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98–153 PDF 2016

S. HRG. 114–138 

A PATH FORWARD: TRUST MODERNIZATION AND 

REFORM FOR INDIAN LANDS 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JULY 8, 2015 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

JOHN BARRASSO, Wyoming, Chairman 

JON TESTER, Montana, Vice Chairman 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

JAMES LANKFORD, Oklahoma 

STEVE DAINES, Montana 

MIKE CRAPO, Idaho 

JERRY MORAN, Kansas 

MARIA CANTWELL, Washington 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

T. MICHAEL ANDREWS, Majority Staff Director and Chief Counsel 

ANTHONY WALTERS, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on July 8, 2015 ................................................................................. 1 

Statement of Senator Barrasso ............................................................................... 1 

Statement of Senator Crapo ................................................................................... 2 

Statement of Senator Franken ............................................................................... 26 

Statement of Senator Hoeven ................................................................................. 35 

Statement of Senator Lankford .............................................................................. 24 

Statement of Senator Moran .................................................................................. 32 

Statement of Senator Tester ................................................................................... 4 

Prepared statement .......................................................................................... 4 

Statement of Senator Udall .................................................................................... 3 

WITNESSES

Lintinger, Hon. Brenda, Councilwoman, Tunica-Biloxi Tribe of Louisiana; Secretary, United South and Eastern Tribes .......................................................... 19 

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

Stensgar, Hon. Ernest L., Vice-Chairman, Coeur d’Alene Tribe ......................... 15 

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

Washburn, Hon. Kevin, Assistant Secretary, Indian Affairs, U.S. Department 

of the Interior ....................................................................................................... 5 

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

APPENDIX

Pata, Jacqueline, Executive Director, National Congress of American Indians, 

prepared statement .............................................................................................. 41 

Response to written questions submitted by Hon. Steve Daines to Hon. Kevin 

Washburn .............................................................................................................. 44 

(1) 

A PATH FORWARD: TRUST MODERNIZATION 

AND REFORM FOR INDIAN LANDS 

WEDNESDAY, JULY 8, 2015 

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

The Committee met, pursuant to notice, at 2:30 p.m. in room 

628, Dirksen Senate Office Building, Hon. John Barrasso, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

The CHAIRMAN. Good afternoon. I call this hearing to order. 

Before we begin, I would like to mention the Senate’s passage 

yesterday of S. 286, the Department of the Interior Tribal Self-Governance Act of 2015. I believe this to be a great step forward for 

Indian Country. S. 286 is a common sense bill supported by tribes 

across the Country and by the Administration. It will give tribes 

a better opportunity to advance the policy of tribal self-governance, 

reduce Federal bureaucracy and promote accountability. 

I want to thank Senator Tester, Vice Chairman of this Committee, and other co-sponsors, and all the members of the Committee, for their work to get S. 286 through the Senate. Now I call 

on our colleagues in the House to act quickly so we can send this 

important bill to the President for signature. 

Today the Committee will hold an oversight hearing entitled A 

Path Forward: Trust Modernization and Reform for Indian Lands. 

It is time that we take a new look at the status quo by breaking 

free from old mind sets and burdensome processes and finding a 

path forward together. For far too long, Indian lands have been 

tied up in bureaucratic red tape that hinders Tribes’ sovereignty 

over their land and ability to lead their people into a prosperous 

21st century. 

It is time to reform the outdated rules and regulations that are 

tying the hands of tribes striving for greater respect, independence 

and success. Outdated Indian land policies must be modernized to 

encourage local cooperation, economic development and freedom 

from excessive Federal intervention for the betterment of Indian 

Country. 

Tribes are ready, willing and able to direct the management of 

their lands and affairs. We must support those tribes working to 

do this so that they can actually achieve robust self-determination. 

It is about time for Federal policy to catch up with modern times. 

2 

One of those changes in policies has to do with eliminating, 

downsizing or transferring duties from, the Office of the Special 

Trustee to the Office of Assistant Secretary for Indian Affairs. It 

is clear that the Office of Special Trustee was never meant to be 

a long-term office at the Department of the Interior. As it stands, 

there is a duplication of efforts within Interior that is burdensome, 

confusing and costly. 

I will note that the Committee invited the heads of both key offices to testify today. Yesterday the Department of the Interior decided against sending the Special Trustee, Vince Logan. So Assistant Secretary Washburn will be testifying on behalf of the Department about the role of the office of Special Trustee. I think this underscores some of the questions we will hear today about whether 

the Office of Special Trustee has outlived its purpose. 

There also needs to be a common sense and streamlined approach with regard to taking land into trust. I appreciate the Administration’s ongoing efforts in this regard, but we can do better. 

In each session since the 111th Congress, a member from this 

Committee has introduced legislation calling for a clean fix to the 

Supreme Court’s Carcieri decision. It is clear from past efforts 

there are no shortcuts. 

I know from the Carcieri roundtable I hosted earlier this year 

that more work needs to be done to cross the finish line. I look forward to working with the Committee to craft a winning solution for 

Indian Country. 

Before we hear from the panel, I ask if there are any other members who would like to make an opening statement. Senator Crapo. 

STATEMENT OF HON. MIKE CRAPO, 

U.S. SENATOR FROM IDAHO 

Senator CRAPO. Thank you, Mr. Chairman, for holding this important oversight hearing on trust reform and associated issues. 

Let me begin by introducing and welcoming a good friend, Vice 

Chairman Ernest Stensgar of the Coeur D’Alene Tribe, who has 

traveled here from Idaho to be with us today to testify on Senate 

Bill 383, the Indian Trust Asset Reform Act. Ernie has been a true 

leader on this issue, serving as Chairman of the trust reform committee with the Affiliated Tribes of Northwest Indians, and has extensive knowledge and background on trust asset reform. 

As Ernie will attest, the Coeur D’Alene Tribe has long sought to 

increase tribal management and control over its own resources and 

assets, which is the primary goal of this bill. For too long, Federal 

policies have been overly paternalistic and burdensome, which has 

limited opportunities for Native peoples. We are long overdue for 

a change in direction when it comes to trust asset management. 

Members of this Committee know that trust modernization remains a priority for Indian Country. Under the current system, 

non-monetary tribal assets such as land and natural resources held 

in trust by the Federal Government require extensive bureaucratic 

hurdles to be overcome before any tribe may utilize those assets for 

the benefit of its members. This is simply unacceptable and is not 

in touch with Federal policies of promoting greater tribal self-reliance. 

3 

Earlier this year, in consultation with the Coeur D’Alene Tribe 

and others, I introduced S. 383. My Idaho colleague, Senator Jim 

Risch, joined me as an original co-sponsor and Idaho’s two Representatives, Mike Simpson and Raul Labrador, have been leading 

the effort in the House of Representatives. 

The Coeur D’Alene Tribe has been a leading partner on S. 383, 

which would allow tribes, on a voluntary basis, to submit long-term 

management plans for tribal resources to promote economic activity 

and Indian self-determination. Under the bill, the Secretary of the 

Interior would have the authority to approve such tribally-directed 

asset management plans. 

Further, the bill would also provide for reforms to the management structure within the Department of the Interior to reduce 

regulatory red tape that tribes face when trying to utilize trust resources. 

The bill would also require a report to be submitted to Congress 

on the asset management functions and the roles of the Bureau of 

Indian Affairs and the Office of Special Trustee. Indian Country 

has long complained that the involvement of both the Bureau of Indian Affairs and the OST in day-to-day transactions has resulted 

in miscommunication, delay and inefficiency. 

To remedy this, the report provision contained in S. 383 requires 

a plan to be submitted to Congress on how to streamline these 

functions. S. 383 has been endorsed by the National Congress of 

American Indians and the Affiliated Tribes of Northwest Indians, 

which includes approximately 60 member tribes in Idaho, Washington, Oregon, Montana, California and Alaska. Other national 

and regional tribal organizations and individual tribes have previously endorsed the concepts contained in this bill. 

I will let Ernie share additional details on S. 383 and what it 

would mean for the Coeur D’Alene Tribes and other Native communities in his testimony. I will simply close my remarks by once 

again thanking him for agreeing to testify before the Committee 

today. 

Thank you, again, Mr. Chairman, for holding this hearing. I look 

forward to our discussion on S. 383 and hearing from all of our witnesses. 

The CHAIRMAN. Thank you, Senator Crapo. 

Any other members who would like to be heard? Senator Udall. 

STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. Thank you very much. Let me thank the Chairman and Vice Chairman for holding this hearing. 

The Federal Government’s trust obligations have been the subject of numerous breach of trust lawsuits related to the functions 

of the Federal Government and how it carries out these activities 

on behalf of the tribes. Clearly, there is a disagreement on a number of fronts. I know Senator Crapo has a bill, The Navajo Nation, 

has talked to me about a bill. There are proposals circulating, there 

are a number of issues floating out there. 

I think today’s hearing is a good opportunity to have a conversation about Federal trust responsibility and how that looks for the 

future. We should do this, taking the best expertise from the DeVerDate Mar 15 2010 11:00 Jan 12, 2016 Jkt 098153 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\DOCS\98153.TXT JACK
4 

partment. I am very happy to see that Secretary Washburn is here 

to give us his testimony. I have read his statement. I think it is 

a very, very good statement in terms of giving us an overview. 

With that, I look forward to today’s hearing and witnesses. I 

yield back. 

The CHAIRMAN. Thank you. Any other members who wish to be 

heard? 

Senator Tester. 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Just really quickly. I will ask that my full statement be put into the record. 

I want to thank Kevin for being here. I want to thank the representatives from the Tunica-Biloxi Tribe and the Coeur D’Alene 

Tribe for being here also. 

But I would just say, I look forward to this conversation. I know 

there are some who serve in Congress who think that recognition 

should be totally our job. I am talking about the folks in the Senate 

and the House, and not the Department’s job. I think that was the 

risk before a wreck by politicizing your recognition. I think, Kevin, 

you have done a respectable job in trust reform. I would love to 

hear about it and love to hear the direction that the Department 

anticipates this going as we move forward. 

With that, Mr. Chairman, thank you for holding this hearing. 

[The prepared statement of Senator Tester follows:] 

PREPARED STATEMENT OF HON. JON TESTER, U.S. SENATOR FROM MONTANA

Thank you, Mr. Chairman, for holding this hearing today on my land-into-trust 

bill and Senator Crapo’s trust reform bill. I know these bills have broad support and 

I am happy that this Committee can continue to make progress on important tribal 

issues. 

Last month, this Committee reported out a bill that had broad support among 

tribes and which would protect tribal sovereignty by providing parity with state governments. 

I think my bill falls into a similar category. S. 732 would provide parity among 

all tribes after a wrong decision by the Supreme Court called into question the authority of the Secretary to place land into trust for many of our tribal nations. 

S. 732 has immense tribal support, and has bipartisan support both here in the 

Senate and in the House. One bill in the House has over 30 cosponsors, and half 

from each party. So this really is a bipartisan effort, and I think we have a real 

chance to see a Carcieri-fix get enacted. I want to thank my colleague Senator 

Moran and others on the Committee for cosponsoring this bill. 

The Administration has consistently asked for this no-cost fix each year in its 

budget, and I think all or nearly all of the national and regional tribal organizations 

have stated their support for fixing this issue. Last Congress, even the U.S. Chamber of Commerce wrote a letter in support of this fix. 

Letting this Supreme Court decision continue to stand creates two classes of 

tribes. This is simply not fair and it inhibits economic development on tribal lands. 

I think we can all agree we need less obstacles to tribal development, not more. 

As for trust reform, I agree that we need to look into this issue. Over the last 

five years we’ve settled over 70 trust-mismanagement cases with tribes, and of 

course there is the Cobell settlement that dealt with trust-mismanagement of assets 

held for individual Indians. Due to those cases, even the Secretary of the Interior 

established a Commission on Trust Reform, which issued its report at the very end 

of 2013. 

We held a hearing on these issues last year, so I appreciate the Committee continuing to look at how to address these issues. I’m interested to hear the Administration discuss their ongoing trust modernization efforts. As always, I want to thank 

the witnesses for the work they do, and for their time in coming here today. 

5 

The CHAIRMAN. Thank you very much, Senator Tester. 

Today we are going to hear from our witnesses, the Honorable 

Kevin Washburn, Assistant Secretary, Indian Affairs, U.S. Department of the Interior; the Honorable Ernie Stensgar, who was already introduced by Senator Crapo. He is Vice Chairman, Coeur 

d’Alene Tribe, Plummer, Idaho. And we have the Honorable Brenda 

Lintinger, Councilwoman, Tunica-Biloxi Tribe of Louisiana, in 

Marksville, Louisiana, and Secretary, United South and Eastern 

Tribes of Nashville, Tennessee. 

I want to remind the witnesses that your full written testimony 

will be part of the official hearing record. So please keep your 

statements to under five minutes so that we may have time for 

questions. I look forward to hearing your testimony, beginning with 

Mr. Washburn. Please proceed. 

STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT 

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

INTERIOR 

Mr. WASHBURN. Thank you, Chairman, Vice Chairman and members of the Committee. Congratulations on the passage of S. 286. 

That truly is a great step forward, and I hope that we can get it 

passed on the House side soon. It is a great step forward for tribal 

self-governance. 

The title of this hearing is involving trust modernization. Let me 

say, the key to trust modernization is tribal self-determination and 

tribal self-governance. The United States has a solemn trust responsibility to Indian nations and Indian people, and it can perform the functions necessary to meet that responsibility in a paternalistic fashion, as it did for many decades, or it can take a more 

modern approach. 

I believe that the more modern approach, the one preferred by 

the Obama Administration, has two hallmarks. First, we should 

consult frequently with tribes to ensure that the Federal Government does what tribes think best. Second, we should contract with 

tribes to provide the goods and services to Indian people, because 

they know better how to meet the trust responsibility if we give 

them adequate resources. So our approach has the effect of furthering the trust responsibility but also while expanding tribal sovereignty and tribal capacity. 

The Obama Administration has worked hard to ensure that we 

are restoring lands to tribes where they have authority to exercise 

self-governance. We have been restoring tribal homelands. We have 

taken more than 300,000 acres of land into trust for tribes. We 

also, through the Cobell settlement and the Land Buyback Program, have consolidated more than 900,000 acres to tribes. So it is 

really starting to make a huge difference, frankly. 

On our land into trust efforts, we proceed very carefully, of 

course. One of the subjects that seems to come up around trust 

modernization and trust reform and a Carcieri fix is, how do we 

deal with all the stakeholders that have an interest in land into 

trust. I assure you that we seek the input from stakeholders and 

we carefully consider the input they provide. 

We specifically ask State and local governments for their views 

and we ask them to submit their views in writing. We give very 

6 

special consideration to State and local governments when it comes 

to land into trust issues. So we really want to know their views. 

That is why we go to all that effort. 

I will tell you that trust land applications that move through the 

process most swiftly those in which the tribe and the local governments and the State all agree. When we have come to agreement 

on important issues such as provision of services and other key elements, those applications tend to work out really quickly. We don’t 

disapprove a lot of trust land applications, but they languish a lot 

of times when they don’t have agreement with the State and local 

governments. Those are the ones that don’t move through the process very quickly. And so working with State and local governments 

is often key to success. 

We have also done trust modernization in Alaska. We have put 

the world on notice that we will begin using the authority to take 

land into trust in Alaska soon. We think that is a great step forward. 

Leasing, we have modernized our trust responsibilities around 

leasing of Indian lands. We have updated our own leasing regulations to be more deferential to tribal decisions. Congress has 

passed and the President signed the HEARTH Act in 2012, which 

allows tribes to take over this function from the BIA. Roughly 20 

tribes have taken advantage of the HEARTH Act and taken over 

leasing on their lands. 

We are also working to move this direction with rights of way, 

working to modernize our rights of way regulations. 

Now, the Committee heard a hearing two weeks ago on dual taxation. I wasn’t here in the room, but I did watch it on the video. 

The Committee has expressed great frustration over our inability 

to solve this very serious problem. Frankly, I am frustrated by it 

and the President is very frustrated by it too. 

One of the problems is that short-term fixes are not easy. And 

they are short term. The long-term fix, of course, involves not just 

education but also jobs and economic development on Indian reservations. Indian people need jobs and tribal governments need resources to provide economic development and social services. 

One of the most significant challenges to economic development 

on Indian lands is the problem of dual taxation, the idea that State 

governments can tax on reservation economic activity. State taxation crowds out the ability of tribes to engage in taxation on Indian lands. If tribes impose additional taxes for those activities, 

then no business is going to want to locate there. 

I don’t think it will surprise many people to say that taxes can 

kill economic development. That is why the Obama Administration 

has been working hard to prevent dual taxation on Indian reservations. 

The Administration has limited authority to address this issue, 

but we are working hard on it. We need Congress to take this issue 

seriously. So if you really want to get serious about important 

issues like Indian youth suicide, then we have to improve tribal 

economic development on these Indian reservations. Addressing the 

dual taxation problem is an important step toward trust modernization to address that. 

7 

Let me stop there and hold for questions and turn it over to 

Chairman Ernie Stensgar. 

[The prepared statement of Mr. Washburn follows:] 

PREPARED STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT SECRETARY, INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Chairman Barrasso, Vice Chairman Tester, and Members of the Committee, my 

name is Kevin Washburn and I am the Assistant Secretary for Indian Affairs at the 

Department of the Interior (Department). Thank you for the opportunity to present 

testimony for the Department for this oversight hearing titled ‘‘A Path Forward: 

Trust Modernization & Reform for Indian Lands.’’ 

One of the Obama Administration’s highest priorities is to restore tribal homelands by taking lands into trust for tribes. Our work to restore Tribal lands was 

explicitly authorized by Congress in Section 5 of the Indian Reorganization Act of 

1934. Under this authority, the Obama Administration has taken more than 

300,000 acres of land into trust for tribes since 2009. Much remains to be done in 

this area, of course, and a clean Carcieri fix is a necessary requisite to providing 

land in trust for all tribes. 

Of course the Administration’s settlement of the Cobell lawsuit produced an expansive trust land initiative for tribes to ameliorate the problems associated with 

fractionated parcels of trust lands. In the legislation enacting the Cobell settlement, 

Congress authorized the Department to spend approximately $1.55 billion to consolidate fractionated trust interests. The Department has purchased the equivalent of 

roughly 900,000 acres of fractionated lands and restored it to tribes. These are historic efforts to modernize our relationship to tribes by correcting past mistakes in 

federal policy. 

The Indian Reorganization Act 

In 1887, Congress enacted the General Allotment Act. The General Allotment Act 

divided tribal land into 80- and 160-acre parcels for individual tribal members. The 

allotments to individuals were to be held in trust for the Indian owners for no more 

than 25 years, after which the owner would hold fee title to the land. So-called ‘‘surplus lands,’’ that is, those lands that were not allotted to individual members, were 

taken out of tribal ownership and conveyed to non-Indians. Moreover, many of the 

allotments provided to Indian owners fell out of Indian ownership through tax foreclosures, particularly during the Great Depression. 

The General Allotment Act resulted in an enormous loss of tribally owned lands, 

and is responsible for the current ‘‘checkerboard’’ pattern of ownership and jurisdiction on many Indian reservations. Approximately 2⁄3 of tribal lands, amounting to 

more than tens of millions of acres, were lost as a result of the land divestment policies established by the General Allotment Act and various homestead acts. Moreover, prior to the passage of the General Allotment Act, many tribes had already 

endured a steady erosion of their land base during the removal period of federal Indian policy. 

The Secretary of the Interior’s Annual Report for fiscal year ending June 30, 1938, 

reported that Indian-owned lands had been diminished from approximately 130 million acres in 1887, to only 49 million acres by 1933. Much of the remaining Indianowned land was considered ‘‘waste and desert.’’ According to Commissioner of Indian 

Affairs John Collier in 1934, tribes had lost 80 percent of the value of their land 

during this period, and individual Indians realized a loss of 85 percent of their land 

value. 

In light of the devastating effects on Indian tribes of its prior policies, Congress 

enacted the Indian Reorganization Act in 1934. Congress’s intent in enacting the Indian Reorganization Act was three-fold: to halt the federal policy of allotment and 

assimilation; to reverse the negative impact of allotment policies; and to secure for 

all Indian tribes a land base on which to engage in economic development and selfdetermination. 

The first section of the Indian Reorganization Act expressly discontinued the allotment of Indian lands. The next section preserved the trust status of Indian lands 

in perpetuity. In section 3, Congress authorized the Secretary of the Interior to restore tribal ownership of the remaining ‘‘surplus’’ lands on Indian reservations. Most 

importantly, in Section 5, Congress authorized the Secretary to secure and return 

tribal homelands by acquiring land to be held in trust for Indian tribes, and authorized the acquisition of land in trust for individual Indians. That section has been 

called ‘‘the capstone of the land-related provisions of the [Indian Reorganization 

8 

Act].’’ Cohen’s Handbook of Federal Indian Law § 15.07[1][a] (2005). The Indian Reorganization Act also authorized the Secretary to proclaim new reservations. 

The United States Supreme Court has recognized that the Indian Reorganization 

Act’s ‘‘overriding purpose’’ was ‘‘to establish machinery whereby Indian tribes would 

be able to assume a greater degree of self-government, both politically and economically.’’ Morton v. Mancari, 417 U.S. 535, 542 (1974). Congress recognized that one 

of the key factors for tribes in developing and maintaining economic and political 

strength lay in the protection of each tribe’s land base. 

Acquisition of land in trust is essential to tribal self-determination. Tribes are sovereign governments and trust lands are a primary locus of tribal authority. Indeed, 

many federal programs and services are available only on reservations or trust 

lands. The current federal policy of tribal self-determination is built upon the principles Congress set forth in the Indian Reorganization Act and reaffirmed in the Indian Self-Determination and Education Assistance Act. Through the protection and 

restoration of tribal homelands, this Administration has sought to live up to the 

standards Congress established eight decades ago and indeed to reinvigorate the 

policies underlying the Indian Reorganization Act. 

Most tribes lack an adequate tax base to generate government revenues, and 

many have few opportunities for economic development. Trust acquisition of land increases opportunities for economic development and helps tribes generate revenues 

for public purposes. 

The benefits to tribes are many. For example, trust acquisitions provide tribes the 

ability to enhance housing opportunities for their citizens. Trust acquisitions also 

are necessary for tribes to realize the tremendous energy development capacity that 

exists on their lands. Trust acquisitions also allow tribes to grant certain rights-ofway and enter into leases necessary for tribes to negotiate the use and sale of their 

natural resources. Additionally, trust lands provide the greatest protections for 

many communities who rely on subsistence hunting and agriculture that are important elements of tribal cultures and life ways. 

Though the General Allotment Act was enacted and then repudiated long ago, 

tribes continue to feel the devastating effects of the policy that divided tribal lands, 

allotted parcels to individual tribal members and provided for the public sale of any 

surplus tribal lands remaining after allotment. Taking land into trust can address 

those negative effects. 

The Department of the Interior’s Fee-to-Trust Regulations 

The Secretary has delegated the power to take land into trust to the Assistant 

Secretary—Indian Affairs. For most applications, the power is further delegated to 

officials in the Bureau of Indian Affairs (BIA). When the Department acquires land 

in trust for tribes and individual Indians under the Indian Reorganization Act, the 

Department must use discretion following careful consideration of the criteria for 

trust acquisitions in the Department’s regulations at 25 C.F.R. Part 151 (151 Regulations), unless Congress mandates that the Department acquire the land in trust. 

These regulations have been in place since 1980, and have established a clear and 

consistent process for evaluating fee-to-trust applications that considers the interests of all affected parties. 

The 151 Regulations establish clear criteria for trust acquisitions. The Secretary 

or her delegate must consider additional criteria in acquiring land that is outside 

of a tribe’s existing reservation, rather than within, or contiguous to, its existing 

reservation. Taking land into trust is an important decision, not only for the Indian 

tribe or individual Indian seeking the determination, but for the local community 

where the land is located. For example, the transfer of land from fee title to trust 

status may have tax and jurisdictional consequences that must be considered before 

a discretionary trust acquisition is completed. 

The Part 151 process is initiated when a tribe or individual Indian submits a request to the Department to have land acquired in trust. The regulations require 

that an applicant submit a written request describing the land to be acquired and 

other information. Once a request arrives at the BIA agency or regional office, it 

is entered into the BIA’s Fee-to-Trust Tracking System. The request is reviewed to 

determine whether all information has been submitted and whether there are additional steps needed to complete the application. The BIA works with the applicant 

to complete the application. 

The regulations require that an application for fee-to-trust contain the following: 

• a written request stating that the applicant is requesting approval of a trust 

acquisition by the United States of America; 

• identification of applicant(s); 

• a proper legal land description; 

9 

• the need for acquisition of the property; 

• purpose for which the property is to be used; and 

• a legal instrument such as a deed to verify applicant’s ownership. 

In addition, Tribal applicants must also submit the following: 

• Tribal name as it appears in the Federal Register; 

• statutory authority; and, 

• if the property is off-reservation, a business plan and location of the subject 

property relative to state and reservation boundaries. 

An individual Indian applicant is also required to submit the following: evidence 

of eligible Indian status, acreage of trust or restricted Indian land already owned 

by the applicant, and information or statement from the applicant addressing the 

degree to which the applicant needs assistance in handling its affairs. 

The BIA must take several internal steps necessary to assess the application. 

These include determining whether the land is located within, or contiguous to, the 

applicant’s reservation, and whether the trust acquisition is mandated by existing 

law or falls within the Department’s discretion to take lands into trust. The BIA 

must assess whether the land is currently under the tribe’s jurisdiction and, if not, 

whether there are any additional responsibilities the BIA would assume if the fee 

land were taken into trust. Finally, the BIA may also need to determine whether 

the property lies within the Indian tribe’s approved Land Consolidation Plan. 

The BIA requires additional information if a tribe seeks to have land acquired in 

trust not located within or contiguous to its reservation. The BIA will request a 

business plan if the land is to be used for economic development. If the land is within the reservation of another Indian tribe, the applicant must receive written consent from the other tribe’s governing body if the applicant does not already own a 

fractional trust or restricted fee interest in the property to be acquired. If the land 

is off-reservation, the BIA must examine the proximity to the applicant’s reservation. 

Once an applicant has submitted sufficient information, the BIA mails notification 

letters to the state, county, and municipal governments having regulatory jurisdiction over the land, and requests written comments on the proposed acquisition. 

Prior to making a decision on each discretionary acquisition, the Department must 

evaluate the application pursuant to each of the factors identified in the regulations 

at 25 CFR § 151.10 (on-reservation) and 25 C.F.R. § 151.11 (off-reservation). One of 

the eight (8) factors considered is the applicant’s need of for additional land. 

The BIA must also comply with the requirements of the National Environmental 

Policy Act (NEPA) and Departmental environmental review requirements in making 

its determination. The NEPA requires the BIA to disclose and analyze potential environmental impacts of taking land in trust and, depending on the type of NEPA 

review required, may affords the public an opportunity to review and provide comments on those impacts. 

In November 2013, the Department published new regulations governing decisions by the Secretary to approve or deny applications to acquire land in trust. Feeto-trust decisions are subject to administrative and judicial review under the Administrative Procedures Act. 

A lot of misinformation has been repeated about this fee-to-trust process. It is a 

lengthy and time-consuming process in which many applications fail. Formal disapproval is rare because applicants often withdraw an application if the standards 

cannot be met. Moreover, many applications languish for years as the applicant and 

the BIA seek to address issues that arise in BIA review or public comment. 

Trust Modernization Through Implementation of the Land Buy-Back 

Program 

The mistakes made by Congress and the Federal Government in the Allotment 

Era are very difficult to rectify today. The Land Buy-Back Program for Tribal Nations (Buy-Back Program) is an important initiative designed to alleviate the impacts of fractionation and expand tribal sovereignty. For example, the Buy-Back 

Program has transferred the equivalent of more than 270,000 acres of land to the 

Oglala Sioux Tribe. In the short term, much of the money paid to obtain the interests will be spent in tribal communities. In the long-term, transferring millions of 

acres of land to tribes will ultimately strengthen each tribal community and generate economic benefits to those communities. Tribal acquisition of fractionated 

lands will ‘‘unlock’’ those lands for tribes, making them available to support economic development to benefit tribal members. 

The Cobell Settlement became final on November 24, 2012. Since then, we have 

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10 

tion—with consultations in Minneapolis (January 2013); Rapid City (February 

2013); Seattle (February 2013)—and held numerous meetings with tribes and intertribal organizations. 

We continue working diligently to implement the Buy-Back Program. Since November 24, 2012, we have: 

• Sent offers to more than 86,000 landowners exceeding $1.5 billion. 

• Transferred land to tribal trust ownership for 18 tribes, totaling nearly 900,000 

acres through purchases from willing sellers. 

• Paid over half a billion dollars to Indian landowners across the United States. 

• Entered into cooperative agreements with at least 20 tribes 

• Hired 59 full-time employees and expended approximately $29 million of the 

overall implementation/administrative portion of the fund; some of these expenditures included one-time, up-front costs, such as the Trust Commission, 

mapping, and equipment. 

Land-Buy-Back Program: Lessons Learned 

The Buy-Back Program is an effort of significant scope and complexity, which has 

great importance to Indian Country. No effort this massive and complex could proceed without mistakes and course corrections. However, as we continue to implement the Buy-Back Program, we have incorporated lessons learned, best practices, 

and tribal feedback to enhance the overall effectiveness of the Program’s implementation strategy. We have heard from tribes on a number of issues, including the cooperative agreement process, scheduling, and reporting on both the expenditure of 

administrative costs and the acceptance of offers on reservations. Many features of 

the Buy-Back Program have come as a direct result of tribal consultation and informal feedback from tribal leaders, such as the need for a minimum base payment 

to sellers and provision of indirect costs. 

The Land Buy-Back Program is an important step in trust modernization which 

seeks, in some ways, to turn back the clock on the allotment era. 

Trust Modernization in the Fee-to-Trust Regulations for Alaska 

Section 5 of the Indian Reorganization Act (IRA), as amended, authorizes the Secretary of the Interior (Secretary) to acquire land in trust for individual Indians and 

Indian tribes in the continental United States and Alaska. 25 U.S.C. 465; 25 U.S.C. 

473a. For several decades, the Department’s regulations at 25 CFR part 151, which 

establish the process for taking land into trust, have included a provision stating 

that the regulations in part 151 do not cover the acquisition of land in trust status 

in the State of Alaska, except acquisitions for the Metlakatla Indian Community of 

the Annette Island Reserve or its members (the ‘‘Alaska Exception’’). 25 CFR 151.1. 

The Department, just over half a year ago, finalized a rule deleting the Alaska Exception, thereby allowing applications for land to be taken into trust in Alaska to 

proceed under the part 151 regulations. The Department retains its usual discretion 

to grant or deny land-into-trust applications and makes its decisions on a case-bycase basis in accordance with the requirements of part 151 and the IRA. 

As noted above, Section 5 of the IRA authorizes the Secretary, in her discretion, 

to acquire land in trust for Indian tribes and individual Indians. 25 U.S.C. 465; 

Cohen’s Handbook on Federal Indian Law section 15.07[1][a], at 1030 (2012 ed.). In 

1936, Congress expressly extended Section 5 and other provisions of the IRA to the 

Territory of Alaska. Act of May 1, 1936, Public Law 74–538, section 1, 49 Stat. 1250 

(codified at 25 U.S.C. 473a). 

Thirty-five years later, in 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA), Public Law 92–203, 85 Stat. 688 (codified as amended at 43 

U.S.C. 1601 et seq.), ‘‘a comprehensive statute designed to settle all land claims by 

Alaska Natives.’’ Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 

520, 523 (1998). The Act revoked all but one of the existing Native reserves, repealed the authority for new allotment applications, and set forth a broad declaration of policy to settle land claims. See 43 U.S.C. 1618(a), 1617(d), and 1601(b). 

However, the statutory text of ANCSA did not revoke the Secretary’s authority, 

under Section 5 of the IRA as extended by the 1936 amendment, to take land into 

trust in Alaska. 

A number of recent developments, including a pending lawsuit, caused the Department to look carefully at its policy on land into trust in Alaska. See Akiachak 

Native Cmty v. Salazar, 935 F. Supp. 2d 195 (D.D.C. 2013). Most significantly, the 

Indian Law and Order Commission, formed by Congress to investigate criminal justice systems in Indian Country, brought to light the shocking and dire state of public safety in Alaska Native communities and made specific recommendations to address these challenges. Indian Law and Order Commission, ‘‘A Roadmap For MakVerDate Mar 15 2010 11:00 Jan 12, 2016 Jkt 098153 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 S:\DOCS\98153.TXT JACK
11 

ing Native America Safer: Report to the President and Congress of the United 

States,’’ at 33–61 (November 2013). The Commission’s report expressly acknowledged that ‘‘a number of strong arguments can be made that [Alaska fee] land may 

be taken into trust and treated as Indian country’’ and ‘‘[n]othing in ANCSA expressly barred the treatment of former [Alaska] reservation and other Tribal fee 

lands as Indian country.’’ Id. at 45, 52. Moreover, the Commission recommended allowing these lands to be placed in trust for Alaska Natives. See id. at 51–55. Likewise, the Secretarial Commission on Indian Trust Administration and Reform was 

established by former Secretary of the Interior Ken Salazar to evaluate the existing 

management and administration of the trust administration system, as well as review all aspects of the federal-tribal relationship. Report of the Commission on Indian Trust Administration and Reform, at 1 (Dec. 10, 2013). This Commission endorsed the earlier findings and likewise recommended allowing Alaska Native tribes 

to put tribally owned fee simple land into trust. Id. at 65–67. 

In light of those urgent policy recommendations, the Department carefully reexamined the legal basis for the Secretary’s discretionary authority to take land into 

trust in Alaska under Section 5 of the IRA. In particular, the Department reviewed 

the statutory text of ANCSA and other Federal laws and concluded that the Secretary’s authority was never extinguished. Congress explicitly granted the Secretary 

authority to take land into trust in Alaska under the IRA and its amending legislation. Although Congress, through the enactment of ANCSA and other laws, repealed 

other statutory provisions relevant to Alaska Native lands, it has never passed any 

legislation that revokes the Secretary’s authority to make trust land acquisitions in 

Alaska, as codified in 25 U.S.C. 473a and 25 U.S.C. 465. 

In sum, ANCSA left these provisions and the Secretary’s resulting land-into-trust 

authority in Alaska intact. Thus, the Secretary retains discretionary authority to 

take land into trust in Alaska under Section 5 of the IRA. Due to pending litigation, 

the Department is currently not engaged in taking land into trust. However, repealing the Alaska exception is an important step in trust modernization over the long 

term for Alaska Natives. 

Trust Modernization in Surface Leasing Regulations for Indian Lands 

The Department of the Interior currently holds approximately 56 million acres of 

land in trust for Indian tribes and individual Indians. As trustee of those lands, the 

Department must ensure that the lands are protected, and that they are used for 

the benefit of the tribes and individual Indians for whom they are held. Congress 

has enacted laws that require the Department to approve leases on Indian lands. 

The Department’s regulations are intended to implement its trust responsibility 

under those laws. 

During its first term, the Obama Administration believed it was necessary to reform the surface leasing regulations because the Department’s existing regulations 

were originally adopted 50 years ago, and were ill-suited to the modern needs of Indian tribes and individual Indians in using their lands for housing, economic, and 

wind & solar energy development. When President Obama took office in 2009, the 

existing regulations did not impose timelines for the Department to complete its review of leases, often resulting in delays in approving leases, amendments, subleases, 

mortgages, and assignments. They did not make a distinction between leases for 

single-family residences and large business developments—meaning the Department 

reviewed leases under a ‘‘one-size fits all’’ structure. As a result, a lease for a singlefamily residence might take years to approve. Finally, the leasing regulations required the Department to heavily scrutinize and sometimes second-guess the judgment of Indian landowners in the development of their own lands. 

The final regulations enacted by the Obama Administration, which took effect in 

early 2013, streamlined the leasing process by imposing timelines on the Department for reviewing leases: up to 30 days for residential leases, and up to 60 days 

for business leases and wind & solar energy leases. The new regulations distinguish 

between residential, business, and wind & solar energy leases, and establish separate processes for review. They also permit the automatic approval of subleases and 

amendments to existing leases if the Department fails to act within the review timeframe. The new regulations eliminate the requirement for Department approval of 

‘‘permits’’ for activities on Indian lands, and defer to the judgment of tribes and individual Indians on land use (and rental rates) in most instances. The regulations 

establish a new, streamlined process for the development of wind & solar energy 

projects on Indian lands. 

Another important aspect of the new leasing regulations is that they seek to address the troubling problem of dual taxation of reservation economic activity, which 

discourages (or inhibits) economic development. Leases approved by the BIA carry 

a federal pre-emption of state taxation of activities conducted under the lease. 

12 

The Department anticipates that the regulations will increase homeownership on 

Indian lands, by streamlining the process for the approval of leases, subleases, and 

mortgages. The regulations also streamline leasing for small businesses and commercial developments on Indian lands, promoting private investment in businesses 

in Indian communities. By establishing a streamlined process for wind & solar energy resource assessment and development, the regulations remove significant obstacles to wind & solar energy development on Indian lands. Finally, by addressing 

the dual taxation, the regulations foster (or promote) a friendlier business environment on tribal lands so that tribes will be able to attract economic development. 

These regulations are an important part of a broader agenda to reform and improve the management of Indian lands across the United States. The Department’s 

regulations govern the process of how it reviews and approves leases on Indian 

lands. The regulations overhaul a process that was antiquated and ill-suited for 

modern development needs on Indian lands. 

Trust Modernization in Tribal Leasing Laws Under the HEARTH Act 

The Department worked closely with both houses of Congress to support passage 

of the Helping Expedite and Advance Responsible Tribal Homeownership 

(HEARTH) Act in 2012. Under the HEARTH Act, tribes may choose to develop their 

own leasing regulations to implement their own leasing programs. The HEARTH 

Act and our newly revised leasing regulations each provide tribes with greater control over leasing of their land. The Department has worked diligently to implement 

the HEARTH Act in the spirit of tribal self-determination by encouraging the development and submission of Tribal HEARTH Act laws. The Department has approved 

such laws for 20 tribes, empowering each of these tribes to exercise greater control 

of its economic destiny. 

The HEARTH Act of 2012 (the Act) makes a voluntary, alternative land leasing 

process available to tribes, by amending the Indian Long-Term Leasing Act of 1955, 

25 U.S.C. 415. The Act authorizes tribes to negotiate and enter into agricultural and 

business leases of tribal trust lands with a primary term of 25 years, and up to two 

renewal terms of 25 years each, without the approval of the Secretary of the Interior. The Act also authorizes tribes to enter into leases for residential, recreational, 

religious or educational purposes for a primary term of up to 75 years without the 

approval of the Secretary. Participating tribes develop tribal leasing regulations, including an environmental review process, and then must obtain the Secretary’s approval of those regulations prior to entering into leases. The Act requires the Secretary to approve tribal regulations if the tribal regulations are consistent with the 

Department’s own leasing regulations at 25 CFR Part 162 and provide for an environmental review process that meets requirements set forth in the Act. 

As the Department explained in the preamble to the updated final leasing regulations, the Federal government has a strong interest in promoting economic development, self-determination, and tribal sovereignty on tribal lands. 77 FR 72,440, 

72,447–48 (December 5, 2012). Section 5 of the Indian Reorganization Act, 25 U.S.C. 

465, preempts State and local taxation of permanent improvements on trust land. 

Confederated Tribes of the Chehalis Reservation v. Thurston County, 724 F.3d 1153, 

1157 (9th Cir. 2013) (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)). 

In addition, as explained in the preamble to the revised leasing regulations at 25 

C.F.R. Part 162, Federal courts have applied a balancing test to determine whether 

State and local taxation of non-Indians on the reservation is preempted. White 

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980). The Bracker balancing 

test, which is conducted against a backdrop of ‘‘traditional notions of Indian selfgovernment,’’ requires a particularized examination of the relevant State, Federal, 

and tribal interests. 

While that discussion occurred in the context of federal lease approvals, the 

strong Federal and tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department’s leasing regulations apply equally to improvements, leaseholds, and activities on land leased 

pursuant to tribal leasing regulations approved under the HEARTH Act. Congress’s 

overarching intent was to ‘‘allow tribes to exercise greater control over their own 

land, support self-determination, and eliminate bureaucratic delays that stand in 

the way of homeownership and economic development in tribal communities.’’ 158 

Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford tribes 

‘‘flexibility to adapt lease terms to suit [their] business and cultural needs’’ and to 

‘‘enable [tribes] to approve leases quickly and efficiently.’’ Id. at 5–6. 

Assessment of State and local taxes would obstruct these express Federal policies 

supporting tribal economic development and self-determination, and also threaten 

substantial tribal interests in effective tribal government, economic self-sufficiency, 

and territorial autonomy. See Michigan v. Bay Mills Indian Community, 134 S. Ct. 

13 

2024, 2043 (2014) (Sotomayor, J., concurring) (determining that ‘‘[a] key goal of the 

Federal Government is to render Tribes more self-sufficient, and better positioned 

to fund their own sovereign functions, rather than relying on Federal funding’’). The 

additional costs of State and local taxation have a chilling effect on potential lessees, 

as well as on a tribe that, as a result, might refrain from exercising its own sovereign right to impose a tribal tax to support its infrastructure needs. See id. at 

2043–44 (finding that State and local taxes greatly discourage tribes from raising 

tax revenue from the same sources because the imposition of double taxation would 

impede tribal economic growth). 

Just like BIA’s surface leasing regulations, tribal regulations under the HEARTH 

Act pervasively cover all aspects of surface leasing. See Guidance for the Approval 

of Tribal Leasing Regulations under the HEARTH Act, NPM–TRUS–29 (effective 

Jan. 16, 2013) (providing guidance on Federal review process to ensure consistency 

of proposed tribal regulations with Part 162 regulations and listing required tribal 

regulatory provisions). Furthermore, the Federal Government remains involved in 

the tribal land leasing process by approving the tribal leasing regulations in the 

first instance and providing technical assistance, upon request by a tribe, for the 

development of an environmental review process. The Secretary also retains authority to take any necessary actions to remedy violations of a lease or of the tribal regulations, including terminating the lease or rescinding approval of the tribal regulations and reassuming lease approval responsibilities. Moreover, the Secretary continues to review, approve, and monitor individual Indian land leases and other types 

of leases not covered under the tribal regulations according to the Part 162 regulations. For these reasons, we have adopted the Bracker analysis from the preamble 

to the surface leasing regulations, 77 FR at 72,447–48, in the context of the 

HEARTH Act. 

In sum, the Federal and tribal interests weigh heavily in favor of preemption of 

State and local taxes on lease-related activities and interests, regardless of whether 

the lease is governed by tribal leasing regulations or Part 162. We have published 

notice of each HEARTH Act approval in the Federal Register so that state and local 

taxation authorities and the public will be aware of the preemption of taxation of 

business activity under approved tribal leasing regulations. 

As of July 3, 2015, the following tribes have HEARTH Act approval of their tribal 

leasing regulations: 

• February 1, 2013 HEARTH Act Approval of Federated Indians of Graton 

Rancheria business leasing regulations 

• March 14, 2013 HEARTH Act Approval of Pueblo of Sandia business leasing 

regulations 

• April 11, 2013 HEARTH Act Approval of Pokagon Band of Potawatomi Indians 

residential leasing regulations 

• November 10, 2013 HEARTH Act Approval of Ak-Chin Indian Community business leasing regulations 

• November 10, 2013 HEARTH Act Approval of Santa Rosa Band of Cahuilla Indians business leasing regulations 

• November 10, 2013 HEARTH Act Approval of Citizen Potawatomi Nation business leasing regulations 

• December 10, 2013 HEARTH Act Approval of Ewiiaapaayp Band of Kumeyaay 

Indians business leasing regulations 

• December 13, 2013 HEARTH Act Approval of Kaw Nation business leasing regulations 

• April 4, 2014 HEARTH Act Approval of Jamestown S’Klallam Tribe business 

leasing regulations 

• April 4, 2014 HEARTH Act Approval of Dry Creek Rancheria Band of Pomo Indians business leasing regulations 

• April 8, 2014 HEARTH Act Approval of Wichita and Affiliated Tribes business 

leasing regulations 

• April 8, 2014 HEARTH Act Approval of Mohegan Tribe of Indians of Connecticut business leasing regulations 

• September 23, 2014 HEARTH Act Approval of Agua Caliente Band of Cahuilla 

Indians business leasing regulations 

• January 8, 2015 HEARTH Act approval of Seminole Tribe of Florida business 

and residential ordinances 

• January 22, 2015 HEARTH Act Approval of Cowlitz Indian Tribe business leasing regulations 

14 

• January 28, 2015 HEARTH Act Approval of Oneida Indian Nation business 

leasing regulations 

• February 4, 2015 HEARTH Act Approval of Ho-Chunk Nation business, residential and agricultural leasing regulations 

• June 3, 2015 HEARTH Act Approval of Absentee Shawnee Tribe of Oklahoma 

business leasing regulations 

• June 4, 2015 HEARTH Act Approval of Rincon Band of Luiseno Mission Indians 

business leasing regulations 

Trust Modernization in Rights-of-Way Regulations for Indian Lands 

The current regulations governing rights-of-way across Indian land were promulgated more than 40 years ago and last updated more than 30 years ago. As such, 

they are ill-suited to the modern requirements for rights-of-way and the need for 

faster timelines and a more modern and transparent processes for BIA approval. 

The Department proposed changes to the current rights-of-way regulations about a 

year ago and we extended the comment period multiple times for a comment period 

that lasted more than five months. We are in the final stages of reviewing the comments submitted under the extended comment period noticed in the Federal Register on November 4. During the public comment period, we received approximately 

175 comment submissions on the proposed rule and hosted four Tribal consultation 

sessions. 

This proposed rule would update 25 CFR 169, Rights-of-Way on Indian Land, to 

streamline the process for obtaining BIA approval and ensure seamless consistency 

with the recently promulgated leasing regulations. The proposed rule would increase 

the efficiency and transparency of the BIA approval process, increase flexibility in 

compensation and valuations, and support landowner decisions regarding the use of 

their own trust land. 

The proposed rule would change the BIA approval process for rights-of-way to: 

• Eliminate the requirement for applicants to obtain BIA approval to access Indian land to survey it in preparation for a right-of-way application; 

• Specify the process for obtaining BIA approval of rights-of-way documents on 

Indian land; 

• Impose time limits on BIA to act on submitted rights-of-way documents; 

• Establish that BIA must approve right-of-way documents absent compelling justifications otherwise; and 

• Clarify that BIA approvals of rights-of-way documents are effective on the date 

of approval, even if an administrative appeal is filed. 

The proposed rule would require BIA to issue a decision on a right-of-way grant 

within 60 days of receiving an application and would require BIA to issue a decision 

on an amendment, assignment or mortgage of a right-of-way within 30 days of receiving an application. The proposed rule would also add an administrative process 

so that if BIA fails to meet these timelines, the applicant may elevate the matter 

to the BIA Regional Director, then the BIA Director. 

The proposed rule would provide a different approach to compensation depending 

on whether the land is tribal land or individually-owned Indian land. 

• For rights-of-way on tribal land: Compensation may be in any amount the tribe 

negotiates, or may be an alternative form of rental, such as in-kind consideration, and BIA will not require a valuation, as long as the tribe provides documentation that the tribe has determined the compensation is in its best interest. The BIA will not require a periodic review of the adequacy of the compensation for rights-of-way on tribal land. 

• For rights-of-way on individually-owned Indian land: Compensation must be at 

least as high as fair market rental unless the landowners execute a written 

waiver and BIA determines the waiver to be in the landowners’ best interest. 

The BIA will also require a valuation, unless all the landowners execute a written waiver or the grantee will construct infrastructure improvements on, or 

serving, the premises and BIA determines it is in the best interest of all landowners. In addition, if BIA determines it is in the Indian landowners’ best interest, then the grant may provide for alternative forms of rental or varying types 

of compensation. No periodic review of the adequacy of rent or rental adjustment is required if payment is a one-time lump sum, the right-of-way duration 

is five years or less, the grant provides for automatic adjustments, or BIA determines it is in the best interest of the landowners not to require a review or 

automatic adjustment. 

15 

The proposed rule would make the following change to compliance with and enforcement of rights-of-way: 

• Restrict BIA’s right of entry to reasonable times and upon reasonable notice, 

consistent with notice requirements under applicable tribal law and right-ofway documents; 

• Provide that, in the event of a violation, BIA will defer to ongoing actions or 

proceedings provided for in the right-of-way grant’s negotiated remedies, as appropriate; 

• Provide that BIA will provide a copy of the notice of violation to the tribe for 

tribal land, and will provide constructive notice to Indian landowners for individually owned Indian land; 

• Require BIA to consult with the tribe for tribal land or, where feasible, with 

Indian landowners for individually owned Indian land, to determine what action 

to take if the grantee does not cure a violation within the requisite time period. 

The proposed rule would also make the following changes: 

• Eliminate outdated requirements specific to different types of rights-of-way; 

• Clarify that a right-of-way grant on Indian land may include provisions requiring the grantee to give a preference to qualified tribal members, based on their 

political affiliation with the tribe; 

• Clarify which laws and taxes apply to rights-of-way approved under 25 CFR 

169; 

• Add that a bond is required to be provided with the application, rather than 

a deposit; and 

• Clarify when a BIA grant of a new right-of-way on Indian land is required or 

an existing right-of-way may be amended. 

Conclusion 

The Obama Administration has developed a strong legacy of trust modernization 

in major efforts to correct historical mistakes in allotment and provide tribes significant land bases upon which they exercise sovereignty. It has also modernized land 

leasing by the BIA, and with the help of Congress, land leasing regulated by tribes. 

It has also eliminated dual taxation in these contexts, a major step for trust modernization. Finally, it has worked to update its right-of-way regulations. Still, much 

work remains to be done in the Executive branch, in reforming programs and services affecting Indian tribes, and in Congress, in enacting a Carcieri fix. 

We will continue to work with Members of this Committee, Congress, and our 

trust beneficiaries, the tribes, to clarify and fulfill our trust obligation, through our 

existing authorities to acquire land in trust on behalf of all tribes, and to discharge 

our responsibilities in accordance with the law and our regulations. 

This concludes my prepared statement. I will be happy to answer any questions 

the Committee may have. 

The CHAIRMAN. Vice Chairman Stensgar, please proceed. 

STATEMENT OF HON. ERNEST L. STENSGAR, VICE CHAIRMAN, 

COEUR D’ALENE TRIBE 

Mr. STENSGAR. Thank you, Chairman Barrasso, Senator Tester, 

members of the Committee. 

I think Senator Crapo read the bill to you, and you will understand that. I want to state the tribe’s position and the position of 

the Affiliated Tribes of Northwest Indians. I can speak on behalf 

of the Affiliated Tribes because I chair the trust reform committee. 

I have testimony from most of our tribal members regarding S. 383 

and the companion House bill. 

Senators, we are tired of the paternalism of the United States 

Government in managing our affairs. We have day-to-day, most of 

the tribes have day-to-day operations. We manage million dollar 

businesses, we don’t ask anybody’s permission as we conduct those 

businesses. Yet if we want to deal with any timber management or 

16 

agricultural management, we have to get permission from Interior 

to make management decisions. 

This bill would allow us to make those decisions without going 

to Interior, similar to the HEARTH Act. We see the tribes that 

have utilized the HEARTH Act and recognize the success that they 

have. 

Our feeling is that it would be more important for us to make 

decisions and faster if we could do away with the paternalistic 

views of the United States Interior Department. 

Part of this bill talks about OST. We recognize the management 

functions of OST in the finances of the trust dollars. But we are 

concerned with the duplication of going to the Bureau of Indian Affairs and the Office of Special trustee when we are looking at appraisals or any land transactions. We may have a venture in 

progress and all of a sudden we come to a dead stop while we untangled who is responsible, and whose signature we need to carry 

on that business. It is very difficult, to say the least. 

We look forward to OST’s response, I think to the committee, the 

Appropriations Committee and to how the OST is going to operate 

in the future and how they are going to sunset their abilities in the 

future, or if they are not going to do it, how are they going to continue on with support of the tribes and Congress. Hopefully it 

comes forth very soon. 

Again, Senator Crapo read the bill, and I just want to stand for 

questions. Thank you for this time. 

[The prepared statement of Mr. Stensgar follows:] 

PREPARED STATEMENT OF HON. ERNEST L. STENSGAR, VICE-CHAIRMAN, COEUR

D’ALENE TRIBE

My name is Ernest Stensgar and I am testifying today in my capacity as ViceChairman of the Coeur d’Alene Tribe and on behalf of the Affiliated Tribes of Northwest Indians (ATNI) as Chair of ATNI’s Trust Reform Committee. I am pleased to 

provide ATNI’s and my Tribe’s strong support for S. 383 and urge the Committee 

to advance this legislation without delay. 

Background On ATNI and the Development of S. 383 

Founded in 1953, ATNI represents 57 tribal governments from Oregon, Idaho, 

Washington, southeast Alaska, northern California and Montana. For more than a 

decade, ATNI and its member tribes in the Pacific Northwest have been active proponents of forward-looking trust reform. ATNI’s support and interest in these issues 

has been and is grounded in our commitment to maintaining the integrity of the 

United States’ trust responsibility, the foundation of which is based upon the historical cession of millions of acres of ancestral lands by these tribes to the United 

States. It is also based on our recognition that in nearly every instance, Indian 

tribes have demonstrated that they are simply much better managers of their natural resources and affairs than is the Federal Government. 

Much of the text of S. 383 had its origins in S. 1439, which was introduced by 

then-Committee Chairman McCain and Vice-Chairman Dorgan in the 109th Congress. Following introduction, the Committee staff travelled across the United 

States to consult with Indian tribes on the legislation. The Committee then generated a revised version of S. 1439 to reflect the tribes’ input. Using the committees’ 

revised draft of S. 1439 as a template, beginning in 2011 ATNI focused on updating 

the two titles of that bill that remained relevant in light of the Cobell settlement 

and that had universal tribal support: the Indian Trust Asset Demonstration Project 

and Restructuring the Office of the Special Trustee (OST). Several individuals and 

tribal leaders who participated in developing the bill had previous careers working 

for the Bureau of Indian Affairs (BIA) and OST and were able to provide important 

practical input to guide our efforts. 

In the 113th Congress, this Committee heard testimony on a prior version of this 

legislation (S. 165) at a July 16, 2014, oversight hearing. The House Subcommittee 

17 

on Indian, Insular, and Alaska Native Affairs held legislative hearings on the House 

bill in the 113th Congress (H.R. 409) and, in the current Congress, on H.R. 812 on 

April 14, 2015. 

As introduced, S. 383 and H.R. 812 incorporate a number of changes to reflect 

the Obama Administration’s feedback. Since the April 2015 House hearing on H.R 

812, we have had productive discussions with Department officials on further revisions to the bill to address outstanding issues. On June 28, 2015, the National Congress of American Indians convened a meeting at its 2015 mid-year conference with 

OST and tribal leaders and tribal representatives to discuss the future of OST and 

this legislation. That meeting has generated additional discussions with the Department on the bill, specifically title III. 

Based on these ongoing discussions, we are hopeful and optimistic that we will 

reach common ground with the Administration on this important legislation. 

Overview of S. 383 

The substantive provisions of S. 383 are in titles II and III, which are discussed 

below: 

Title II: Indian Trust Asset Demonstration Project 

Title II of S. 383 would establish a demonstration project to authorize Indian 

tribes, on a voluntary basis, to direct the management of their trust resources 

through negotiated agreements with the Secretary of the Interior (‘‘Secretary’’). To 

participate, tribes would submit to the Secretary a proposed Indian trust asset management plan that would describe, among other criteria, the trust assets that would 

be subject to the plan, the tribe’s management objectives and priorities for assets 

subject to the plan, and a proposed allocation of funding for the proposed management activities. 

Unlike existing legal authorities that authorize tribes to contract or compact federal functions under federal standards, this demonstration project is unique in that 

it would provide participating tribes the freedom to determine how their resources 

will be managed under tribal standards. 

For example, an Indian tribe with timber resources that seeks to participate in 

the demonstration project could submit a plan that would direct that some of its 

forest land be managed in a manner to maximize fair market value on timber sales. 

The plan might also direct that other forested acreage not be harvested at all to 

encourage tourism or promote certain wildlife habitat. Currently, the BIA is the 

final decision-maker on these issues. If S. 383 is enacted into law, Indian tribes for 

the first time would have the flexibility to dictate these management standards 

under this demonstration project authority. 

S. 383 also includes a new section 204(e) that authorizes the Secretary to approve 

trust asset management plans that include provisions authorizing Indian tribes to 

carry out surface leasing or forest management activities without BIA approval 

under certain conditions. This concept is substantively identical to the HEARTH 

Act, which was signed into law in 2012. The Administration has been a strong supporter of the HEARTH Act concept of authorizing tribes to voluntarily carry out surface leasing activities without BIA approval, and that model has proven very successful. 

Empowering tribes to create value with their own resources epitomizes the federal 

policy of self-determination. In an era where federal appropriations for management 

of tribal natural resources are declining and represent a fraction of the actual need, 

this demonstration project is a practical tool that tribes will utilize immediately if 

they so choose. 

Title III: Restructuring of the Office of the Special Trustee 

Congress created the OST in 1994 when it enacted the American Indian Trust 

Fund Management Reform Act. Congress recognized that OST would be a temporary entity to oversee certain reforms of how the Department of the Interior (DOI) 

managed and invested Indian trust funds. The 1994 Act provided that OST would 

be headed by the Special Trustee for American Indians, a position appointed by the 

President and confirmed by the Senate. 

Since the establishment of OST, management of Indian trust assets in DOI has 

been bifurcated: the BIA manages Indian trust land and non-monetary trust resources, while OST manages Indian trust funds. Although both entities are within 

DOI, they are completely separate bureaucracies. Even though their work often 

overlaps, OST employees do not have authority over BIA employees, and vice versa. 

Prior to OST’s creation, management of trust land and trust funds was under a single administrative umbrella. 

The major reforms that OST was charged with implementing were completed 

years ago. In a 2007 report, the General Accountability Office noted that ‘‘OST estiVerDate Mar 15 2010 11:00 Jan 12, 2016 Jkt 098153 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 S:\DOCS\98153.TXT JACK
18 

1See The Office of the Special Trustee Has Implemented Several Key Trust Reforms Required 

by the 1994 Act, but Important Decisions about Its Future Remain, GAO–07–104 (Dec. 2006). 

mates that almost all key reforms needed to develop an integrated trust management system and to provide improved trust services will be completed by November 

2007.’’ 1 Those reforms, have undoubtedly improved the Secretary’s management of 

Indian trust funds. We believe that those functions should continue. However, since 

OST was established, its role has expanded significantly to include activities far beyond managing Indian trust funds and implementing financial reforms, creating additional unintended bureaucracy for Indian Tribes. 

For example, in 2002 OST assumed responsibility for appraising Indian trust land 

and trust property, even though this function has nothing to do with the management of Indian trust funds. In the report accompanying the FY 2010 Interior, Environment and Related Agencies spending bill, the House Appropriations Committee 

said the following about OST’s involvement in the appraisal process: 

Indian Tribes routinely experience lengthy delays in obtaining appraisals from 

the Department for transactions involving the conveyance of Indian trust lands. 

The Bureau of Indian Affairs is responsible for requesting appraisals and the 

Office of the Special Trustee is responsible for procuring the appraisals. Appraisals are required for Indian Tribes and individual Indians to sell, acquire 

or exchange interests in trust land. Delays in obtaining appraisals also delay 

these transactions, which negatively impacts Tribal economies. 

It is easy to see how involving two competing bureaucracies with no authority 

over each other and little coordination leads to delays in effectuating routine transactions like appraisals. As this Committee is aware from its work on tribal energy 

development, delays in securing federal approvals and permits and—in this case— 

appraisals, often result in lost economic opportunities for Indian tribes and their 

members. 

Report to Congress 

S. 165 in the 113th Congress would have terminated OST by a date certain, which 

appeared to be the Administration’s primary concern with the bill. We have addressed this issue by taking a different approach in S. 383. Instead of mandating 

the termination of OST, Section 304 of S. 383 now directs the Secretary to prepare 

a report that (a) identifies functions that OST performs that relate to management 

of non-monetary trust resources; (b) describes any OST functions that will be 

transitioned to other bureaus or agencies within the Department, and (c) includes 

a transition plan and timetable for the termination of OST to occur not later than 

2 years after the date of the report. In preparing the report, the Secretary would 

consult with Indian tribes and, once complete, submit it to the authorizing and appropriations committees in both chambers. 

S. 383 does not require the Secretary to implement the report or the transition 

plan. What actions might be taken as a result of the report, if any, would be questions for a future Administration or a future Congress. This report would serve several purposes, however. First, it would provide OST with an opportunity to educate 

Indian country about the work that it does. Second, it would provide Congress with 

information about possibly duplicative land management functions that OST performs that the BIA might also perform. Finally, it would be the first opportunity 

for Congress and Indian country to see what the Secretary’s own plan to transition 

OST would look like. 

The 1994 Act that created OST contemplated that the Special Trustee, upon implementation of reforms, would certify the reforms have been implemented and wind 

down the office in accordance with Congress’s recognition that the Special Trustee 

is a temporary position. These major reforms were implemented years ago but for 

whatever reason, no Special Trustee since has taken steps to transition the Office. 

We believe that the report required by Section 304 is an eminently reasonable way 

of advancing this dialogue with Indian country and the Congress. 

S. 383 also includes two new provisions that will provide all tribes, on a voluntary 

basis, with new management tools and flexibility: 

Fiduciary Trust Officers 

Section 304(b) would authorize tribes to contract or compact the Fiduciary Trust 

Officer (FTO) positions within OST under the Indian Self-Determination and Education Assistance Act of 1975. OST created the FTO positions in 2003 to serve as 

a resource to BIA agency personnel. On some reservations, FTOs are either underutilized or not utilized at all. Allowing tribes the ability to contract and make better 

19 

use of these positions under P.L. 93–638 would provide tribes with additional staffing capacity in an era of declining BIA personnel and budgets. 

Appraisals and Valuations 

The other new provision is section 305, which addresses appraisals and valuations. Appraisals or valuations are required to complete most transactions involving trust land or trust resources. As mentioned above, both the BIA and OST have 

a role in the appraisal process and neither have authority over the other. As a result, the bureaucracy of having two separate entities involved in accomplishing a 

single task often leads to lengthy delays. Section 305(a) requires the Secretary, 

within 18 months of enactment and in consultation with Indian tribes, to ensure 

that appraisals and valuations of Indian trust property are administered by a single 

bureau, agency or other administrative entity within the Department. 

Furthermore, Sections 305(b) and (c) would direct the Secretary to establish minimum qualifications for persons to prepare appraisals and valuations of Indian trust 

property and publish those qualifications in the Federal Register. When an Indian 

tribe or Indian beneficiary submits an appraisal or valuation to the Secretary that 

satisfies those qualifications and the submission acknowledges the tribe’s or beneficiary’s intent to have the appraisal or valuation considered under this new subsection, the appraisal or valuation will not require any further Secretarial review 

or approval and will be considered final for purposes of effectuating the applicable 

transaction. 

Section 305 would also offer tribes and beneficiaries the option to hire their own 

qualified appraisers and complete transactions in far less time than would be required if the Department had to review and approve the appraisal or valuation. Not 

only will this expedite transactions involving trust assets, it will also relieve the Department of administrative burdens and will likely result in cost savings. 

ATNI and the Coeur d’Alene Tribe are grateful for the Committee holding today’s 

hearing. We look forward to working with the Committee to advance S. 383 as 

quickly as possible. 

The CHAIRMAN. Thank you so much for your testimony. Your 

complete written testimony will be included in the formal record. 

We will get to questions in a few minutes. 

At this point I would like to call on Councilwoman Lintinger. 

Thank you very much for being here. 

STATEMENT OF HON. BRENDA LINTINGER, COUNCILWOMAN, 

TUNICA–BILOXI TRIBE OF LOUISIANA; SECRETARY, UNITED 

SOUTH AND EASTERN TRIBES 

Ms. LINTINGER. Thank you. Can I have his extra minute and a 

half? 

[Laughter.] 

Ms. LINTINGER. [Greeting in native tongue.] Greetings and good 

afternoon, Chairman Barrasso, Vice Chairman Tester and members 

of the Committee. Thank you for the opportunity to provide testimony regarding trust modernization and reform for Indian lands. 

My name is Brenda Lintinger, and I am the Secretary for the 

United South and Eastern Tribes, a non-profit inter-tribal organization representing 26 federally-recognized Indian tribes from 

Texas across to Florida and up through the State of Maine. Since 

1997, I have served on the tribal council for the Tunica-Biloxi people in Louisiana. 

USET is supportive of Senate Bill 383, the Indian Trust Asset 

Reform Act, especially with regard to its intent to improve the administration of trust assets in a manner consistent with tribal 

input. This legislation also provides an important opportunity for 

this Committee to begin to examine ways in which the unique trust 

relationship between tribal nations and the Federal Government 

may be modernized and strengthened in a much broader sense. 

20 

The current trust model is based on two deeply flawed and paternalistic assumptions. First, that tribes are incompetent to handle 

their own affairs, and secondly, that tribal nations would eventually disappear. Indian Country has proven both of these assumptions wrong over and over again. 

The time is now to revisit our sacred nation-to-nation relationship in order to remove existing barriers which in turn will allow 

Indian Country to realize its greatest potential. Today is the 45th 

anniversary of President Nixon’s special message to Congress on 

Indian affairs, recognizing the inherent sovereign authority of tribal nations and initiating a historic, successful era of tribal self-determination and self-governance. 

After 45 years under this model, tribal nations across the United 

States seek to advance to the next level and are calling for a new 

paradigm in the trust relationship. Tribes and tribal organizations 

representing various regions and interests and perspectives from 

across Indian Country, including USET, have developed a set of 

five principles for modernizing and strengthening our nation-to-nation trust relationship. 

First, strengthen trust standards, adopt implementing laws and 

regulations. Over the course of our Nation’s history, the Federal 

Government has issued numerous policy statements and secretarial 

orders recognizing the Federal trust responsibility and affirming its 

own obligation to tribes. The codification of these standards via legislation and regulation is necessary to ensure that these statements are meaningful and enforceable. 

Second, strengthen tribal sovereignty, empower each tribe to define its path. Thirdly, strengthen Federal management for trust assets still subject to Federal control. 

Fourth, strengthen Federal-tribal relations, one table with two 

chairs. The United States must commit to meeting tribes on equal 

footing and incorporating the guidance of tribes into policy decisions. Fifth, strengthen Federal funding and improve its efficiency 

as a pillar of the trust obligation. 

As this Committee well knows, the U.S. cannot fully deliver on 

its trust obligation to tribes without full funding for that obligation. 

Also, funding for tribal programs should not be subject to the annual appropriations process, but rather be provided via mandatory 

entitlement funding. 

In addition to these principles, USET would like to focus on the 

latter part of the title of this hearing, Reform for Indian Lands. 

The ability of tribes to have land taken into trust is central to both 

tribal sovereignty and the Federal trust responsibility. Every tribe 

has its own history of loss, and every federally-recognized tribe 

once held title to large amounts of land. 

In 1803, my tribe, the Tunica-Biloxi Tribe in Louisiana, held title 

to over 50 square miles of land, some of which was confirmed by 

the Louisiana Purchase. However, by 1980, the tribe controlled less 

than 200 acres. The Tunica-Biloxi Tribe and hundreds of other 

tribes across the country are utilizing their own resources to buy 

back their own land. 

We have forged positive relationships with the local non-Indian 

communities that have grown up around us. Our tribal businesses 

generate revenue for governmental services and also provide beneVerDate Mar 15 2010 11:00 Jan 12, 2016 Jkt 098153 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 S:\DOCS\98153.TXT JACK
21 

1 USET member Tribes include: Alabama-Coushatta Tribe of Texas (TX), Aroostook Band of 

Micmac Indians (ME), Catawba Indian Nation (SC), Cayuga Nation (NY), Chitimacha Tribe of 

Louisiana (LA), Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians (NC), 

Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw Indians (LA), Mashantucket 

Pequot Indian Tribe (CT), Mashpee Wampanoag Tribe (MA), Miccosukee Tribe of Indians of 

Florida (FL), Mississippi Band of Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut (CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY), Passamaquoddy 

Tribe at Indian Township (ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian 

Nation (ME), Poarch Band of Creek Indians (AL), Saint Regis Mohawk Tribe (NY), Seminole 

Tribe of Florida (FL), Seneca Nation of Indians (NY), Shinnecock Indian Nation (NY), TunicaBiloxi Tribe of Louisiana (LA), and the Wampanoag Tribe of Gay Head (Aquinnah) (MA). 

fits for our non-Indian neighbors. Our tribe employs nearly 1,500 

people, the vast majority of them non-Indian. After our gaming facility opened in 1995, the direct and indirect jobs created by our 

tribe caused the unemployment rate in Avoyelles Parish to drop 

from 15 to 6 percent. 

The Supreme Court’s misguided decision on Carcieri v. Salazar 

has thrown Indian Country into chaos, effectively creating two 

classes of tribes, those who can take land into trust and those who 

cannot. For six years now we have been seeking legislative relief 

that returns us to the status quo by reaffirming way of finding the 

status of lands currently held in trust for tribes and confirming the 

Secretary’s ability to take future lands into trust for all tribes. 

It is impossible to have any conversation about modernizing the 

trust responsibility without first ensuring that the Federal Government’s obligations equally apply to all tribes, including the ability 

of all tribal nations to restore their tribal homelands as intended 

by the 1934 Indian Reorganization Act. 

In conclusion, the time has come for a comprehensive overhaul 

of our nation-to-nation trust relationship. As this Committee, this 

Congress and this Administration consider opportunities to provide 

these necessary changes, USET stands ready to provide guidance 

and partnership. 

I thank you and invite any questions the Committee may have. 

I did pretty good. 

[The prepared statement of Ms. Lintinger follows:] 

PREPARED STATEMENT OF HON. BRENDA LINTINGER, COUNCILWOMAN, TUNICA-BILOXI

TRIBE OF LOUISIANA; SECRETARY, UNITED SOUTH AND EASTERN TRIBES

Chairman Barrasso, Vice Chairman Tester and members of the Committee, thank 

you for the opportunity to provide testimony regarding ‘‘Trust Modernization and 

Reform for Indian Lands.’’ My name is Brenda Lintinger, and I am the Secretary 

for United South and Eastern Tribes (USET), a non-profit, inter-Tribal organization 

representing 26 federally recognized Indian Tribes from Texas across to Florida and 

up to Maine. 1 Since 1997, I have served on the Tribal Council for the Tunica-Biloxi 

Tribe. 

USET is supportive of S. 383, the Indian Trust Asset Reform Act, especially with 

regard to its intent to improve the administration of trust assets in a manner consistent with Tribal input. However, we would defer to those most directly affected 

for a discussion of its specific provisions. This legislation also provides an important 

opportunity for this Committee to begin to examine ways in which the unique trust 

relationship between Tribal Nations and the Federal Government may be modernized and strengthened in a much broader sense. Reforming the Federal Government’s management of Tribal trust assets is an integral part to modernizing the 

trust relationship. Additionally, USET urges the Committee to consider this hearing 

the first in a more comprehensive exploration of the current state of the Tribal-U.S. 

trust relationship and opportunities for systemic change. 

The current trust model is a remnant of an era and mindset that has no place 

in current Nation-to-Nation relations, as it is based on two deeply flawed and paternalistic assumptions: (1) that Tribes are incompetent to handle their own affairs, 

22 

and (2) that Tribal Nations would eventually disappear. Indian Country has proven 

both of these assumptions wrong over and over again. The time is now to revisit 

and redefine our sacred Nation-to-Nation relationship in order to remove existing 

barriers that interfere with our ability to implement our inherent sovereign authority to its fullest extent which, in turn, will allow Indian Country to realize its great 

potential. Strong, vibrant Tribal Nations are a benefit to their surrounding communities and, indeed, make the United States a greater and stronger nation. Indian 

Country seeks to work with this Committee, the full Congress and the Executive 

branch to build a new framework for Tribal-Federal relations that provides Tribes 

with an equal say in the defining of that relationship, instead of it almost entirely 

being defined by the Federal Government. 

Today is the 45th anniversary of President Nixon’s Special Message to Congress 

on Indian Affairs, recognizing the inherent sovereignty of Tribal Nations and initiating a historic, successful era of Tribal Self-Determination and Self-Governance. 

After 45 years under this model, Tribal Nations across the United States seek to 

advance to the next level and are calling for a new paradigm in the trust relationship. It is time to establish a trust model that reflects a true nation-to-nation partnership built upon diplomacy that will strengthen federal trust administration, enhance federal-tribal relations, and promote and protect tribal sovereignty, all with 

the goal of building and sustaining prosperous tribal communities. 

To that end, Tribes and Tribal Organizations representing various regions and interests and perspectives from across Indian Country, including USET, have come together to synthesize various trust modernization concepts and plans. Together, we 

have developed a set of five principles for modernizing and strengthening the trust 

relationship. The following principles identify many, if not most, of the challenges 

and principles relative to the nature and evolution of the federal-tribal trust relationship, and are designed to guide legislative and executive branches in their efforts to redefine this relationship. 

Strengthen Trust Standards—Adopt Implementing Laws and Regulations 

Over the course of our nation’s history with Tribes, the Federal Government has 

issued numerous policy statements and secretarial orders recognizing the federal 

trust responsibility and affirming its own obligation to Tribes. These include President Nixon’s Special Message and Secretarial Orders from Secretaries of the Interior Bruce Babbitt and Sally Jewell, as well as a report from the Department of the 

Interior’s Secretarial Commission on Indian Trust Administration and Reform. 

These policy statements serve to provide principles for the execution of the trust relationship, but do not carry the weight of law and may be abandoned by subsequent 

Administrations and Congresses. 

The codification of these standards is necessary to ensure that these statements 

are meaningful. Additionally, current and future Administrations should consult 

with Tribal Nations leading to the promulgation of enforceable regulations that uphold the trust responsibility. Similarly, Congress should seek to recognize this relationship via legislation. 

Strengthen Tribal Sovereignty—Empower Each Tribe to Define its Path 

As we reexamine the relationship between two sovereigns, we must consider the 

sovereign status of Tribes more fully. Among Tribal Nations there is a wide range 

of sovereign authority, with some Tribes exercising substantial (although not total) 

sovereign powers over their lands and peoples, while others operate with an authority that is more like a municipal government, subject to substantial state control 

and dominance. Even for those Tribes that exercise the maximum amount of Tribal 

sovereignty, that sovereignty is limited compared to the authority of other 

sovereigns, such as the federal and state governments. 

True recognition of Tribal Nation sovereignty involves empowering each Tribal 

Nation to determine its own path. In USET’s view, the exercise of sovereignty goes 

beyond self-governance contracting and compacting and beyond jurisdiction over 

one’s own citizens. Tribes must have the opportunity to choose to assume complete 

control over their own affairs and assets. This includes the ability to use and reprogram federal dollars in whatever manner the Tribe determines is best, exclusive 

authority to tax within reservation boundaries, and full legal jurisdictional authority 

over all individuals and entities within those boundaries. 

Strengthen Federal Management—For Trust Assets Still Subject to Federal 

Control 

Today, a number of federal agencies implement blanket policies that affect all Indian Tribes and Indian allottees. This ‘‘one size fits all’’ approach ignores the unique 

differences between the individual Tribes and the unique government-to-government 

relationship each Tribe has with the United States under its own treaties and other 

23 

agreements. Unfortunately, many of these federal solutions never get changed or 

abolished, even when the Tribes and a federal Commission point out their shortcomings and recommend improvements. 

As we seek overall improvements in the management of trust assets, S. 383, the 

Indian Trust Asset Reform Act, is a significant advance. We note that the bill confirms that the most exacting common law fiduciary standards governing private 

trustees also govern the Federal Government when it manages Indian Trust Assets, 

and that those standards are not limited to the express terms of statutes and regulations. In addition, S. 383 promotes Tribal sovereignty by establishing the Indian 

Trust Asset Management Demonstration Project and authorizing the contracting 

and compacting of trust asset management under the Indian Self-Determination 

and Education Assistance Act. This legislation is a positive step forward and part 

of what USET views as a movement toward the new trust paradigm. 

Strengthen Federal-Tribal Relations—One Table with Two Chairs 

Any improvement to the trust relationship must involve greater authority and a 

full seat at the table for Tribal Nations. While Tribal opinions are expressed via federal advisory committees, consultation, and testimony, decisions continue to be 

made ‘‘on our behalf’’, whether with or without our input. The United States must 

commit to meeting Tribes on equal footing and to incorporating the guidance of 

Tribes into policy decisions. For example, the White House Council on Native American Affairs gathers cabinet secretaries and other high level officials regularly to 

consider issues of importance to Indian Country. This Council has greatly raised 

awareness across the Federal Government to the Federal Government’s trust obligation to Native peoples and represents a true advance for Native rights. However, 

while the Council may hear presentations from Tribal leaders, it does not count any 

Tribal leaders as members. The Council cannot fully consider the needs and trials 

of Indian Country without the full participation of Tribes. 

Strengthen Federal Funding and Improve Its Efficiency—A Pillar of the 

Trust Responsibility 

As this Committee well knows, the U.S. cannot fully deliver on its trust responsibility to Tribes without full funding for that responsibility. And yet, federal Indian 

programs and their administering agencies remain consistently under-funded year 

after year. At a minimum, the trust responsibility should provide that the Federal 

government has a tribally enforceable obligation to ensure that reservations are 

habitable by today’s standards, including that they have decent schools, hospitals, 

public safety and infrastructure and that Tribal governments are empowered to create an environment hospitable to economic development. Further, in accordance 

with a recognition that the trust responsibility is an obligation and not discretionary, funding for Tribal programs should not be subject to the annual appropriations process, but rather be provided via mandatory entitlement funding. 

Reform for Indian Lands—Certainty and Equality through a Carcieri Fix 

In addition to the principles outlined above, USET would like to focus on the latter part of the title of this hearing, ‘‘Reform for Indian Lands.’’ The ability of Tribes, 

working with the Secretary, to have land taken into trust is central to both Tribal 

sovereignty and the Federal trust responsibility. It is the foundation of Tribal efforts 

to strengthen our self-determination and to ensure that we protect our cultural 

identities. 

Every Tribe has its own history of loss, and every federally-recognized Tribe once 

held title to large amounts of land that has been stolen from them. There are numerous stories across the country about the theft of Indian land and resources, and 

even of the killing of our people. In 1803, my Tribe, the Tunica Biloxi Tribe, held 

title to over 50 square miles of land, some of which was confirmed by the Louisiana 

Purchase. However, despite no approval for land transfer by the U.S. Congress in 

the intervening years, by 1980 the Tribe controlled less than 200 acres of land. 

These lands were stolen in hundreds of small ways, but one example stands out. 

In 1841, Chief Melacon confronted a local land owner whose work crew was moving 

his fence posts onto Tunica land. As the Chief began removing the fence posts the 

land owner shot Chief Melacon in the head in view of several other tribal citizens 

and non-Indians. The killer never stood trial, as the common view at the time 

among non-Indians in the area was that the Indians were savages who did not farm 

their land ‘‘properly’’ and therefore had no right to keep it. 

Against this history of injustice, the Tunica-Biloxi Tribe, and hundreds of other 

Tribes across the country, are utilizing their own resources to purchase land that 

has been stolen from them. But, we do not wish to continue the cycle of mistrust, 

envy and hard feelings. Instead, we have forged new, positive relationships with the 

local non-Indian communities that have grown up around us. Utilizing our status 

24 

as a sovereign nation, the Tunica-Biloxi Tribe has created several economic development enterprises. These businesses generate revenue for the tribal government to 

protect and enhance the welfare and culture of the tribal citizens. However, they 

also provide major benefits for our non-Indian neighbors and revenues for state and 

local governments in the region. 

While the population of Marksville, Louisiana has not changed much in 20 years, 

the Tunica-Biloxi Tribe, through its several economic development enterprises, employs nearly 1,500 people—the vast majority of them non-Indian. After our gaming 

facility opened in 1995, the direct and indirect jobs created by the Tribe caused the 

unemployment rate in Avoyelles Parish to drop to about 6 percent. Home prices increased, new roads were paved, schools improved, Parish government services expanded, and hundreds of new businesses sprung up in Marksville and across the 

parish. Of course, our tribal citizens who had previously suffered greatly from economic hardship were helped as well, but the full story is one of renewal for the entire region and all of our citizens and neighbors. 

Today, the Tunica-Biloxi Tribe, and hundreds of other Tribal governments across 

the country are working hard to diversify our economies and find new enterprises 

that can provide the revenues we need to support our communities and protect and 

enhance our unique cultures. However, the Supreme Court’s misguided decision in 

Carcieri v. Salazar has thrown Indian Country into chaos, effectively creating two 

classes of Tribes: those who can take land into trust and those who cannot. The 

legal ambiguities resulting from Carcieri have further delayed the already severely 

backlogged land-into-trust process, and have given birth to other harmful case law 

challenging and destabilizing land that has been held in trust for decades. Because 

of Carcieri and resulting legal challenges, Tribes are finding it increasingly difficult 

to secure financing and attract investors for economic development projects as questions are raised about the status of lands on which these projects would be located. 

For six years now, we have been seeking legislative relief that reaffirms the status 

of lands currently held in trust for Tribes and confirms the Secretary’s ability to 

take future lands into trust. In doing so, this legislative fix would return us to a 

status quo of 75 years of prior practice, It is impossible to have any conversation 

about modernizing the trust responsibility without first ensuring that the Federal 

Government’s obligations apply equally to all Tribes. This includes the ability of 

ALL Tribal Nations to restore their Tribal homelands as intended by the 1934 Indian Reorganization Act (IRA). 

Conclusion 

The current trust model fails to recognize the inherent sovereignty and sophisticated governance of modern Tribal Nations. The time has come for a comprehensive 

overhaul of the trust relationship, one in which Tribal sovereignty is fully acknowledged, respected, celebrated, protected, and promoted. As this Committee, this Congress, and this Administration consider opportunities to provide necessary changes 

to the sacred relationship between Tribal Nations and the U.S. government, USET 

stands ready to provide guidance and partnership. We appreciate the Committee’s 

interest in this important topic, are grateful for the opportunity to testify, and invite 

any questions the Committee may have. 

The CHAIRMAN. You did, thank you so much. 

[Laughter.] 

The CHAIRMAN. Let the Committee record reflect the fact that 

you did pretty good. Thank you. 

I would like to go to questions now. I appreciate the witnesses’ 

being here today. I would like to ask Senator Lankford to start. 

STATEMENT OF HON. JAMES LANKFORD, 

U.S. SENATOR FROM OKLAHOMA 

Senator LANKFORD. Thank you. I apologize for my voice. At this 

point, I feel better than I sound. I apologize for that. 

It is good to see all of you. This is obviously an extremely important topic for us long term to be able to deal with. It does require 

a legislative fix. 

Mr. Washburn, let me ask you a couple of questions, and one is 

because I can talk okie-okie to you and go from there. The other 

one is just, there are so many different issues that are unique in 

25 

Oklahoma that are just a dynamic of being in a non-reservation 

area. Taking land into trust is a very common practice in Oklahoma. 

Let me ask, is there a map established that BIA has that clearly 

delineates all land that has been taken into trust? That is, a detailed map that we could have access to? 

Mr. WASHBURN. We can provide that for you. You bet. 

Senator LANKFORD. That would be very helpful not only for the 

State, but for the Nation as well, to be able to get a detail. Because 

in many areas, it is a quilt. And so it would be clear to be able to 

see for us as well in that process. 

The other one is, taking Indian land into trust in areas that is 

typically not historically tribal land in the past, how do you manage that relationship with counties, cities and States, when it is an 

area that is not a historic tribal area but yet is being requested to 

be taken into trust? So walk me through the process of that. 

Mr. WASHBURN. Well, let me just say this. We very rarely take 

land into trust for a tribe if it is not a historic tribal area. That 

is a very unusual situation. But when we take land into trust anywhere, we very carefully manage the relationship with State and 

local governments, the county, the city and the State. We specifically ask for their views. The whole public can comment. 

With regard to State and local governments, we send notice by 

certified mail and specifically ask them to weigh in. 

Senator LANKFORD. What is the length of time of that comment 

period? Is that weeks, is that years? 

Mr. WASHBURN. No, it’s usually 30 days. But when they ask for 

more time, we always give it. We want to have their views. That 

is the bottom line, we want their views. So we tend to be very willing to extend the time of the comment period if they need it, and 

sometimes they need it. That is not an uncommon request. 

We very carefully consider their views. And I will tell you, if the 

city and the county and the State or any of those are upset about 

it, it takes a lot longer to get that land into trust. 

Senator LANKFORD. Define for me a lot longer. 

Mr. WASHBURN. Well, those are the applications that tend to languish for years and maybe are never approved. If we get a good 

agreement among all those groups, with the tribe, those are the applications that actually sail through the process and get through 

the process quickly. It is a really complicated process. But if there 

is good agreement and service agreements in place and that sort 

of thing, that is where we get quick land into trust decisions. 

We have done more than 1,900 of these since the beginning of 

the Obama Administration. The ones that go well are when all the 

issues are worked out between the parties and the people that 

might object. It is a relatively small number where there is actually 

a strong objection. 

Senator LANKFORD. On those rare occasions where land is not 

historic land, tribal land, how does that process work? Is it different? 

Mr. WASHBURN. Well, it is different. We have different systems 

in place. It is slightly different. Again, it is really unusual for us 

to take land into trust outside a tribe’s aboriginal area. But many 

of the aspects of the system are the same. 

26 

I have a step-by-step process in my testimony which is, sorry, it 

is dense, it is 13 pages, single spaced. But we explain a lot of that 

in there pretty carefully. 

We have been beat up by this Committee particularly over the 

years because our oil and gas leasing is like 43 steps to get a lease 

done. Here we have at least 16 steps for land into trust and it is 

not enough steps for some people. Some people want more red tape, 

and some people want less red tape. 

Senator LANKFORD. Put me on the less side. A clear, delineated 

processes always help everyone. 

You mentioned the oil and gas side of things. Let me bring it up. 

Osage Nation in Oklahoma is a very unique dynamic in that they 

own all the mineral rights for the nation. In a situation like that, 

should the Osage Nation be entrusted to be able to take care of 

their mineral rights? At what point can they make the decision? 

I know you know this issue well. I am not going to try to work 

you into a corner on this. But this is becoming more complicated 

as now the court has now set it aside, and said let’s delay this process, let’s talk about it even more. Where does this go from here and 

at what point can the nation actually have some self-determination 

for its mineral rights as well? 

Mr. WASHBURN. Thank you, Senator. One of the issues with regard to Osage is, Osage is unique because there is special congressional legislation that says Osage shall be unique and it will be 

handled differently than everywhere else in the Country. So we 

just finished, you know this, we had engaged in a rulemaking at 

Osage, a negotiated rulemaking where we tried to bring the relevant parties together, and have come up with a final rule that was 

about to take place. Then we were sued, and we agreed to hold off 

on implementing that rule temporarily, while the judge has time 

to determine whether there is a real problem here. 

But there are many different interests involved. Our big interest is that the taxpayers paid $320 million to the Osage Nation fairly 

recently for breach of trust. Our effort is to ensure that we meet 

our trust responsibility to the Osage Nation so the taxpayers don’t 

have to pay hundreds of millions of dollars again soon. So that is 

our number one goal. 

But we need to manage other interests in that process. 

Senator LANKFORD. You need oversight, you need a new piece of 

legislation to deal with that? What is better to deal with the Osage 

issue? This is a piece of legislation that started all this, do you 

need that to be able to fix it? What is better? 

Mr. WASHBURN. Well, we do want to talk with you about that. 

Let me not answer off the cuff, because this is an important matter. 

Senator LANKFORD. That is a reasonable conversation. Thank 

you. I yield back. 

The CHAIRMAN. Thank you, Senator Lankford. Senator Franken? 

STATEMENT OF HON. AL FRANKEN, 

U.S. SENATOR FROM MINNESOTA 

Senator FRANKEN. Thank you, Mr. Chairman. Thank you, Vice 

Chairman Tester, for holding this hearing, and thank you to our 

witnesses for your testimony. 

27 

The ability of the Department of the Interior to place land into 

trust for Indian Tribes is essential to sovereignty. Assistant Secretary Washburn described in his testimony the many benefits of 

trust acquisitions, including the ability to create housing, promote 

economic opportunities and protect tribal culture. But the Supreme 

Court rolled back tribal sovereignty in its 2009 Carcieri decision. 

That decision in effect created two castes of tribes, those under 

Federal jurisdiction before 1934 and those recognized after 1934. 

This is unfair and to me it is contrary to the purpose of the Indian Reorganization Act, which was supposed to reverse decades of 

removal and allotment by allowing the partial recovery of lands for 

Indian tribes. 

That is why I have co-sponsored legislation to fix the Carcieri decision in every Congress since I came to the Senate. I look forward 

to this Committee marking up Vice Chairman Tester’s clean 

Carcieri fix and I hope we can finally get to this important legislation and get it enacted. 

Assistant Secretary Washburn, it is always good to see you. The 

Carcieri decision created a lot of uncertainty for tribes petitioning 

to place lands into trust. This is a problem for all tribes, regardless 

of which they were federally recognized, because it further complicates and delays the trust acquisition process. 

Can you briefly summarize the effect of the Carcieri decision on 

BIA’s trust acquisition process? How is the BIA now determining 

whether land can be taken into trust, given the court’s decision? 

Mr. WASHBURN. Thank you, Senator Franken, and thank you for 

your leadership on this issue. 

The BIA and the Solicitor’s office have to do a tribe by tribe analysis to determine whether that tribe was under Federal jurisdiction 

for the purposes of the Carcieri decision as of 1934. Overall, what 

that means is that it just slows us down tremendously. It adds a 

lot of burden and makes it a lot less efficient to engage in the fee 

to trust process. 

Some tribes, it is not a problem for them, frankly, it is not a 

problem directly for them. But what happens is, we have all these 

resources working for other tribes to do the Carcieri analysis. So 

those are people who are not working for the tribes that need land 

into trust. So it has been a horrible burden. 

Senator FRANKEN. So it is fair to say that if all federally-recognized tribes were eligible, that land taken in trust, that would simplify the trust acquisition process for both BIA and for the tribes? 

Mr. WASHBURN. Absolutely. And it would be more just, as you 

noted. 

Senator FRANKEN. Councilwoman Lintinger, the Tunica-Biloxi, 

has a long history, but it wasn’t federally recognized until 1981. 

Now, the Supreme Court has drawn a line between the tribes 

under Federal jurisdiction by 1934 and those not. What did that 

decision mean for your tribe and other tribes in your region? 

Ms. LINTINGER. Well, it certainly obviously reversed eight decades, 80 years of interpretation and practice that tribes relied 

upon. It forces us, as the Assistant Secretary mentioned, to spend 

resources proving, going through this process again that we don’t 

have an issue. It affects our business operations. It increases the 

risk, as the status of land is an integral part of any business proVerDate Mar 15 2010 11:00 Jan 12, 2016 Jkt 098153 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 S:\DOCS\98153.TXT JACK
28 

posal, proposition, when we seek financing. As risk goes up, the 

cost of capital goes up. 

So at a time, being within the United States, we experience economic downturns just as other areas of the country do. So as we 

are facing these challenges and we are trying to diversify, going 

into other industries, it creates a burden and higher costs. Resources that we could be spending on social service programs as 

part of our self-governance and self-determination rights and our 

inherent sovereign authority. 

So it is a waste of time, money, resources, it is just not efficient. 

It is not effective. 

Senator FRANKEN. I am out of time, but it would be very fair to 

say that a Carcieri fix would help economic development in Indian 

Country? 

Ms. LINTINGER. Exactly, it would. 

Senator FRANKEN. Does everyone agree? 

Mr. WASHBURN. Yes, sir. 

Ms. LINTINGER. Absolutely. 

Senator FRANKEN. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Franken. Senator Crapo? 

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

I will start here on this side of the table. Councilwoman 

Lintinger, it is good to see you back here. 

Ms. LINTINGER. Thank you. 

Senator CRAPO. You are a strong and consistent advocate for 

tribal self-governance and sovereignty. 

I just have one question. I actually know the answer, but I want 

to give you a chance to say this on the record. That is whether the 

Tunica-Biloxi tribes are in support of Senate Bill 383, the legislation I referenced earlier that we have been working with the Coeur 

D’Alene Tribe on? 

Ms. LINTINGER. Yes, we are in support, sir. 

Senator CRAPO. I thank you for that very much. I do appreciate 

it. Like I say, it is good to see you here so consistently on the Hill 

fighting so hard for these critical issues. 

Ernie, my good friend, I would like to ask you a couple of quick 

questions. With regard to Title II of Senate Bill 383, which would 

establish the trust asset demonstration project to allow tribes to direct the management of their trust resources, can you give me an 

example of how this might help the Coeur D’Alene Tribe? 

Mr. STENSGAR. Senator Crapo, certainly. In our forest management, for instance, we have a number of stands that we would like 

to set aside for spiritual or cultural reasons. Currently the Bureau 

has a cut date that they make us adhere to. So it is very difficult 

to do that. 

Other issues are if we want to make a management decision and 

not cut, maybe just manage the dead and dying and wait for the 

market to raise, I think in the last several years the timber market 

has been down. We prefer not to harvest during those times, and 

wait for the prices to go up. But we are unable to do that. 

Under 383, it would allow us to do that without going through 

to Interior and getting permission to make those management decisions. 

29 

Senator CRAPO. I understand that other tribes face the reverse 

type of problem sometimes, if they want to allow for a cut, then 

they are not able to get that kind of a management decision made? 

Mr. STENSGAR. Certainly. 

Senator CRAPO. One other quick question, Mr. Stensgar, and that 

is, Senate Bill 383 contains new provisions relating to the appraisals of trust property. What kind of problems has your tribe or other 

tribes that you are aware of had with getting appraisals that make 

these provisions necessary? 

Mr. STENSGAR. Obviously there is, working with the Bureau of 

Indian Affairs historically to do any type of cutting and getting appraisals has been the way we have been used to doing it. OST has 

assumed parts of that and we don’t quite understand how that 

works any more. But we go to the Bureau of Indian Affairs and 

they say, we can’t handle those issues, this part of it. We have to 

go to OST. So we go to OST and maybe we get an officer over there 

that will send us back to the Bureau. Until we get it ironed out, 

it is very difficult to carry out any management functions or any 

business. 

Senator CRAPO. I hope we will be able to remove that red tape 

and allow for proper management and efficient management decisions. 

Speaking of the OST, Mr. Washburn, are there any of the major 

reforms to the management of the Indian trust funds that remain 

for the OST to implement? 

Mr. WASHBURN. Well, the Office of Special Trustee has taken 

over very important functions from the BIA. They have done a very 

good job of managing those functions. So they actually have an ongoing responsibility that is really important. And they do it well, 

honestly. They have a very professional staff. They have, frankly, 

been managing it well. 

From our perspective, there is nothing broken here that needs to 

be fixed. So we are, I guess cautious, about efforts to sunset OST 

or claims that that is needed. 

Senator CRAPO. There is sort of a joke that sometimes goes 

around that there is never a temporary government project at the 

Federal level. Wasn’t the OST intended to be a non-permanent or 

temporary function to manage certain trust fund reforms? 

Mr. WASHBURN. Well, managing trust funds isn’t a permanent 

function, and they are doing a great job of it. And I can use all the 

help I can get. BIA has been all things to all people for far too long. 

First, the Indian Health Service was taken away from the BIA. 

That was probably an improvement, because that allows them to 

focus narrowly on a very important function, health care. 

And frankly, this fiduciary management of monies is a very important function. It is good to have that in the hands of experts. 

I heard the statement that said we have delay, 

miscommunication and inefficiency. But we have that internally 

within the BIA sometimes, too. Government bureaucracy is hard. 

Jamming these two agencies together is not the magical solution 

to all government inefficiency or miscommunication. Communication is one of the hardest things we do. 

So we are comfortable with the situation the way it is. I am 

grateful to have the support. We work very closely with the Office 

30 

of Special Trustee. Again, they are wonderful staff over there and 

they work really closely with the BIA on myriad subjects, including 

appraisals. Somehow, we have managed to take over 900,000 acres 

of land into trust in about two years. That has required a lot of appraisals. So arguably, that specific function is working fabulously 

well, otherwise we wouldn’t have been able to accomplish that. 

Senator CRAPO. My time is expired, so I can’t go into it with you 

any further. We can agree that there is a lot of government red 

tape that needs to be fixed here. With regard to the specifics of 

this, I guess I will have to explore that on my own time later. 

Thank you, Mr. Chairman, for this time. 

The CHAIRMAN. Thank you, Senator Crapo. 

Senator Udall? 

Senator UDALL. Thank you, Mr. Chairman. 

The Navajo Nation, our largest tribe in the Nation, is represented here today. We have a newly-elected president, Russell 

Begaye, who is here with us in the audience. Russell, good to see 

you here. I know your vice president, Jonathon Nez, is also here. 

One of the things that is relevant to this discussion that I 

thought I would talk just a little bit about, the Navajo Nation, 

President Begaye was elected on a platform where he talked about 

bringing young Navajo professionals all around the Country back 

to the Navajo Nation to work for the Navajo people. 

It seems to me when we talk about self-determination, that is the 

kind of thing that can make self-determination work much better, 

to have that kind of expertise and the responsibility, Secretary 

Washburn, that you carry out can be taken over by a tribe in that 

kind of situation. Would you agree with that? 

Mr. WASHBURN. Absolutely. 

Senator UDALL. Let me focus on one area, here. As you know, 

Secretary Washburn, in the 1960s, President Lyndon Johnson established the National Council of Indian Opportunity to reevaluate 

the trust responsibilities of the Federal Government. It included 

the Vice President, Secretaries from relevant departments along 

with eight tribal leaders. This created an opportunity to sit down, 

roll up sleeves and work on improving government-to-government 

relationships. Arguably, it kick-started the self-determination era. 

Do you think it is time to reconvene the Council to once again 

reevaluate what is working and what needs improvement? 

Mr. WASHBURN. Senator Udall, let me just say this. We have had 

a number of commissions and councils, blue ribbon commissions 

that have studied issues in Indian Country. Frankly, each time we 

have one of those, there is useful information that comes out of it. 

Honestly, sometimes that is what it takes to get momentum to 

make reforms. 

So at any given time, we usually have several of those running. 

But the National Council for Indian Opportunity was effective and 

something like that might well be useful. 

Senator UDALL. Over the years, we have legislated to improve Indian self-determination in particular areas of need, whether it be 

energy, health care, labor. I know on health care, you talked in 

your statement about how the HEARTH Act had allowed you to do 

certain things. 

31 

Do you think it is time for a comprehensive approach, or do you 

believe each issue is unique and that the piecemeal approach is the 

better way to proceed? 

Mr. WASHBURN. Well, it is a great question. Let me just say, we 

have proven that tribal self-determination and self-governance is 

the answer. We have proven it in a bunch of different subject matter areas. To a great degree, and I think I have probably said this 

here at this Committee before, Rube Goldberg himself couldn’t 

have come up with a more complicated system to ensure there is 

tribal self-determination in myriad different areas. 

So we would have to talk about the specifics. But recognizing 

that this is a great approach is something that we should do. We 

should look for ways to recognize tribal self-governance and tribal 

self-determination in all areas. 

Senator UDALL. Now, there are proposals floating around to establish an Under Secretary for Indian Affairs, with the understanding that this person would carry out any activity relating to 

Indian trust asset management of the Bureau of Indian Affairs and 

the Office of Special Trustee, essentially consolidating your current 

position with the Special Trustee. What is the Administration’s position? What are your thoughts? Do you think this is a good approach? Do you think that both responsibilities should be consolidated? 

Mr. WASHBURN. It would be self-serving for me to say yes, it 

should be consolidated. Honestly, we have been worrying about 

turning the Titanic in essence, and that seems like a moving the 

deck chairs around kind of issue. 

We do our job. The whole United States Government has the 

trust responsibility to Indian tribes, let me first say that. So we are 

strongly against any inclination to sort of hang it on one individual 

like myself. Because I need help. And I need every other Cabinet 

Secretary and Assistant Secretary and Deputy Secretary around 

the government to realize they too have a trust responsibility. 

So we are cautious about this whole approach, anything that 

would sort of magnify it on one person. Because it is the whole 

Federal Government’s responsibility, and your responsibility and 

the Chairman’s responsibility and the Vice Chairman’s responsibility. We all have this responsibility. 

Senator UDALL. I couldn’t agree with you more. I think it is very 

important that all the Federal agencies, the responsibility that 

they have, that they understand and fulfill it and take the time to 

consult, like you talked about, which is the essence of the government-to-government relationship. So that is tremendously important. 

That is why I think the National Council on Indian Opportunity 

was good. The Cabinet was there at the table all the time with 

tribal leaders. They were an input from tribes all across the Nation 

in terms of wanting to see reform. If you have Cabinet members 

every couple of weeks sitting down and listening to that then they 

think of things that they can do in their respective departments. 

So thank you very much, the witnesses have been very good. I 

am sorry I didn’t get to ask questions of the other two witnesses. 

Thank you. 

The CHAIRMAN. Thank you, Senator Udall. Senator Moran. 

32 

STATEMENT OF HON. JERRY MORAN, 

U.S. SENATOR FROM KANSAS 

Senator MORAN. Mr. Chairman, thank you very much. Thanks 

for hosting this hearing. 

Let me turn to the Councilwoman, since you did so well. 

[Laughter.] 

Senator MORAN. You seem to be perhaps the most forceful, at 

least you raised your voice when you talked about it is time for a 

Carcieri fix. Senator Tester and I have sponsored legislation for 

what has been described as the full Carcieri fix. But it hasn’t happened. 

As I have gotten involved in this issue, there have been other 

suggestions from tribal leaders who visit with me and various tribal organizations who remain committed to a clean fix. Others have 

suggested different avenues. My question is, the direction that you 

would suggest that we go, I think it is the Poarch Creek Tribe that 

has visited with me about what I initially called a Carcieri light 

fix, which is better described as land reaffirmation. 

Do you have suggestions, should we stay committed at this point 

in time to a clean Carcieri fix, or is there something in the interim, 

while we work to get a clean Carcieri fix that we ought to be pursuing that would be beneficial, useful today? And more obtainable. 

Ms. LINTINGER. I will say that our goal is a clean Carcieri fix. 

How that gets accomplished, whether it is in stages or in one fell 

swoop is in your lap, basically. Certainly we would like it all done 

at once. It is draining valuable resources, it is forcing us to fight 

battles unnecessarily. It is calling into question numerous aspects, 

besides business, in the court systems, our tribal court systems. It 

is problematic. 

My great-grandfather, Chief Eli Barvary, visited the United 

States in the 1930s. He didn’t know he had to have an appointment. He was coming here for help. But the processes, the system, 

didn’t offer him help, didn’t provide help to him and his people. 

And here I sit today, six years this decision has been hanging 

over us. It is costing us every day. And it started on a housing 

issue for elderly people. Why should there be so much trouble fixing something so obvious? 

So I would encourage you to seek out a clean Carcieri fix. If it 

comes in stages, well, we have to go that route, we don’t have a 

choice. The decision, the voting power is in your hands. 

But this Committee is our voice. We see you as our voice, as the 

Senate Committee on Indian Affairs. Someone has to champion 

this cause. That is why we come to you. 

So that would be my answer. I hope it is helpful. 

Senator MORAN. I used to worry about how to pronounce what 

I call Carcieri. You said it differently than I did, but I no longer 

worry about it, because almost no one says it the same way. 

Ms. LINTINGER. Well, the Narragansett’s, who had this issue obviously developed in their lands, pronounce it Carcieri. So I yield 

to them. 

Senator MORAN. I will work at improving my pronunciation. 

Let me ask the Under Secretary the amount of litigation. Are 

there litigations pending now as a result of the decision that was 

just mentioned by the Councilwoman? 

33 

Mr. WASHBURN. There are, Senator Moran, both administrative 

litigation before the Department and litigation in Federal courts 

around the country. There is a lot of litigation pending. 

Senator MORAN. Can you tell us what you think, is there risk to 

tribal lands today as a result of that litigation? 

Mr. WASHBURN. Well, ultimately we hope not. But there is great 

uncertainty. Litigation itself creates uncertainty. It is a small, very 

small minority of land into trust decisions that have significant opposition. But this issue can increase the uncertainty, especially 

around those controversial land into trust decisions. So it is definitely a problem for tribes. 

Senator MORAN. Do you have any advice to us in regard to this 

issue of a clean fix? Is there anything in the interim that would 

be of value to you? 

Mr. WASHBURN. We have been motoring forward. We have taken 

more than 1,900 applications of land into trust since President 

Obama has been President. A little bit of that was prior to the 

Carcieri decision. Carcieri was the Governor of Rhode Island, and 

I am not a fan, because he brought this case. But he probably deserves to have his name pronounced the way he pronounces it, and 

he pronounces it Carcieri. 

But we really would love to see a clean Carcieri fix. We think 

that that is within the power of this Congress. We hope that perhaps, in Congress, the majority has changed since this issue has 

been pending and we kind of hope that the shakeup, if it had any 

effects, that this might be something that might be possible. We 

would continue to urge Congress to pass a clean Carcieri fix. 

Senator MORAN. I appreciate that urging. To our witnesses and 

the audience and to my co-sponsor, Senator Tester, I remain committed to pursuing a clean fix. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Moran. 

Senator Tester. 

Senator TESTER. Thank you, Mr. Chairman. I want to thank Senator Moran for his leadership on a clean Carcieri fix. I look forward 

to working with him to get this thing across the finish line. I think 

it is important for Indian Country. I think it may be the most important issue for Indian Country, in fact. 

Kevin, I have the distinct honor and privilege of farming land 

that my grandfather homesteaded when he came out in 1910. He 

farmed it until the 1940s when my folks took over, then they 

turned it over to us in the 1970s. Before that point in time, it was 

pretty much Indians and buffalo. 

What constitutes an historic tribal area? It seems to me that unless you are just counting, in Montana, the last hundred years, in 

other States it is going to be a little longer, what constitutes an 

historic tribal area? 

Mr. WASHBURN. That is a tough question. One of the things, 

tribes know themselves, and they sometimes argue about whose 

historical area that is. 

Senator TESTER. Oh, so it is a scrap between the tribes? 

Mr. WASHBURN. Sometimes, yes. Sometimes that is true. 

34 

Senator TESTER. It seems to me like unless you are just counting 

the last 100 years or 150 or 200, 250, wherever you are, it is all 

historic tribal area. 

Mr. WASHBURN. Vice Chairman, I have a bumper sticker that 

says Indian Country, and it has a picture of North America and 

South America next to it. I kind of view that as, it is all Indian 

Country at some point. 

Senator TESTER. As far as taking land into trust, are these lands 

already owned by tribal governments? 

Mr. WASHBURN. Yes. That is why tribes find this so frustrating. 

We took it from them in the first place, then they reacquired it. 

They repurchased it. In many cases it was stolen from them. They 

had to repurchase it. Then we put them through the wringer before 

we actually take the land into trust. 

They never got a veto over whether a county or city was created 

in that area, but now they see the county or city wanting to have 

a veto power over them taking land into trust. 

Senator TESTER. Right. And we continue to hear, at least I continue to hear in areas where land is being taken into trust, 

pushback from the counties, taking it out of their tax base. And I 

see that. But I also think there is some pretty good benefit in 

many, if not all, of these projects. 

My question is, why don’t we hear about the benefits of land 

going into trust? 

Mr. WASHBURN. Because only the controversial ones get any attention, I think it is probably 40 to 1 favorable land into trust applications to one negative one. But it is the negative one, one out 

of 40 or 50 or something like that, that tends to get all the attention. 

Often, counties and cities are in favor of land going into trust, 

because it serves economic development for them too. But they 

don’t holler about those. They holler about the ones they are upset 

about. 

Senator TESTER. I want to go over to Senator Crapo’s bill, which 

incorporates a lot of things from the HEARTH Act. I am a big believer in self-governance, I know you are too. So we are going to 

extend the HEARTH model to natural resources. I really think that 

is a good idea, but I just want to ask you about something that we 

don’t really talk about, and the Federal Government is guilty of 

this as well, State government as well as private landowners. 

What happens in Indian Country if there is an environmental 

wreck with the decisions they made? Who pays to clean up that environmental wreck? 

Mr. WASHBURN. Under Senator Crapo’s bill, it would be the Federal taxpayer that would pay if there is an environmental wreck. 

Because the liability remains on the Federal Government. And 

there is some heartburn about that. We generally structure liability 

rule in the United States so that the actor who is acting bears responsibility for their actions. This bill doesn’t do that exactly. 

Senator TESTER. So we have a guy behind you, and I don’t want 

to put him on the spot, and it has to be with the concurrence of 

the Chairman, that is shaking his head no. Can I ask him if he 

can come up? Do you want to come up and tell me if you have a 

35 

different opinion and why? You have to identify yourself for the 

record. 

Mr. GUNN. Sir, my name is Brian Gunn, I am counsel for the 

Coeur D’Alene Tribes and I have been working on this bill. 

The HEARTH Act provision that is in S. 383 extends the 

HEARTH Act to forest management activities only. And that provision, that the same liability, waivers of liability that are in the existing HEARTH Act are in that language. So the provisions is not 

intended to increase liability at all. 

Senator TESTER. No, I don’t think that was the question, though. 

The question was who is liable. So we both agree. Thank you very 

much for the clarification. 

One last thing, and I only have a second left, but I have to ask 

the lady, Brenda, the question is, could you tell me very quickly, 

because my time has run out, the kind of economic development 

projects that your tribe has not been able to do because of a lack 

of a Carcieri fix bill? 

Ms. LINTINGER. Well, we have had several business opportunities 

that have come online that we have explored and done due diligence and have not been realized. As I said earlier, the status of 

the land is always an integral part for any business development. 

Our tribe, as you may or may not know, had a determination by 

the Bureau of Indian Affairs that we do not have a Carcieri issue. 

However, that is insufficient for us. We can’t stop there, even 

though we have that determination. Because there is still this existence of a two-tier or two-class system within the Country. That 

is unacceptable to us. 

So while it may not impact us directly in the same way, there 

are other tribes who will be impacted in a greater fashion. 

Senator TESTER. I got it. 

Ms. LINTINGER. And we can’t stand silently by for that. 

Senator TESTER. Thank you for your testimony and thank you all 

for being here today and testifying. We look forward to working 

with you and doing right by Indian Country. Thank you very much. 

The CHAIRMAN. Thank you, Senator Tester. Senator Hoeven? 

STATEMENT OF HON. JOHN HOEVEN, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator HOEVEN. Thank you, Mr. Chairman. I would like to 

thank all the witnesses for being here today. 

Ms. Lintinger, when I served as Governor of North Dakota, the 

Governor of Rhode Island at that time was Governor Carcieri. I 

think Senator Moran was right, I don’t think any two people ever 

pronounced his name the same. 

Ms. LINTINGER. My inclination was Carcieri. 

Senator HOEVEN. I heard that version, too, amongst others. And 

I do remember the lawsuit, I think it was ongoing at the time. 

Thanks to all of you for being here. Secretary Washburn, thank 

you for your help and support with the Native American Children’s 

Protection Act, which I sponsored, along with Senator Tester. It 

has now passed both the Senate and the House. So we have to reconcile a final version and then it is off to the President. Of course, 

that is all about protecting Native American children in foster 

36 

homes. Your assistance was invaluable, and I want to thank you 

for that. 

Mr. WASHBURN. Thank you for your leadership. Thank you for 

getting that bill passed. 

Senator HOEVEN. I appreciate it and I wanted to put that on the 

record, that your help and support was vital. 

I want to talk to you about the Land around Lake Sakakawea. 

For over 10 years, the Department of the Interior and the Army 

Corps of Engineers have been engaged in a potential transfer of 

garrison project lands from the Army Corps of Engineers to be 

taken into trust by the Interior. In 2007, North Dakota’s entire delegation went to the Corps and Interior laying out several of our 

concerns. We wanted to make sure several issues raised by the 

local people were addressed before any transfer occurred. 

One of the primary concerns raised back then was the potential 

that public access to Lake Sakakawea would be reduced. For years, 

this area has been used by many North Dakotans and many others 

from on and off the reservation for hunting, fishing and other recreational activities. 

Under this transfer, there is concern from cabin owners, hunters, 

fishers, and others that access, as far as their access to the lake 

or areas around the lake, concern that that access could be restricted. Additionally, Interior and the Corps never specifically 

identified which acres would be transferred, which concerns the 

North Dakota Game and Fish Department, because it has wildlife 

management areas that could be caught up in the transfer. 

There are still serious concerns that have yet to be addressed. 

And it is my understanding that since 2007, neither the Corps nor 

Interior has held any public meetings to hear from locals before it 

again moved forward with this proposal. In fact, two weeks ago, 

Governor Jack Dalrymple wrote to Secretary Jewel citing similar 

concerns the delegation had expressed in 2007 and 2008. I was 

Governor at that time. 

With this in mind, can you please discuss what action the BIA 

and Department of the Interior are taking to address the concerns 

raised by the State and locals? Is there a plan to ensure that the 

rights to access the acres in question by Indian and non-Indian citizens alike are protected? Is there a plan for public meetings to take 

input before any action is taken? 

Mr. WASHBURN. Senator Hoeven, I guess what we would say is 

we are following the law. The law that Congress enacted says that 

the lands that were not needed by the Corps for the flood control 

project must be returned to the tribe. It has been hard to determine, it has taken decades to determine actually what did the 

Corps need. 

But now that that need has been determined, it is just another 

broken promise to the tribes until we return the land to them, as 

we promised we would in that congressional statute. 

So the statute didn’t provide for public input. We are interested 

in public input. But this is mandatory. Congress has directed us to 

return to the tribes the land that is not needed for the flood control 

project. Because it was taken from them in the first place on the 

theory that part of this land is needed for the project. So that has 

been our effort. 

37 

I will tell you that from my conversations with folks, it sounds 

like they all share the same interests. The tribe largely wants that 

land for tourism and economic development. So they need people 

to be able to access the lake. And so they seem to be very onboard 

with just the concerns you mentioned, that the public have access. 

That indeed is one of their number one goals. 

So I don’t think that is actually a real problem, at least from the 

tribes’ perspective. So we will continue to follow the law as best we 

can. We will certainly, we are interested in public input but we 

really have an obligation to these tribes. We took the land from 

them and we promised we would give back what we didn’t need. 

And we haven’t done that yet. 

Senator HOEVEN. Mr. Secretary, you need to check. In many 

cases, that land was taken from individuals, not from the tribe, 

from individuals. And you have many, many interests represented 

around that lake. You have an entire congressional delegation and 

a governor and an entire State that want you to make sure darned 

sure all interests are protected. You need an open, transparent 

process, including hearings, to make sure you hear from people on 

the ground. I think the law does require that. 

I understand you have your interpretation of the law. There are 

other interpretations too. Regardless, we need to protect 

everybody’s rights. And when you say it was taken from the tribe, 

you need to check. In many cases, it was taken from individuals, 

both Indian and non-Indian. So let’s make sure we are very inclusive in this process, open and transparent. You have to have some 

kind of hearings, some kind of process. 

Also, please look at that letter from the Governor and make sure 

that there is a response to the issues that are raised in that letter. 

Mr. WASHBURN. We will do that, Senator. Thank you. 

Senator HOEVEN. Thank you, Mr. Secretary. And again, we have 

worked on many issues. I know you are thorough and professional 

and you are someone we can work with. So we look forward to 

making sure this is done carefully and that everybody’s rights and 

interests are protected and considered fairly. 

The CHAIRMAN. Thank you, Senator Hoeven. 

Secretary Washburn, I want to follow up on one of Senator 

Crapo’s questions to be sure we get a clear answer. It was referred 

to the Indian Trust Fund Management Reform Act of 1994. Could 

you point to a reform that was tasked in that piece of legislation 

that the Office of Special Trustee has not yet implemented? It is 

21 years, and they have been there, and we just have concerns 

about this. 

Mr. WASHBURN. Let me just say that these things do develop a 

life of their own, organically, as Senator Crapo recognized. So no, 

I cannot do that. 

But I will tell you, they have come to perform a very important 

function to meet the trust responsibility that the United States has 

to Indian people and Indian tribes. That is a very important function. We count on them to perform that function and I think they 

perform it well. 

The CHAIRMAN. So then why did the Administration yesterday 

decide that they weren’t going to be here to testify today and pull 

38 

him off a panel and they had already been noticed and we had already had it printed up that they were going to be here? 

Mr. WASHBURN. Chairman, this is the 20th time I have been before this Committee in the last three years, and I haven’t been 

given a gold watch. Not everybody enjoys coming over here for, I 

think you may have another so often. Honestly, I haven’t been here 

since March, and I thought maybe you had lost my phone number. 

The CHAIRMAN. We were looking forward to having both of you 

here. 

Mr. WASHBURN. Well, it is a privilege for me to come over here, 

of course, but not everybody enjoys it as much as I do. 

The CHAIRMAN. Well, sometimes it is not about the enjoyment of 

the individual, it is about the cause that needs to be done, the efficiency of government, the efficiency of making sure taxpayers’ dollars are being used properly. For somebody to say, I don’t enjoy it, 

so I am not going to go, is really not an acceptable answer to the 

United States Senate or this Committee. 

Mr. WASHBURN. Chairman, you talked about duplication of effort. 

You got me, and you can beat on me all day long. But you talked 

about duplication of effort in your opening statement. 

The CHAIRMAN. We had some specific questions for that individual. And for the Administration yesterday, to first approve and 

then the day before the hearing say oh, no, we are going to pull 

the rug out, that is unacceptable. Because I believe that we have 

to work together to improve many of the outdated systems and 

processes that are preventing tribes from fully exercising their sovereignty for the benefit of their people. That is what this is really 

about. I think it is especially true when it comes to Indian lands. 

So we have heard many concerns about the land to trust application process. You indicate some of them. Based on your experience 

at Interior and outside the Department, can you identify and describe some specific portions of Part 151 process that could be improved? We hear things and staff hears things in terms of specific 

concerns. 

Mr. WASHBURN. Let me just say, there was a strong effort during 

the Clinton Administration to improve the Part 151 process. A lot 

of people worked really hard on that for about three years. Ultimately, it all came to naught. It was never implemented even 

though a final rule was passed. It was stopped by the new Administration that came in after President Clinton. 

So a lot of effort, we looked at that and thought that we wanted 

to get things done for Indian Country. So I can’t tell you about specific things that need to change with 151. We have done some tinkering with it and honestly improved it. But that is working, too. 

We have taken 1,900 applications for land into trust and successfully moved them through the system. 

So that is working very well for tribes. We have 300,000 acres 

to prove it. 

The CHAIRMAN. One of the concerns Committee staff has heard 

relates to changes in land use after land has been taken into trust. 

Do you believe that that part of 151 needs additional protections, 

for changes in land use? 

Mr. WASHBURN. We don’t think the tribes need more red tape on 

them after they already have land into trust. We are trying to reVerDate Mar 15 2010 11:00 Jan 12, 2016 Jkt 098153 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 S:\DOCS\98153.TXT JACK
39 

store tribal sovereignty by getting land back to tribes. So we would 

not be in favor of anything that imposes additional regulatory hurdles on tribes as they seek to exercise their sovereignty on their 

lands that are in trust. 

The CHAIRMAN. To Vice Chairman Stensgar, the Committee is 

committed to expanding tribal sovereignty and self-determination. 

With proper safeguards and support, giving tribes the freedom to 

manage their own lands seems like an important step in that direction, which would benefit all of Indian Country. 

My question is, can you explain how allowing tribes to take 

greater authority and responsibility in the management of your 

lands would help expand tribal sovereignty and self-determination? 

Mr. STENSGAR. This bill is a step forward in Indian self-determination. It would allow us the opportunity to control how our 

trust assets are managed. It would certainly give the tribes and individuals a benefit. Tribes and individuals would have the opportunity to obtain appraisals without any paternalism or authorization. It just takes a giant step forward in Indian self-determination 

and tribal destiny. 

The CHAIRMAN. Thank you. 

Secretary Washburn, one final thing on this, on 151. Your office 

announced new rules for the Part 83 Federal recognition acknowledgement process. The new rules provide greater transparency in 

posting Part 83 applications online. I am just wondering if a similar approach would be useful for the Part 151 applications. 

Mr. WASHBURN. We would be willing to look at that. If you pass 

a clean Carcieri fix, I think that is something we can make happen. 

The CHAIRMAN. Thank you. 

Any further questions from any other Committee member? 

Thank you very much for being here. Some people may put some 

written questions to you. We will hold the Committee record open 

for an additional week so that members can get questions to you. 

If they do, I hope you will respond quickly. 

Thank you very much for being here today. 

[Whereupon, at 3:50 p.m., the hearing was adjourned.] 

(41) 

A P P E N D I X 

PREPARED STATEMENT OF JACQUELINE PATA, EXECUTIVE DIRECTOR, NATIONAL

CONGRESS OF AMERICAN INDIANS

Dear Chairman Barrasso and Vice-Chairman Tester: 

On behalf of the National Congress of American Indians, I would like to thank 

the Senate Committee on Indian Affairs for holding an oversight hearing that discussed on S. 383—The Indian Trust Asset Reform Act. Indian lands and natural resources are a primary source of economic activity for tribal communities, but the 

antiquated, inefficient federal trust management system is very harmful to many 

reservation economies. NCAI strongly supports the legislation and urges swift passage. 

S. 383 will take an essential step in the effort to modernize the trust management 

system into a process that recognizes that tribes are in the best position to make 

decisions for their communities. Through the trust asset demonstration project created in the bill, tribes will have the ability to manage and develop their lands and 

natural resources without unnecessary federal encumbrances. This provision of the 

bill also authorizes tribes to engage in surface leasing or forest management activities—mirroring the framework of the highly successful HEARTH Act of 2012, which 

puts tribes in the position to make decisions about their lands and resources. 

Further, S. 383 addresses one of the most significant bottlenecks in the trust system: the Office of the Special Trustee. This office was intended to be an oversight 

office when it was created by Congress over twenty years ago, but now has taken 

over management functions and adds another silo of bureaucracy outside the purview of the BIA. The bill requires the Secretary of the Department of the Interior 

(DOI) to submit a report that will include a transition plan for the Office. Additionally, the Secretary, through tribal consultation, will consolidate the appraisals and 

valuations processes under a single administrative entity under DOI as well as establish minimum qualifications to prepare appraisals and valuations of Indian trust 

property. 

Thank you for your consideration of this important legislation. We request that 

the Committee supports and moves this legislation to Senate floor for consideration. 

Attachments 

THE NATIONAL CONGRESS OF AMERICAN INDIANS—RESOLUTION #ANC–14–051 

TITLE: Supporting Trust Asset Modernization Legislation 

WHEREAS, we, the members of the National Congress of American Indians of 

the United States, invoking the divine blessing of the Creator upon our efforts and 

purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties and agreements with the United States, and all other rights and benefits to which we are entitled under the laws and Constitution of the United States, to enlighten the public 

toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do 

hereby establish and submit the following resolution; and 

WHEREAS, the National Congress of American Indians (NCAI) was established 

in 1944 and is the oldest and largest national organization of American Indian and 

Alaska Native tribal governments; and 

WHEREAS, the United States’ fiduciary responsibilities to Indians are founded 

on the settled law of nations, an inherent presupposition of our constitutional structure, and commitments in treaties and written agreements securing peace in exchange for vast tracts of land; and 

WHEREAS, the foregoing historic federal-tribal relations and understandings 

have benefitted all people of the United States for centuries and established enduring obligations to which the national honor has been committed; and 

42 

WHEREAS, the United States has assumed enforceable trust responsibilities over 

lands and resources held by the United States in trust for Tribal Nations and Tribal 

citizens even if nothing is said expressly in the governing statutes or regulations, 

and the most exacting common-law fiduciary standards should govern such federal 

management of Indian trust assets; and 

WHEREAS, the United States’ fiduciary responsibilities to Indian tribes include 

and are not limited by a duty to promote tribal self-determination, and the fact that 

the United States may simultaneously perform another task for another interest 

that Congress has obligated it by statute to do does not compromise or limit the 

United States’ enforceable fiduciary obligations to Indians; and 

WHEREAS, notwithstanding the established law and policy during the Self- Determination Era, employees of the Executive Branch during this period have repeatedly sought to avoid, limit, and repudiate federal trust duties; and 

WHEREAS, the American Indian Trust Funds Reform Act of 1994 temporarily 

created the Office of the Special Trustee, an agency within the Department of Interior that is wholly separate from the Bureau of Indian Affairs but that, over time, 

has come to perform certain functions and activities historically performed by the 

Bureau of Indian Affairs; and 

WHEREAS, the creation of a bureaucracy within the Office of the Special Trustee 

to handle Indian trust assets has resulted in confusion and delays in processing 

trust transactions, with insufficient oversight by the beneficiary Tribal Nations and 

Tribal citizens; and 

WHEREAS, there is no longer a need or reason to have the Office of the Special 

Trustee as an agency within the Department of Interior that is separate and distinct from the Bureau of Indian Affairs; and 

WHEREAS, while the Office of the Special Trustee has implemented positive reforms in the past 10 years, the position of Special Trustee for American Indians has 

been vacant for approximately 51⁄2 years; and 

WHEREAS, NCAI and many Tribal Nations and citizens have continued to advocate for meaningful administrative and congressional trust reform to help ensure 

that the Executive Branch fully meets all trust obligations of the United States as 

trustee to Indians; and 

WHEREAS, the U.S. Department of the Interior has established a temporary 

trust commission to evaluate the Department’s management and administration of 

Indian trust assets, and to make recommendations to improve the federal Indian 

trust administration system, including regarding termination of the Office of the 

Special Trustee and whether any legislative or regulatory changes are necessary to 

permanently implement improvements and to prevent future trust mismanagement; 

and 

WHEREAS, the Commission on Indian Trust Administration and Reform issued 

a report in December of 2013, setting forth numerous recommendations regarding 

the administration of Indian trust assets that require further study, review and discussion within Indian Country; and 

WHEREAS, there is widespread recognition and agreement among Indian tribes 

that any proposal to modernize or reform the administration of Indian trust assets 

should include options and opportunities for Indian tribal governments to make 

trust management decisions themselves as well as modernization of existing trust 

laws, regulations, policies and practices that restrict or inhibit tribes from exercising 

their inherent sovereign authority to engage in sustainable economic development 

for the benefit of their current members and future generations. 

NOW THEREFORE BE IT RESOLVED, that as a primary priority NCAI urges 

Congress to enact trust reform legislation, either as stand-alone legislation or as 

part of another legislative vehicle to the extent such vehicle is available and appropriate under the circumstances, that will reaffirm the above foundational history 

and legal principles, require Executive Branch management of Indian trust assets 

to meet all federal trust obligations with full accountability to Indian beneficiaries, 

and require federal officials to honor and uphold the trust responsibilities of the 

United States to Indian tribes and individual Indian beneficiaries; and 

BE IT FURTHER RESOLVED, that NCAI urges Congress to transfer the functions of the Office of the Special Trustee, with supporting appropriated funds, to the 

Bureau of Indian Affairs (BIA) or local BIA offices as appropriate, under the supervision and authority of a Deputy or Under Secretary for Indian Affairs, who would 

also oversee other Indian trust functions within the Department of the Interior; and 

BE IT FURTHER RESOLVED, that NCAI urges Congress to enact a self-determination mechanism to increase tribal control and planning for tribal trust assets 

and streamline processes to expedite transactions and promote economic development, while maintaining federal trust oversight and responsibilities; and 

43 

BE IT FURTHER RESOLVED, that this Resolution supersedes and replaces 

Resolution SAC–12–023; and 

BE IT FINALLY RESOLVED, that this resolution shall be the policy of NCAI 

until it is withdrawn or modified by subsequent resolution. 

CERTIFICATION The foregoing resolution was adopted by the General Assembly at the 2014 Mid-Year Session of the National Congress of American Indians, 

held at the Dena’ina Civic & Convention Center, June 8–11, 2014 in Anchorage, 

Alaska, with a quorum present. 

THE NATIONAL CONGRESS OF AMERICAN INDIANS—RESOLUTION #MSP–15–029 

TITLE: Reaffirming Support for Congressional Passage and Enactment into 

Law of the Indian Trust Asset Reform Act 

WHEREAS, we, the members of the National Congress of American Indians of 

the United States, invoking the divine blessing of the Creator upon our efforts and 

purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties and agreements with the United States, and all other rights and benefits to which we are entitled under the laws and Constitution of the United States, to enlighten the public 

toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do 

hereby establish and submit the following resolution; and 

WHEREAS, the National Congress of American Indians (NCAI) was established 

in 1944 and is the oldest and largest national organization of American Indian and 

Alaska Native tribal governments; and 

WHEREAS, congressional introduction and enactment of a bill that would establish an Indian trust asset demonstration project and restructure the Office of the 

Special Trustee, and this draft legislation, the Indian Trust Asset Reform Act, was 

introduced in both the House and the Senate as H.R. 409 and S. 165 in the 113th 

Congress; and 

WHEREAS, members of Congress in both parties reintroduced the Indian Trust 

Asset Reform Act in the 114th Congress as H.R. 812 and S. 383, and the bill has 

bipartisan support from members of Congress across the U.S.; and 

WHEREAS, on April 14, 2015, the House Subcommittee on Indian, Insular, and 

Alaska Native Affairs heard testimony on how H.R. 812 would benefit Indian country and promote self-determination, and the bill was well received; and 

WHEREAS, the NCAI and a number of Indian tribal governments from across 

Indian country have endorsed the Indian Trust Asset Reform Act. 

NOW THEREFORE BE IT RESOLVED, that the NCAI supports congressional 

passage and enactment into law of H.R. 812/S. 383, including changes that are necessary to secure passage in both the House and the Senate that are consistent with 

the scope and purposes of the bill, is and remains a top trust reform priority; and 

BE IT FURTHER RESOLVED, that this resolution shall be the policy of NCAI 

until it is withdrawn or modified by subsequent resolution. 

CERTIFICATION The foregoing resolution was adopted by the General Assembly at the 2015 Midyear Session of the National Congress of American Indians, held 

at the St. Paul River Centre, St. Paul, MN, June 28 to July 1, 2015, with a quorum 

present. 

44 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. STEVE DAINES TO

HON. KEVIN WASHBURN


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