s economic development and land consolidation efforts. 

At the October 7 hearing, you indicated a particular interest in the status of the 

master building lease for the Wild Horse Pass Corporate Center, the occupancy of 

which was delayed due to concerns raised by BIA regarding the commercial terms 

of the lease. We are pleased to report that the building is now 70 percent occupied 

by tenants and that the lease is no longer part of the BIA backlog. This testimony 

discusses the current status of that building in further detail. This testimony also 

reports on some continued BIA appraisal delays affecting the Community’s land consolidation efforts and makes specific recommendations regarding expediting such appraisals. 

II. Lease Status 

A. Master Ground Lease 

Our written October 2007 testimony described two lease delay issues. The first 

was with regard to a master ground lease for a 2,400 acre parcel between the Community and a wholly-owned governmental development authority. That lease was 

submitted to BIA for approval and then became mired in delay due to the scope of 

the lease and issues about the extent to which duplicative EIS and EA review would 

be required. The Community decided to withdraw that lease and it is thus no longer 

part of the BIA backlog. The Community came to that decision because it determined that it is most efficient from the Community’s standpoint to submit leases 

to BIA for review on a project-by-project basis rather than as one large ground lease. 

In that manner, the scope of BIA review is more easily defined for each individual 

lease and each lease moves through the review process more smoothly. The Community is not expecting to re-submit another large acreage master ground lease to BIA 

in the foreseeable future. 

B. Master Building Lease 

The second lease delay issue raised in our October 2007 written testimony was 

with regard to a master building lease for the Wild Horse Pass Corporate Center 

(‘‘Corporate Center’’). The Corporate Center is located on Reservation trust land. It 

was totally self financed by the Community and is currently managed by the Wild 

Horse Pass Development Authority (WHPDA), a wholly-owned Community enterprise. The land parcel for that building was originally part of the above-mentioned 

master ground lease but, prior to the hearing, it was carved out as a separate lease 

and separately submitted to BIA for review. An EA was completed for the parcel. 

The Community had questions from the start as to why BIA would need to review 

a lease for commercial office space between the tribe and a wholly owned governmental enterprise and associated subleases. Prior to the October hearing, the Community had shared a draft of the master building lease and the office sublease form 

with the Pima Agency to facilitate review, followed by formal submission of the master building lease. It was not until after formal submittal that BIA began to raise 

issues, despite our submittal of drafts for early review. In addition, the BIA raised 

issues related to the commercial terms of the master building lease that we believed 

40 

to be outside the scope of any BIA review authority. The Pima Agency and the regional BIA office were also not coordinated on the lease review, and it resulted in 

delay and frustration on our part. As a result, the Community was left without any 

clear understanding of what issues BIA was asking it to resolve in order to present 

a lease which would be acceptable. The back and forth with BIA on the lease terms 

delayed occupancy of the building and resulted in lost lease income. 

It was at this point of high frustration that the Community testified before you 

on this issue. After the interest shown by you at the hearing on the status of the 

building, BIA officials from the regional office and Pima Agency contacted the Community and several productive meetings were held at which BIA categorically stated 

in clear terms what was required for lease approval. The primary sticking point 

holding up BIA lease approval involves WHPDA as an office tenant. The master 

building lease allows WHPDA to rent space in the Corporate Center for fair market 

rent but does not specify an amount. It also requires WHPDA to sublease office 

space to paying tenants (non-Community entities) at or above fair market rent. The 

master building lease leaves it to WHPDA (the tenant) to make this determination. 

The BIA believes that the initial market rent WHPDA pays to the Community 

should be specified in the master building lease. The BIA understands that WHPDA 

is a government enterprise of the Community but apparently disagrees with 

WHPDA as tenant determining what market rent shall be (i.e., setting its own rent). 

The BIA’s concern can be easily addressed but it illustrates what the Community 

thinks is BIA over-involvement in an internal matter of the Community; i.e., what 

rent the Community is going to charge one of its own entities for occupying office 

space. 

Based on those meetings, the Community decided to withdraw the lease from BIA 

review in order to further consider the issues raised by BIA. Therefore, the lease 

is not pending with BIA at this time. However, given that tenants subleasing space 

in the building have entered into enforceable leases with WHPDA as authorized 

under the master lease between the Community and WHPDA, the Community has 

proceeded with filling the building with both tribal and private tenants. The Corporate Center includes approximately 70,000 rentable square feet. Currently, approximately 50,000 square feet are occupied. Current tenants include Community 

government departments (which pay operating expense but no other rent) and private businesses (which pay market rent). 

Currently, WHPDA is transitioning under a change in management and has a 

number of projects on which it is working. As such, the task of modifying and resubmitting the master building lease for BIA approval is not as pressing as other 

projects given that WHPDA is able to sublet office space currently. WHPDA anticipates resubmitting the master building lease to BIA later this summer and we 

would anticipate an efficient review and approval process. 

III. Appraisal Delays 

A. Background and Status 

In our October 2007 testimony, the Community also highlighted delays at BIA 

with issuance of land appraisals that are hindering the Community’s land consolidation efforts. Despite the high rate of fractionated land within the Community’s reservation, the Department of Interior is no longer undertaking ILCA land consolidation efforts at the Community due to the high cost of land in the Phoenix region. 

Therefore, the Community has established its own tribal land consolidation program 

to purchase and consolidate land interests that become available through allottee 

land sales and through allottee probate proceedings. 

In order to purchase allotted land, an appraisal by the Secretary is required. The 

Office of Special Trustee (OST) is tasked with responsibility for securing appraisals 

and is significantly backlogged in this process. At this time, the Community has approximately 150 appraisal requests pending at some stage of the BIA or OST review 

process. Since September 2007, the Community has received only 3 land appraisals 

from BIA necessary to purchase land, despite the numerous requests pending. 

The Community, as part of its land consolidation efforts, has also actively sought 

to purchase intestate land interests as an eligible purchaser under the American Indian Probate Reform Act (AIPRA), 25 U.S.C. § 2206. AIPRA was passed by Congress 

in 2004 and became effective on June 20, 2006. The AIPRA provides a Purchase Option at Probate which authorizes the Secretary of Interior to sell trust or restricted 

interests in certain intestate lands. An Indian tribe with jurisdiction over the interest is an eligible purchaser. To exercise the option, the tribe must submit a written 

request to purchase the land and prior to the sale of an interest, the Secretary must 

appraise the interest. 

Since mid-January 2008, the Community has received 29 ‘‘Notice of Purchase Option at Probate’’ (‘‘Notices’’) and 49 ‘‘Notices of Case Referral to Office of Hearings 

41 

and Appeals for Determination of Deciding Official’’ (a precursor to the Notices) 

from the Department of Interior’s Office of Hearings and Appeals (OHA) pursuant 

to AIPRA. The Community expects to continue to receive 5–10 such Notices each 

week. The OST is responsible for conducting appraisals for all trust land and has 

a considerable backlog of appraisals already pending. Appraisal delays extend the 

probate process and prevent the Community from acquiring land interests as an eligible purchaser through probate as part of its land consolidation efforts. 

B. Recommendations 

1. Market Surveys 

Under the Indian Land Consolidation Act, the Community was able to purchase 

fractionated interests in allotted land on the Reservation the value of which was 

based on an OST prepared ‘‘Market Survey’’ that valued each individual allotment 

on the Reservation. See 25 U.S.C. § 2214. Using a Market Survey, the value of 

fractionated interests of allotments can be derived relatively easily, and without 

OST having to complete a full appraisal of each allotment. However, the Community 

has been informed by OST that such Market Surveys are not permitted under 

AIPRA and that OST has received no further guidance on AIPRA and use of Market 

Surveys for appraisals. It is our recommendation that through issuance of regulation, if possible, or by amendment to AIPRA that Market Surveys be permitted by 

BIA in order to expedite such appraisals in the interest of promoting land consolidation efforts and reducing appraisal backlogs for probate purchases. 

2. Community Appraisers 

The Community has employed a surveyor at its Land Use Planning and Zoning 

Department who can assume a key role in undertaking appraisal responsibilities. 

BIA has indicated willingness and interest in assisting the Community with taking 

on more responsibility for conducting appraisals. We await greater guidance from 

BIA on how the Community can assume responsibility for conducting land appraisals that are required as part of its land consolidation efforts. 

IV. Conclusion 

We would like to take this opportunity to thank Assistant Secretary Artman for 

the seriousness with which he took our concerns in the face of the substantial criticism that BIA faced at the October hearing. Over the six months following the hearing, we have come to acknowledge that central to many of the concerns we raised 

at the hearing was our intense frustration with a breakdown in the relationship between BIA and the Community on these and other issues. Assistant Secretary 

Artman impressed us with his immediate understanding of the legitimate basis for 

our concerns about the responsiveness of BIA as it functions in its role as our trustee. He also showed professionalism in the way he actively addressed our issues and 

integrity in the manner with which he has fulfilled his role. As he leaves office tomorrow, we thank him for his efforts on our behalf and wish him all the best in 

his future endeavors. We have a renewed optimism, as a result of his efforts, about 

the Community’s ability to partner with the Department on an ongoing basis to 

achieve mutual goals. 

42 

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