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57–357 PDF 2010

S. HRG. 111–542 

WHERE’S THE TRUSTEE? U.S. DEPARTMENT OF 

THE INTERIOR BACKLOGS PREVENT TRIBES 

FROM USING THEIR LANDS 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

DECEMBER 9, 2009 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

TOM COBURN, M.D., Oklahoma 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

ALLISON C. BINNEY, Majority Staff Director and Chief Counsel 

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

(III) 

C O N T E N T S 

Page 

Hearing held on December 9, 2009 ........................................................................ 1 

Statement of Senator Bennett ................................................................................ 1 

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

Statement of Senator Franken ............................................................................... 10 

Statement of Senator Tester ................................................................................... 11 

Statement of Senator Udall .................................................................................... 8 

WITNESSES

Artman, Carl J., Professor of Practice, Sandra Day O’Connor College of Law, 

Arizona State University ..................................................................................... 18 

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

Bailey, Hon. Derek, Chairman, Grand Traverse Band of Ottawa and Chippewa Indians ........................................................................................................ 24 

Prepared statement .......................................................................................... 26 

Skibine, George, Acting Principal Deputy Assistant Secretary for Indian Affairs, U.S. Department of the Interior; accompanied by Vicki Forrest, Deputy Bureau Director for Trust Services .............................................................. 2 

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

APPENDIX

Box, Hon. Matthew J., Chairman, Southern Ute Indian Tribal Council, prepared statement with attachments ..................................................................... 56 

Fink, Hon. Elaine, Chairperson, North Fork Rancheria of Mono Indians of 

California, prepared statement ........................................................................... 53 

Finley, Hon. Michael, Chairman, Confederated Tribes of the Colville Reservation, prepared statement ..................................................................................... 64 

Intertribal Monitoring Association on Indian Trust Funds (ITMA), prepared 

statement .............................................................................................................. 54 

Nelson, Glenda, Chairperson, Estom Yumeka Maidu of the Enterprise 

Rancheria of California, prepared statement .................................................... 53 

Pigsley, Hon. Delores, Chairman, Confederated Tribes of Siletz Indians of 

Oregon, prepared statement with attachments ................................................. 37 

(1) 

WHERE’S THE TRUSTEE? U.S. DEPARTMENT 

OF THE INTERIOR BACKLOGS PREVENT 

TRIBES FROM USING THEIR LANDS 

WEDNESDAY, DECEMBER 9, 2009 

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10 o’clock a.m. in 

room 628, Dirksen Senate Office Building, Hon. Byron L. Dorgan, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. The Committee will now turn to another subject 

for today, and that is the subject of the Department of the Interior 

backlog that has existed that prevents tribes from being able to use 

their lands and take lands into trust and various things. 

I want to make a comment that I have been asked to go to the 

White House. I believe I have to leave here about 10:25 for a meeting with the President on jobs, the jobs initiative. And I have asked 

whether Senator Udall would be willing to chair the remainder of 

the hearing when I have to leave in about 25 minutes. 

This next topic will examine backlogs at the Department of the 

Interior in processing land transactions. These are very important 

issues. Land holds a very great spiritual and cultural significance 

to Indian tribes. The tribal land base is the necessary building 

block for tribal governments to provide housing, economic development, and other essential government services to its citizens. 

In the last session of Congress, we held two hearings on the 

backlogs at the Department of the Interior. Between the first and 

second hearing, the Department showed the Committee some 

measure of progress. However, we now have a new Assistant Secretary who faces those same backlogs and it seems to me that we 

are close to being back to square one. 

Throughout the years, we have heard from many, many tribes 

about the impacts that delays in decision-making at the Department have on their ability to govern. We have heard that applications for trust lands, for lease approvals, for appraisals will languish for many, many years, then years old applications are returned by the Department because the information is stale. 

At the Committee’s hearing in 2007, we heard from the Standing 

Rock Sioux Tribe who told us about their pending trust land appliVerDate Nov 24 2008 09:59 Aug 31, 2010 Jkt 057357 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\DOCS\57357.TXT JACK PsN: JACKF
2 

cations. At the time, the tribe’s pending applications had been 

pending for up to a decade or more. Today, more than two years 

later, the situation at the Standing Rock Reservation has not 

changed, according to the Standing Rock tribal officials. 

Of the tribe’s 11 pending applications, two have been pending for 

more than 10 years and the others have been pending for over five 

years. Some of the applications the tribe submitted are not listed 

as pending because they are not yet logged into the system. At the 

same time, these applications haven’t been returned to the tribe for 

more information. They just remain in limbo with no action. 

The same problem exists for pending environmental impact statements which can cost tribes close to $1 million to complete. If 

they are not reviewed in time, a tribe may have to start all over 

and submit an impact statement, spend another large sum to complete the impact statement, and possibly cost the tribe a lot of 

money that they need for economic development. 

This isn’t a new issue, but it is one that this Committee’s been 

looking for the Department to make progress on. We are looking 

for a plan to deal with the land backlogs and come up with a way 

for the Bureau to better communicate with the tribes so that they 

can be aware of the status of their applications. It is not acceptable 

to have applications sit on a desk for 10 years with no action. 

Last Congress, we pushed and will continue to push this Congress to monitor the status of these backlogs at the Department. 

And we are going to hold another hearing in six months to find out 

what has been done in the last six months. 

So with that, I want to welcome Mr. Skibine, Acting Principal 

Deputy Assistant Secretary for Indian Affairs, accompanied by 

Vicki Forrest, the Deputy Bureau Director for Trust Services, as 

panel one. 

We will proceed with your testimony, Mr. Skibine. 

STATEMENT OF GEORGE SKIBINE, ACTING PRINCIPAL 

DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, U.S. 

DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY VICKI 

FORREST, DEPUTY BUREAU DIRECTOR FOR TRUST 

SERVICES 

Mr. SKIBINE. Thank you, Mr. Chairman. Good morning, Senator 

Udall and Senator Franken. I am pleased to be here to present the 

testimony of the Department on the hearing entitled Where’s the 

Trustee? Department of the Interior Backlogs Prevent Tribes from 

Using Their Land. 

Accompanying me today is Vicki Forrest, who is the Deputy Bureau Director for Trust Services. 

My testimony will be made part of the record. What it includes 

is updates on all the issues that were discussed in the previous two 

hearings, including where we are on probate, where we are on 

trust land acquisitions for non-gaming purposes, where we are on 

environmental impact statements, where we are on appraisals, and 

where we are on lease approvals. 

One of the things that I witnessed over the past eight years, and 

it is not necessarily why we are where we are today, but before 

Carl Artman became Assistant Secretary for Indian Affairs, before 

that under the Bush Administration, essentially what I witnessed 

3 

is that trust acquisitions were not a priority for the Department. 

In fact, even though there was nothing written, essentially what 

the Regional Directors were told was that acquisition of land in 

trust for tribes should be the least of your priorities. 

So with that, those marching orders, I think that it is no wonder 

that to a certain degree before Carl Artman came on and essentially reversed course on that, there was a failure from our Bureau 

to move in that direction. 

And the reason for that, I think, was at the time of Cobell the 

Administration essentially thought, well, we have the Cobell, the 

trust fund litigation. We have now almost 100 lawsuits, tribal trust 

lawsuits challenging the BIA on mismanagement of trust resources. Why on Earth would we acquire more land into trust if we 

can’t even manage what we have now? 

And so with that, there was essentially, certainly not a priority, 

in fact, to take land into trust. So to take land into trust for individuals was totally stopped at the time. And off-reservation acquisitions were sent to central office for review, where essentially they 

sat there. And I think before Mr. Artman came on board, maybe 

one in six years had been approved. 

In addition, there was at the time a move, I remember, from the 

Administration to sort of dissuade tribes from taking land into 

trust because they said it would not actually help economic development, but hinder it. And the thinking there was that you cannot 

leverage land if it is in trust because there can be no encumbrances 

on the land. 

What I am here today to say is that when Larry Echo Hawk 

came on board, essentially things changed completely in terms of 

the Administration’s overall priority. And the taking land into trust 

for Indian tribes is now one of the Assistant Secretary’s major priorities, in addition to education, law enforcement, and energy development. 

And with that, I think that the marching orders to the Bureau 

of Indian Affairs will be to essentially make sure that this program 

becomes one of the priorities that we have. 

And with that, I think I will say that this is kind of one of the 

few things that we have looked at. Under Ms. Forrest’s direction, 

we have published a fee to trust handbook which is something that 

we are doing in consultation with tribes to help facilitate the process and make it more transparent. We have re-delegated the authority to take non-gaming off-reservation land into trust to the Regional Directors. 

I recommended that move to the Assistant Secretary after I testified on the House side on some bills on Northwestern tribes, where 

what they were trying to do is bypass central office review of their 

off-reservation acquisitions because of the fact that they were not 

going anywhere. 

And even though we are, this was no longer a backlog, we took 

a look at why there was central office review of non-gaming applications for off-reservation, and we felt that there was really no 

point in doing that. So we have sent this back to the regional offices, and in that sense it will cut off some of the time it takes to 

process these applications. 

4 

The other thing we are doing is, what we could do is essentially 

look at our regulations, 25 CFR Part 151. Now, that is a very 

touchy subject. I think, for instance, I remember Carl Artman 

wanted to look at possibly reopening 151, but the National Congress of American Indians and Indian tribes in general were very 

opposed to that. 

But we are well aware that in the 151 regulations, there are no 

deadlines placed on the Department. And one of the issues that 

came up when Kevin Gover was trying to revise the 151 regulations in the late 1990s was that tribes complained about this lack 

of deadline. I think we tried to include it in those regs. Those regs 

were essentially finalized, but pulled by the Bush Administration 

when they came into power. 

Another thing we are of course looking at, and which is not necessarily a big issue, is the fact that the Carcieri decision came 

down in February of last year. We, of course, as Del Laverdure, our 

Deputy Assistant Secretary, testified on the House side, support a 

Carcieri fix to amend the Indian Reorganization Act. And so we are 

all on board on that, and we think that will certainly avoid some 

potential backlogs and lawsuits that may be generated in some 

cases. 

And that said, I think that one, of course, of the things we would 

like to say that is as we take land into trust, it is of course important to have the resources to manage those lands, especially the 

lands under these trust resources. So we will take a look at that. 

And with that, I would like Ms. Forrest to tell us a little bit 

about what is it that she has been doing at the direction of the Bureau Director, Jerry Gidner, who has the responsibility for essentially improving the process and what other things we are looking 

at in order to make the system work better. 

Vicki? 

[The prepared statement of Mr. Skibine follows:] 

PREPARED STATEMENT OF GEORGE SKIBINE, ACTING PRINCIPAL DEPUTY ASSISTANT

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

Good morning Mr. Chairman, Vice Chairman, and members of the Committee. 

Thank you for the opportunity to provide the Department of the Interior’s (Department) update on the current status of backlogs in Indian Affairs. As you know, the 

Department provided updates on ‘‘backlogs’’ previously on October 4, 2007, and on 

May 22, 2008 in oversight hearings on land into trust applications, environmental 

impact statements (EIS), probates, and appraisals. In those testimonies provided to 

this Committee, overviews of each item and the procedures that Indian Affairs’ follow, as set forth in statute and regulation, were included. Therefore, my testimony 

today will focus on our updates on current numbers in probate, land-into-trust acquisitions for non-gaming purposes, environmental impact statements, appraisals, 

and commercial leases. My testimony will also address a few accomplishments since 

the last hearing in May 2008. 

Probate 

In prior testimony we stated there are four phases for the completion of a probate 

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

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

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

Process. As of November 20, 2009, the Division of Probate was monitoring 71,238 

cases, of which 16,099 were currently moving through the probate process and 

55,139 had been distributed and closed, determined to have no trust assets requiring a Federal probate, or otherwise required no current Federal action. 

In May 2008 we stated before this Committee that as of April 28, 2008, 99 percent 

of the backlog cases completed the case preparation phase and were ready for adjuVerDate Nov 24 2008 09:59 Aug 31, 2010 Jkt 057357 PO 00000 Frm 00008 Fmt 6633 Sfmt 6621 S:\DOCS\57357.TXT JACK PsN: JACKF
5 

1These applications were either opened after October 10, 2007 or were in our possession as 

of that date and have not yet been completed. 

dication and distribution of assets, and 88 percent of the backlog cases had been 

closed. 

Those percentages we presented in May 2008 were used to demonstrate that the 

BIA was still on track to clear the probate backlog by the end of 2008. An independent audit of the probate workload, conducted in 2009, concluded that probate 

backlog casework is substantially complete and no longer represents a management 

issue for the BIA. 

We also stated that by this year, 2009, BIA staff should be able to handle the 

probate cases without help from outside contractors. Administrative requirements to 

re-compete the primary probate casework contract delayed completion of the Probate 

Caseload Reduction project. Project completion is now anticipated mid-year 2010. 

Upon successful completion, the Division of Probate should be able to handle the 

ongoing probate caseload in a timely fashion without contract assistance. 

Trust Land Acquisitions for Non-Gaming Purposes 

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

in our May 2008 testimony that we implemented a fee-to-trust tracking system. 

Last year we reported that we had received 1,489 requests, 1 including the 215 

applications that were prioritized in October 2007. As of November 20, 2009, 99 of 

the priority applications had been completed or withdrawn by the applicant and determinations had been made on additional 99 applications. 

In October 2008, BIA published a Fee-to-Trust handbook. This handbook standardized procedures for reviewing and making determinations on on-reservation 

land-into-trust applications. Six months later, after meeting with over 100 tribal 

leaders, Indian Affairs removed a major logjam from the process by revoking a 

standing policy requiring applications for off-reservation lands to go through a Central Office review. While Central Office continues to provide assistance upon request, decision authority for all land-into-trust applications has been delegated to 

the Regional Offices. Applications have been returned to the Regional offices with 

recommendations, and the final actions are now taking place at the regional level. 

Currently, we have received a total of 1,935 requests. As a result of the standardization and streamlining efforts, 454 of the requests have been completed or withdrawn by the application and determinations have been made on 342. Seven hundred and sixty four of the pending requests are for land located within, or contiguous to, the tribe’s reservation boundaries and are non-gaming. The remaining requests were either submitted by individuals, located off-reservation, or by tribes 

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

However, since February 2009 an additional challenge presented itself in the U.S. 

Supreme Court’s decision in Carcieri v. Salazar. 

The Department was, and continues to be, disappointed in the Court’s decision 

in the Carcieri case. The decision was not consistent with the longstanding policy 

and practice of the United States to assist all tribes in establishing and protecting 

a land base sufficient to allow them to provide for the health, welfare, and safety 

of tribal members, and in treating tribes alike regardless of the date of acknowledgment. The Court’s decision hinders fulfillment of the United States’ commitment to 

supporting Tribes’ self-determination by clouding—and potentially narrowing—the 

United States’ authority to protect lands for tribes by holding the lands in trust on 

their behalf. 

Furthermore, the Carcieri decision has disrupted the process for acquiring land 

in trust for recognized tribes by imposing new and undefined requirements on applications now pending before the Secretary. The decision has called into question the 

Department’s authority to approve pending applications, as well as the effect of such 

approval, by imposing criteria that have not previously been construed or applied. 

Environmental Impact Statements (EIS) 

In our October 4, 2007 and May 22, 2008, testimony, we provided extensive comments on the National Environmental Policy Act (NEPA) environmental review 

process with a focus on the Environmental Impact Statement (EIS) process. As stated in those testimonies, we do not have a backlog of EISs. The cases described below 

are pending applications that are currently under review. 

When an Indian tribe submits a request to the BIA to fund, issue a permit for, 

or approve a proposed action requiring a BIA federal action, the BIA determines the 

proper level of NEPA review. For certain actions that don’t have the potential for 

significant environmental impacts, BIA may issue a Categorical Exclusion (CE) and 

the NEPA process is complete. If the application does not qualify for a CE, an EnviVerDate Nov 24 2008 09:59 Aug 31, 2010 Jkt 057357 PO 00000 Frm 00009 Fmt 6633 Sfmt 6621 S:\DOCS\57357.TXT JACK PsN: JACKF
6 

ronmental Assessment (EA) must be completed. The EA will lead either to a Finding of No Significant Impact (FONSI) or to a determination that the effects of the 

Federal decision may have a significant environmental impact and a decision to perform an EIS. 

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

proposed project. The time frame depends on several factors. For instance, other 

agency needs and requirements must be taken into consideration. In addition, public 

comment may point out weaknesses in the EIS that require further studies or assessments before the Final EIS may be issued. Additional time may be required to 

coordinate and meet other agency needs and requirements on the EIS. Delays also 

occur when the Federal EIS is stalled because the tribe alters the project plan or 

scope. 

The BIA currently has the following pending EIS’s: Pacific: 17, Northwest: 5, 

Eastern: 3, Midwest: 1, Navajo: 1, Great Plains: 1, Rocky Mountain: 1, Southwest: 

1 and Alaska: 0, Western: 0, Eastern Oklahoma: 0, and Southern Plains: 0. 

Appraisals 

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

management and operation of the real estate appraisal function was transferred 

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

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

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

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

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

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

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

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

by BIA. 

Currently, OST’s OAS has 1,754 appraisal requests pending, of these 257 are past 

due. Of the total number pending, approximately 50 percent are scheduled for completion by the end of the month. OAS is implementing a new tracking system that 

is scheduled for deployment by March 31, 2010. OAS continually evaluates appraisal 

processes to streamline efficiencies while ensuring that valuations comply with the 

Uniform Standards of Professional Appraisal Practice (USPAP). 

Lease Approvals 

In May 2008, we made a recommendation based on the fact that commercial development leases may involve tribal land, allotted land, or both, and those leases 

were typically negotiated by representatives of the parties. As a result, the appraisal 

needed to establish an acceptable ‘‘Minimum Rent’’ and the documentation needed 

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

terms have been agreed upon. We continue to recommend that outside appraisals 

be accepted, as an alternative to appraisals performed by the Department’s Office 

of Appraisal Services (OAS), and submitted for review and approval by the OAS. 

In May 2008, we reported that we had 93 commercial leases pending approval. 

In our twelve Regions, we have three Regions with no backlogs: the Southern Plains 

Region, Eastern Region and the Eastern Oklahoma Region. The remaining regions 

have leases that have been pending for over 30 days, as follows: Alaska Region–1, 

Navajo Region–1, Midwest Region–1, Great Plains Region–8, Rocky Mountain Region–8, Pacific Region–9, Western Region–19, Northwest Region–22, and the Southwest Region–24. 

Currently, we have 69 commercial leases pending approval for 12 months or 

longer. Seven regions reported no outstanding commercial lease applications: Alaska, Eastern, Midwest, Navajo, Rocky Mountain, Southwest and Western. The remaining regions have pending leases as follows: Eastern Oklahoma: 1, Great Plains: 

1, Pacific: 13, Northwest: 52, and Southern Plains: 2. 

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

Ms. FORREST. Thank you. 

Thank you, Mr. Chairman. Thank you, Senator Udall, Senator 

Franken. I am happy to talk about the great accomplishments the 

Bureau has made in the last two years since I have been here on 

the land into trust process. 

As Mr. Skibine mentioned, we issued the fee to trust handbook 

at the direction of Mr. Artman. He placed a high priority on that 

7 

for BIA. It standardized the processes for the first time in the history of BIA. In April of this year, we held our first annual land into 

trust dialogue with tribes to talk about the usefulness of the handbook with tribes and BIA staff. From that, I believe came, because 

it was a comment from many tribes, was the central office review 

of off-reservation applications. So that did decrease a big logjam 

that was in the current process. 

We are also happy to talk about increased communication with 

tribes with BIA staff. We have really encouraged our staff to meet 

regularly with tribes, and in fact, it is my understanding at Standing Rock they have a weekly meeting to talk about land into trust 

applications. So we encourage all of our staff to continue to do that 

in order that everyone is aware of the process and exactly where 

the applications are. 

Going forward, as Mr. Skibine mentioned, Mr. Echo Hawk has 

also placed a high priority on land into trust for BIA staff. We 

want to refine that handbook based on the comments that we receive from tribal leaders, and we continue to dialogue with tribal 

leaders about that. 

Although that was one meeting in Albuquerque, several tribes 

wanted regional meetings to talk about the use of the handbook 

and the way that we process land into trust applications within the 

current regulations. So I am hoping that we get out into, I believe 

tribes from the Northwest, Pacific and Midwest wanted to host 

those meetings, and I would be happy to attend those on behalf of 

the Bureau. We are also reviewing inconsistent policies that we 

may still have and practices that we may still have at the regions 

currently. So we are actively doing that. 

We want to further increase communication with tribes and BIA 

staff to include a web page that is going to have a comprehensive 

informational site for tribes, as well as BIA staff about the land 

into trust process. We are going to develop and implement a webbased training for tribes and BIA staff, as well as formalize curriculum at our National Indian Programs Training Center in Albuquerque, New Mexico. So we are very excited about those steps. 

As George mentioned, we also want to develop a framework of 

staffing, training and performance measures that facilitated the 

great success that we saw in our probate backlog. So those are 

some of the steps that we are actively involved in to ensure that 

we have a more effective and efficient process on behalf of tribes. 

The CHAIRMAN. Thank you very much for your testimony. 

Let me describe just for a moment what has piqued my interest 

about all of this the last few years. 

I was at a tribal visit and they showed me their brand new building, a big beautiful building. I think it was two or three stories and 

it was empty. And I said, what is that building? Well, that is a 

building we built for offices, a commercial office building. And I 

said, why is it empty? They said, because we can’t lease it until we 

get approval for leasing it from the BIA and the request for approval has been there for about a year. So the building sits empty 

for a year. So I am thinking to myself, wait a second, what is that 

about? 

And Standing Rock Reservation applies for the opportunity to 

take some land into trust for a cemetery, and one would expect, 

8 

well, all right, if the tribal government has decided they want to 

take some land into trust for a cemetery, you know, within a reasonable period of time, they would get a judgment, at least, about 

that. And my understanding is that I think that has been pending 

between 5 and 10 years. 

So as I look at all of this, we now have, my understanding is, 

according to Department of Interior current data, about 1,935 total 

requests, and I am not suggesting that when somebody submits 

something, you all get a big old rubber stamp to say ‘‘approved.’’ 

That is not my suggestion at all. I want you to look at these things 

and make good judgments about them. 

But appraisals, for example, according to DOI, we have 1,754 

pending appraisal requests; 254 of them are past due; 50 percent 

are scheduled for completion by the end of this month. 

What has occurred that they can now clear 50 percent by the end 

of this month? Is it this hearing? If so, I want the process to be 

a process that doesn’t have to be prodded by a Senate hearing. 

So all of these things have persuaded me that we need a process 

by which a tribe should not have to expect to wait 5 or 10 years 

for somebody to make a judgment. That is like passing paper and 

glue, or perhaps not even glue because some of it is lost, as we 

know. So that is the stimulant for holding this hearing. 

I indicated that I have to leave for the White House for a meeting on jobs, and I am going to ask at this point Senator Udall to 

take the Chair and proceed. But this is an issue that doesn’t get 

a lot of attention, but it is very, very important to all the tribes. 

I know Senator Franken will be visiting a tribe in January in 

Minnesota, and it is not related exactly to this issue, but he will 

be seeing, I believe, a building that is empty on that Minnesota 

tribal property, and that is because two Federal agencies didn’t coordinate what they were doing properly, a building that I believe 

was built for juvenile justice purposes and the money doesn’t exist 

to run it. 

It is just frustrating to all of us. We want you to succeed. Mr. 

Skibine, you have testified many times and I give you credit for 

wanting to do the right thing. The question is, are we making real 

progress? Can a tribe that submits a request today for trust status 

or an application, can they reasonably expect that in a decent period of time they are going to get a response? Or is this going to 

go into this deep abyss, this application never to be heard from 

again? 

So that is the question, and I am going to call on my colleague 

to come over and take the Chair. 

Senator Udall, thank you very much for being willing to do that 

while I leave for the White House. 

STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. [Presiding]. Thank you, Senator Dorgan. 

Could you respond to Senator Dorgan and his, I guess, question 

and comments there on what is happening with those numbers and 

where we are headed here? 

It is good to see Senator Tester here, too. 

9 

Mr. SKIBINE. Okay. I think that the overall response is that this 

is definitely in this Administration under Assistant Secretary 

Larry Echo Hawk, this is certainly not going into a black hole 

where we are going to have a problem with taking land into trust. 

So progress, I think, is directive and under his administration, this 

will change, as it is one of his priorities. 

So I can essentially assure you that we will make progress in 

taking land into trust for non-gaming purposes. 

There is no reason for the process to take forever. The regulations 151 are fairly simple. That process should be done fairly 

quickly, and really, in terms of getting a decision, it should not be 

an endless process. 

Now, one of the things that does happen is if, even when we decide to agree to take land into trust, and we publish a notice in the 

Federal Register, there needs to be no encumbrances on the land 

before it can be taken into trust. And sometimes that takes years. 

I remember when I was the Director of the Indian Gaming Office, for instance, in 1995, we agreed to take land into trust for the 

White Earth Band of Chippewas, and we published, and so we did 

an approval. And I know that 10 years later, it turned out that the 

land still had not been taken into trust because there were liens 

on the property. So that is one of the issues that occurs. But in 

terms of the process for that, we will definitely make progress. 

And in terms of the one issue you raised with appraisals, I think 

that is a function of the Office of Special Trustee, which is not part 

of our office of Indian Affairs. So there should be, the Special 

Trustee should be addressing the issues for any backlogs in appraisals. 

Now, if Ms. Forrest can give an update on the figures that Senator Udall asked in terms of the progress we have made in the past 

year. 

Ms. FORREST. The way that we currently manage the land into 

trust applications is a system that tells us what applications are 

in the system, the tribe that submitted the application, and the 

status of that application. So we started tracking in October of 

2007. Since then, we have approved 86,000 acres to be taken into 

trust. 

So what we work with the staff on is, as we look at the status 

of each part of the process, whether it be environmental compliance, the public comment period, working with local and State governments on any land use issues, jurisdictional issues, tax consequences issues, then we provide technical assistance in that way. 

Currently, we have, as the Chairman stated, 1,935 requests; 454 

of those have been completed or withdrawn by the applicants, and 

determinations have been made on 342; 764 of the pending requests are for land located within or contiguous to the tribe’s reservation boundaries and are non-gaming. The remaining requests 

were either submitted by individuals or located off-reservation by 

tribes with no historical lands or for gaming or non-gaming, or 

gaming-related purposes, excuse me, which my office does not handle. It is just non-gaming applications. 

So we continue to monitor the progress of the applications and 

want to increase communication with tribes, encourage our staff to 

10 

do that, train our staff appropriately, have the staff available that 

is devoted to this process. 

So as Mr. Skibine stated, that is one of my highest priorities for 

this year. 

Senator UDALL. Ms. Forrest, do you have a time line for eliminating the backlog? 

Ms. FORREST. In 2007, what we looked at was some prioritized 

applications, and the way that we did that, because I want to be 

very clear that no tribe has priority over any other, what we looked 

at was the status of the application in terms of how far it was to 

completion. So at that time, we prioritized 215 of those, and I am 

happy to say that 198 of those have been brought into trust; 14 of 

those still require some title issues, as Mr. Skibine was talking 

about, so we work with the tribe on those. Two still have environmental compliance issues. We continue to work with the tribe on 

those. And then one is at our office for review at the request of the 

regions. 

Although the decision-making ability for non-gaming applications, whether they are off-reservation or on-reservation, are at the 

regions. If the region requests our assistance, then we ask that 

they send those to central office. 

Senator UDALL. Thank you, Ms. Forrest. 

Senator Franken is recognized for questioning. 

STATEMENT OF HON. AL FRANKEN, 

U.S. SENATOR FROM MINNESOTA 

Senator FRANKEN. Mr. Skibine, I just want to clarify something 

for myself here. Basically, what you are saying is that this was not 

a priority until when exactly? 

Mr. SKIBINE. I think that it was not a priority until Carl Artman 

became Assistant Secretary for Indian Affairs in the latter part of 

the Bush Administration. And I think he committed to the tribes 

that he would begin to change that to address their concern, because there was at that point I think a lot of dissatisfaction with 

tribes for the lack of action on taking land into trust. And I think 

Carl is back here somewhere, but he became Assistant Secretary 

in 2006. 

Ms. FORREST. In 2007. 

Mr. SKIBINE. In 2007. Okay. 

Senator FRANKEN. Okay, so in 2007, it sort of changed? 

Mr. SKIBINE. Right. 

Senator FRANKEN. Because of him, one guy? 

Mr. SKIBINE. Well, he needs to get a lot of the credit for that because there certainly wasn’t much support for that with the rest of 

the Administration. 

Senator FRANKEN. Yes. You know, you have testified here before, 

and we hear a lot about backlogs. Was there some sort of lack of 

attention paid during those Bush years in terms of backlogs on 

things? I mean, were backlogs accumulated during those years? 

Mr. SKIBINE. I think that they probably were. I don’t have figures with me, but certainly with respect to acquisitions for off-reservation, non-gaming off-reservation acquisitions I know there was 

a backlog because for years there were none that were essentially 

approved, and at that time it required central office approval and 

11 

it just stayed there. Maybe one was approved, but that was about 

it. 

Senator FRANKEN. What consideration is given to fast-tracking 

stuff? I mean, you were talking about certain priorities. But fasttracking things, things that are easy to resolve—is there any consideration to saying let’s do unobjectionable claims that are easy to 

do? Let’s just do them right now? 

Mr. SKIBINE. I think that, yes, that is one of the things that our 

Assistant Secretary has asked us to look at. So Mr. Gidner and Ms. 

Forrest are going to start looking at that and what we can do. We 

will also probably continue to consult with tribes to see what it is 

that they see we can do to facilitate the process. 

The important thing is that the attitude of the Administration 

now is to make this work and to make it work better, so that we 

are anticipating essentially solving some of the issues that we 

have. 

One of the things that we are bound by that is another thing 

that takes a long time is compliance with the National Environmental Policy Act. If the tribe intends a change in the land use, 

there needs to be compliance with NEPA, which requires either an 

environmental assessment or an environmental impact statement. 

And I know that, for instance, in the area that I know best in gaming, these EIS’s take at least a year to compile. So that takes a 

while. 

Senator FRANKEN. So that is an example of one that is less easy 

and less simple. But are there ones that just come to you and you 

say, ‘‘man, we can expedite this right away’’ ? 

Mr. SKIBINE. Yes. If there is no change in land use and essentially, there is no objection from the local community, there is really no reason for these applications to take long at all. And so, it 

is all delegated to the region. We will essentially look into, have 

our Regional Directors accountable to make sure that applications 

that are submitted are not essentially forgotten, since it is a priority of the Administration. 

Senator FRANKEN. Okay. Does that seem to come from the top? 

Mr. SKIBINE. Yes. I think that Secretary Salazar is essentially totally on board with this priority. 

Senator FRANKEN. Okay. Thank you very much, Mr. Chairman. 

Thank you. 

Mr. SKIBINE. Okay. 

Mr. Udall. Thank you, Senator Franken. 

Senator Tester? 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Well, thank you, Chairman Udall, and that 

sounds pretty good. You will have to see if Byron is willing to give 

that up. 

[Laughter.] 

Senator TESTER. Byron does a great job, make no mistake about 

it. 

I need to get educated here just a little bit, and maybe it is you, 

Ms. Forrest, who can do it. Can you tell me, do you have the figVerDate Nov 24 2008 09:59 Aug 31, 2010 Jkt 057357 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 S:\DOCS\57357.TXT JACK PsN: JACKF
12 

ures telling me what the average backlog was in, say, 2006 compared to what the average backlog is today? 

Ms. FORREST. For land into trust applications, Mr. Skibine had 

just been talking about the off-reservation applications that we had 

at Central Office. And during that time, under Mr. Artman’s direction, we cleared out every one of those. There were 42 of those that 

had been sitting there during the last Administration before Mr. 

Artman got there, and he directed us to quickly clear those out and 

send those back out to the region. 

We started tracking fee to trust applications in general in October of 2007. So I would have to rely on my experience with what 

was at the office, I have been there for two years, what was at the 

office when I got there, and the priority placed on getting those applications, some that had been there for quite a long time, back out 

to the field to be processed and going forward. But we started 

tracking the numbers in October, 2007. 

Senator TESTER. Okay. So what is the backlog right now? How 

many days average? 

Ms. FORREST. The backlog for fee to trust for that application, we 

have not defined. We did for probate and we have talked about that 

several times. We can tell you that we have pending applications. 

What I don’t have in front of me today is how long they have been 

in the system. That is not one of the things that we designed that 

system to do. 

Senator TESTER. Okay. So what are you tracking? 

Ms. FORREST. We are tracking how many applications in the system, which tribes are submitting those, what kind of applications 

they are, whether they are off-reservation, on-reservation. 

Senator TESTER. So you are just looking at the sheer numbers 

and determining by that what the backlog is? 

Ms. FORREST. Well, that system was designed to help us work 

with the staff in seeing exactly where the application is and moving along the process. That is what we have been using to manage 

the land into trust process with that system. 

Senator TESTER. Okay. 

Mr. SKIBINE. Well, can I say something? This is one of the things 

that we, before this hearing, talked about, and I think it is a system that does that. And to me, there is no reason why the system 

cannot be changed to essentially provide the date the application 

is filed, so that we are able to track how long they are in the system. 

Ms. FORREST. Absolutely. 

Mr. SKIBINE. So that is something that we are going to be looking at. 

Senator TESTER. Could you tell me how many applications are we 

talking about that are pending right now? 

Ms. FORREST. There are 1,935. 

Senator TESTER. There are 1,935 that are pending right now. Oh, 

boy. I mean, I don’t want to ask you questions you can’t answer, 

so I will ask them anyway, I guess. Do you know how many of 

those have come in in the last year? 

Ms. FORREST. I don’t. That is one of the system enhancements 

that Mr. Skibine just talked about that we are currently making. 

13 

Senator TESTER. Okay. That is fine. And this could be to either 

one of you, whoever is best to answer it. How many of those applications are dealing with fee land to be put into trust? 

Mr. SKIBINE. I mean, they are all dealing with fee land to take 

into trust. 

Senator TESTER. Aren’t some of them, are any of them dealing 

with leases, for example? 

Mr. SKIBINE. Oh, no. That is separate. These are essentially all 

pieces of land that are in fee and that a tribe is seeking to place 

into trust. 

Senator TESTER. Okay. And then they aren’t the ones where they 

are going to change use on them, those applications? 

Mr. SKIBINE. No, some of them will. 

Senator TESTER. Okay. Isn’t that already fee land? 

Mr. SKIBINE. Excuse me? 

Senator TESTER. I mean, isn’t that already trust land and they 

are trying to change the use of it? 

Mr. SKIBINE. No. If it is trust land, the tribe can change the use 

without us having to be involved. 

Senator TESTER. Okay. So if you have a piece of Native American 

land that is already part of the reservation, they can build an office 

building on that land and you guys have nothing to say about it. 

Mr. SKIBINE. That is right. Unless it requires, I mean, it may require some sort of approval, but, you know, I am not aware of, in 

many cases, it doesn’t. 

Senator TESTER. Okay. What about land that is already a part 

of the reservation, it is already part of the trust, and they want to 

lease oil underneath it to a developer to try to get some of that oil 

out of the ground to create some royalty? Do you have any say on 

that? 

Mr. SKIBINE. Yes. And essentially we have to approve leases for 

oil under 25 CFR Part 151. 

Senator TESTER. And so the same with natural gas, same with 

coal? 

Mr. SKIBINE. Right. 

Senator TESTER. Same with any kind of mining that might happen? Can you give me any idea on how long it takes to get those 

leases through? 

Mr. SKIBINE. Vicki? 

Ms. FORREST. On commercial, what we brought today, and I can 

get that information for you, I don’t have that with me, but we do 

have some numbers on commercial leases. Typically, those take a 

little bit longer because of the complexity of the leases. 

Senator TESTER. Yes. I don’t want to have you spend all your 

time digging out figures for me, but I think the bottom line is that 

there has to be ways to streamline the process to make it work better, and that is really what you should be focused on. But I really 

don’t know how you can say, and I am not doubting your word, but 

I don’t know how you can say things are getting better if you 

haven’t been able to track backlog, if you don’t know, if you don’t 

know how long these leases have been laying around. 

Ms. FORREST. In our trust accounting and asset management 

system, which was fully implemented in 2007, was the first in the 

history of the Indian trust that we had all land and natural reVerDate Nov 24 2008 09:59 Aug 31, 2010 Jkt 057357 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 S:\DOCS\57357.TXT JACK PsN: JACKF
14 

source data in one system. So now we can look across all the leases 

in the system. 

One of the things that it does not do, but we are enhancing, is 

to do exactly what you said, track it in the process. We would like 

to be able for a landowner to come in or use the call center and 

ask where their lease is at. So that is one of the enhancements that 

we are working on to that system. 

Senator TESTER. Okay. Do you have any way, and you probably 

won’t, but that is okay, do you have any way to tell me if there 

are certain applications that go in, and I know you talked about 

the ones where there was no change in land use. But for example, 

if I had an application in for drilling some oil on trust land, versus 

an application that comes in to build a casino, does one traditionally take longer than the other? 

Ms. FORREST. The gaming applications George would have to address, but for the oil and gas leases, that was something that we 

have the environmental compliance that George was talking about, 

the appraisals that we were talking about, and then negotiation. 

Typically, we have third parties that negotiate those on behalf of 

the landowners. So it is a complex arena. 

What I am working on is to try to streamline the process for our 

staff. 

Senator TESTER. Stop. If the land is in trust, who is the landowner? 

Ms. FORREST. The allotted—the tribe or the—— 

Mr. SKIBINE. If the land is in trust, the United States has the 

legal title for the benefit of the tribe. 

Senator TESTER. Right. So who do you negotiate with? You say 

you are negotiating on behalf of the landowner. Who are you negotiating with if the Federal Government is basically the landowner? 

Ms. FORREST. Well, typically, we are going to talk with the landowner and have the developer there. And so those negotiations take 

place in that manner. 

Senator TESTER. I am still not tracking you. If it is trust land, 

who are you negotiating with, because the Federal Government is 

the landowner? 

Ms. FORREST. But I think we seek to actively have the landowner 

or tribe be a participant in that process. So we would have whichever developer comes in, whether they want to oil and gas, whether 

they want to do commercial leasing. But for one of my high priorities is that the landowner is an active participant in that effort. 

Senator TESTER. Okay. I am not tracking. The tribe puts an application in that says we want to drill for oil. We have Conoco out 

there that wants to do the drilling, just for the sake of discussion. 

You guys look at this application and then you negotiate with what 

landowner, because there is no landowner. It is the Federal Government. 

Ms. FORREST. Well, typically the Bureau is present at the negotiations with the tribe and the company. It depends on the kind of 

lease. It depends on whether the tribe has the resources to do that 

on their own and whether they have that technical expertise inhouse. But at the end of the day, the Bureau will review that lease 

and approve that lease. 

Mr. SKIBINE. Let me just—— 

15 

Senator TESTER. Go ahead. 

Mr. SKIBINE. It seems to me that the tribe and the individual or 

the company that was interested in drilling negotiate a lease between themselves and then submit the lease to the Bureau of Indian Affairs and the BIA’s role is just to approve that lease. 

Senator TESTER. Correct. 

Mr. SKIBINE. That is right. 

Senator TESTER. Okay. 

Mr. SKIBINE. That is how it works. 

Senator TESTER. And so you get the lease in hand. The tribe and 

the oil company or the driller has already figured out what they 

want to do and they are both comfortable or they wouldn’t have 

checked off on this. Then it seems to me that this would progress 

pretty quickly, these kinds of situations. I mean, sure, there are 

probably maybe some issues with endangered species or things like 

that. 

Mr. SKIBINE. Right. 

Senator TESTER. But it could proceed pretty quickly. And I guess 

what I need, the crux of this question was, do those kind of leases 

traditionally take longer or less time than a lease to build a casino? 

Mr. SKIBINE. I think they probably take less time, from my experience with approval to take land into trust for casinos. But to take 

land in trust for casinos, if they are off reservation, will take traditionally at least two years, if not more. So this is going to have to 

be less. 

Senator TESTER. The reason I ask on both accounts, but mainly 

on the natural resource development point is that the Chairman 

has brought up many times where there is a big oil field underneath one of the reservations in North Dakota, where when things 

were booming, there were lights all around, but none inside the 

reservation. There has to be a reason for that. 

And if that reason is that the application process takes an excessive amount of time, and I believe in doing things right, make no 

mistake about it, but if it is not a priority, it gets pushed to the 

back and pretty soon gets to a situation where the person goes 

other places to do their drilling in this particular case. 

Mr. SKIBINE. Right. There was a problem at Fort Berthold, and 

we have addressed that. Part of the problem was a lack of resources to deal with the number of, with the lease development, oil 

development at the time. We have beefed up the staff there. We are 

working on that issue. 

Senator TESTER. Was that the problem before Carl Artman came 

on board? Was it a lack of personnel? Were there positions that 

were not filled? 

Mr. SKIBINE. No. No, I don’t think that was the issue. The Administration position, before Mr. Artman came on board was not an 

objection to leasing natural resources, just to taking land into 

trust. 

Senator TESTER. Okay. I assume there are people within the BIA 

that are dedicated to reviewing these leases and getting them out 

the door. 

Mr. SKIBINE. Yes, there are. 

Senator TESTER. How many are there? How many folks are 

there? 

16 

Ms. FORREST. We have currently 253 realty specialists that 

would do that kind of work throughout the Country. 

Senator TESTER. Are they under contract? 

Ms. FORREST. No, they are Federal employees. 

Senator TESTER. They are full-time? 

Ms. FORREST. Yes. 

Senator TESTER. What were these folks doing when the backlog 

was being accrued, going off of Senator Franken’s question earlier? 

Ms. FORREST. For land into trust? 

Senator TESTER. Yes. You said the backlog got greater before 

Carl Artman came on board. So what were these 250 folks doing? 

Ms. FORREST. I think one of the issues was what Mr. Skibine 

raised in terms of it was not a priority for the staff. And then currently, BIA has no staff dedicated to the land into trust process. 

So with one realty specialist, they are working on leases. They are 

working on land in trust process and a myriad of other acquisition 

and disposal type activities. 

Mr. SKIBINE. So I guess what she is saying is that an employee 

is working on land into trust. Taking land into trust is only one 

of the functions that an employee is doing, which means is that 

that was not their priority, but there are certainly other issues that 

these employees do. 

Senator TESTER. So they are working on land into trust now? 

Mr. SKIBINE. Yes. 

Senator TESTER. So what is being given up, because they must 

have been working on something else? 

Mr. SKIBINE. No. Nothing is given up. 

Senator TESTER. Nothing is given up? 

Before 2006, before Carl Artman, I should say, you had 250 people out there that were doing something, you just said, and they 

had other jobs. Now, they have made this a priority and they are 

doing this. What were they doing before, because that job isn’t 

being done now? 

Or were they laying around not doing a heck of a lot because it 

wasn’t a priority of the Administration? Nobody was putting any 

pressure on them up above to move these applications along? 

Ms. FORREST. Well, Senator Tester, our realty specialists have a 

lot of different hats that they wear. So in terms of whether it is 

a commercial lease, a residential lease, home site leases, they are 

working on all of those things. The land into trust process was not 

something that they solely worked on. 

So I know from my visits out to the field, and I certainly understand your question, but BIA staff was working very hard. 

Senator TESTER. I am not questioning that. What I am saying is 

if they were busy before and this wasn’t getting done, and this is 

a priority now, and now this is getting done, what are we going to 

have a hearing on next year that isn’t being done that they were 

doing before? 

Ms. FORREST. Absolutely. 

Mr. SKIBINE. Well, our goal, of course is not to have a hearing. 

Senator TESTER. No, no. I am with you. 

[Laughter.] 

Senator TESTER. Especially with Chairman Udall in charge here. 

[Laughter.] 

17 

Ms. FORREST. One of the things that I will advocate for is in our 

probate process. In 2005, we identified this large backlog in probates, so some steps were taken to increase staff, increase training, 

have performance standards available for that. And finally after 

five years of a huge audit comment from our independent auditors, 

that comment was taken off this year. 

Senator TESTER. Okay. 

Ms. FORREST. So I will propose a similar framework for our leasing specialists. 

Senator TESTER. All right. Well, thank you for your time here. 

I think the issue of reducing the backlog is a big issue and I think 

that it is being addresed. I think truthfully it is no reflection on 

you guys, but there are a lot of uanswered questions here. 

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

Senator UDALL. Thank you, Senator Tester. 

Mr. Skibine, in your testimony, you state that the Carcieri decision has disrupted the process for acquiring land in trust for recognized tribes by imposing new and undefined requirements on applications now pending before the Secretary. What plans does the Department have for addressing the Carcieri decision? 

Mr. SKIBINE. First, we would support a Carcieri fix to essentially 

eliminate the issue. 

Senator UDALL. And you are referring to a legislative fix? 

Mr. SKIBINE. Yes. 

Senator UDALL. And I believe the Chairman has a piece of legislation that is pending. 

Mr. SKIBINE. Yes. 

Senator UDALL. Is the Department aware of that? 

Mr. SKIBINE. Yes. 

Senator UDALL. And supportive of it? 

Mr. SKIBINE. Yes. 

Senator UDALL. Yes. Okay. But go ahead until we get that 

passed. 

Mr. SKIBINE. Yes. Right now, we are proceeding with taking land 

into trust, we are continuing the process. But for tribes, you know, 

for most tribes, the vast majority of tribes, it is not an issue. For 

those tribes where essentially there is a question as to whether 

they were under Federal jurisdiction in 1934, then the Bureau Director, Regional Director, essentially asks the Solicitor’s Office for 

an opinion on whether to proceed with taking the land into trust. 

That is what we are doing right now. 

Potentially, we are looking for the legislation, and we hope that 

we are, so we are, at this point we don’t have, except for doing it 

on a case by case basis, we are not looking at anything at this 

point. 

Senator UDALL. Okay. But so you are having the Solicitor’s Department give a review as to whether or not you need to do these 

additional things? 

Mr. SKIBINE. Right. 

Senator UDALL. Yes. Okay. 

Senator Franken, are you interested in asking any additional 

questions here? 

Senator FRANKEN. No. I am fine. 

18 

Senator UDALL. Okay, because I am going to move to the next 

panel. 

Let me just before we dispense with this panel, you know, the 

Department’s written testimony recites some data for pending land 

transactions, but it does not detail the Department’s plan for how 

it will move forward to clear the backlogs. And I think you have 

heard from our Committee Members today, Mr. Skibine, that they 

want to see the data in such a way that we can compare from the 

past and move to the future, know how long something has been 

pending, get a real sense of whether you are eliminating the backlog, making progress on the backlog, those kinds of things. 

And you should know that the Chairman intends to continue 

holding hearings on this and getting the kind of data that we need 

to proceed and get a sense of your plan. We are going to submit 

additional questions. We will also want the Department’s detailed 

plan for how it will clear the backlog, and we will ask for that in 

these additional questions. 

So with that, we are going to excuse you and move to the next 

panel. We thank you both very much for your testimony today and 

look forward to hearing from you in the future. 

Mr. SKIBINE. Thank you, Mr. Chairman. 

Ms. FORREST. Thank you. 

Senator UDALL. Thank you. 

And at this point, we will call Mr. Artman up, and also the Honorable Derek Bailey, Chairman of the Grand Traverse Band of Ottawa and Chippewa Indians of Michigan. 

Mr. Artman, welcome. Good to see you again. Please proceed. 

STATEMENT OF CARL J. ARTMAN, PROFESSOR OF PRACTICE, 

SANDRA DAY O’CONNOR COLLEGE OF LAW, ARIZONA STATE 

UNIVERSITY 

Mr. ARTMAN. Thank you, Senator Udall. It is a pleasure to see 

you as well. Good morning. 

And good morning, Senator Franken. 

It is a pleasure to be here today to address this issue of backlogs 

at the Bureau of Indian Affairs on land-related matters, and the 

impact that this has on the ability of the tribes to govern and engage in economic development. 

I ask permission to submit my full comments for the record. 

Senator UDALL. They will be submitted and in the record and 

you can summarize at this point. 

Mr. ARTMAN. Thank you. 

When I served as Assistant Secretary for Indian Affairs, we identified the backlogs in the fee to trust applications, probates and 

leases as a foundational issue in the problems that impacted tribes 

on numerous levels. This backlog prohibited tribes from fully exercising their sovereignty and jurisdiction over these lands, inhibited 

tribal economic development, and forestalled the vesting of rights 

for individual tribal members. 

The need to address this issue became immediately apparent at 

the first hearing that this Committee held on this issue during my 

tenure on October 4, 2007. In preparing for the hearing, we weren’t 

able to gather consistent data to quantify the problem for ourselves, for you, or for our tribal stakeholders. I pledged to you and 

19 

this Committee at the end of that hearing that we would resolve 

these issues and make substantial forward progress on this issue. 

We began the process to reduce the backlog of applications by 

looking at potential policy changes through either new or amended 

regulations. Compilation and analysis of the data quickly revealed 

that the backlog was not a policy problem, but a management 

choice. The 151 regulations adequately outlined the necessary processes to acquire the land into trust. The Department just did not 

manage those processes to incentivize and finalize the trust applications. 

Therefore, we changed our approach to the fee to trust process. 

First, we quantified and qualified the extent of the backlog. We 

knew how many applications we had, where they were in the process, and in what offices they were located. Second, we made completion of the fee to trust application a priority that manifested 

itself in annual performance goals that impacted every person involved in the fee to trust process from top to bottom. 

The Department has excellent employees that want to perform at 

their best. The BIA does not have employees dedicated only to fee 

to trust acquisitions, as Ms. Forrest just pointed out. This is a responsibility that falls onto the shoulders of a person that may do 

many things in a day. If these tasks aren’t prioritized through a 

meaningful method, all of the tasks will suffer. The other option is 

appropriation of funds to hire and train additional personnel to efficiently manage all of the issues that are currently handled by 

only one. 

Our third initiative was development of a fee to trust handbook. 

At that time, each of the BIA’s 11 regions receiving fee to trust applications managed the process differently. This national inconsistency bred frustration, imposed geographical discrimination, and 

baited litigation. Regional domination of the process made meaningful data collection and analysis impossible. Deputy Director Forrest managed with aplomb the handbook development. It was approved and disseminated to the regions in May of 2008. It is now 

used by all the regions and hopefully it has brought some consistency to the fee to trust process. 

Finally, we addressed unique problems with unique solutions. 

For example, applications seeking to take off-reservation land into 

trust for non-gaming purposes had a unique problem. To resolve 

this matter, we replaced three people that allowed these applications to linger, sometimes for over a decade, with one very motivated individual. Within four months, Kevin Bearquiver, now the 

Deputy Director for Indian Services, was able to review and make 

recommendations on each of the pending applications. 

The Department of the Interior and the BIA improved the time 

line for taking land into trust. The real impact will occur if these 

improvements are made a fabric of the organization. The Department and the BIA are sometimes a necessary and sometimes a 

helpful partner with tribes in developing the latter’s futures. 

Tribes, though, must carefully gauge their reliance on the Federal 

Government and tribes should render the strategic determination 

if they want or need land taken into trust for economic development. 

20 

The purpose of taking land into trust, as set out during the reorganization era, was to reestablish a land base that had been allotted in the previous decades. The IRA-based process is still a very 

necessary process as tribes struggle to regain control over a portion 

of their lands. 

In this era of self-determination, tribes have developed internal 

expertise and experience to effectively manage their own lands. 

Tribal governments are once again managing their lands in accordance with their culture and their needs, be it a need for development or a mandate for environmental stewardship. 

The decision to take land into trust by the tribal government has 

ramifications that may not have been considered. Tribes may wish 

to approach the issue from the perspective of, should we take this 

land into trust, instead of, we must take this land into trust. Real 

economic development flourishes in markets that exhibit both flexibility and predictability. 

Economic development in Indian Country requires, among other 

things, government transparency and accessible and stable legal 

and political infrastructure, and a tribal government that acts 

quickly in a market rife with competition. It is this latter point 

that argues against taking all land into trust. 

Perhaps the first question a tribe should ask is whether taking 

this land into trust will promote economic development. The tribal 

government may determine that the process takes too long, especially when compared to how fast markets move. In addition, budget constraints of the Department may make it a longer process, or 

perhaps the Department may eliminate tools that allow for effective and efficient applications to go through, such as the fee to 

trust consortiums. The tribal government may wish to consider 

that once it is in trust, the land cannot be collateralized to finance 

other projects. 

Once it is under Federal control, the tribe can no longer lease or 

market it as it sees fit. Instead, the Federal Government must now 

approve those acts. The government may weigh the benefits 

against the fact that the mere process of taking it into trust is time 

consuming, expensive, fraught with litigation threats, waste local 

political capital, and may impel the tribe to negotiate prematurely 

an intergovernmental agreement with their neighbors. 

If the land is taken into trust, the tribe will be able to clearly 

exercise its authority over the land. But in many cases, that authority has already been severely limited by the Supreme Court 

over the last few decades. 

Once the land is in trust, though, the tribe does know with some 

degree of certainty what laws apply on that land. The tribe knows 

that State and local taxation, zoning, and environmental laws are 

not applicable on those lands, but it is their laws that will be applicable. And if given the choice between having the land in trust or 

not in trust, most tribes will go with the former. 

If this is the case, then the Federal Government should ensure 

that it is the best partner in this process by allowing tribes to be 

fully competitive participants in their marketplace. This could be 

accomplished through passage of legislation that allows for tribal 

oversight of its leasing, such at the HEARTH Act, or through the 

Department’s clarification of the parameters of 25 USC 177. 

21 

In closing, I would like to offer my best wishes to Assistant Secretary Echo Hawk, his staff and the employees of the BIA as they 

continue to struggle with these complex and emotional issues. 

This concludes my statement. 

[The prepared statement of Mr. Artman follows:] 

PREPARED STATEMENT OF CARL J. ARTMAN, PROFESSOR OF PRACTICE, SANDRA DAY

O’CONNOR COLLEGE OF LAW, ARIZONA STATE UNIVERSITY

Good morning Mr. Chairman and members of the Committee. It is a pleasure to 

be here today to address the issue of backlogs at the Bureau of Indian Affairs on 

land related matters, and the impact that this has on the ability of tribes to govern 

and engage in economic development. 

When I served as Assistant Secretary–Indian Affairs, we identified the backlogs 

in fee-to-trust applications, probates, and leases as a foundational issue in problems 

that impacted tribes on numerous levels. This backlog prohibited tribes from fully 

exercising their sovereignty and jurisdiction over these lands, inhibited tribal economic development, and forestalled the vesting of rights for individual tribal members. 

The need to address this issue became immediately apparent at the first hearing 

this Committee held on this issue during my tenure, on October 4, 2007. In preparing for the hearing, we were not able to gather consistent data to quantify the 

problem for ourselves, for you, or our tribal stakeholders. The Department could not 

identify, with certainty, the number of pending fee-to-trust applications in the regions; it could not determine when off-reservation trust applications first came to 

the Central Office; and it could not determine the status of pending leases. I pledged 

to you, at the end of the hearing, that we would resolve these issues and make substantial forward progress. 

On May 22, 2008, this Committee revisited the issue. At that point we were able 

to report significant progress. In the eight months between hearings, the employees 

of the Department involved in leasing and trust acquisition focused their efforts to 

resolve these identified issues. In that time: 

1) We were in the final phase or completed the process to take into trust nearly 

65,000 acres of land. 

2) We completed the transition to the Trust Asset and Accounting Management 

System, thereby improving the Department’s access to current data regarding 

the status of land holdings and applications. 

3) We identified the number and locations of pending commercial leases in the 

Department’s system. 

4) We assigned additional personnel to help reduce the lease backlog associated 

with recent oil and gas lease bids. 

We began the process to reduce the backlog of applications by looking at potential 

policy changes, through either new or amended regulations. Compilation and analysis of the data quickly revealed that the backlog was not a policy problem, but a 

management choice. The regulations at 25 CFR 151 et seq. adequately outlined the 

necessary processes to acquire the land into trust. The Department did not manage 

those processes to incentivize and finalize the trust acquisition. 

Therefore, we changed our approach the fee-to trust process. First, we quantified 

and qualified the extent of the backlog. We were able to determine that the Department had 1,489 fee-to-trust applications. 

Second, we made completion of the fee-to-trust applications a priority that manifested itself in annual performance goals that impacted every person involved in the 

fee-to-trust process, ranging from the intake specialist at the agency level all the 

way to the director of the Bureau of Indian Affairs. The Department has excellent 

employees that want to perform at their best. However, they have too many demands on their time and, often times, little direction on what to do first. The BIA 

does not have employees dedicated to only fee-to-trust acquisitions. This is a responsibility that falls onto the shoulders of persons that review leases, process lease payments, answer data calls, and contend with various other issues that fall on their 

desk everyday. If these tasks are not prioritized through a meaningful method, all 

of the tasks will suffer. The other option is appropriation of funds to hire and train 

additional personnel to efficiently manage all the issues currently managed by one 

person. 

Our third initiative was the development of a Fee-to-Trust Handbook. At that 

time, each of the BIA’s eleven regions receiving fee-to-trust applications managed 

22 

the process differently. Applicants in one region were required to submit an environmental impact statement, while an applicant in another region with a similarly situated piece of land would qualify for a categorical exclusion. In some regions, applicants would submit reams of information regarding the status of the land, and 

merely a summary in others. This national inconsistency bred frustration, imposed 

geographical discrimination, and baited litigation. Regional domination of the process made meaningful data collection and analysis impossible. 

Deputy Director Vicki Forrest managed with aplomb the Handbook development. 

It was approved and disseminated to the regions in May 2008. It is now used by 

all of the regions, and, hopefully, it has brought some consistency to the fee-to-trust 

process. 

Finally, we addressed unique problems with unique solutions. Applicants seeking 

to take off-reservation land into trust for non-gaming purposes had a unique problem. To resolve this matter, we replaced the three people that allowed these applications to linger, sometimes over a decade, with one very motivated person. Kevin 

Bearquiver, now the Deputy Director for Indian Services, reviewed each of the 44 

applications over a four month period, made final determinations on some of them 

or requested specific information from the applicant Tribes to allow for final determinations. 

By May 2008, we were able to return here and tell you that of the 1,489 applications, 89 were completed, 266 were moving into the final stages of acquisition, 90 

were withdrawn, and 613 pending requests lacked sufficient information required 

by the regulations. Of the remaining 363 land-into-trust applications: 

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

responses to questions; 

• 45 were undergoing NEPA analyses; 

• 35 were being surveyed for hazardous materials impacts; and 

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

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

I wish I could tell you we had similar success with leasing and appraisals. The 

best we were able to accomplish in the eight months between hearings was an accurate quantification of the outstanding appraisals and leases. We began discussion 

of a solution for appraisals that involved the use of blanket appraisals of lands that 

could be similarly situated. With regards to leases, we moved people, funds, and 

equipment to concentrate on unique issues in specific areas, such as the processing 

of oil and gas leases on the Fort Berthold Reservation and commercial leases for 

the Agua Caliente tribe in the Palm Springs Office. 

The Department of the Interior and its Bureau of Indian Affairs improved the 

timeline for taking land-into-trust. The real impact will occur if these improvements 

are made a part of the fabric of the organization. The Department and the BIA are 

sometimes a necessary and sometimes a helpful partner with the tribes in developing the latter’s future. Tribes must carefully gauge their reliance on the Federal 

Government. And tribes should render the strategic determination if they want or 

need land taken into trust for economic development. 

The purpose of taking land into trust, set out in the Indian Reorganization era, 

was to reestablish the land base that had been allotted in the previous decades. This 

land base would create a foundation for tribal governments to exercise their sovereignty to the exclusion of others. It would provide tribes the protection of the Federal Government in the ownership of the land, a protection that harkened back to 

pre-colonial times through the initial years of our government, and in the exercise 

of their jurisdiction. This IRA based process is still a very necessary process as 

tribes struggle to regain control over a portion of their lands. 

In this era of Self-Determination, tribes have developed the internal expertise and 

experience to effectively manage their own lands. Tribal governments run their own 

land, title, and records offices. They regulate land use through their own laws that 

oversee development and conservation on the reservation. Tribal governments are 

once again managing their lands in accordance with their culture and needs, be it 

a need for development or a mandate for environmental stewardship. 

The decision to take land into trust by the tribal government has ramifications 

that may not have been considered. Tribes may wish to approach the issue from the 

perspective of ‘‘should we take this land into trust,’’ instead of ‘‘we must take this 

land into trust.’’ 

The Federal Government states it wants to promote economic development in Indian country. It supports this claim with programs like loan guarantees, the 477 

program, training grants, and bonding authority. It also claims that taking land into 

trust will further economic development. This is a concept I promoted when speakVerDate Nov 24 2008 09:59 Aug 31, 2010 Jkt 057357 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 S:\DOCS\57357.TXT JACK PsN: JACKF
23 

ing about this issue. And yes, taking land into trust may help a tribe with an aspect 

of its economic development plan. Some of the aforementioned federal programs may 

be limited to use for developments on trust land. The exercise of sovereignty may 

benefit tribal economic development in determining the use of the land, the timing 

of development, and the extent of sovereign immunity for those entities that operate 

on those lands. 

Real economic development flourishes in markets that exhibit both flexibility and 

predictability. Economic development in Indian country requires, among other 

things, government transparency, an accessible and stable legal and political infrastructure, and a tribal government that acts quickly in a market rife with competition. It is the latter point that argues against taking all land into trust. 

Perhaps, the first question a tribal government should ask is whether taking this 

land into trust will promote economic development. The tribal government may determine that the process takes too long, especially when compared to how fast the 

market moves. In addition, budget constraints on the Department may make it a 

longer process or perhaps it will eliminate tools like the fee to trust consortium. The 

tribal government may wish to consider that once it is in trust, the land cannot be 

collateralized to finance other projects. Once it is under federal control, the Tribe 

can no longer lease it or market it as it sees fit, instead the Federal Government 

must now approve those acts. The government may weigh the benefits against the 

fact that the mere process of taking it into trust is time consuming, expensive, 

fraught with litigation threats, wastes local political capital, and may compel the 

tribe to negotiate prematurely intergovernmental agreements with their neighbors. 

If the land is taken into trust, the tribe will be able to clearly exercise its authority over the land. But in many cases that authority has been limited over the decades by the Supreme Court. Once the land is in trust, the tribe knows, with some 

degree of certainty, what laws apply on that land. The tribe knows that state and 

local tax, zoning, and environmental laws are not applicable on those lands. And 

if given the choice between having the land in trust and not in trust, most tribes 

will go with the former. 

However, this could become less of a Hobson’s Choice if the Department made a 

clear determination on the applicability of 25 U.S.C. 177 to on-reservation lands. Especially since the Department is not sure how 25 U.S.C. 177’s restraint on alienation applies to fee lands in reservations, thereby essentially foreclosing the benefits 

of on-reservation fee land. 

In the last administration, a Solicitor’s Opinion from the Department may be read 

to imply that Indian tribes’ authority to engage in real estate transactions relating 

to lands they own in fee simple absolute title extends only to off-reservation land 

and that tribe must seek federal approval for sales, leases, and mortgages of reservation fees lands. Federal courts that have addressed this issue have rejected this 

implied limitation on tribal authority. Tribes routinely engage in transactions relating to reservation fee lands without federal approval. BIA has not claimed any approval authority over them nor is it likely that BIA, already overburdened, wants 

to assume these new duties. 

This opinion has the potential to limit choices in Indian country and sow doubt 

among title companies regarding the authority of tribes to engage in real estate 

transactions relating to their lands owned in fee simple title. This could inhibit economic development, create further unacceptable delays in closing business transactions and tribal home loans, and force tribes, alone among owners of fee land, to 

incur costs of obtaining acts of Congress in order to engage in routine real estate 

transactions. 

Tribal sovereignty would suffer as tribal governments’ decisions become subject to 

second-guessing by federal bureaucrats. In view of the circumstances that the Federal Government most likely does not want to assume additional trust burdens, the 

potential oversight impinges on a forty-year old federal policy of encouraging tribal 

self-determination, and that this may limit tribal options, the Interior Department 

should issue an additional opinion that Section 177 does not apply to lands owned 

by tribes in fee simple absolute and that tribes require the approval of neither the 

Interior Department nor the Congress to use these lands as the tribes see fit. 

I offer my best wishes Assistant Secretary Echo Hawk, his staff, and employees 

of the BIA as they continue to struggle with these complex and emotional issues. 

This concludes my statement. 

Senator UDALL. Thank you, Mr. Artman. 

And please, Chairman Bailey, please go ahead. 

24 

STATEMENT OF HON. DEREK BAILEY, CHAIRMAN, GRAND 

TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS 

Mr. BAILEY. Good morning. First, I would like to recognize Chairman Dorgan for holding this hearing, and also Chairman Udall and 

Senator Franken for your attendance here, and also honorable 

Members of the Committee. 

I very much appreciate the invitation to appear before the Committee today. My tribe, the Grand Traverse Band of Ottawa and 

Chippewa Indians, is located on the shores of Grand Traverse Bay 

in the northwest lower peninsula of Michigan. It consists of approximately 4,000 members who descend primarily from the Odawa 

and Ojibwa and Anishinaabek. 

The United States and the Grand Traverse Band entered into a 

series of treaties in the 19th century. However, as the Federal 

courts have found in 1872, the Secretary of Interior illegally terminated Federal recognition of our tribe. The United States washed 

its hands of us and we had to fight for over a century to regain 

Federal recognition. 

During that time period, we endured great hardships, including 

loss of almost our entire land base. When we were restored to Federal recognition in 1980, we had only a tiny 150-acre State reservation set aside for our use. The placement of land into trust for the 

Grand Traverse Band has hence played a critical role in the revitalization of our governmental, social and economic institutions 

and, indeed, in our very ability to function as a tribe. 

Since 1980, the Secretary has taken 43 parcels of land into trust 

for us, totaling approximately 1,000 acres. All of these trust acquisitions have fallen within the Band’s historic territory surrounding 

Grand Traverse Bay. 

We have utilized these trust acquisitions for four critical governmental purposes: First, in order to provide core governmental services such as tribal government offices, a health clinic, a tribal 

court, law enforcement and natural resources management; second, 

for critically needed housing for our members; third, for economic 

development and diversification; and fourth, for treaty rights-related activities. 

While the restoration of a small portion of our territory through 

the land into trust process has been essential to the revitalization 

of our tribe, we cannot function in a fully effective manner as a 

government without additional lands. 

Unfortunately, however, the land into trust process has become 

tortuously slow and complicated. As is the case with so many other 

tribes, we have been stymied by the failure of the Department to 

act on trust applications for years, even when those applications 

are not objected to by the State or local units of government, and 

even when they involve lands that will allow us to provide critical 

services to our community. 

By way of example, in November of 2007, the Department returned to us as being too old four trust applications that we filed 

between 1992 and 1994. All four of those applications involve land 

parcels that fall within the heart of our historic territory and that 

are contiguous to our existing trust properties. One of the parcels 

would be used for critically needed housing for members. The second already contains tribal member housing, but because the land 

25 

is not in trust, complicated jurisdictional problems arise that 

thwart our ability to effectively govern the area. The third would 

be used to provide safe access to Lake Michigan where many of our 

members exercise their treaty fishing rights. And the fourth would 

be maintained in its current forest condition in order to allow our 

members to exercise their treaty gathering and hunting rights. 

None of the applications is gaming-related. 

Even though the State and local units of government do not object to these applications, they languished at the Department for 

well over a decade. No amount of effort on our part was able to 

move the applications along. Then, in 2007, the applications were 

returned to us as too old, even though it was the Department that 

was responsible for their long pendency. 

In addition to the four returned applications, we presently have 

eight trust acquisition requests pending with the Department. 

Once again, several of these applications have been pending for 

over 15 years. Although the proposed acquisitions fall within the 

Grand Traverse Band’s historic territory, almost all are contiguous 

to existing trust lands, none are gaming-related, and none are objected to by the State of Michigan or any local unit of government. 

The Band intends to use the parcels for housing, the provision of 

governmental services, the exercise of treaty hunting and fishing 

rights, and economic development and diversification. 

As one example, parcel 45 in Antrim County is a 78-acre parcel 

that is zoned for residential development by the local township and 

county. In order to attain the zoning, our tribe spent $1.5 million 

for roads and for sewer, water and electrical infrastructure to 

render the parcels ready for individual housing. The parcel contains two homes owned by tribal members, two Grand Traverse 

Band rental homes, and 22 empty lots available for tribal members 

to construct housing. However, until the land is placed into trust, 

tribal members cannot obtain the leases necessary to secure housing financing. 

Our trust application for this parcel was filed in 2001 and we 

have applications pending that are considerably older than that. 

Although the Department is now apparently deferring action on 

any of our applications until it sorts through the implications of the 

Carcieri decision, or until corrective legislation is passed by Congress, they should have acted on these parcels years ago and certainly long prior to the time that the Carcieri decision introduced 

additional complexities into the process. 

I hope that my testimony underscores the need for significant reforms to the present land into trust process. The Grand Traverse 

Band tribal government is working as hard as possible to improve 

the lives of our citizens and to further revitalize our governmental, 

social and economic institutions that commenced with our restoration to Federal recognition. 

The terrible delays that presently plague the land into trust 

process are a major impediment to our efforts and to similar efforts 

by tribal governments around the Country. We have included several recommendations for action in the written testimony that we 

have filed with the Committee, and I want to say thank you, 

[greeting in native tongue] again for the opportunity to appear before you today. 

26 

[The prepared statement of Mr. Bailey follows:] 

PREPARED STATEMENT OF HON. DEREK BAILEY, CHAIRMAN, GRAND TRAVERSE BAND

OF OTTAWA AND CHIPPEWA INDIANS


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Senator UDALL. Thank you, Chairman Bailey. 

Chairman Bailey, you mention in your testimony that early trust 

applications were typically processed within a year or two of submission, but that now you have applications that have been pending for 15 years. And you also mentioned some intermittent activity. In your opinion, what is the reason that trust applications used 

to be processed in a timely manner compared to now, when you 

have applications pending for several years or decades? 

Mr. BAILEY. To answer that question, I will give some history. In 

2008, we had approximately 200 acres of land that was spread over 

a number of parcels taken into trust for us. But in that illustrates 

also the problems with the current land into trust process. Those 

applications in question were pending from, again, anywhere from 

eight to 14 years. 

Still, the Minneapolis Regional Office, which we deal with as a 

self-governance tribe, showed no signs of acting on the applications. 


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31 

It took the former Chair, and that’s why I wanted a historical part 

to my answer, being just a year now seated as Chair, there is historical content that I am not as strong on. But it took the Chair 

and other leaders repeated visits to the office, to the central office 

here in Washington urging action be taken on the pending applications, but nothing happened. 

Now, we succeeded ultimately because of the relationship, the superintendent realty officer at the Michigan agency expressed a willingness to assist us, and because the Regional Director authorized 

them to do so. 

All this required a tremendous amount of resources, expenditure 

of resources and time on our part. But this one time success, did 

nothing to fix the long-term problems that we see with a regional 

office that failed to satisfactorily discharge its land into trust responsibilities. 

Senator UDALL. I think you also mention in your testimony that 

the Carcieri opinion has impacted some of your applications. Do 

you support a fix to that? Or what are you recommending be done 

there? 

Mr. BAILEY. Chairman Udall, I appreciate the question for our 

response. The Grand Traverse Band strongly, you know, we believe 

firmly that under Federal jurisdiction 1934. Hence we remain entitled to the benefits of the Indian Reorganization Act under the 

terms of the Carcieri decision, but it is not clear to us how the Interior Department is going to apply the decision. However it acts, we 

do feel significant litigation will follow. But the Grand Traverse 

Band does support, I think you termed it earlier, the response was 

a legislative fix. 

Senator UDALL. Yes. Thank you, Chairman Bailey. 

Mr. Artman, one of your initiatives, and I think you talked about 

it in your testimony, was creating a fee to trust handbook, and that 

brought consistency. I think you testified to that process. Do you 

think a similar handbook would be helpful for processing of appraisals, leases or other land transactions? 

Mr. ARTMAN. I think certainly for leases it would be helpful, especially since there are many different kinds of leases out there, to 

the degree that they need to come back to the Department of the 

Interior. 

One of the bills pending currently before Congress, I believe it 

is called the HEARTH bill, which would allow for a Navajo-type 

leasing process that tribes could take on themselves. That might be 

the best fix to it. 

Short of that, a leasing handbook or policies or processes, internal guidelines that explain how best to bring leases in would be 

good for processing the leases as well. 

But you also have a human resources issue there as well that 

needs to be addressed that no handbook or efficiency in the processes will be able to overcome. And again, it does become a matter 

of priorities and funding because people and technology can only do 

so much. 

Senator UDALL. Listening to Chairman Bailey and the problems 

he has had, and then your experience there at Interior, what would 

you recommend be the first couple of actions taken by the new Assistant Secretary to get through this? 

32 

Mr. ARTMAN. I think the Department of the Interior has, some 

of its best resources are its people, the people that are on the 

ground in the regions at the Agency levels, they understand where 

the land is situated, the needs that the tribes have, and empowering those individuals to do their very best. And that can be done 

through prioritizing, which this Administration is certainly doing, 

putting those priorities into performance standards that put mandates on the individuals to pass their annual performance exams, 

performance standards, to meet certain goals and objectives. That 

seemed to work very well for us because it did shift the priority 

over. 

Along with that, you have to manage, for better or worse, the 

fact that there will be something lost in that process unless there 

are more people brought on board or more technology installed into 

the process to pick up the focus that is placed elsewhere. 

Senator UDALL. Thank you, Mr. Artman. 

Senator Franken? 

Senator FRANKEN. Thank you, Mr. Chairman. 

Mr. Artman, I was struck by the part of your testimony when 

you talked about Kevin Bearquiver. And basically, what you describe is that he accomplished himself in four months what three 

employees had failed to accomplish in a decade. Is this something 

to learn from, how did he do what he did? And what can we learn 

from it? And what can others learn from it? 

Mr. ARTMAN. I think Mr. Bearquiver is a good example of some 

of the motivation, intelligence and capabilities that exist within the 

Department of the Interior. And having worked with him before in 

the Department on other matters and heard from others, his supervisors, on what an excellent individual he was, and he understood 

the issue, very importantly. 

The frustration that I had with that office that was reviewing 

those was unbelievable. In preparing for that very first hearing in 

October, 2007, we were going over leases, land into trust on-reservation, land into trust off-reservation, where the applications 

were. One of the individuals said to me that they were looking for 

a particular application that allegedly came in years before, and we 

couldn’t find it. And then she went to her desk and she found it 

after she dug through the bottom of the pile. It was in a FedEx envelope that was sent in years earlier. 

Now, you think if someone’s going to go through the trouble of 

sending in next-day delivery through Federal Express that they are 

actually going to receive it. They are going to open it up at least 

within a day or two, and at least begin to process it. Because someone is saying to them, this is important to us, that we have a 

record that it was delivered to you and delivered to you quickly. 

When I heard this, I was dumbfounded and realized that we had 

to make a change in that area. It was an experiment to be able to 

put one person in there, but it worked well. 

Senator FRANKEN. Don’t you think someone sending a FedEx 

package would call the next day and say, did you get it? 

Mr. ARTMAN. They did. That is the thing, because they did. 

Senator FRANKEN. Okay. 

33 

Mr. ARTMAN. They did. They had lobbyists. They had lawyers. 

The tribal leaders called themselves, and still this was coming to 

a dead end. 

But that office certainly doesn’t represent the BIA. That is the 

worst example that you could probably find out there. You might 

be able to find a few others, but that is one of the worst examples 

that you could find out there. 

I think what the motivation that Mr. Bearquiver showed when 

he was put into that position, and when he went through those applications one by one, calling up the tribes saying, where it this? 

What does this mean here? How can we change this? He was working with them. That shows the motivation that is probably more 

prevalent in the Department of the Interior at both the central office, the regional offices and the Agency level than the other way 

around. So it is a matter of tapping into that and pulling that out. 

Senator FRANKEN. That just worries me, someone having a pile. 

Mr. ARTMAN. It is not there anymore. 

Senator FRANKEN. I mean, I have piles, but I have a different 

kind of job. I don’t process these things. 

Senator UDALL. You also have a staff. 

[Laughter.] 

Senator FRANKEN. Exactly. 

Senator UDALL. Get them to tackle that pile. 

Senator FRANKEN. Yes. I mean, I have piles at home. 

[Laughter.] 

Senator FRANKEN. Is what I was saying. 

How does the BIA—this is for either of you—make the rulings? 

On what basis? 

Mr. BAILEY. Chairman Udall, if I could just confer. I have the 

General Counsel from the Grand Traverse Band here. 

Senator UDALL. Please, please. 

Mr. BAILEY. I am sorry to defer, but I wouldn’t mind a moment 

while he is responding. 

Mr. ARTMAN. Sure. How does the BIA make the decisions? You 

know, as Mr. Skibine alluded to earlier, the 151 regulations are relatively simple. They take up all of two columns in the regulation. 

If you go off-reservation, you are looking at an additional four or 

five paragraphs there. 

The Department of the Interior receives a lot of applications. The 

question was asked earlier, how many were received in the last 

year—and this by way of example of how many applications received. In the last hearing that I did on this in May, 2008, I believe 

that there were 1,400 applications pending, so that would, say, approximately 500 new applications were received. If that is the case, 

you have the process where it comes into the TAAMS (Trust Asset 

and Accounting Management System) and then it is marched 

through that process. 

But one of the things that we did and I think one of the things 

that this Administration is doing as well is not just taking a look 

at these as objective applications, but as they get further into the 

process, determining which ones can actually be done more quickly, 

which ones need to be done more quickly, is there a commercial 

purpose, a housing purpose, is this something that will necessarily 

take a long time because of the lack of information, because of a 

34 

lien that may be on it, or if there is a NEPA problem, if there is 

an environmental issue. 

Senator FRANKEN. So you are prioritizing them—you are kind of 

doing a triage. 

Mr. ARTMAN. Yes. One of the things that we did, for example, 

was when we finally were able to quantify and qualify what kind 

of applications that we had, we determined that there were 215 applications that we could deal with now. We had all of the information that was necessary. It was all timely. There were not problems. And of those 215 applications, I think within seven or eight 

months we were able to get through about 60 percent of those, a 

little bit under. 

So that is the kind of triage that we were doing. I think that they 

are still doing it now as well. 

Senator FRANKEN. Mr. Chairman, did you have—— 

Mr. BAILEY. Yes, Senator Franken, I think it would be beneficial 

to have a tribal perspective responding. 

Senator FRANKEN. Right. 

Mr. BAILEY. I do want to make note that we believe that there 

are many fine people that are working on the land into trust issues 

at the Interior Department. The people at the Michigan Agency are 

excellent. Our field solicitor in Minneapolis has been very helpful. 

There are many highly skilled individuals acting in good faith in 

the central office as well, including Mr. Skibine, and we listened 

to the testimony earlier as far as the direction that was being 

handed down, as they are guided from the top down. And so there 

is some worry, some components to that historically, as I sit here 

as a current leader today, understanding the history that leads to 

the oversight hearing today. 

But somewhere within the Department, the process and the trust 

applications, there is a breakdown. And looking from the outside 

in, I don’t know why. I could say we, as a tribe, don’t know why 

or where that happens. But I will make the statement that this is 

why we believe it is very important that the Department establish 

and adhere to fixed guidelines regarding the processing of trust applications. 

Senator FRANKEN. Okay. So basically, you deal with very good 

people, but that said, somewhere in there, the stuff gets lost. 

Mr. BAILEY. Senator, thank you. Again, highlighting the individuals that we are working with—— 

Senator FRANKEN. Right. 

Mr. BAILEY.—I know that. And correct me if I am wrong, Mr. 

Artman, but since 1980, I believe there has been about 30, approximately 30 memorandums or guidelines from the Department. And 

it has been complicated, or they have been—the correct word is 

when—I am trying to search for a word. I am sorry, sir. But when 

they conflict and there is no adherence or sequential. 

Senator FRANKEN. You are getting conflicting memos. 

Mr. BAILEY. That is exactly—yes, conflicting. 

Senator FRANKEN. Yes. I know what that is like. 

Okay. So from the tribe’s perspective, you are dealing with very 

good people, but somewhere in there it is just not getting done. 

Mr. BAILEY. And I just have to quote my testimony, and also the 

written testimony. You know, 15 years, and, you know, still waitVerDate Nov 24 2008 09:59 Aug 31, 2010 Jkt 057357 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 S:\DOCS\57357.TXT JACK PsN: JACKF
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ing, then having them come back and saying they are too old. You 

know, tribes, we did our part. Our leaders took the initiative, put 

forth the energy, the resources, commitment to that. And then to 

have it fall short, and then from outside the tribal responsibility in 

this matter, to have it said it is too old and have them returned. 

Senator FRANKEN. Now, Mr. Artman—— 

Mr. BAILEY. Those parcels are—I am sorry. 

Senator FRANKEN. No, no. I was just going to say, Mr. Artman, 

Mr. Skibine talked about you glowingly and that there was sort of 

a change when you showed up. Okay? 

Mr. BAILEY. Yes. 

Senator FRANKEN. So you clearly are a proactive person. And so 

a proactive person who came into an organization where there was 

some stasis, shall we say, regarding this. And again, I talked about 

Mr. Bearquiver. 

What is the answer here? I mean, you see Chairman Bailey talking about good people he is talking to, but then it just kind of goes 

into some kind of cloud or something. What is going on? 

Mr. ARTMAN. Well, I hope between having consistency across the 

Nation through the fee to trust handbook, and I hope by starting 

off the concept of putting the fee to trust or leases into the performance standards, and training the individuals. Right now, each person is worked into the budget for the salary of the individual. 

There is training money that is set aside, essentially, in that number that you see for the personnel. 

It is important that the Department and the individuals take advantage of that. Constant reeducation and keeping the mind sharp 

on these issues is critical. And that is what you see in people like 

Mr. Bearquiver and many of the people throughout the central office and the regions. They exemplify the best in what I think is 

probably the overwhelming majority, of the thought, the hope and 

the intentions of the people to do that. 

I think, you know, this has to be from the top down, and certainly Mr. Skibine said it, that this is a priority for this Administration. This was a priority when I was at the Department. And 

if this is going to be the same kind of thought that continues on 

from Administration to Administration, Assistant Secretary to Assistant Secretary, then we are going to start to establish something. 

And I would hope that in two or three years, once this becomes 

part of the fabric, part of the culture, that Chairman Bailey, or his 

successors or something, if the next election not work out, can come 

back here and say we have had improvements, that we have seen 

our land go into trust, and that working with the government has 

now become a good experience. 

And I think in the work that we did, we started to see that from 

tribes saying, yes, this is finally working for us. 

Senator FRANKEN. I hope you are right. I hope that happens. And 

thank you, both gentlemen, for your testimony. 

Thank you, Mr. Chairman. 

Senator UDALL. Thank you, Senator Franken, and thank you for 

your important participation today and for staying through both 

panels. I appreciate it very much. 

36 

We know from the hearing today, from both panels, that these 

are very important issues to tribes. 

You know, Chairman Bailey, you really highlighted it, talking 

about the issues that concern your tribe in terms of the applications, and you really brought that home. So we know we want this 

process to move forward. 

And in that respect, Mr. Skibine and Ms. Forrest, we really appreciate you staying over and listening, and hope that maybe some 

ideas were generated here, and something that will be helpful. 

We appreciate, Mr. Artman, you and Chairman Bailey for being 

here today and testifying and helping us out with this very important issue. 

The hearing record will remain open for two weeks from today. 

This hearing is adjourned. 

[Whereupon, at 11:25 a.m., the Committee was adjourned.] 

(37) 

A P P E N D I X 

PREPARED STATEMENT OF HON. DELORES PIGSLEY, CHAIRMAN, CONFEDERATED

TRIBES OF SILETZ INDIANS OF OREGON


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PREPARED STATEMENT OF HON. ELAINE FINK, CHAIRPERSON, NORTH FORK

RANCHERIA OF MONO INDIANS OF CALIFORNIA

On October 3, 2007, Madera County Board of Supervisor Frank Bigelow came before this Committee to urge the Department of the Interior to end months of delay 

and publish the draft environmental impact statement (‘‘EIS’’) for the North Fork 

Rancheria on Mono Indians’ (‘‘North Fork’’ or ‘‘Tribe’’) fee-to-trust and casino/hotel 

project. As Madera City Council member Gary Svanda testified in the follow-up 

hearing on May 22, 2008, the draft EIS was finally published on February 15, 2008, 

about a year after it had been completed. 

Now almost two years later, the Department is once again holding up the environmental review process for our project, this time by not publishing the final EIS that 

was completed approximately four months ago. While we understand that the Department is again reviewing its off-reservation gaming policy, that review should 

not delay publication of our final EIS. The final EIS must be published before the 

Secretary of the Interior can make a decision on our application; it is not the decision itself. Publication of the final EIS is not a decision on the merits and is not 

dependent upon any policy other than the requirements of the National Environmental Policy Act (NEPA). 

Our project complies with existing law and the commutability standard established in January 2008 under the prior Administration. The proposed site, identified 

in cooperation with local representatives, is less than 40 miles from the North Fork 

Rancheria. The rancheria itself is not a viable commercial site as it is located on 

a steep hillside in the Sierra foothills and is held in trust for a few individual residents and not for the Tribe. Although the proposed site may be eligible for gaming 

as restored lands, we are proceeding through the more difficult and transparent Secretarial two-part process of Section 20 of the Indian Gaming Regulatory Act. 

It is hard to understand the delay, especially in light of current economic conditions. Our project would create over 4,000 jobs in an area with among the highest 

unemployment rates in the Nation. It would also generate millions of dollars in revenue for state and local government under our Tribe’s compact with the Governor 

of California and binding agreements with the County of Madera, the City of 

Madera, and the Madera Irrigation District. Further, the project would generate additional revenues for tribal programs and services for our 1,800 tribal citizens and, 

under our compact, for the more than 600 tribal members of the Wiyot Tribe in 

Northern California coast. 

The delay makes no sense in terms of law or policy, and is very costly to our 

Tribe, which is the largest restored tribe in California. Interest continues to accrue 

on the significant development expenses we have incurred since early 2004, including purchasing the land and paying for the environmental review. The local community has been incredibly supportive of our project and vision for the region, but they 

and our own tribal citizens are growing increasingly frustrated by the delay. Each 

day of delay costs the community approximately $275,000 in economic activity and 

denies jobs and opportunity to our tribal citizens and local residents. 

We understand that our project is not the only one being delay. The Department 

has not taken any action on any off-reservation project for months. Although we had 

high hopes that we would not face unnecessary bureaucratic delays in the new Administration, there is, in effect, a moratorium on taking lands into trust for gaming 

purposes. It is our hope that this Committee can help bring to light the nature and 

extent of the current delay as it is grossly unfair to our Tribe and contrary to existing law and policy. 

Thank you for the opportunity to comment. 

PREPARED STATEMENT OF GLENDA NELSON, CHAIRPERSON, ESTOM YUMEKA MAIDU

OF THE ENTERPRISE RANCHERIA OF CALIFORNIA

Since 2002, the Estom Yumeka Maidu of the Enterprise Rancheria (‘‘Tribe’’) has 

been pursuing the long and difficult process to have 40 acres of land taken into trust 

for a resort casino and hotel. The proposed site is located in a rural, voter-approved 

Sports and Entertainment Zone in Yuba County in the Central Valley. It would replace the 40 acres we lost when Congress authorized the sale of one of our two 40- 

acre rancherias to the State of California to become part of Lake Oroville as part 

of a large water project. The site is located approximately 35 miles from our remaining rancheria, which is located in a remote area of the foothills over an ancient 

Maidu village. 

Despite having identified a flat hayfield that the voters had already approved for 

development, the federal environmental review process for the site has now taken 

almost eight years. After preparing an environmental assessment, we agreed to pay 

54 

for the preparation of an environmental impact statement (‘‘EIS’’) after the Department changed its policy. We were then delayed while the prior Administration developed its Guidance Memo of January 3, 2008. After our project was deemed to be 

within a commutable distance of our ‘‘reservation’’, the draft EIS for our project was 

published on March 21, 2008. 

Since at least June 2009, the final EIS for our project has been ready for publication. Yet despite representations to the contrary, the final EIS remains unpublished. 

While we understand that the Department is again reviewing its off-reservation 

gaming policy, that review should not delay publication of our final EIS. Publication 

of the final EIS is not a decision on the merits and is not dependent upon any policy 

other than the requirements of National Environmental Policy Act (NEPA). 

Our project would create over 4,000 jobs in an area with among the highest unemployment rates in the Nation. It would also generate millions of dollars in revenue 

in economic development and provide additional revenues to the County of Yuba 

and City of Marysville under our binding agreements with both jurisdictions. Importantly, the project would generate new revenues for tribal programs and services 

that would benefit our nearly 800 tribal members. 

Our project complies with existing law and the commutability standard established in January 2008 under the prior administration. We are seeking to qualify 

the land for gaming under the difficult and transparent Secretarial two-part process 

of Section 20 of the Indian Gaming Regulatory Act. Ironically, neighboring tribes 

that were terminated, including some who oppose our project for competitive reasons, have not had to navigate this difficult process and consequently their members 

have for years benefitted from Indian gaming. We are glad for their success, but 

are anxious to advance the interests of our members through economic development 

and help end the generations of poverty and despair through which many have suffered. 

We understand that our project is not the only one being delay. The Department 

has not taken any action on any off-reservation project for months. Although we had 

high hopes that we would not face unnecessary bureaucratic delays in the new Administration, there is, in effect, a moratorium on taking lands into trust for gaming 

purposes. It is our hope that this Committee can help bring to light the nature and 

extent of the current delay as it is grossly unfair to our Tribe and contrary to existing law and policy. 

Thank you for the opportunity to comment. 

PREPARED STATEMENT OF THE INTERTRIBAL MONITORING ASSOCIATION ON INDIAN

TRUST FUNDS (ITMA) 

The Intertribal Monitoring Association on Indian Trust Funds (ITMA) is a representative organization of the following 65 federally recognized tribes: Absentee 

Shawnee Tribe, Alabama Quassarte Tribe, Blackfeet Tribe, Central Council of 

Tlingit & Haida Indian Tribes of Alaska, Chehalis Tribe, Cherokee Nation of Oklahoma, Cheyenne River Sioux Tribe, Chippewa Cree Tribe of Rocky Boy Reservation, 

Coeur D’Alene Tribe, Confederated Salish & Kootenai Tribes, Confederated Tribes 

of Colville, Confederated Tribes of Warm Springs, Confederated Tribes of Umatilla, 

Confederated Tribes of Yakama Nation, Crow Tribe, Eastern Shoshone Tribe, 

Ewiiaapaayp Band of Kumeyaay Indians, Fallon Paiute-Shoshone Tribe, Forest 

County Potawatomi Tribe, Fort Belknap Tribes, Fort Bidwell Indian Community, 

Fort Peck Tribes, Grand Portage Tribe, Hoopa Valley Tribe, Hopi Nation, Iowa 

Tribe, Jicarilla Apache Nation, Kaw Nation, Kiowa Tribe, Kenaitze Indian Tribe, 

Lac Vieux Desert Tribe, Leech Lake Band, Mescalero Apache Tribe, Metlakatla 

Tribe, Muscogee Creek Nation, Nez Perce Tribe, Northern Arapaho Tribe, Northern 

Cheyenne Tribe, Ojibwe Indian Tribe, Oneida Nation of Wisconsin, Osage Tribe, 

Passamaquoddy-Pleasant Point Tribe, Penobscot Nation, Pueblo of Cochiti, Pueblo 

of Laguna, Pueblo of Picuris, Pueblo of Sandia, Quapaw Tribe, Quinault Indian 

Tribe, Red Lake Band of Chippewa Indians, Sac and Fox Tribe, Salt River PimaMaricopa Indian Tribe, San Pasqual Band of Mission Indians, Sault Ste. Marie 

Tribe of Chippewa Indians, Shoshone-Bannock Tribes, Sisseton-Wahpeton Oyate 

Tribe, Soboba Band of Luiseno Indians, Southern Ute Tribe, Thlopthlocco Tribal 

Town, Three Affiliated Tribes of Fort Berthold, Tohono O’odham Nation, Turtle 

Mountain Band of Chippewa, Walker River Paiute Tribe, Winnebago Tribe of Wisconsin, and the Yurok Tribe. 

Mr. Chairman and members of the Committee, ITMA is pleased to present our 

views regarding backlogs at the Department of the Interior. My name is Michael 

Finley and I am the Chairman of the Colville Business Council, the governing body 

of the Confederated Tribes of Colville Reservation located in Washington state. I 

55 

also serve as Chairman of the Intertribal Monitoring Association on Indian Trust 

Funds, and I offer this testimony on behalf of ITMA. 

Established in 1990, ITMA is a national Tribal consortium, the membership of 

which consists of 66 federally recognized Indian Tribes. ITMA’s mission includes 

monitoring the United States’ trust reform efforts and providing a forum for Tribal 

consultation on trust issues. Consistent with its mission, ITMA conducts continuous 

outreach activities to inform Tribes and individual beneficiaries of the status of 

trust reform efforts within the Department of the Interior and reform efforts undertaken in Congress. 

ITMA has undertaken a number of projects over the years in furtherance of its 

mission. For example, pursuant to a Cooperative Agreement with the Department, 

ITMA participated in a joint effort with the Office of Historical Trust Accounting 

to develop a methodology that could be used, among other things, to assist the 

United States and participating Indian tribes to reach agreement on the balances 

of the tribes’ trust accounts. This project, called the ‘‘Tribal Trust Fund Settlement 

Project,’’ resulted in the development of a methodology available to Indian tribes for 

use in pending trust fund related lawsuits. That methodology was completed in July 

2008 and is currently being used by Indian tribes and the United States as a tool 

to resolve tribal trust claims. 

During the past six years, ITMA has conducted 18 Listening Sessions throughout 

Indian Country to obtain input from Indian tribes and individual Indians regarding 

the Department’s administration of Indian trust funds and trust land. At these Listening Sessions, tribal leaders and Indian beneficiaries often mention delays that 

they experience in getting land taken into trust and other transactions involving Indian trust land. 

One of the areas that has received significant attention at ITMA’s Listening Sessions of late has been appraisals. The Department of the Interior requires a formal 

appraisal for nearly all transactions involving Indian trust land. Indian tribes and 

individuals have noted delays in obtaining appraisals of trust lands, an inability to 

determine why appraisals are delayed, and the fact that the costs of appraisals are 

borne by Indian landowners. With the continued focus on economic development on 

Indian lands, when and under what circumstances appraisals are required and the 

ability of Indian beneficiaries to obtain them in a timely manner has become a subject of increasing interest. Although the BIA and the Office of the Special Trustee 

have significantly reduced the backlog of appraisal requests in calendar year 2009, 

Indian beneficiaries have expressed a desire to have the appraisal process streamlined on a going-forward basis. 

With this in mind, ITMA has submitted a proposal to the Department to facilitate 

a small work group to develop policy, regulatory and legislative options to promote 

Indian trust land consolidation and reduce fractionated land ownership. Part of this 

proposal will examine the current process for obtaining appraisals. The work group 

will meet over a six-month period and will identify and review existing policies and 

regulations that may inhibit trust land consolidation and, where appropriate, suggest revisions of these policies, including appraisal policies. The workgroup will also 

develop additional regulatory and legislative proposals to streamline and facilitate 

land consolidation, with the intent of presenting a package of suggestions to the Department for consultation with Indian Country. 

This proposal has been well-received by the Department and ITMA expects to 

begin this project in early 2010. ITMA is hopeful and optimistic that such an indepth review of these regulatory policies will result in recommendations that can 

be implemented quickly and that will alleviate many of the delays that Indian beneficiaries experience when trying to complete transactions involving Indian trust 

land. ITMA stands ready to serve as a resource for the Committee as it explores 

these and other issues in connection with today’s hearing, and we appreciate the 

opportunity to provide this statement for the record. 

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PREPARED STATEMENT OF HON. MATTHEW J. BOX, CHAIRMAN, SOUTHERN UTE

INDIAN TRIBAL COUNCIL


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PREPARED STATEMENT OF HON. MICHAEL FINLEY, CHAIRMAN, CONFEDERATED TRIBES

OF THE COLVILLE RESERVATION

Good afternoon Chairman Dorgan, Vice Chairman Barrasso, and members of the 

Committee. My name is Michael Finley and I am the Chairman of the Colville Business Council, the governing body of the Confederated Tribes of the Colville Reservation (‘‘Colville Tribes’’ or ‘‘Tribe’’). I appreciate this opportunity to provide written 

testimony on Department of the Interior backlogs. 

My written statement will focus on three issues that have contributed to backlogs 

and have greatly hindered the ability of the Colville Tribes and other tribes, both 

in the Northwest Region and nationally, to have land taken into trust: (1) the overly 

restrictive requirements associated with preparation of environmental site assessments; (2) unnecessary and burdensome BIA region-specific policies that make the 

fee-to-trust process more expensive; and (3) funding. We also provide some recommendations on how these problems can be alleviated. Collectively, these issues 

have contributed to a backlog at the Colville Agency of nearly 100 parcels of tribally 

owned land that have yet to be taken into trust. 

The Colville Indian Reservation encompasses approximately 2,275 square miles 

and is in north-central Washington State. Although now considered a single Indian 

tribe, the Confederated Tribes of the Colville Reservation is, as the name states, a 

confederation of 12 aboriginal tribes and bands from all across eastern Washington. 

The Colville Tribe has nearly 9,300 enrolled members, making it one of the largest 

Indian tribes in the Pacific Northwest. About half of the Tribe’s members live on 

or near the Colville Reservation. Like many land-based Indian tribes, the Colville 

Tribe is continually seeking to restore its land base by purchasing fee properties 

within the boundaries of its reservation and having these properties acquired in 

trust. 

Environmental Site Assessments in the Fee-to-Trust Process 

One of the requirements for fee-to-trust applications is the preparation of a Phase 

I Environmental Site Assessment (ESA). The federal Superfund law, the Comprehensive Environmental Response, Compensation and Liability Act (CERLCA), establishes a liability scheme for determining who can be held accountable for releases 

of hazardous substances on real property. CERCLA provides for an ‘‘innocent landowner’’ defense to liability if a landowner conducts due diligence prior to obtaining 

real property. Preparation of an ESA allows a landowner to take advantage of this 

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In 2005, the Environmental Protection Agency (EPA) promulgated new regulations for how ESAs are prepared. See 40 C.F.R. Part 312. Among other things, the 

2005 regulations created a new requirement that specific elements of ESAs must be 

prepared, or updated, within 180 days of the date of acquisition. Prior to the 2005 

rule, ESAs were valid for up to 12 months with the possibility of exceptions for 

longer periods for property located in adverse climatic or geographical areas. See 

602 DM 2. The 2005 regulations also created new, more stringent educational and 

professional qualifications for individuals who can prepare ESAs. Prior to 2005, the 

BIA determined whether an individual was qualified. It is unclear whether or to 

what extent the BIA was involved in the promulgation of this rule. 

The 2005 EPA rule has brought nearly all of the fee-to-trust activity at the 

Colville Agency to a standstill. Not only are the Colville Tribes and other tribes expected to pay for the preparation of ESAs, this expense is often multiplied because 

the ESAs expire and must be updated (at additional expense) for reasons wholly 

outside the tribes’ control. To make matters worse, and as discussed below, the 

Colville Tribes and all other tribes within the NW Region are prohibited from using 

their own employees to prepare ESAs because of a conflict of interest policy specific 

to the Northwest Regional office that prohibits tribal members from preparing ESAs 

for their own tribes. 

In short, the current regime for preparing ESAs for Indian trust land acquisitions 

is unduly burdensome and accommodations must be made to allow the fee trust 

process to proceed as quickly as possible and with the least expense on tribes. Because of the expense involved and the prospect for expiration of the ESAs, the 

Colville Agency has not—apart from fractionated interests for which ESAs are not 

required—had a single fee-to-trust application approved since the EPA rule became 

effective in 2005. 

Obstacles Imposed by BIA Regional Offices Contribute to Backlogs 

Another aspect of the fee-to-trust process that contributes to backlogs are fee-totrust requirements that are unilaterally imposed by individual BIA Regional offices. 

These policies, which affect those tribes located within the respective region, are 

often longstanding practices that may or may not have been reduced to writing or 

subjected to review by the BIA’s central office. Often, these policies are ‘‘just they 

way they have always done things’’ but are, for practical purposes, very difficult to 

rescind once institutionalized at the regional office level. 

The Colville Tribe is served by the BIA’s Northwest Regional Office in Portland, 

Oregon. The Northwest Region covers all tribes in Washington, Oregon, Idaho, and 

some tribes in Alaska and Montana. By way of example, the Northwest Region has 

in effect two policies that impose additional burdens on the fee-to-trust process: 

A. Conflict of Interest Policy for ESAs: Separate and apart from the 2005 EPA 

Rule, the BIA’s Northwest Regional Office adheres to a longstanding policy that 

it will not accept ESAs prepared by Indian tribes and their employees on tribally owned properties in fee-to-trust applications because tribes ‘‘have organizational conflicts of interest’’ with respect to these actions. The Colville Tribe understands that this policy exists out of the Northwest Regional Office’s concern 

that tribal members have a motivation to conceal potential contaminants in 

ESAs so as to transfer any burden for cleanup to the United States. Given the 

large number of tribal members who work for the BIA at their own tribes’ agencies, how and why such an outdated policy continues to exist remains a mystery. 

B. Chain of Surveys and Land Description Review Policy: A December 5, 2007, 

memorandum from the Northwest Regional Office directed that for all fee to 

trust applications, the tribal or individual applicant must have either the Bureau of Land Management (BLM) or a Certified Federal Land Surveyor prepare 

(1) a chain of surveys; and then (2) pay to have BLM perform a land description 

review. The memorandum explicitly states that ‘‘[a]ll costs associated with these 

reviews are the applicant’s responsibility.’’ This memorandum was apparently 

issued because of an isolated instance in which a parcel was taken into trust 

and it was belatedly discovered that the parcel’s legal description contained a 

discrepancy. The Colville Tribe understands that while the December 5 memorandum by its terms applies to all fee-to-trust applications it is, for practical 

purposes, intended for fee-to-trust applications that involve parcels located in 

urban areas or that otherwise have unique or complex circumstances. Against 

this backdrop, to impose these requirements on all tribal and individual fee-totrust applications is overly broad and unfair. For the Colville Tribes and other 

tribes in the Northwest Region that only seek to consolidate their tribal land 

66 

bases, compliance with this policy is nothing more than an added and unnecessary expense. 

These are but two examples of outdated or burdensome policies that one BIA region has in place that affect tribes in that region. There are likely countless other 

such policies scattered throughout the other BIA regional offices. 

Funding 

Finally, the Colville Tribe notes that in previous years funding was available for 

Indian tribes, at least in the Northwest Region, to conduct ESAs, cadastral surveys, 

and other required elements of the fee-to-trust process. This funding has largely disappeared as budgets for trust programs were cut in the last Administration. The 

Tribe is hopeful that the Administration will ensure that future budget requests include increases for trust programs. That Indian tribes such as the Colville Tribes 

are now being forced to use tribal funds for functions that were either formerly performed by the BIA or for which funding was previously made available is not, in 

our view, consistent with the United States’ trust responsibility. 

Recommendations 

The Colville Tribe has asked the BIA to immediately rescind both of the Northwest Region policies described above and understands that the BIA is currently reviewing them. For the conflict of interest policy and the preparation of ESAs generally, the Tribe has suggested to the BIA that a more reasonable approach would 

be to allow tribal members, after undergoing a certification or training program provided by the BIA, to conduct ESAs for parcels that have not been used for commercial purposes. The Affiliated Tribes of Northwest Indians and the National Congress 

of American Indians have both enacted resolutions at their respective 2009 annual 

conferences that support these recommendations. The Colville Tribe is hopeful that 

such a program can be implemented. 

The Colville Tribe believes it is imperative that the Department conduct a thorough review of all policies enacted by BIA regional offices to identify those policies 

that are outdated, unnecessary, or not required by the fee-to-trust regulations. After 

the policies are identified, the BIA’s political leadership must be willing to rescind 

those policies, even if it means doing so over the objections of the respective regional 

directors. 

The Colville Tribe appreciates the opportunity the submit this statement for the 

record. If you or your staff have any questions or would like additional information, 

please feel free to contact me. 

Æ