TRIBAL SELF-GOVERNANCE ACI' OF 1993 

HEARING 

BEFORE THE 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

OF THE 

COMMITTEE ON 

NATURAL RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

SECOND SESSION 

ON 

H.R. 3508/S. 1618 

A BILL TO PROVIDE FOR TRIBAL SELF-GOVERNANCE, AND FOR OTHER 

PURPOSES 

87-276 

FEBRUARY 25, 1994 

Serial No. 103-70 

Printed for the use of the Committee on Natural Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1995 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-046770·5 
COMMITIEE ON NATURAL RESOURCES 

GEORGE MILLER, California, Chairman 

PHILIP R. SHARP, Indiana DON YOUNG, Alaska, 

EDWARD J. MARKEY, Massachusetts Ranking Republican Member 

AUSTIN J. MURPHY, Pennsylvania JAMES V. HANSEN, Utah 

NICK JOE RAHALL II, West Virginia BARBARA F. VUCANOVICH, Nevada 

BRUCE F. VENTO, Minnesota ELTON GALLEGLY, California 

PAT WILLIAMS, Montana ROBERT F. SMITH, Oregon 

RON DE LUGO, Virgin Islands CRAIG THOMAS, Wyoming 

SAM GEJDENSON, Connecticut JOHN J. DUNCAN, JR., Tennessee 

RICHARD H. LEHMAN, California JOEL HEFLEY, Colorado 

BILL RICHARDSON, New Mexico JOHN T. DOOLITI'LE, California 

PETER A. DEFAZIO, Oregon WAYNE ALLARD, Colorado 

ENI F.H. FALEOMAVAEGA, RICHARD H. BAKER, Louisiana 

American Samoa KEN CALVERT, California 

TIM JOHNSON, South Dakota SCOTI' MciNNIS, Colorado 

LARRY LAROCCO, Idaho RICHARD W. POMBO, California 

NEIL ABERCROMBIE, Hawaii JAY DICKEY, Arkansas 

CALVIN M. DOOLEY, Califor;nia 

CARLOS ROMERO-BARCELO, Puerto Rico 

KARAN ENGLISH, Arizona 

KAREN SHEPHERD, Utah 

NATHAN DEAL, Georgia 

MAURICE D. HINC'~Y, New York 

ROBERT A. UNDERWOOD, Guam 

HOWARD L. BERMAN, California 

LANE EVANS, Illinois 

PATSY T. MINK, Hawaii 

THOMAS J. BARLOW Ill, Kentucky 

THOMAS M. BARRETI', Wisconsin 

JoHN LAWRENCE, Staff Director 

RICHARD MELTZER, General Counsel DANIEL VAL KISH, Republican Staff Director 

SUBCOMMlTI'EE ON NATIVE AMERICAN AFFAIRS 

BILL RICHARDSON, New Mexico, Chairman 

PAT WILLIAMS, Montana CRAIG THOMAS, Wyoming 

SAM GEJDENSON, Connecticut Ranking Republican Member 

ENI F.H. FALEOMAVAEGA, DON YOUNG, Alaska 

American Samoa RICHARD H. BAKER, Louisiana 

TIM JOHNSON, South Dakota KEN CALVERT, California 

NEIL ABERCROMBIE, Hawaii 

KARAN ENGLISH, Arizona 

TADD JOHNSON, Staff Director 

MARIE HOWARD, Professional Staff Member 

BARBARA RoBLES, Clerk 

RICHARD HOUGHTON, Republican Counsel on Native American Affairs 

(II) 
CONTENTS 

Hearing held: February 25, 1994 .......................................................................... . 

Text of the bills: 

H.R. 3508 .......................................................................................................... . 

s. 1618 ··············································································································· Section-by-section analysis of H.R. 3508 .............................................................. . 

~~~~us~~~!:·: 3508 and S. 1618 ................................................................. . 

Hon. Eni F.H. Faleomavaega ......................................................................... . 

~~~: g~\r~~~ .. :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 

Hon. Bill Richardson ....................................................................................... . Witness statements: 

Ada Deer, Assistant Secretary for Indian Affairs, U.S. Department of 

the Interior; accompanied by Ronald Brown, Acting Director, Office 

of Self-Governance, and Richard Monette, Director, Congressional and 

Legislative Affairs ........................................................................................ . Prepared statement of Ms. Deer .................................................................... . Panel consisting of: 

Hon. Marge Anderson, Chief Executive, Mille Lacs Band of Ojibwe, 

Onamia, MN, accompanied by Philip Baker-Shenk, Tribal Attorney .......................................................................................................... . Prepared statement of Ms. Anderson .............................................. . Comparison of self-governance bills with current law ................... . Hon. Edward K. Thomas, President, Tlingit and Haida Central Council, Juneau, AK ..................................................................................... . Prepared statement of Mr. Edward Thomas .................................. . Hon. Christine Collison, President, Ketchikan Indian Corporation, 

AK ··········································································································· Prepared statement of Ms. Collison ................................................ . Hon. Larry Nuckolls, Governor, Absentee Shawnee Tribe, OK ........... . Prepared statement of Mr. Nuckolls and attachment .................... . Hon. Herbert Whitish, Chairman, Shoalwater Bay Tribe, Tokeland, WA ......................................................................................................... . Prepared statement of Mr. Whitish ................................................ .. History of the Quinault Indian Reservation ................................... . Hon. George E. Bennett, Tribal Council Member, Grand Traverse 

Band of Ottawa and Chippewa Indians, Suttons Bay, MI ................ . Prepared statement of Mr. Bennett ................................................. . Panel consisting of: Hon. Dale Risling, Chairman, Hoopa Valley Tribe ............................... . Hon. Henry Cagey, Chairman, Lummi Indian Nation .......................... . Prepared statement of Mr. Cagey .................................................... . Hon. Joseph B. DeLaCruz, President, Quinault Indian Nation ........... . Prepared statement of Mr. DeLaCruz ............................................. . Myths about the Quinault Reservation ........................................... . Briefing paper on the Quinault Nation ........................................... . Audit Report on Selected Bureau of Indian Affairs Forestry Pro- gram activities related to the Quinault Reservation (91-1-

1336) ································································································ BIA memorandum on S. 2752, a bill to declare that certain 

lands be held in trust for the Quinault Indian Nation, and 

for other purposes .......................................................................... . Matt Kallappa, Policy Analyst, Makah Tribe ........................................ . Prepared statement of Mr. Kallappa ............................................... . 

(III) 

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Witness statements-Continued 

Panel consisting of-Continued 

IV 

William Lavell, Former Director of the Office of Self-Governance, 

Page 

Bureau of Indian Affairs, U.S. Department of the Interior ............... 152 

Prepared statement of Mr. Lavell ..................................................... 154 

APPENDIX 

FEBRUARY 25, 1994 

Additional material submitted for the hearing record from: Hon. John McCain, a U.S. Senator from the State of Arizona, and Vice 

Chairman, Committee on Indian Affairs: Letter to Chairman Richard- son dated February 25, 1994 ....................................................................... 215 

Cherokee Nation: Prepared statement of Hon. Wilma P. Mankiller, Principal Chief...................................................................................................... 217 

Chickasaw Nation: Prepared statement of Hon. Bill Anoatubby, Gov- ernor............................................................................................................... 222 

Confederated Salish and Kootenai Tribes of the Flathead Nation: Prepared statement ofHon. Michael T. Pablo, Chairman .............................. 224 

Navajo Nation: Prepared statement of Hon. Peterson Zah, President ........ 228 

Kawerak, Inc.: Letter to Chairman Richardson from Loretta Bullard, President, dated February 8, 1993 .............................................................. 234 

Lower Elwha Tribal Council: Letter to Chairman Richardson from Beverly J. Bennett, Chairperson, dated February 18, 1994 ............................ 307 

Jamestown S'Klallam Tribe: Prepared statement of W. Ron Allen, Tribal 

Chairman and Executive Director .. .. ........... .. .. .... ... .... ........... .. ........ .... ... ..... 309 

Tim Tarabochia, Chinook Tribal Member: Letter to Chairman Richardson 

dated February 14, 1994 and attachment .................................................. 246 
H.R. 3508/S. 1618, THE TRmAL SELFGOVERNANCE ACT OF 1993 

FRIDAY, FEBRUARY 25, 1994 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON NATURAL RESOURCES, 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:43 a.m., in room 

1324, Longworth House Office Building, Hon. Bill Richardson 

(chairman of the subcommittee) presiding. 

STATEMENT OF HON. ENI F.H. FALEOMAVAEGA 

Mr. FALEOMAVAEGA [presiding]. The committee will come to 

order. 

Today we are holding this hearing on H.R. 3508 and S. 1618, the 

Tribal Self-Governance Act. 

The Tribal Self-Governance Act is one of the most important, innovative ideas we have seen in Indian affairs in several years. The 

concept of tribes entering into solemn compacts with the Secretary 

of Interior brings us back to the very beginning of Indian affairs 

when we negotiated treaties on a government-to-government basis. 

This started as a demonstration project in 1988. Today we will discuss whether this should be made permanent. 

We have many witnesses today with many different views. I respectfully ask that you summarize your statements. Your full written statement will be made part of the record, which will stay open 

for two weeks. 

At this time I ask unanimous consent that the bills, backgrounds 

and section-by-section analyses be made part of the record. 

[The information follows:] 

(1) 
2 

103oCONGRESS H R 3508 1ST SESSION 

• • 

To provide for tribal self-governance, and for other purpQses. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 15, 1993 

Mr. RICHARDSOI" introduced the following bill; which was referred to the 

Committee on Natural Resources 

A BILL 

To provide for tribal self-governance, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembl£d, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Tribal Self-Governance 

5 Act of 1993". 

6 SEC. 2. FINDINGS. 

7 Congress finds that8 ( 1) the tribal right of self-government flows 

9 from the inherent sovereignty of Indian tribes and 

10 nations; 

11 (2) the United States recognizes a special gov12 ernment-to-government relationship with Indian 
3 

2 

1 tribes, including the right of the tribes to self-gov2 ernance, as reflected in the Constitution, treaties, 

3 Federal statutes, and the course of dealings of the 

4 United States with Indian tribes; 

5 (3) although progress has been made, the Fed6 eral bureaucracy, with its centralized rules and regu7 lations, has eroded tribal self-governance and domi8 nates tribal affairs; 

9 ( 4) the Tribal Self-Governance Demonstration 

10 Project was designed to improve and perpetuate the 

11 government-to-government relationship between In12 dian tribes and the United States and to strengthen 

13 tribal control over Federal funding and program 

14 management; and 

15 (5) Congress has reviewed the results of the 

16 Tribal Self-Governance Demonstration Project and 

17 finds that18 (A) transferring control to tribal govern19 ments, upon tribal request, over funding and 

20 decisionmaking for Federal programs, services, 

21 functions, and activities intended to benefit In22 dians is an effective way to implement the Fed23 eral policy of government-to-government rela24 tions with Indian tribes; and 

•BR IIG8 IH 
4 

3 

1 (B) transferring control to tribal govern2 ments, upon tribal request, over funding and 

3 decisionmaking for Federal programs, services, 

4 functions, and activities strengthens the Fed5 eral policy of Indian self-determination. 

6 SEC. 3. DECLARATION OF POLICY. 

7 It is the policy of this Act to permanently establish 

8 and implement tribal self-governance9 (1) to enable the United States to maintain and 

10 improve its unique and continuing relationship with, 

11 and responsibility to, Indian tribes; 

12 (2) to permit each Indian tribe to choose the 

13 extent of the participation of such tribe in self14 govemance; 

15 (3) to coexist with the provisions of the Indian 

16 Self-Determination Act relating to the provision of 

17 Indian services by designated Federal agencies; 

18 (4) to ensure the continuation of the trust re19 sponsibility of the United States to Indian tribes and 

20 Indian individuals; 

21 (5) to permit an orderly transition from Federal 

22 domination of programs and services to provide In23 dian tribes with meaningful authority to plan, con24 duct, redesign, and administer programs, services, 

•HR 8GOII m 
5 

4 

I functions, and activities that meet the needs of the 

2 individual tribal communities; and 

3 (6) to provide for an orderly transition through 

4 a planned and measurable parallel reduction in the 

5 Federal bureaucracy. 

6 SEC. 4. TRIBAL SELF-GOVERNANCE. 

7 The Indian Self-Determination and Education AssistS ance Act is amended by adding at the end the following 

9 new title: 

Io "TITLE IV-TRIBAL SELFII GOVERNANCE 

I2 "SEC. 401. ESTABLISHMENT. 

13 "The Secretary of the Interior (hereinafter in this 

14 title referred to as the 'Secretary') shall establish and 

I5 carry out a program within the Department of the Interior 

16 to be known as Tribal Self-Governance (hereinafter in this 

I7 title referred to as 'Self-Governance') in accordance with 

IS this title. 

I9 "SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES. 

20 "(a) CONTINUING PARTICIPATION.-Each Indian 

2I tribe that is participating in the Tribal Self-Governance 

22 Demonstration Project at the Department of the Interior 

23 under title III on the date of enactment of this title shall 

24 thereafter participate in Self-Governance under this title 

25 and cease participation in the Tribal Self-Governance 

•HR 3108 IB 
6 

5 

1 Demonstration Project under title III with respect to the 

2 Department of the Interior. 

3 "(b) ADDITIONAL PARTICIPANTS.-In addition to 

4 those Indian tribes participating in Self-Governance under 

5 subsection (a), the Secretary, acting through the Director 

6 of the Office of Self-Governance, may select up to 20 new 

7 tribes per year from the applicant pool described in sub8 section (c) to participate in Self-Governance. 

9 "(c) APPLICANT POOL.-The qualified applicant pool 

10 for Self-Governance shall consist of each tribe that11 "(1) successfully completes the planning phase 

12 described in subsection (d); 

13 "(2) has requested participation in Self-Govern14 ance; and 

15 "(3) has demonstrated, for the previous three 

16 fiscal years, financial stability and financial manage17 ment capability as evidenced by the tribe having no 

18 material audit exceptions in the required annual 

19 audit of the self-determination contracts of the tribe. 

20 "(d) PLANNING PHAsE.-Each Indian tribe seeking 

21 to begin participation in Self-Governance shall complete 

22 a planning phase in accordance with this subsection. The 

23 tribe shall be eligible for a grant to plan and negotiate 

24 participation in Self-Governance. The planning phase shall 

25 include-

•BR liii08 m 
7 

6 

1 "(1) legal and budgetary research; and 

2 "(2) internal tribal government planning and 

3 organizational preparation. 

4 "SEC. 403. FUNDING AGREEMENTS. 

5 "(a) AUTHORIZATION.-The Secretary shall nego6 tiate and enter into an annual written funding agreement 

7 with the governing body of each participating tribal 

8 government. 

9 "(b) CONTENTS.-Each funding agreement shall1 0 " ( 1) authorize the tribe to plan, conduct, con11 solidate, and administer programs, services, func12 tions, and activities administered by the Department 

13 of the Interior that are otherwise available to Indian 

14 tribes or Indians, including (but not limited to)-

15 "(A) the Act of April 16, 1934 (25 U.S.C. 

16 452 et seq.); and 

17 "(B) the Act of November 2, 1921 (25 

18 u.s.c. 13); 

19 "(2) subject to the terms of the agreement, au20 thorize the tribe to redesign programs, services, 

21 functions, or activities and to reallocate funds for 

22 such programs, services, functions, or activities; 

23 "(3) prohibit the inclusion of funds provided-

•Hil sao8 IH 
8 

7 

1 "(A) pursuant to the Tribally Controlled 

2 Community College Assistance Act of 1978 (25 

3 U.S.C. 1801 et seq.); 

4 "(B) for elementary and secondary schools 

5 under the formula developed pursuant to sec6 tion 1128 of the Education Amendments of 

7 1978 (25 U.S.C. 2008); and 

8 "(C) the Flathead Agency Irrigation Divi9 sion or the Flathead Agency Power Division, 

10 except that nothing in this section shall affect 

11 the contract authority of such divisions under 

12 section 102; 

13 "(4) specify the services to be provided, the 

14 functions to be performed, and the responsibilities of 

15 the tribe and the Secretary pursuant to the agree16 ment; 

17 " ( 5) authorize the tribe and the Secretary to 

18 reallocate funds or modify budget allocations within 

19 any year, and specify the procedures to be used; 

20 "(6) allow for retrocession of programs or por21 tions of programs pursuant to section 105(e); 

22 "(7) provide that, for the year for which, and 

23 to the extent to which, funding is provided to a tribe 

24 under this section, the tribe-

•BR 11108 Dl . 
9 

8 

1 "(A) shall not be entitled to contract with 

2 the Secretary Cor such funds under section 102, 

3 except that such tribe shall be eligible Cor new 

4 programs on the same basis as other tribes; and 

5 "(B) shall be responsible for the adminis6 tration or programs, services, functions, and ac7 tivities pursuant to agreements entered into 

8 under this section; and 

9 "(8) prohibit the Secretary from waiving, modito fying, or diminishing in any way the trust respon11 sibility of the United States with respect to Indian 

12 tribes and individual Indians that exists under trea13 ties, Executive orders, and other laws. 

14 "(c) SUBMISSION FOR REVIEW.-Not later than 90 

15 days before the proposed effective date of an agreement 

16 entered into under this section, the Secretary shall submit 

17 a copy of such agreement to18 " ( 1) each Indian tribe that is served by the 

19 Agency that is serving the tribe that is a party to 

20 the funding agreement; 

21 "(2) the Committee on Indian Affairs of the 

22 Senate; and 

23 "(3) the Subcommittee on Native American Af24 fairs of the Committee on Natural Resources of the 

25 House of Representatives. 

•BR 31108 m 
10 

9 

1 "(d) PAYMENT.-

2 "(1) IN GENERAL.-At the request of the gov3 erning body of the tribe and under the tenns of an 

4 agreement entered into under this section, the See5 retary shall provide funding to the tribe to carry out 

6 the agreement. 

7 "(2) .AMOUNT.-Subject to paragraph (3) of 

8 this subsection and paragraphs (1) and (3) of sub9 section (b), the Secretary shall provide funds to the 

10 tribe for one or more programs, services, functions, 

11 or activities in an amount equal to the amount that 

12 the tribe would have been eligible to receive under 

13 contracts and grants under this Act, including direct 

14 program costs, and for any funds that are specifi15 cally or functionally related to the provision by the 

16 Secretary of services and benefits to the tribe and its 

17 members. 

18 "(3) TRUST SERVICES.-Funds for trust serv19 ices to individual Indians shall be available under an 

20 agreement entered into under this section only to the 

21 extent that the same services that would have been 

22 provided by the Secretary are provided to individual 

23 Indians by the tribe. 

24 "(e) CIVIL ACTIONS.-
11 

10 

1 "(1) DEFINITION OF CONTRACT.-Except as 

2 provided in paragraph (2), for the purposes of sec3 tion 110, the tenn 'contract' shall include agree4 ments entered into under this title. 

5 "(2) PRoFESSIONAL CONTRACTS.-For the pe6 riod that an agreement entered into under this title 

7 is in effect, the provisions of section 2103 of the Re8 vised Statutes of the United States (25 U.S.C. 81), 

9 and section 16 of the Act of June 18, 1934 (25 

10 U.S.C. 476), shall not apply to attorney and other 

11 professional contracts by Indian tribal governments 

12 participating in Self-Governance under this title. 

13 "(f) FACILITATION.-

14 "(1) INTERPRETATION.-Except as otherwise 

15 provided by law, the Secretary shall interpret each 

16 Federal law and regulation in a manner that will 

17 facilitate18 "(A) the inclusion of programs, services, 

19 functions, and activities in the agreements en20 tered into under this section; and 

21 "(B) the implementation of agreements en22 tered into under this section. 

23 "(2) WAIVER.-

24 "(A) REQUEST.-A tribe may submit a 

25 written request for a waiver to the Secretary 

•BRIIOim 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

12 

11 

identifying the regulation sought to be waived 

and the basis for the request. 

"(B) DECISION.-Not later than 60 days 

after receipt by the Secretary of a written request by a tribe to waive application of a Federal regulation for an agreement entered into 

under this section, the Secretary shall either approve or deny the requested waiver in writing to 

the tribe. A denial may be made only upon a 

specific finding by the Secretary that identified 

language in the regulation may not be waived 

because that regulation is expressly required by 

Federal law. 

"(C) APPEAL.-Not later than 60 days 

after denial of a waiver request, the Secretary 

shall at the request of the tribe, provide the 

17 tribe with a hearing on the record and an op18 portunity for an appeal. 

19 "SEC. 404. BUDGET REQUEST. 

20 "The Secretary shall identify, in the annual budget 

21 request of the President to the Congress under section 

22 1105 of title 31, United States Code, any funds proposed 

23 to be included in Self-Governance. 

•HR 31108 m 
13 

12 

1 "SEC. 405. REPORTS. 

2 "(a) REQUIREMENT.-The Secretary shall submit to 

3 Congress a written report on January 1 of each year fol4 lowing the date of enactment of this title regarding the 

5 administration of this title. 

6 "(b) CONTENTS.-The report shall contain7 "(1} the relative costs and benefit of Self-Gov8 ernance; 

9 "(2) identification of all funds that are specifi10 cally and functionally related to the provision of 

11 services and benefits to the tribe and its members 

12 and the corresponding reduction in the Federal bu13 reaucracy; and 

14 " ( 3) the separate views of the tribes. 

15 "SEC. 406. EFFECT ON OTHER AGREEMENTS AND LAWS. 

16 "Nothing in this title shall be construed to limit or 

17 reduce in any way the services, contracts, or funds that 

18 any other Indian tribe or tribal organization is eligible to 

19 receive under section 102 or any other applicable Federal 

20 law. 

21 "SEC. 40'7. NEGOTIATED RULEMAKING. 

22 "(a) IN GENERAL.-Not later than 90 days after the 

23 date of enactment of this title, at the request of a m~ority 

24 of the Indian tribes with agreements under this title, the 

25 Secretary shall initiate procedures under subchapter III 

26 of chapter 5 of title 5, United States Code, to negotiate 

•BR 81108 m 
14 

13 

1 and promulgate such regulations as are necessary to carry 

2 out this title. 

3 "(b) COMMITTEE.-A negotiated rulemaking commit4 tee established pursuant to section 565 of title 5, United 

5 States Code, to carry out this section, shall have as a ma6 jority of its members representatives of Indian tribes with 

7 agreements under this title. 

8 "(c) ADAPTATION OF PROCEDURES.-The Secretary 

9 shall adapt the negotiated rulemaking procedures to the 

10 unique context of Self-Governance and the government-toll government relationship between the United States and 

12 the Indian tribes. 

13 "(d) EFFECT.-The lack of promulgated regulations 

14 shall not limit the effect of this title. 

15 "SEC. 408. AUTHORIZATION OF APPROPRIATIONS. 

16 "There are authorized to be appropriated such sums 

17 as may be necessary to carry out this title.". 

•BB 11011 m 
103o CONGRESS 

2D SESSION 

15 

S.l618 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 1, 1994 

Referred to the Committee on Natural Resources 

AN ACT 

To establish Tribal Self-Governance, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

17 

3 

1 ( 5) Congress has reviewed the results of the 

2 Tribal Self-Governance Demonstration Project and 

3 finds that4 (A) transferring control to tribal governS ments, upon tribal request, over funding and 

6 decisionmaking for Federal programs, services, 

7 functions, and activities intended to benefit In8 dians, is an effective way to implement the Fed9 eral policy of government-to-government rela1 0 tions with Indian tribes; and 

11 (B) transferring control to tribal govern12 ments, upon tribal request, over funding and 

13 decisionmaking for Federal programs, services, 

14 functions, and activities strengthens the Fed15 eral policy of Indian self-determination. 

16 SEC. S. DECLARATION OF POLICY. 

17 It is the policy of this Act to permanently establish 

18 and implement Self-Governance--

19 (1) to enable the United States to maintain and 

20 improve its unique and continuing relationship with, 

21 and responsibility to, Indian tribes; 

22 (2) to permit each Indian tribe to choose the 

23 extent of the participation of such tribe in Self-Gov24 ernance; 

•IJ 1818 11111 
18 

4 

1 (3) to co-exist with the provisions of the Indian 

2 Self-Detennination Act relating to provision of In3 dian services by designated Federal agencies; 

4 ( 4) to ensure the continuation of the trust re5 sponsibility of the United States to Indian tribes and 

6 Indian individuals; 

7 (5) to permit an orderly transition from Federal 

8 domination of programs and services to provide In9 dian tribes with meaningful authority to plan, contO duct, redesign, and administer programs, services, 

11 functions, and activities that meet the needs of the 

12 individual tribal communities; and 

13 (6) to provide for an orderly transition through 

14 a planned and measurable parallel reduction in the 

15 Federal bureaucracy. 

16 SEC. 4. TRffiAL SELF-GOVERNANCE. 

17 The Indian Self-Determination and Education AssistIS ance Act (25 U.S.C. 450 et seq.) is amended b~ adding 

19 at the end the following new title: 

20 "TITLE IV-TRIBAL SELF21 GOVERNANCE 

22 "SEC. 401. ESTABUSHMENT. 

23 "The Secretary of the Interior (referred to in this 

24 title as the 'Secretary') shall establish and carry out a pro25 gram within the Department of the Interior to be known 

•S 1618 RFH 
19 

5 

as Tribal Self-Governance (referred to in this title as 'Self2 Governance') in accordance with this title. 

3 "SEC. 402. SELECTION OF TRffiES. 

4 "(a) CONTINUING PARTICIPATION.-Each tribe that 

5 is participating in the Tribal Self-Governance Demonstra6 tion Project at the Department of the Interior under title 

7 III on the date of enactment of this title shall thereafter 

8 participate in Self-Governance under this title and cease 

9 participation in the Tribal Self-Governance Demonstration 

10 Project under title III with respect to the Department of 

11 the Interior. 

12 "(b) ADDITIONAL TRmEs.-In addition to those 

13 tribes participating in Self-Governance under subsection 

14 (a), the Secretary, acting through the Director of the Of15 flee of Self-Governance, may select up to 20 new tribes 

16 per year, from the applicant pool described in subsection 

17 (c), to participate in Self-Governance. 

18 "(c) APPLICANT POOL.-The qualified applicant pool 

19 for Self-Governance shall consist of each tribe that20 " ( 1) successfully completes the planning phase 

21 described in subsection (d); 

22 "(2) has requested participation in Self-Govern23 ance; and 

24 "(3) has demonstrated, for the previous 3 fiscal 

25 years, financial stability and financial management 

•S 1618 RFH 
20 

6 

1 capability as evidenced by the tribe having no mate2 rial audit exceptions in the required annual audit of 

3 the self-determination contracts of the tribe. 

4 "(d) PLANNING PHASE.-Each tribe seeking to begin 

5 participation in Self-Governance shall complete a planning 

6 phase in accordance with this subsection. The tribe shall 

7 be eligible for a grant to plan and negotiate participation 

8 in Self-Governance. The planning phase shall include--

9 "(1) legal and budgetary research; and 

10 "(2) internal tribal government planning and 

11 organizational preparation. 

12 "SEC. 403. FUNDING AGREEMENTS. 

13 "(a) AUTHORIZATION.-The Secretary shall nego14 tiate and enter into an annual written funding agreement 

15 with the governing body of each participating tribal gov16 ernment. 

17 "(b) CONTENTS.-Each funding agreement shall18 "(1) authorize the tribe to plan, conduct, con19 solidate, and administer programs, services, func20 tions, and activities administered by the Department 

21 of the Interior that are otherwise available to Indian 

22 tribes or Indians, including23 "(A) the Act of April 16, 1934 (popularly 

24 known as the 'Johnson-O'Malley Act') (48 Stat. 

25 596, chapter 147; 25 U.S.C. 452 et seq.); and 

•8 1818 RFH 
21 

7 

1 "(B) the Act of November 2, 1921 (popu2 larly known as the 'Snyder Act') ( 42 Stat. 208, 

3 chapter 115; 25 U.S.C. 13); 

4 "(2) subject to the terms of the agreement, au5 thorize the tribe to redesign programs, services, 

6 functions, or activities, and to reallocate funds for 

7 such programs, services, functions, or activities; 

8 "(3) prohibit the inclusion of funds provided9 "(A) pursuant to the Tribally Controlled 

10 Community College Assistance Act of 1978 (25 

11 U.S.C. 1801 et seq.); 

12 "(B) for elementary and secondary schools 

13 under the formula developed pursuant to sec14 tion 1128 of the Education Amendments of 

15 1978 (25 U.S.C. 2008); and 

16 "(C) to the Flathead Agency Irrigation Di17 vision or the Flathead Agency Power Division, 

18 except that nothing in this section shall affect 

19 the contract authority of such divisions under 

20 section 102; 

21 "( 4) specify the services to be provided, the 

22 functions to be performed, and the responsibilities of 

23 the tribe and the Secretary pursuant to the agree24 ment; 

•S 1818 RFH 
22 

8 

1 "(5) authorize the tribe and the Secretary to 

2 reallocate funds or modify budget allocations within 

3 any year, and specify the procedures to be used; 

4 "(6) provide for retrocession of programs or 

5 portions of programs pursuant to section 105(e); 

6 "(7) provide that, for the year for which, and 

7 to the extent to which, funding is provided to a tribe 

8 under this section, the tribe---

9 "(A) shall not be entitled to contract with 

10 the Secretary for such funds under section 102, 

11 except that such tribe shall be eligible for new 

12 programs on the same basis as other tribes; and 

13 " (B) shall be responsible for the adminis14 tration of programs, services, functions, and ac15 tivities pmmiant to agreements entered into 

16 under this section; and 

17 "(8) prohibit the Secretary from waiving, modi18 fying, or diminishing in any way the trust respon19 sibility of the United States with respect to Indian 

20 tribes and individual Indians that exists under trea21 ties, Executive orders, and other laws. 

22 "(c) SUBMISSION FOR REVIEW.-Not later than 90 

23 days before the proposed effective date of an agreement 

24 entered into under this section, the Secretary shall submit 

25 a copy of such agreement too8 1818 RFH 
23 

9 

1 "(1) each tribe that is served by the Agency 

2 that is serving the tribe that is a party to the fund3 ing agreement; 

4 "(2) the Committee on Indian Affairs of the 

5 Senate; and 

6 "(3) the Committee on Natural Resources of 

7 the House of Representatives. 

8 "(d) PAYMENT.-

9 "(1) IN GENERAL.-At the request of the gov1 0 erning body of the tribe and under the terms of an 

11 agreement entered into under this section, the Sec12 retary shall provide funding to the tribe to carry out 

13 the agreement. 

14 "(2) AMOUNT.-Subject to paragraph (3) of 

15 this subsection and paragraphs (1) and (3) of sub16 section (b), the Secretary shall provide funds to the 

17 tribe for one or more programs, services, functions, 

18 or activities in an amount equal to the amount that 

19 the tribe would have been eligible to receive under 

20 contracts and grants under this Act, including direct 

21 program costs and indirect costs, and for any funds 

22 that are specifically or functionally related to the 

23 provision by the Secretary of services and benefits to 

24 the tribe and its members. 

•S 1618 RFH 
24 

10 

1 "(3) TRUST SERVICES.-Funds for trust serv2 ices to individual Indians shall be available under an 

3 agreement entered into under this section only to the 

4 extent that the same services that would have been 

5 provided by the Secretary are provided to individual 

6 Indians by the tribe. 

7 "(e) CIVIL ACTIONS.-

8 " {1) DEFINITION OF 'CONTRACT'.-Except as 

9 provided in paragraph (2), for the purposes of sec10 tion 110, the term 'contract' shall include agree11 ments entered into under this title. 

12 "(2) PROFESSIONAL CONTRACTS.-For the pe13 riod that an agreement entered into under this title 

14 is in effect, the provisions of section 2103 of the Re15 vised Statutes of the United States {25 U.S.C. 81), 

16 and section 16 of the Act of June 18, 1934 (48 

17 Stat. 987, chapter 576; 25 U.S.C. 476), shall not 

18 apply to attorney and other professional contracts by 

19 Indian tribal governments participating in Self-Gov20 ernance under this title. 

21 "(f) FACILITATION.-

22 "{1) INTERPRETATION.-Except . as otherwise 

23 provided by law, the Secretary shall interpret each 

24 Federal law and regulation in a manner that will 

25 facilitate-

•8 1818 RFH 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

11 

"(A) the inclusion of programs, services, 

functions, and activities in the agreements entered into under this section; and 

"(B) the implementation of agreements entered into under this section. 

"(2) WAIVER.-

"(A) REQUEST.-A tribe may submit a 

written request for a waiver to the Secretary 

identifying the regulation sought to be waived 

and the basis for the request. 

"(B) DECISION.-Not later than 60 days 

after receipt by the Secretary of a written request by a tribe to waive application of a Federal regulation for an agreement entered into 

under this section, the Secretary shall either approve or deny the requested waiver in writing to 

the tribe. A denial may be made only upon a 

specific finding by the Secretary that identified 

language in the regulation may not be waived 

because such waiver is prohibited by Federal 

law. 

"(C) APPEAL.-Not later than 60 days 

after denial of a waiver request, the Secretary 

shall, at the request of a tribe, provide the tribe 

•8 1818 RFH 
26 

12 

with a hearing on the record and opportunity 

2 for an appeal. 

3 "SEC. 404. BUDGET REQUEST. 

4 "The Secretary shall identify, in the annual budget 

5 request of the President to the Congress, any funds pro6 posed to be included in Self-Governance. 

7 "SEC. 405. REPORTS. 

8 "(a) REQUIREMENT.-Not later than January 1 of 

9 each year after the date of enactment of this title, the SeclO retary shall submit to Congress a report regarding the ad11 ministration of this title. 

12 "(b) CONTENTS.-The report shall13 "(1) identify the relative costs and benefits of 

14 Self-Governance; 

15 "(2) identify, with particularity, all funds that 

16 are specifically or functionally related to the provi17 sion by the Secretary of services and benefits to 

18 Self-Governance tribes and their members, and the 

19 corresponding reductions in the Federal bureauc20 racy; and 

21 " ( 3) include the separate views of the tribes. 

22 "SEC. 406. EFFECT ON OTHER AGREEMENTS AND LAWS. 

23 "Nothing in this title shall be construed to limit or 

24 reduce in any way the services, contracts, or funds that 

25 any other Indian tribe or tribal organization is eligible to 

•S 1818 RFH 
27 

13 

1 receive under section 102 or any other applicable Federal 

2 law. 

3 "SEC. 407. NEGOTIATED RULEMAKING. 

4 "(a) IN GENERAL.-Not later than 90 days after the 

5 date of enactment of this title, at the request of a majority 

6 of the Indian tribes with agreements under this title, the 

7 Secretary shall initiate procedures under subchapter III 

8 of chapter 5 of title 5, United States Code, to negotiate 

9 and promulgate such regulations as are necessary to carry 

10 out this title. 

11 "(b) COMMITTEE.-A negotiated rulemaking commit12 tee established pursuant to section 565 of title 5, United 

13 States Code, to carry out this section, shall have as its 

14 members only Federal and tribal government representa15 tives, a majority of whom shall be representatives of In16 dian tribes with agreements under this title. 

17 "(c) ADAPTATION OF PROCEDURES.-The Secretary 

18 shall adapt the negotiated rulemaking procedures to the 

19 unique context of Self-Governance and the government~to20 government relationship between the United States and 

21 the Indian tribes. 

22 "(d) EFFECT.-The lack of promulgated regulations 

23 shall not limit the effect of this title. 

•S 1818 RFH 
28 

14 

1 "SEC. 408. AUTHORIZATION OF APPROPRIATIONS. 

2 "There are authorized to be appropriated such sums 

3 as are necessary to carry out this title.". 

Passed the Senate November 24 (legislative day, November 23), 1993. 

Attest: 

o8 11118 Jll1l 

WALTERJ. STEWART, 

Secretary. 
29 

RACKGROUND ON H.R. 3508 AND S. 1618 

In 1988 the Congress enacted Title III of the Indian Self Determination and 

Education Assistance Act (Public Law 100-472). This unique new Title which was called 

'Tribal Self-Governance Demonstration Project" authorizes tribes through a planning and 

negotiation process to develop a Compact of Self-Governance and to obtain an annual 

funding agreement to govern financial transfers from the federal government to the tribes. 

Under the Compact, an Indian tribal government is authorized to plan, consolidate, and 

administer programs, services and activities previously administered by the Bureau of Indian 

Affairs and to redesign these activities and reallocate federal funds. Funding allocations for 

Self-Governance tribes come from BIA Agency, Area and Central office accounts on the 

basis of what the tnbe would have received in funds and services in the absence of the 

agreement. The Project began with twenty tribes and was originally to be five years in 

duration. However, the Project was extended an additional three years in a 1991 

amendment and expanded to include ten additional tribes (Public Law 102-184). Since 1988, 

28 tribes have entered into Self-Governance Compacts with the Secretary of Interior. 

S. 1618, sponsored by Senator McCain, and H.R. 3508, sponsored by Chairman 

Richardson, would make Self-Governance permanent in the Interior Department. Under 

both bills, up to twenty new tribes per year could enter into the process of Compacting for 

funding with the Secretary of the Interior. 

87-276 0 - 95 - 2 
30 

SECTION-BY-SECTION ANALYSIS ON H.R. 3508 

SECTION 1. SHORT TITLE 

Section 1 provides that the Act may be cites as the ''Tribal Self-Governance Act of 

1993." 

SECTION 2. FINDINGS 

Section 2 provides the finc!ings of the Congress. 

SECTION 3. DECLARATION OF POLICY 

Section 3 declares the policy of the Act which includes the continuation of the trust 

responsibility to Indian tribes, and an orderly transition from the Federal domination of 

programs toward tribal authority to plan, redesign and administer programs and services. 

SECTION 4. TRIBAL SELF-GOVERNANCE 

Section 4 provides for an amendment to the Indian Self-Determination and Education 

Assistance Act entitled ''Title IV - Tribal Self-Governance." The section of the amendment 

are as follows: 

SECTION 402. SELECTION OF PARTICIPATING INDIAN TRIBES 

Subsection (a) provides that tribes currently participating in the SelfGovernance Demonstration Project shall participate in Self-Governance under 

this title after enactment. 

Subsection (b) provides that the Secretary may select up to 20 new 

tribes per year to participate in Self-Governance. 

Subsection (c) provides that the applicant pool shall consist of tribes 

that (1) complete the planning phase, (2) requests participation, and (3) 

demonstrates financial stability and financial management capability. 

Subsection (d) provides that each tribe is to complete a planning phase 

which includes (1) legal and budgetary research, and (2) internal tribal 

government planning and organizational preparation. 

SECTION 403. FUNDING AGREEMENTS 

Subsection (a) authorizes the Secretary to negotiate and enter into an 

annual funding agreement with each participating tribal government. 

Subsection (b) provides for the contents of the funding agreements 

which shall (1) authorize tribes to plan and administer programs administered 
31 

by the Departments of Interior, (2) authorize tnbes to redesign programs and 

reallocate . funds for services, (3) prohibit the use of funds for (A) Tribally 

Controlled Community Colleges, (B) elementary and secondary schools under 

fonnulas developed, and (C) the Flathead Irrigation Project; (4) specify 

services to be provided and the responsibilities of the Secretary under the 

agreement; (5) authorize the tribe and the Secretary to reallocate funds or 

modify budget allocations; ( 6) allow for retrocession of programs; (7) provide 

that the tribe (A) shall not be entitled to contract with funds under Section 

102 of the Act and (B) shall be responsible for the administration of programs 

and services pursuant to agreement entered into under this section; (8) 

prohibit the Secretary from modifying the Federal trust responsibility to Indian 

tribes. 

Subsection (c) provides that within 90 days of the effective date of an 

agreement the Secretary must submit a copy to (1) each tribe within the 

Agency, (2) the Committee on Indian Affairs of the Senate, (3) Subcommittee 

on Native American Affairs of the Committee on Natural Resources of the 

House of Representatives. 

Subsection (d) provides that (1) at the request of a tribe the Secretary 

shall provide funding pursuant to the agreement; (2) the amount of the 

funding is to equal what the tribe would have been eligible to receive under 

contracts and grants under the Act related to the provision of services; and (3) 

funds for trust services to individual Indians are to be available under an 

agreement entered into under this section only to the extent that the same 

services that would have been provided by the Secretary are provided to the 

individual Indians by the tribe. 

Subsection (e) provides that for the purposes of civil actions the tenn 

'contract' under the Act is to include agreements entered into under this title, and 

provisions in existing laws related to attorney and other professional contracts are not 

to apply to Self-Governance tribes. 

Subsection (f) provides that (1) the Secretary is to interpret each Federal law 

and regulation in a manner that will facilitate the inclusion of programs and services 

and the implementation of agreements; and (2) the tribe may request the waiver of 

a regulation in writing, the Secretary must respond within 60 days either approving 

or denying the waiver of the regulation, and within 60 days of a denial the Secretary 

is to provide the tribe with a hearing and an opportunity for an appeal. 

SECTION 404. BUDGET REQUEST 

Section 404 provides that the Secretary is to identify funds to be included in 

Self-Governance in the President's budget request. 

2 
32 

SECfiON 405. REPORTS 

Subsection (a) provides that the Secretary is provide the Congress with an 

annual report. 

Subsection (b) provides that the report is to contain ( 1) the cost and benefits 

of Self-Governance, (2) identification of funds related to the provision of services and 

the corresponding reduction in the Federal bureaucracy, and (3) the views of tribes. 

SECfiON 406. EFFECf ON OTHER AGREEMENTS AND lAWS 

Section 406 provides that nothing in the this title is be construed to reduce 

services to other Indian tribes. 

SECfiON 407. NEGOTIATED RULEMAKING 

Subsection (a) provides that within 90 days of enactment the Secretary is to 

initiate procedures to negotiate and promulgate regulations. 

Subsection (b) provides that the negotiated rulemaking committee is to have 

as a majority of its members Self-Governance tribes. 

Subsection (C) provides that the negotiated rulemaking procedures are to be 

adapted by the Secretary to reflect the government to government relationship 

between the federal government and the tribes. 

Subsection (d) provides that the lack of regulations is not to limit the effect 

of this title. 

SECfiON 408. AUTHORIZATION OF APPROPRIATIONS 

Section 408 provides that such sums as may be necessary to carry out this title 

are authorized to be appropriated. 

3 
33 

Mr. FALEOMAVAEGA. I do want to say that Chainnan Richardson 

is necessarily occupied right now in a very important meeting, but 

I want to let the audience know that his interest is very much part 

of this whole hearing process. For this reason, we want to continue 

now with our hearing this morning. 

I also want to insert the statement of the gentleman from Wyoming into the record if there is no objection. [Prepared statement of Mr. Thomas follows:] 
34 

OPENING STATEMENT 

OF CONGRESSMAN CRAIG THOMAS 

ON 

H.R. 3508: THE TRIBAL SELF-GOVERNANCE ACT 

I believe my support for tribal self-determination is well-known, so I will keep my 

statement to a minimum. 

I fully support H.R. 3508. It is an important step towards giving the tribes more 

control, flexibility and decision making authority over federal programs and financial 

resources. I have long been convinced that it is the .individual tribal government, and 

not some bureaucrat in Washington with his or her own agenda, that is in the best 

position to known the needs of the tribe and how best to meet those needs. 

However, while support for this legislation is widespread, I hope that in our headlong 

rush towards passage we will not fail to hear the voices of some of the smaller tribes 

who have concerns about how the bill might have a negative impact on them. I have 

heard specifically from the tribes of the Quinault Reservation. I hope the Chairman will 

listen to their concerns, and work hard to implement their suggestions. 
35 

Mr. FALEOMAVAEGA. For the first panel, we are very happy to 

have with us the Honorable Ada Deer, the Assistant Secretary for 

Indian Affairs for the U.S. Department of Interior, accompanied by 

Mr. Ronald Brown, the Acting Director of the Office of Self-Governance, and Mr. Richard Monette, Director of Congressional and Legislative Affairs. 

I want to offer my personal welcome to Secretary Deer and the 

tremendous leadership that she has given to this very important 

sector or division of the Department of Interior, and I certainly 

commend her for her outstanding leadership and work in dealing 

with Native American issues. 

Secretary Deer. 

STATEMENT OF ADA DEER, ASSISTANT SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY RONALD BROWN, ACTING DIRECTOR, OFFICE OF SELF-GOVERNANCE, AND RICHARD MONETTE, DIRECTOR, CONGRESSIONAL AND LEGISLATIVE AFFAIRS 

Ms. DEER. Thank you very much, Mr. Chairman, for that warm 

welcome and introduction. I look forward to working with you and 

other Members of the committee as we all work toward justice for 

and with American Indians and Alaska natives. I appreciate the 

opportunity to present the Department's views on H.R. 3508 and 

S. 1618 regarding their self-governance. The Department strongly 

supports the enactment of this legislation. 

As former chairperson of the Menominee Nation, I know firsthand how important it is for a tribe's government to have control 

over sufficient resources to meet the needs of its people. I have engaged in numerous discussions over the years with tribal leaders 

about the need for a more balanced relationship with the U.S. I 

want to do everything I possibly can to assist tribes in preparing 

for the 21st century. 

By way of background, I should point out that we now have 28 

tribes in tribal self-governance. These 28 tribes, which are geographically dispersed in 12 States, will account for over $100 million of the Bureau of Indian Affairs budget in 1994. 

Mr. Chairman, I have two overarching recommendations. First, 

the self-governance demonstration project should be made permanent and available to more tribes. Second, I am proposing that this 

legislation be separated from the Indian Self-Determination Act 

and enacted as a freestanding law. I believe that the policy of selfgovernance is the most significant Federal policy for tribes since 

the Indian Reorganization Act of 1934. Self-governance will be the 

policy that will guide the relationship between the Federal Government and the tribes into the 21st century. Creating a separate Public Law for a permanent self-governance program would symbolize 

its importance. 

We believe that recognizing tribal self-governance and self-determination is our greatest responsibility in our Federal trust relationship with Indian tribes. We see self-governance as a crucial 

step in making self-determination a reality. Self-governance makes 

tribal governments closer and more accountable to the political 

processes of those they govern. 
36 

In the demonstration phase of tribal self-governance, we have 

seen numerous benefits to participating tribes. Paperwork for 

tribes and the Bureau has been minimized. Tribal social services 

and law enforcement have witnessed increased cooperation. Pre- liminary evidence indicates that voter participation in the Lummi 

Nation has increased dramatically under the self-governance com-· 

pact, from 20 percent before the compact to 58 percent after the 

compact; a clear indication that the people feel they have a stake 

in their government. There are other reported successes, as documented in numerous 

letters from tribal leaders sent to the Senate in support of S. 1618. 

One need only look at a tribe such as the Cherokee Nation to have 

some idea of the tremendous potential tribal self-governance has. 

Let's also be candid. As originally designed, the self-governance 

demonstration project was justified because it would streamline the 

Bureau and eliminate unnecessary bureaucracy. It has done just. 

that. As the program continues to expand, it is inevitable that cer- tain programs administered by the Bureau in accordance with our 

Federal relationship will be affected and, in some cases, curtailed. 

While I want to accelerate the trend toward self-governance, I wish 

to respect the rights of those tribes that choose not to participate. 

Thus, it is critical that support for non-participating tribes be 

maintained. 

Section 407 of the bill provides for negotiated rulemaking between the Department and a majority of participating tribes. W1~ 

have serious concerns about restricting the negotiations to participating tribes. Mandating negotiated rulemaking in this context 

would result in a cumbersome, unworkable process that likely will 

not adequately represent all interests. We recommend that the administrative formal rulemaking process provide an open forum 

for all interested parties, including potentially affected 

nonparticipating tribes. Finally, I would like to inform you that the Department has undertaken a comprehensive study of the demonstration project, the 

results of which are expected by June of this year. I am hopeful 

that this legislation will move at a deliberate pace so that our re- spective staffs can work together to address any unresolved issues. 

The Department will propose necessary amendments to address 

these issues and provide for the effective implementation of the 

program. Among other matters, the administration and the Congress, in 

consultation with the tribes, must address the Federal relationship 

and trust responsibility to tribes and individual Indians in the con·-

text of self-governance and this legislation, and the proper scope of 

the program. Also, the Department is considering the proper appli .. 

cation of standards for ensuring public health and safety and quality control in the context of self-governance compacts for certain 

programs such as construction. Beginning today, I look forward to 

continuing to work with the committee on these and other matters. Thank you for inviting me to present the Department's views. And at this time I would be glad to answer any questions that you 

may have. 

[Prepared statement of Ms. Deer follows:] 
37 

STATBMEBT OP M8. ADA B. DEER, A88I8TlUfT SBCRETUY - INDIAN APPAilt8 1 

DEPUTJIDIT OP TBB INTERIOR, BEFORB TBB BOUSB SUBCOMMITTEB Olf HATIVB 

AMERICAN APPAIRS, UlfiTED STATES BOUSB OP REPRESENTATIVBS, Olf B.a. 

3508 AlfD 8. 1618, A BILL TO PROVIDB FOR TRIBAL SELP-GOVERHAHCB AlfD 

POlt OTHER PURPOSES. 

February 25, 1994 

Good morning Mr. Chairman and Members of the Committee. I 

appreciate the opportunity to present the Department's views on 

H.R. 3508 and S. 1618, regarding tribal self-governance. The 

Department strongly supports the enactment of this legislation. 

As former chairperson of the Menominee Nation, I know first hand 

how important it is for a tribe's government to have control over 

sufficient resources to meet the needs of its people. I have 

engaged in numerous discussions over the years with tribal leaders 

about the need for a more balanced relationship with the United 

States. I want to do everything I possibly can to assist tribes in 

preparing for the 21st century. 

Mr. Chairman, I have two over-arching recommendations. First, the 

self-governance demonstration project should be made permanent and 

available to more tribes. Second, I am proposing that this 

legislation be separated from the Indian Self-Determination Act and 

enacted as a free-standing law. I believe that the policy of selfgovernance is the most significant Federal policy for tribes since 

the :Indian Reorganization Act of 1934. Self-governance will be the 

policy that will guide the relationship between the Federal 

government and tribes into the 21st century. Creating a separate 
38 

public law for a permanent self-governance proqram would symbolize 

its importance. 

We believe that recognizing tribal self-governance and selfdetermination is our greatest responsibility in our Federal trust 

relationship with Indian tribes. We see self-governance as a 

crucial step in making self-determination a reality. Selfgovernance makes tribal governments closer and more accountable to 

the political processes of those they govern. 

In the demonstration phase of tribal self-governance, we have seen 

numerous benefits to participating tribes. Paperwork for tribes 

and the Bureau has been minimized. Tribal social services and law 

enforcement have witnessed increased cooperation. Preliminary 

evidence indicates that voter participation in the Lummi Nation has 

increased dramatically under the self-governance compact -- from 20 

percent before the compact to 58 percent after the compact -- a 

clear indication that the people feel they have a stake in their 

government. 

Let's also be candid. As originally designed, the Self-Governance 

Demonstration Project was justified because it would streamline the 

Bureau and eliminate unnecessary bureaucracy. It has done just 

that. As the program continues to expand, it is inevitable that 

certain programs administered by the Bureau in accordance with our 

Federal relationship will be affected and, in some cases, 

2 
39 

curtailed. While I want to accelerate the trend toward selfgovernance, I wish to respect the rights of thoe.e tribes that 

choose not to participate. Thus, it is critical that support for 

non-participating tribes be maintained. 

Section 407 of the bill provides for negotiated rulemaking between 

the Department and a majority of participating tribes. We have 

serious concerns about restricting the negotiations to 

participating tribes. Mandating negotiated rulemaking in this 

context would result in a cumbersome, unworkable process that 

likely will not adequately represent all interests. We recommend 

the administrative formal rulemaking process to provide an open 

forum for all interested parties, including potentially affected 

non-participating tribes. 

Finally, I would like to inform you that the Department has 

undertaken a comprehensive study of the demonstration project, the 

results of which are expected by June of this year. I am hopeful 

that this legislation will move at a deliberate pace so that our 

respective staffs can work together to address any unresolved 

issues. The Department will propose necessary amendments to 

address these issues and provide for the effective implementation 

of the program. 

Among other matters, the Administration and the Congress, in 

consultation with the tribes, must address the Federal relationship 

3 
40 

and trust responsibility to tribes and individual Indians in the 

context of self-qovernance and this leqislation, and the proper 

scope of the proqram. Also, the Department is considerinq the 

proper application of standards for ensurinq public health and 

safety and quality control in the context of self-qovernance 

compacts for certain proqrams such as construction. Beqinninq 

today, I look forward to continuinq to work with the Committee on 

these and other matters. 

Again, thank you for invitinq me to present the Department's views 

on this important legislation. At this time I would be glad to 

answer any questions you may have. 

4 
41 

Mr. FALEOMAVAEGA. Madam Secretary, the times that I have had 

the privilege of participating in hearings, it is such a tremendous 

feeling for me to know you are here personally to say the Department of Interior does support this legislation in every way. And I, 

for one, am very happy to hear this position taken by the administration on the importance of this legislation. 

I do have several questions that in the interests of time I am 

going to submit to your office for a response, but just a couple questions, if I might. With respect to the right or privilege of a tribe 

not to participate in this process, you say that this should be given 

as an option for other tribes that may not want to participate. Do 

you see what would be the negative or the downside of this, for reluctance on the part of some of the tribes not to participate in this 

process? 

Ms. DEER. Well, first of all, I want to emphasize that we fully 

support tribal self-determination, and it is entirely within the 

tribe's prerogative to make the decision, whether they wish to compact or whether they wish not to compact. The legislation and the 

past workings of this whole demonstration project have been very 

cognizant of this, and there is provision in the shortfall funding for 

any potential impacts that this may have. 

Mr. FALEOMAVAEGA. Which raises another question that I might 

have, and maybe we are talking about semantics, but maybe if you 

could elaborate this for the record. 

We are talking about self-governance. How does this differ from 

sovereignty? Or is this also a matter of distinction in terms of how 

different tribes tend to define what sovereignty means? I understand that a statewide commission has been established by the 

State of Hawaii for the native Hawaiian community to find out for 

themselves how they define sovereignty, but is there a distinction 

between self-governance and how we are defining it in this bill and 

that of-perhaps how other tribes look at the principle or the concept of sovereignty? Are we within the ball park? Are they trying 

to get away from any further Federal imposition on the rights of 

Indians to be more self-governing? 

Ms. DEER. Well, first of all, let me point out, before Columbus 

landed here, all the tribes were self-governing, and that there is 

great overlap between self-governance and the basic sovereignty. 

There is a degree, perhaps, of interpretation in these two, but the 

point is to help the tribes achieve self-governance to make the basic 

determinations over the land and the people. I view this as an important evolution in the ongoing evolvement of the relationship between the Federal Government and the tribes. 

So to answer your question in a short way, there is overlap, but 

I don't see any basic contradictions. 

Mr. FALEOMAVAEGA. It is ironic that I believe for the last 150 

years at least, or even earlier, this very thing has been with thewhat the native Americans have been asking for, and we here in 

Washington keep going around and around and around and never 

seem to really come to the poi.nt by way of saying, well, send the 

money. That seems to be the sheer way to resolve, supposedly, 

some of the problems that Native Americans have faced over the 

years. 
42 

It seems to me this may be a real successful concept to be applicable, especially with the affairs of the Bureau of Indian Affairs. 

How would this apply? Do you think that this should also extend 

to other Federal agencies? I think that maybe this is something, 

because w~you talk about Washington and the myriads of agencies, the turfs and everybody wanting a piece of the pie. You have 

to go to the Department of Education if you want education; you 

have got to go to HUD to get housing. 

I mean, if I were a Native American, I would be confused, myself, 

in terms of what-can this be in some way applicable, as well, to 

other agencies of the Federal Government besides the Department 

of Interior? 

Ms. DEER. A short answer, yes. 

Mr. FALEOMAVAEGA. Do you think that President Clinton might 

be favorable to the concept later on if we see this as a demonstration that the Department of Interior can sure prove the substance 

of this bill if it is made into law, that this can be applicable on a 

Federal-wide basis? 

Ms. DEER. I would not presume to speak for our President, but 

I would point out that he has strongly supported tribal sovereignty 

and self-determination; and this is, of course, the next logical step. 

Mr. FALEOMAVAEGA. Well, Madam Secretary, I want to certainly 

tip my hat off to President Clinton for having nominated you to 

hold this very important position. No one could appreciate and 

know more about what it means to go through such situations 

where your own tribe was terminated and, all of a sudden, was resurrected, and then-what was it-assimilated. And having all 

these different policies taken over the years, I commend President 

Clinton for having appointed you to serve in this position, as I am 

sure there is a real sense of appreciation and understanding 

throughout Indian country in having you take the helm of this office. 

And I again want to offer my personal commendation for you and 

the members of your staff. We look forward to working with you 

together in this legislation, and hopefully we will do it expeditiously. 

Ms. DEER. And I would like to point out how important it is for 

all of us to work in a strong partnership, the Bureau of Indian Mfairs, Federal Government and the Congress and the tribes, to 

achieve full justice and help tribes move into the 21st century. So again, I thank you for your warm, friendly reception and your 

strong interest and involvement in this very important legislation. 

My two colleagues here are ready to answer additional questions, 

and I am sure that when the tribal and other people come to testify, you will have a lot more illumination on this topic. 

Mr. FALEOMAVAEGA. Please look after my cousin Esera Tualo, 

who plays defensive tackle for the Minnesota Vikings. At any rate, 

thank you so much for coming this morning. I assure you that both 

Chairman Richardson and Chairman Miller share this same strong 

sentiment and support for your efforts in heading this important 

division of the Department of Interior. Thank you very much, Secretary Deer. Ms. DEER. Thank you. 
43 

Mr. FALEOMAVAEGA. Our next panel, we will have the Honorable 

Marge Anderson, the Chief Executive of the Mille Lacs Band of 

Ojibwe, of Onamia, Minnesota, accompanied by Mr. Philip EakerShenk, the Tribal Attorney; also the Honorable Edward Thomas, 

President of Tlingit and Haida Central Council, Juneau, Alaska; 

also the Honorable Christine Collison, President of the Ketchikan 

Indian Corporation of Alaska; also the Honorable Larry Nuckolls, 

Governor, the Absentee Shawnee Tribe of Oklahoma; also the Honorable Herbert Whitish, Chairman of the Shoalwater Bay Tribe in 

Tokeland, Washington; and also the Honorable George Bennett, 

Tribal Council Member of the Grand Traverse Band of Ottawa and 

Chippewa Indians, Suttons Bay, the State of Michigan. 

I want to welcome all of you here this morning, members of the 

panel. 

PANEL CONSISTING OF HON. MARGE ANDERSON, CHIEF EXECUTIVE, MILLE LACS BAND OF OJIBWE, ONAMIA, MN; ACCOM· 

PANIED BY PHILIP BAKER-SHENK, TRIBAL ATTORNEY; HON. 

EDWARD K. THOMAS, PRESIDENT, TLINGIT AND HAIDA 

CENTRAL COUNCIL, JUNEAU, AK; HON. CHRISTINE 

COLLISON, PRESIDENT, KETCHIKAN INDIAN CORPORATION, 

AK; HON. LARRY NUCKOLLS, GOVERNOR, ABSENTEE SHAWNEE TRIBE, OK; HON. HERBERT WHITISH, CHAIRMAN, 

SHOALWATER BAY TRIBE, TOKELAND, WA; AND HON. 

GEORGE E. BENNETT, TRIBAL COUNCIL MEMBER, GRAND 

TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, 

SUTTONS BAY, MI 

Mr. FALEOMAVAEGA. We would like to begin with Marge Anderson. Would you proceed, please. 

STATEMENT OF HON. MARGE ANDERSON 

Ms. ANDERSON. Good morning. I am Marge Anderson. I am the 

Chief Executive of the Mille Lacs Band of Ojibwe Indians in Minnesota. I am glad to be here to talk about self-governance. I will 

keep my remarks brief. I will let my written testimony take care 

of the important details. 

First, some background. We are a first-tier tribe, self-governance 

tribe, having signed our first compact with Interior in 1990. In 

1993, we were one of the first tribes assigned a compact with the 

Indian Health Service. We have a great deal riding on the future 

of self-governance. 

Second, we strongly support H.R. 3508 and urge that it be quickly adopted. Mter four years with self-governance, we think the experiment is a success and should be made permanent. We also welcome an increase in the number of tribes allowed to participate. 

Self-governance participation could be very valuable to many of our 

sister tribes. 

Third, we ask you supfort language that would make BIA negotiate, line by line, triba shares of central office funds. We want 

BIA to negotiate central office funds the same way they negotiate 

area and agency office funds. For the past four years, the Mille 

Lacs Band has asked and asked and asked for this, but BIA has 

simply refused to do it; even in report language, Congress said BIA 

shouldn't. My written testimony gives the disappointing details. 
44 

It is clear that it won't happen unless you require it by law. 

Fourth, we very much need the law changes here to clarify lines 

of authority and responsibility within Interior in dealing with selfgovernance issues. We think many of the problems would be faced 

if Interior made regular and open use of a self-governance policy 

council with tribal representatives allowed to participate. Mille 

Lacs Band has been shut out for the most part, even though we 

have a tribal office here in Washington, D.C., with a representative 

who could work here in Washington, D.C. with them. The contacts 

met infrequently and has failed to make final and informed decisions. Nothing much will change until you change the law. 

In conclusion, I want to thank this committee and its able staff 

for being very helpful over the past five years in my tribe's effort 

to get the Federal agencies to implement their responsibilities 

under the self-governance project. We are extremely grateful for 

the personal support of self-governance of the Chairman. Over the 

last year, Chairman Richardson has tremendous-has been a tremendous activist for Indian tribes on the issue of self-governance 

and self-determination. 

From my experience, I am here to tell you that BIA and Indian 

Health Service need more direct and specific guidance in the law 

on self-governance. Let me give you a story fresh from the pages 

of history. 

A few months ago one of our staff telephoned an area office employee to ask them to telefax to us a BIA form an Indian businessman or woman must use to self-certify their company as Indianowned and controlled. The BIA employee said he would not fax it 

to us because we negotiated away our tribal share of this budget. 

He said we should call the Office of Self-Governance here in Washington, D.C. for the form. This is the usual petty revenge we get from bureaucrats who 

hate self-governance because it is the bureaucratic death certificate. We had to pay our attorney to call the BIA to remind it that 

the Mille Lacs Band agreed to let more than $500,000 remain with 

the area office to do residual things such as this. 

The time has now come to make self-governance permanent for 

Interior. It is time for Congress to stay firmly in charge of guiding 

the administration's implementation of this initiative. The agencies 

may tell you this is a new administration and they need more time. 

With all due respect, we have been hearing this since 1988. In fact, 

at every Indian event since this administration has taken office, 

where an address has been given by Clinton appointees, these officials consistently refer to their support of self-governance as an example of how committed this administration is to a positive change 

for Indian tribes. 

It is time to act. Either self-governance is a priority, or it is not. 

We need prompt, pro-tribal implementation. The best chance for 

that lies with you, the Congress, and this permanent legislation 

dealing with BIA. 
45 

Also I want to thank you, Congressman, for your constant support of Indian tribes over the last several years. We know you well 

in Indian country and know that you have been one of the greatest 

friends in the Congress that we have. Thank you. 

Mr. FALEOMAVAEGA. Thank you, Ms. Anderson. 

[Prepared statement of Ms. Anderson and attachment follow:] 
46 

B

'-"cs 

~ "'-::. lF 0 

... 'tl 0Jtll 

MILLE LACS BAND OF CHIPPEWA INDIANS 

Executive Branch of Tribal Government 

TESTIMONY OF THE HONORABLE MARGE ANDERSON, CHIEF EXECUTIVE 

MILLE lACS BAND OF OJIBWE 

BEFORE mE U.S. HOUSE SUBCOMMI"ITEE ON NATIVE AMERICAN AFFAIRS 

HEARING ON H.R. 3508, A BILL TO MAKE SELF-GOVERNANCE AUTHORITY PERMANENT 

FEBRUARY 25, 1994 

I. INTRODUCTION. 

Good morning, Mr. Chairman and members of the Subcommittee. My name is Marge 

Anderson. I am the duly-elected Chief Executive of the Mille Lacs Band of Ojibwe. 

I am pleased to be here in support of H.R. 3508, the "Tribal Self-Governance Act", and to 

discuss Self-Governance issues related to both the Department of the Interior/Bureau of 

Indian Affairs (BIA) and the Department of Health and Human Services/Indian Health 

Service (IHS). 

I also want to thank you because over the past five years that this Subcommittee and the full 

Committee have been very helpful to my Tribe in our efforts to get the federal agencies to 

implement their responsibilities under the Self-Governance Project. I am particularly 

grateful for what you as C.tairrnan of the new Subcommittee on Native American Affairs 

have done to assist us during this first year of the Clinton Administration when I have tried 

to get positive action on Self-Governance issues. We are extremely grateful for your 

commitment to Indian Tribes and your keen interest in Tribal Self-Governance, particularly 

given your leadership position in the House of Representatives. 

At Mille Lacs, we have a great deal riding on the future of Tribal Self-Governance. For that 

reason, I am of the opinion that it will be necessary for Congress to give both BIA and IHS 

more direct guidance in their implementation of this policy. 

II. BACKGROUND ON MILLE l.ACS BAND OF 0JIBWE. 

The Mille Lacs Band of Ojibwe is the name used by the Ojibwe People of the Mille Lacs 

Reservation, located in central Minnesota about 100 miles north of Minneapolis/St. Paul. 

The Band has approximately 7,500 acres throughout four counties: Pine, Mille Lacs, Aitkin, 

and Crow Wing. While the main Reservation was established by the Treaty of 1855, it also 

provides services to outlying Mille Lacs communities off the Reservation. This presents a 

challenge to effective tribal program administration. The Mille Lacs Band has a form of 

government, which in contrast to the other Bands of the Minnesota Chippewa Tnbe, has 
47 

TES'TlMONY OF THE HONORABLE MARGE.I\NtiERSONiCHIEF EXECiJnvE 

MIU£ LACS. BAN[)(?f OJIB\V§•> ··•' •• :! FEBRUARY 25,1994; SUB<XlMi.urn!s,oN NA1tV!l AMEaiCAN AffAnts HBARi>!q ON f-J,R: · (SEi:F-GoV!!RNANci!) 

three branches: Executive, Legislative and Judicial. Years ago we determined that a formal 

separation of powers was necessary for our successful Self-Governance and later, for 

implementation of our Self-Governance Compact. 

The Mille Lacs Band of Ojibwe is a "first-tier" Self-Governance Tribe. We signed our first 

Compact with the Interior Department in 1990 for fiscal year 1991. On health programs, 

we were one of the first six Tribes to sign Compacts with IHS last summer. 

ill. MAKE SELF-GoVERNANCE AUTIIORI1Y I'ERMANENT FOR BOTH INTERIOR AND illS. 

The Mille Lacs Band strongly supports any and aU legislative improvements that can, as a 

practical political matter, be enacted this year. Thus we strongly support H.R. 3508, which 

would make the Self-Governance authority permanent for the Interior Department. We 

understand that it is not feasible to consider legislation extending permanent authority to 

IHS this year, but hope that upon adoption of this legislation the Subcommittee will turn its 

attention to IHS. 

We believe that permanent authority is a positive step forward and one that should be taken 

as soon as possible, especially for a Tribe such as ours that is now in its fourth year of 

Compact administration. We believe that our experience, and that of other Tribes, is 

positive proof that this experiment is a success and should be transformed from 

demonstration to permanent in nature. We also welcome the increase in the number of 

Tribes participating. There is strength in numbers. Most importantly, however, we also 

believe that the path of Self-Governance could be of great value to many of our sister Tribes 

who choose to take it. 

IV. ADDmONAL SELF-GOVERNANCE ISSUES REQUIRING SUBCOMMilTEE AITENTION. 

There are a number of additional issues which we request that you add to the present SelfGovernance bill and enact this year. They are described below along with suggested bill and 

report language where appropriate. 

A. COMPEL BIA NEGOTIATION OF LiNE-BY-LINE TRIBAL SHARES OF CENTRAL 

omcEFUNDs. 

Last year, the Mille Lacs Band completed its fourth round of annual negotiations. Each year 

we pressed hard for a line-by-line tribal share of the BIA Central Office budget. Instead, 

we and most Tribes have received a flat amount of $45,000 from Central Office. Some 

Tribes have obtained a bit more (a maximum of approximately $100,000) depending on the 

overall size of their Compact funding. There is no rational basis for these BIA decisions. 

The law does not authorize BIA to hold back Central Office funds as being immune from 

-PAGE 2-
48 

TESTIMONY OF THE HONORABLE MARGE ANDERSON, CHIEF EXEClJTlVE 

Mlu.E LACS BAND OF OJIBWE 

FEBRUARY 25, 1994, Sullco!.~Mll'I"Ee 01'1 NAnvB AMERICAN AFFAIRS lieARJI'IO 01'1 H.R. 3508 (SELF-GoVERNANCE) 

line-by-line negotiation of tribal shares. Rather, the law anticipates Central Office funds 

being treated the same as BIA Area Office and Agency Office funds in Self-Governance 

negotiations of tribal shares. 

At the Agency and Area budget levels, Interior has uniformly calculated and negotiated 

tribal shares based on factors related to the program or account being divided. For 

example, if a Tribe has 3% of the trust acres in an Agency Office, its tribal share is 3% of 

the Agency's realty funds. All we ask is that this same approach be applied to Central 

Office-level funds. That is what this Subcommittee has previously suggested be done in 

Subcommittee Reports. Nevertheless, Interior has refused to do so. 

During our June negotiations in 1993, I met with John Duffey, counselor to Secretary 

Babbitt, to explain to him why I expected a pro-tribal response out of the Interior 

Department this year on Central Office shares. 

We submitted a formal proposal on Central Office shares. Mr. Duffey asked for some time 

to respond. We agreed, anticipating with Mr. Duffey that Interior's counter-proposal would 

be made in time to negotiate a modification to our fiscal year 1994 funding agreement in 

October or November, 1993. 

As of this date, however, it appears the Department has only just begun the process of 

developing a counter-proposal. The Mille Lacs Band would like to work with the 

Department on this. For that purpose, last July I wrote Assistant Secretary Ada Deer to 

suggest a process by which the Department could deliver on its commitment. Thus far it 

seems to us that the Department has become bogged down, unable to make or implement 

even a simple decision like what is the scope of work and deadline of a work group that 

develops options for Interior decision-makers to consider. We think this is partly because 

of the lack of clear lines of authority within Interior on Self-Governance. 

While we are committed to working with Interior to see that this proposal is developed as 

soon as possible, we fear that nothing will change until Congress provides specific and 

express direction in the statute and accompanying Subcommittee or Committee Reports. 

We have learned that the Department is considering recommending to the Subcommittee 

that you amend existing law to limit the funds that are to be made available for SelfGovernance negotiations. The restrictions being considered include limiting Self-Governance 

funds to those that are contractible. The Mille Lacs Band urges the Subcommittee to 

strenuously oppose any retreat from current law. We have indicated our strong support for 

H.R. 3508 as introduced, but if the available funds authority is going to be amended from 

current law, we suggest that it be strengthened, not weakened. We set forth below some Bill 

language that would strengthen H.R. 3508 in this regard: 

·PAGE 3 • 
49 

TESTlMONY OF lltE 

PROPOSED BILL LANGUAGE 

"(a) Unless directed otherwise by an express provision of 

a statute, the Secretary shall make available, through 

negotiations, a tribal share of all funds and resources requested 

by a tnbe which are specifically or functionally related to the 

provision of services and benefits to the tnbe or its members, 

including aU funds and resources available to the Department 

to support the provision of services and benefits to Indian tnbes 

and Indian individuals regardless of the organizational level 

where the Secretary would have otherwise spent the funds or 

provided the resources, regardless of the origin of the funds or 

resources, and including those funds and resources which the 

Secretary could have otherwise distnbuted or allocated by 

competitive procedure, formula, priority list, or other 

mechanism." 

"(b) Unless otherwise agreed to by a tribe in 

negotiations, a tnbe's tnbal share shall be determined as 

follows: 

( 1) A residual amount for programs, 

activities, functions and services directly related to 

the natural or financial trust resources of a tribe 

or to the executive direction and administrative 

services functions of the Department shall be 

determined· and subtracted from the total funds 

estimated to be available for the next fiscal year, 

which estimate shall be based either upon the 

total in the Department's budget request for that 

year or upon the total made available by 

Congress for the appropriate year. The residual 

amount shall be that amount which, if all Federal 

funds benefiting Indian tnbes and Indian 

individuals were administered by tnbes under 

Agreements authorized by this title, would be 

necessary to support an efficiently restructured 

Federal implementation of the minimum core 

Federal activities specifically required by statute 

to be carried out by a Federal officiaL 

(2) The tnbal share of a tnbe shall be 

determined in negotiations using factors directly 

related to the budget account, fund or program 

- PAOE4-
50 

l5!1MONY .OF THE HONORABLE MARGE ANDERSON, CHIEPEXECUnvE;~:;,·. :i · .. 

. . . . ,:Mill.ELACS BAND OF OJIBWE., < ., ,;o-:;,;;;; ;;:;;;;;~J;:;: • ;< FEBRUARY·25,1994; StJB(:oMMri"IEitoli NATIVB AMERICAN APFA!RS HEARINo 91< H.R.i~. (SiitF!OO~ci!) 

being allocated, and shall be separately calculated 

at each administrative level of the Federal agency 

using factors specific to that level. In lieu of 

negotiating a tribal share of funds from the 

central office or other national-scope 

organizational level of a Federal agency, a rribe 

may elect to receive the sum of $45,000 per year." 

PROPOSED REPORT LANGUAGE 

'The Subcommittee is aware that, despite repeated 

congressional directives, no negotiation of Self-Governance 

tnbal shares of BIA Central Office funds has been 

accomplished that is similar in procedure and scope with the 

Self-Governance negotiations used on BIA Area and Agency 

Office budgets during the past three fiscal years. Although 

significant transfers of funding and responsibilities have been 

accomplished at the Agency and Area Office levels, Central 

Office budgets remain largely untouched. The Subcommittee 

therefore directs Interior to subject all Central Office budgets 

to the same negotiation process used with Area and Agency 

Office budgets, applying tnbal share formulas and residual 

percentages to Central Office in a similar manner to that used 

in Area and Agency level negotiations. 

B. COMPEL BIA REsTRUC1TJRING. 

Despite repeated congressional directives, little if any BIA restructuring has occurred as a 

result of the negotiation of Self-Governance Compacts and annual funding agreements with 

Tnbes during the past four fiscal years. As a result, Tnbes like the Mille lacs Band have 

not realized savings from BIA reorganization that was supposed to accompany our 

negotiation of a transfer of responsibilities and funds to us. 

In a period of time when the federal government is being reinvented, we believe great care 

must be taken to ensure that "savings" from down-sizing the federal Indian bureaucracy be 

identified and transferred to benefit the Tnbes. We fear instead that savings from reducing 

the Indian bureaucracy, orphaned as it is by its reputation for miserable management, will 

be used by the Administration or Congress to help in the difficult task of meeting deficit 

reduction targets. 

We suggest that this Subcommittee ask BIA and IHS to alert the Subcommittee and the 

Tnbes to the details of each internal Administration proposal to reinvent BIA and lliS so 

• PAGE 5 . 
51 

TESTIMONY OF iliE H~~~~ ~;~r~='N: CHI~ ~f~;·;)iK::;~;H;!,'~·; FEBRUARY 25, 1994, SUBCOMMrrrn!! ON NATM! AMERICAN,AfFAIRS HEAAIN0,0N_· H.A-3598'(SEU;,Gi)VERNANCEF 

that the Subcommittee and the Tribes have the chance to analyze each proposal to ensure 

that savings are captured for the benefit of Indian Tribes and their members. 

We also ask that this Subcommittee inquire of the Clinton Administration why it has not 

high-lighted the Self-Governance Project experience as a shining example of how reinventing 

government could work on a broader scale. I recently wrote Vice President AI Gore asking 

this same question. 

C. MAKE INTERIOR'S POUCY COUNCU. USEFUL. 

The Mille lacs Band is proud of the accomplishments of the Interior Department and IHS 

in the area of Self-Governance. Self-Governance policy pronouncements of both the Bush 

and Clinton Administrations have been excellent. Even policy implementation generally has 

been remarkable, although the Mille lacs Band has been periodically frustrated with its slow 

pace or its inconsistency. 

We believe the prime cause of our frustrations has been the lack of clear lines of authority 

and decision-making within Interior and IHS on Self-Governance. We think many of the 

problems would be fixed if both Interior and IHS made regular and open use of a SelfGovernance Policy Council. We have suggested this to the Administration, but bureaucratic 

drag seems to have held back improvement. 

The Mille lacs Band fears that nothing will change until Congress provides specific and 

express direction in the statute and accompanying Committee Reports. Therefore we 

suggest that this Subcommittee provide Report language to accompany H.R. 3508 as follows: 

PROPOSED REPORT LANGUAGE 

'The Subcommittee urges the Secretary to order the 

Department's Self-Governance Policy Council to convene 

regularly scheduled monthly meetings to finally resolve 

departmental policy and administrative issues concerning SelfGovernance. The Interior Self-Governance Policy Council 

should be haired by the Director of the Office of SelfGovernance, with additional members including the Assistant 

Secretary for Indian Affairs, a representative of the Office of 

the Secretary, the Associate Solicitor for Indian Affairs, and two 

non-Federal members appointed by the Secretary representing 

tnbes with self-governance agreements with the Department. 

Each non-Federal member should serve a 1-year, 

nonconsecutive term, and should be selected in such manner as 

to achieve geographic representation from among nominations 

made by tnbes having agreements authorized under this title 

·PAGE 6-
FEBRUARY 25, 1994, 

52 

with the Department. Each non-Federal member should have 

voice but no voting privileges on all matters before the SelfGovernance Policy Council. Complete minutes of each meeting 

of the Self-Governance Policy Council should be timely 

distnbuted to all tnbes having agreements authorized under this 

title with the Department. The Subcommittee intends these 

measures to strengthen the existing Self-Governance Policy 

Council within the Department of the Interior. Of particular 

importance to participating tribes is the need to ensure that the 

Department makes Self-Governance decisions with dispatch, 

with a rational basis, and in close coordination and 

communication with those most affected - the tnbes 

themselves." 

V. CONCLUSION. 

The time has now come to make Self-Governance permanent for Interior and adopt H.R. 

3508 as introduced. It is also an opportune time for Congress to stay firmly in charge of 

guiding the Administration's implementation of this initiative. I understand that a few key 

Interior policy advisers would prefer to move slowly with this project and legislation. I 

respectfully submit that the Department has not moved in any speed but "slow" thus far, 

which is why this legislation is so critically necessary. We have received numerous public and 

private promises of support for this project and legislation from the top appointees in the 

Clinton Administration. Indeed, whenever an appointee gives an address before a tnbal 

audience, Self-Governance is consistently referenced as an example of how strongly the 

Department supports self-detemtination for Indian tribes. I believe that it is time to do 

away with the speeches and simply act. However, action will not occur without a push from 

the Congress. 

The Mille Lacs Band of Ojibwe thanks this Subcommittee for its leadership on SelfGovernance. I further thank you, Mr. Chairman, for introducing H.R. 3508 and for your 

personal commitment to Self-Governance. Together with Tnbes, you have been cl)arting 

a dramatically new course in the relations between mba! governments and the United States. 

We appreciate very much your effort. 

I am convinced that generations to come will look back on these days and say justice and 

fair dealing were the keys to the success of the Tnbal Self-Governance experiment. You 

and I and others in this room today will know that it took hard work, some risk, and great 

vision. 

·PAGE 7 • 
COMPARISON OF SELF-GOVERNANCE BII.LS wrrn 

February 25, 1994 

H.R. 3508 

(as introduced 11/15/93) 

''Sec. 1. Short Title. 

This Act may be cited as the 

'Tribal Self-Governance Act of 1993". 

''Sec. 2. Findings. 

Congress finds that --

( 1) the tribal right of selfgovernance flows from the inherent 

sovereignty of Indian tnbes and 

nations; 

(2) the United States recognizes 

a special government-togovernment relationship with 

Indian tribes, including the right of 

the tribes to self-governance, as 

reflected in the Constitution, 

treaties, Federal statutes, and the 

course of dealings of the United 

States with Indian tribes; 

s. 1618 

(as Senate passed 11/24/93) 

"Sec. 1. Short Title. 

This Act may be cited as the 

'Tribal Self-Governance Act of 1993". 

"Sec. 2. Fmdings. 

Congress finds that --

(1) the tribal right of selfgovernance flows from the inherent 

sovereignty of Indian tribes and 

nations; 

(2) the United States recognizes 

a special government-togovernment relationship with 

Indian tribes, including the right of 

the tnbes to self-governance, as 

reflected in the Constitution, 

treaties, Federal statutes, and the 

course of dealings of the United 

States Government with Indian 

tribes; 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

(3) although progress has been 

made, the Federal bureaucracy, 

with its centralized rules and 

regulations, has eroded tribal selfgovernance and dominates tribal 

affairs; 

(4) the Tribal Self-Governance 

Demonstration Project was 

designed to improve and 

perpetuate the government-togovernment relationship between 

Indian tribes and the United States 

and to strengthen tribal control 

over Federal funding and program 

management; and 

(5) Congress has reviewed the 

results of the Tribal SelfGovernance Demonstration Project 

and finds that --

(A) transferring control to 

tribal governments, upon tribal 

request, over funding and 

decisionmaking for Federal 

Programs, services, functions, and 

activities intendeU to bt:nefit 

S. 1618 

(as Senate passed 11!24/93) 

(3) although progress has been 

made, the Federal bureaucracy, 

with its centralized rules and 

regulations, has eroded tribal selfgovernance and dominates tribal 

affairs; 

( 4) the Tribal Self-Governance 

Demonstration Project was 

designed to improve and 

perpetuate the government-togovernment relationship between 

Indian tribes and the United States, 

and to strengthen tribal control 

over Federal funding and program 

management; and 

(5) Congre~s has reviewed the 

results of the Tribal SelfGovernance Demonstration Projec( 

and finds that --

(A) transferring control to 

tribal governments, upon tribal 

request, over funding and 

decisionmaking for Federal 

programs, services, functions, and 

activities intended to benefit 
Comparison of Self-Governance Bills With Curren

H.R. 3508 

(as introduced 11/15/93) 

Indians is an effective way to 

implement the Federal policy of 

gave r n men t-to-governmen t 

relations with Indian tribes; and 

(B) transferring control to 

tribal governments, upon tribal 

request, over funding and 

decisionmaking for Federal 

programs, services, functions, and 

activities strengthens the Federal 

policy of Indian selfdetermination. 

''Sec. 3. Declaration of Policy. 

It is the policy of this Act to 

permanently establish and implement 

tribal self-governance --

(1) to enable the United States 

to maintain and improve its unique 

and continuing relationship with, 

and responsibility to, Indian tribes; 

(2) to permit each Indian tnbe to 

choose the extent of the 

s. 1618 

(as Senate passed 11/24/93) 

Indians, is an effective way to 

implement the Federal policy of 

government-to-government 

relations with Indian tribes; and 

(B) transferring control to 

tribal governments, upon tribal 

request, over funding and 

decisionmaking for Federal 

programs, services, functions, and 

activities strengthens the Federal 

policy of Indian selfdetermination. 

"Sec. 3. Declaration of Policy. 

It is the poliC'J of this Act to 

permanently establish and implement 

Self-Governance --

(1) to enable the United States 

to maintain and improve its unique 

and continuing relationship with, 

and responsibility to, Indian tribes; 

(2) to permit each Indian tribe to 

choose the extent of the 
Comparison of Self-Governance Bills With Current 

H.R. 3508 S. 1618 

(us inlrodt~ cd 11/l:'i/91) (ns molc pusscd 11/24/'J:l) 

participation of such tribe in selfgovernance; 

(3) to coexist with the provisions 

of the Indian Self-Determination 

Act relating to the provision of 

Indian services by designated 

Federal agencies; 

(4) to ensure the continuation of 

the trust responsibility of the 

United States to Indian tribes and 

Indian individuals; 

(5) to permit an orderly 

transition from Federal domination 

of programs and services to provide 

Indian tribes with meaningful 

authority to plan, conduct, redesign, 

and administer programs, services, 

functions, and activities that meet 

the needs of the individual tribal 

communities; and 

(6) to provide for an orderly 

transition through a planned and 

measurable parallel reduction in 

the Federal bureaucracy. 

participation of such tribe in SelfGovernance; 

(3) to co-exist with the provisions 

of the Indian Self-Determination 

Act relating to provision of Indian 

services by designated Federal 

agencies; 

( 4) to ensure the continuation of 

the trust responsibility of the 

United States to Indian tribes and 

Indian individuals; 

(5) to permit an orderly 

transition from Federal domination 

of programs and services to provide 

Indian tribes with meaningful 

authority to plan, conduct, redesign, 

and administer programs, services, 

functions, and activities that meet 

the needs of the individual tribal 

communities; and 

(6) to provide for an orderly 

transition through a planned and 

measurable parallel reduction in 

the Federal bureaucracy. 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

"Sec. 4. Tnbal Self-Governance. 

The Indian Self-Determination and 

Education Assistance Act is amended 

by adding at the end the following 

new title: 

'TITI.E IV - TRIBAL SELFGOVERNANCE 

"Sec. 401. Establishment. 

'The Secretary of the Interior 

(hereinafter in this title referred to as 

the 'Secretary') shall establish and 

carry out a program within the 

Department of the Interior to be 

known as Tribal Self-Governance 

(hereinafter in this title referred to as 

'Self-Governance') in accordance with 

this title. 

"Sec. 402. Selection of Participating 

Indian Tnbes. 

"(a) Continuing Participation.-

Each Indian tribe that is participating 

s. 1618 

(as Senate passed 11/24/93) 

"Sec. 4. Tnbal Self-Governance. 

The Indian Self-Determination and 

Education Assistance Act (25 U.S.C. 

450 et seg.) is amended by adding at 

the end the following new title: 

1TILE IV - TRIBAL SELFGOVERNANCE 

"Sec. 401. Establishment. 

''The Secretary of the Interior 

(referred to in this title ns the 

'Secretary') shall establish and carry 

out a program within the Department 

of the Interior to be known as Tribal 

Self-Governance (referred to in this 

title as 'Self-Governance') in 

accordance with this title. 

"Sec. 402. Selection of Tnbes. 

"(a) Continuing Participation.--

Each tribe that is participating in the 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

in the Tribal Self-Governance 

Demonstration Project at the 

Department of the Interior under title 

III on the uate of enactment of this 

title shall thereafter participate in 

Self-Governance under this title and 

cease participation in the Tribal SelfGovernance Demonstration Project 

under title III with respect to the 

Department of the Interior. 

"(b) Additional Participants.--In 

addition to those Indian tribes 

participating in Self-Governance 

under subsection (a), the Secretary, 

acting through the Director of the 

Office of Self-Governance, may select 

up to 20 new tribes per year from the 

applicant pool described in subsection 

(c) to participate in Self-Governance. 

"(c) Applicant Pool.--The 

qualified applicant pool for Selfs. 1618 

(as Senate passed 11/24/93) 

Tribal Self-Governance 

Demonstration Project at the 

Department of the Interior under title 

Ill on the date of enactment of this 

title shall thereafter participate in 

Self-Governance under this title and 

cease participation in the Tribal SelfGovernance Demonstration Project 

under title III with respect to the 

Department of the Interior. 

"(b) Additional Tnbes.--In addition 

to those tribes participating in SelfGovernance under subsection (a), the 

Secretary, acting through the Director 

of the Office of Self-Governance, may 

select up to 20 new tribes per year, 

from the applicant pool described in 

subsection (c), to pa1ticipate in SelfGovernance. 

"(c) Applicant Pool.--The 

qualified applicant pool for SelfComparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

Governance shall consist of each tnbe 

that--

"(1) successfully completes the 

planning phase described in 

subsection (d); 

"(2) has requested participation 

in Self-Governance; and 

"(3) has ocmonstrated, for the 

previous three fiscal years, 

financial stability and financial 

management capability as 

evidenced by the tribe having no 

material audit exceptions in the 

required annual audit of the selfdetermination contracts of the 

tnbe. 

s. 1618 

(as Senate passed 11/24193) 

Governance shall consist of each tribe 

that--

"(1) successfully completes the 

planning phase described in 

subsection (d); 

"(2) has requested participation 

in Self-Governance; and 

"(3) has demonstrated, for the 

previous 3 fiscal years, financial 

stability and financial management 

capability as evidenced by the tribe 

having no material audit exceptions 

in the required annual audit of the 

self-determination contracts of the 

tribe. 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15,93) 

"(d) Planning Phase.--Each Indian 

tribe seeking to begin participation in 

Self-Governance shall complete a 

planning phase in accordance with 

this subsection. The tribe shall be 

eligible for a grant to plan and 

negotiate participation in SelfGovernance. The planr.ing phase 

shall include --

"( 1) legal and budgetary research; 

and 

"(2) internal tribal government 

planning and organizational 

preparation. 

"Sec. 403. Funding Agreements. 

"(a) Authorization.-The Secretary 

shall negotiate and enter into an 

annual written funding agreement 

with the governing body of each 

participating tribal government. 

"(b) Contents.--Each funding 

agreement shall --

s. 1618 

(as Senate passed 11/24193) 

"(d) Planning Phase.--Each 

tribe seeking to begin participation 

in Self-Governance shall complete 

a planning phase in accordance 

with this subsection. The tribe shall 

be eligible for a grant to plan and 

negotiate participation in SelfGovcrnnnce. The planning phase 

shall include --

"(1) legal and budgetary 

research; and 

"(2) internal tribal government 

planning and organizational 

preparation. 

''Sec. 403. Funding Agreements. 

"(a) Authorization.-The Secretary 

shall negotiate and enter into an 

annual written funding agreement 

with the governing body of each 

participating tribal government. 

"(b) Contents.--Each funding 

agreement shall --
CXI 

-..J 

I 

IV 

-..J 

0\ 

0 

I 

~ 

w 

Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

"(1) authorize the tribe to plan, 

conduct, consolidate, and 

administer programs, services, 

functions, and activities 

administered by the Department of 

the Interior that are otherwise 

available to Indian tribes or 

Indians, including (but not limited 

to) --

"(A) the Act of April 16, 1934 

(25 U.S.C. 452 et seq.); and 

"(B) the Act of November 2, 

1921 (25 u.s.c. 13); 

"(2) subject to the terms of the 

agreement, authorize the tribe to 

redesign programs, services, 

functions, or activities and to 

reallocate funds for such programs, 

services, functions, or activities; 

s. 1618 

(as Senate passed 11/24/93) 

"(1) authorize the tribe to plan, 

conduct, consolidate, and 

administer programs, services, 

functions, and activities 

administered by the Department of 

the Interior that are otherwise 

available to Indian tribes or 

Indians, including --

"(A) the Act of April 16, 1934 

(popularly known as the 

'Johnson-O'Malley Act') (48 Stat. 

596, chapter 147; 25 U.S.C. 452 

et seg.); and 

"(B) the Act of November 2, 

1921 (popularly known as the 

'Snyder Act') ( 42 Stat. 208, 

chapter 115; 25 U.S.C. 13); 

"(2) subject to the terms of the 

agreement, authorize the tribe to 

redesign programs, services, 

functions, or activities, and to 

reallor,ate funds for such programs, 

services, functions, or activities; 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

"(3) prohibit the inclusion of 

funds provided --

"(A) pursuant to the Tribally 

Controlled Community College 

Assistance Act of 1978 (25 U.S.C. 

180 I ct seq.); 

"(B) for elementary and 

secondary schools under the 

formula developed pursuant to 

section 1128 of the Education 

Amendments of 1978 (25 U.S.C. 

2008); and 

"(C) the Flathead Agency 

Irrigation Division or the 

Flathead Agency Power Division, 

except that nothing in this section 

shall affect the contract authority 

of such divisions under section 

102; 

"( 4) specify the services to be 

provided, the functions to be 

performed, and the responsibilities 

of the tribe and the Secretary 

pursuant to the agreement; 

s. 1618 

(as Senate passed 11/24/93) 

"(3) prohibit the inclusion of 

funds provided --

"(A) pursuant to the Tribally 

Controlled Community College 

Assistance Act of 1978 (25 U.S.C. 

1801 et seq.); 

"(B) for elementary and 

secondary schools under the 

formula developed pursuant to 

section 1128 of the Education 

Amendments of 1978 (25 U.S.C. 

2008); and 

"(C) to the Flathead Agency 

Irrigation Division or the 

Flathead Agency Power Division, 

except that nothing in this section 

shall affect the contract authority 

of such divisions under section 

102; 

"( 4) specify the services to be 

provided, the functions to be 

performed, and the responsibilities 

of the tribe and the Secretary 

pursuant to the agreement; 
Comparison of Self-Governance Bills With Curren

H.R. 3508 

(as introduced 11/15/93) 

"(5) authorize the tribe and the 

Secretary to reallocate funds or 

modify budget allocations within 

any year, and specify the 

procedures to be used; 

"(6) allow for retrocession of 

programs or portions of programs 

pursuant to section 105( e); 

"(7) provide that, for the year for 

which, and to the extent to which, 

funding is provided to a tribe under 

this section, the tribe --

"(A) shall not be entitled to 

contract with the Secretary for 

such funds under section 102, 

except that such tribe shall be 

eligible for new programs on the 

same basis as other tribes; and 

"(B) shall be responsible for 

the administration of programs, 

services, functions, and activities 

pursuant to agreements entered 

into under this section; and 

s. 1618 

(as Senate passed 11/24/93) 

"(5) authorize the tribe and the 

Secretary to reallocate funds or 

modify budget allocations within 

any year, and specify the 

procedures to be used; 

"(6) provide for retrocession of 

programs or portions of programs 

pursuant to section 105( e); 

"(7) provide that, for the year for 

which, and to the extent to which, 

funding is provided to a tribe under 

this section, the tribe --

"(A) shall not be entitled to 

contract with the Secretary for 

such funds under section 102, 

except that such tribe shall be 

eligible for new programs on 

the same basis as other tribes; 

and 

"(B) shall be responsible for 

the administration of programs, 

services, functions, and 

activities pursuant to 
Comparison of Self-Governance Bills With Curren

H.R. 3508 

(as introduced 11/15/93) 

"(8) prohibit the Secretary from 

waiving, modifying, or diminishing 

in any way the trust responsibility 

of the United States with respect to 

Indian tribt:s and individual Indians 

that exists under treaties, Executive 

orders, and other laws. 

"(c) Submission for Review.--Not 

later than 90 days before the 

proposed effective date of an 

agreement entered into under this 

section, the Secretary shall submit a 

copy of such agreement to --

"( 1) each Indian tribe that is 

served by the Agency that is 

serving the tribe that is a party to 

the funding agreement; 

"(2) the Committee on Indian 

Affairs of the Senate; and 

s. 1618 

(as Senate passed 11{24/93) 

agreements entered into under 

this section; and 

"(8) prohibit the Secretary from 

waiving, modifying, or diminishing 

in any way the trust responsibility 

of the United States with respect to 

Indian tribes and individual Indians 

that exists under treaties, Executive 

orders, and other laws. 

"(c) Submission for Review.--Not 

later than 90 days before the 

proposed effectivt" date of an 

agreement entered into under this 

section, the Secretary shall submit a 

copy of such agreement to --

"(1) each tribe that is served by 

the Agency that is serving the tribe 

that is a party to the funding 

agreement; 

"(2) the Committee on Indian 

Affairs of the Senate; and 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

"(3) the Subcommittee on 

Native American Affairs of the 

Committee on Natural Resources 

of the House of Representatives. 

"(d) Payment. --

"{1) In general--At the request of 

the governing body of the tribe and 

under the terms of an agreement 

entered into under this section, the 

Secretary shall provide funding to 

the tribe to carry out the 

agreement. 

"(2) Amount.--Subject to 

paragraph (3) of this subsection 

and paragraphs (1) and (3) of 

subsection (b), the Secretary shall 

provide funds to the tribe for one 

or more programs, services, 

functions, or activities in an amount 

equal to the amount that the tribe 

would have been eligible to receive 

under contracts and grants under 

this Act, including direct program 

costs, and for any funds that are 

specifically or functionally related 

s. 1618 

(as Senate passed 11/24/93) 

"(3) the Committee on Natural 

Resources of the House of 

Representatives. 

"(d) Payment. --

"(1) In general--At the request .of 

the governing body of the tribe and 

under the terms of an agreement 

entered into under this section, the 

Secretary shall provide funding to 

the tribe to carry out the 

agreement. 

"(2) Amount.--Subject to 

paragraph (3) of this subsection 

and paragraphs (1) and (3) of 

subsection (b), the Secretary shall 

provide funds to the tribe for one 

or more programs, services, 

functions, or ac:tivities in an amount 

equal to the amount that the tribe 

would have been eligible to receive 

under contracts and grants under 

this Act, including direct program 

costs and indirect costs, and for any 

funds that are specifically or 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

to the provision by the Secretary of 

services and benefits to the tribe 

and its members. 

"(3) Trust servicea.--Funds for 

trust services to individual Indians 

shall be available under an 

agreement entered into under this 

section only to the extent that the 

same services that would have been 

provided hy the Secretary are 

provided I<~ individual lmliuns hy 

the tribe. 

[see comparable§ 403(b)(8) above] 

[see comparable§ 403(b)(6) above] 

s. 1618 

(as Senate passed 11!24/93) 

functionally related to the provision 

by the Secretary of services and 

benefits to the tribe and its 

members. 

"(3) Trust servicea.--Funds for 

trust services to individual Indians 

shall be available under an 

agreement entered into under this 

section only to the extent that the 

same services that would have been 

provided hy the Secretary are 

proviuc:u lo individual Indians hy 

the tribe. 

[see comparable§ 403(b)(8) above] 

[see comparable§ 403(b)(6) above] 
H.R. 3508 

(as introduced 11/15193) 

(see comparable § 403(c) above) 

[see .comparable § 403(b)(7)(A) 

above) 

[see comparable § 403(b)(7)(B) 

above] 

Comparison of Self-Governance Bills With Curren

S. 1618 

(as Senate passed 11(24193) 

[see comparable§ 403(c) above] 

[see comparable § 403(b)(7)(A) 

above] 

[see comparable § 403(b)(7)(B) 

above] 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

[see comparable§ 403(d)(1) above] 

"(e) Civil Actions. --

"(1) Definition of contract.-

Except as provided in paragraph 

(2), for the purposes of section 110, 

the term 'contract' shall include 

agreements entered into under this 

title. 

"(2) Professional contracts.--For 

the period that an agreement 

entereJ into unJer this title is in 

effect, the provisions of section 

2103 of the Revised Statutes of the 

United States (25 U.S.C. 81), and 

section 16 of the Act of June 18, 

1934 (25 U.S.C. 476), shall not 

apply to attorney and other 

S. 1618 

(as Senate passed 11/24/93) 

[see comparable§ 403(b)(1) above] 

"(e) Civil Actions. --

"(1) Definition of 'contract'.--

Except as provided in paragraph 

(2), for the purposes of section 110, 

the term 'contract' shall include 

agreements entered into under this 

title. 

"(2) Professional contracts.--For the 

period that an agreement entered 

into under this title is in effect, the 

provisions of section 2103 of the 

Revised Statutes of the United States 

(25 U.S.C. 81), and section 16 of the 

Act of June 18, 1934 (48 Stat. 987, 

chapter 576; 25 U.S.C. 476), shall not 

apply to attorney and other 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

professional contracts by Indian 

tribal governments participating in 

Self-Governance under this title. 

"(f) Facilitation. --

"(1) Interpretation---Except as 

otherwise provided by law, the 

Secretary shall interpret each 

Federal law and regulation in a 

manner that will facilitate --

"(A) the inclusion of programs, 

services, functions, and activities 

in the agreements entered into 

under this section; and 

"(B) the implementation of 

agreements entered into under 

this section. 

"(2) Waiver. --

"(A) Request--A tribe may 

submit a written request for a 

waiver to the Secretary 

identifying the regulation sought 

s. 1618 

(as Senate passed 11/24/93) 

professional contracts by Indian tribal 

governments participating in SelfGovernance under this title. 

"(f) Facilitation. --

"(1) Interprctation.--Except as 

otherwise provided by law, the 

Secretary shall interpret each 

Federal law and regulation in a 

manner that will facilitate --

"(A) the inclusion of programs, 

services, functions, and activities 

in the agreements entered into 

under this section; and 

"(B) the implementation of 

agreements entered into under 

this section. 

"(2) Waiver. --

"(A) Request--A tribe may 

submit a written request for a 

waiver to the Secretary 

identifying the regulation sought 
Comparison of Self-Governance Bills With Curren

H.R. 3508 

(as introduced 11/15/93) 

to be waived and the basis for 

the request. 

"(B) Decision.--Not later than 

60 days after receipt by the 

Secretary of a written request by 

a tribe to waive application of a 

Federal regulation for an 

agreement entered into under 

this section, the Secretary shall 

either approve or deny the 

requested waiver in writing to the 

tribe. A denial may be made 

only upon a specific finding by 

the Secretary that identified 

language in the regulation may 

not be waived because that 

regulation is expressly required 

by Federal law. 

"(C) AppeaL--Not later than 60 

days after denial of a waiver 

request, the Secretary shall at the 

request of the tribe, provide the 

trihe with a hearing on the 

record and an opportunity for an 

appeal. 

s. 1618 

(as Senate passed 11/24/93) 

to be waived and the basis for 

the request. 

"(B) Decision.--Not later than 

60 days after receipt by the 

Secretary of a written request by 

a tribe to waive application of a 

Federal regulation for an 

agreement entered into under 

this section, the Secretary shall 

either approve or deny the 

requested waiver in writing to the 

tribe. A denial may be made 

only upon a specific finding by 

the Secretary that identified 

language in the regulation may 

not be waived because such 

waiver is prohibited by Federal 

law .. 

"(C) Appeal.--Not later than 60 

day~ after denial of a waiver 

request, the Secretary shall, at 

the request of a tribe, provide 

the trihc with 11 hcnring on the 

record and opportunity for an 

appeal. 
Comparison of Self-G<M:rnance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

"Sec. 404. Budget Request. 

'The Secretary shall identify, in the 

annual budget request of the 

President to the Congress under 

section 1105 of title 31, United States 

Code, any funds proposed to be 

included in Self-Governance. 

"Sec. 405. Reports. 

"(a) Requirement.·· The Secretary 

shall submit to Congress a written 

report on January 1 of each year 

following the date of enactment of 

this title regarding the administration 

of this title. 

"(b) Contents.--The report sh~ 

contain --

"(1) the relative costs and benefit 

of Self-Governance; 

"(2) identification of all funds 

that are specifically and functionally 

related to the provision of services 

and benefits to the tribe and its 

S. 1618 

(as Senate passed 11/24/93) 

"Sec. 404. Budget Request. 

'The Secretary shall identify, in the 

annual budget request of the 

President to the Congress, any funds 

proposed to be included in SelfGovernance. 

"Sec. 405. Reports. 

"(a) Requirement.--Not later than 

January 1 of each year after the date 

of enactment of this title, the 

Secretary shall submit to Congress a 

report regarding the administration of 

this title. 

"(b) Contents.--The report shall--

"(1) identify the relative costs and 

benefits of Self-Governance; 

"(2) identify, with particularity, all 

funds that are specifically or 

functionally related to the provision 

by the Secretary of services and 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15193) 

members and the corresponding 

reduction in the Federal 

bureaucracy; and 

"(3) the separate views of the 

tribes. 

"Sec. 406. Effect on Other 

Agreements and Laws. 

"Nothing in this title shall be 

construed to limit or reduce in any 

way the services, contracts, or funds 

that any other Indian tribe or tribal 

organization is eligible to receive 

under section 102 or any other 

applicable Federal law. 

"Sec. 407. Negotiated Rulemaking. 

"(a) In General--Not later than 

90 days after the date of enactment 

of this titk, nt the request of n 

majority of the Indian tribes with 

s. 1618 

(as Senate passed 11/24/93) 

benefits to Self-Governance tribes 

and their members, and the 

corresponding reductions in the 

Federal bureaucracy; and 

"(3) include the separate views of 

the tribes. 

"Sec. 406. Effect on Other 

Agreements and Laws. 

"Nothing in this title shall be 

construed to limit or reduce in any 

way the services, contracts, or funds 

that any other Indian tribe or tribal 

organization is eligible to receive 

under section 102 or any other 

applicable Federal law. 

"Sec. 407. Negotiated Rulemaking. 

"(a) In General--Not later than 

90 days after the date of enactment 

of this title, nt the r<'<lllt'st of n 

majority of the Indian tribes with 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

agreements under this title, the 

Secretary shall initiate procedures 

under subchapter III of chapter 5 of 

title 5, United States Code, to 

negotiate and promulgate such 

regulations as are necessary to carry 

out this title. 

"(b) Committee.--A negotiated 

rulemaking committee established 

pursuant to section 565 of title 5, 

United States Code, to carry out this 

section, shall have as a rna jority of its 

members representatives of Indian 

tribes with agreements under this 

title. 

"(c) Adaptation of Procedures.--

The Secretary shall adapt the 

negotiated rulemaking procedures to 

the unique context of SelfGovernance and the government-togovernment relationship between the 

United States and the Indian tribes. 

S. 1618 

(as Senate passed 11/24/93) 

agreements under this title, the 

Secretary shall initiate procedures 

under subchapter III of chapter 5 of 

title 5, United States Code, to 

negotiate and promulgate such 

regulations as are necessary to carry 

out this title. 

"(b) Comrnittee.--A negotiated 

rulemaking committee established 

pursuant to section 565 of title 5, 

United States Code, to carry out this 

section, shall have as its members 

only Federal and tribal government 

representatives, a majority of whom 

shall be representatives of Indian 

tribes with agreements under this 

title. 

"(c) Adaptation of Procedures.--

The Secretary shall adapt the 

negotiated rulemaking procedures to 

the unique context of SelfGovernance and the government-togovernment relationship between the 

United States and the Indian tribes. 
Comparison of Self-Governance Bills With Current 

H.R. 3508 

(as introduced 11/15/93) 

"(d) Effect.--The lack of 

promulgated regulations shall not 

limit the effect of this title. 

"Sec.408. Authorization of 

Appropriations. 

'There are authorized to be 

appropriated such sums as may be 

necessary to carry out this title.". 

[no comparable] 

s. 1618 

(as Senate passed 11!24193) 

"(d) Effect.--The lack of 

promulgated regulations shall not 

limit the effect of this title. 

"Sec.408. Authorization of 

Appropriations. 

'There are authorized to be 

appropriated such sums as are 

necessary to carry out this title.". 

[no comparable] 
H.R. 3508 

(as introduced 11/15/93) 

[no comparable] 

[no comparable) 

Comparison of Self-Governance Bills With Current 

S. 1618 

(as Senate passed 11/24/93) 

[no comparable] 

[no comparable] 
H.R. 3508 

(as introduced 11/15!93) 

[no comparable] 

Comparison of Self-Governance Bills With Current 

s. 1618 

(as Senate passed 11/24/93) 

[no comparable] 
77 

Mr. FALEOMAVAEGA. AB you will see, we are now accompanied by 

two very powerful members of the committee. On my immediate 

right, the gentleman that certainly has my admiration and respect 

over the years, and he has always been very sensitive to the needs 

of Native Americans. 

First, my apologies to Mr. Edward Thomas, as I may have misstated the name of the tribe as Tlingit. It is Tlingit and Haida. I 

see the same problems these Members have with my name when 

they keep saying Faleomavaega. They screw it up so royally, they 

could never pronounce it. 

Of course, also on my left we have with us Chairman Richardson. 

I would like to give time now to the distinguished Ranking Minority Member of our committee, Mr. Young from Alaska, for his opening statement. 

Mr. YouNG. Thank you, Mr. Chairman. I apologize for being a 

little late. I want to thank you for holding this hearing today to 

allow us to discuss the Tribal Self-Governance Act and the mysterious removal of the Tlingit and Haida Central Council from the list 

of federally recognized Indian groups by the Department of the Interior. I strongly support both of those bills we are having a hearing on today. 

First, I would like to welcome all of our witnesses and guests 

here this morning, especially those who have traveled from Alaska 

to be with us today. I just flew back Tuesday on my wedding anniversary to vote on a home school amendment yesterday. I have 

great sympathy for anybody that flies that far all the time. It is 

not an easy trip and the weather is good here today and just as 

I left Alaska, the weather was better there. 

My support for local decision-making and cutting red tape is 

well-known. If there is one thing that riles Alaskans more than 

anything, it is being controlled from Washington. The Indian SelfGovernance Act seeks to place more decision-making in the hands 

of people closest to the problems and to trust them to administer 

programs to benefit their neighbors. Since there seems to be little 

disagreement about the initiative, I hope we can move forward 

with the legislation and send it to the White House. 

I would like to focus this morning on the Tlingit Haida Central 

Council legislation introduced in the other body by Senator Frank 

Murkowski. I wish it wasn't necessary; I am sorry we have to do 

it just to correct something I think the Department of the Interior 

screwed up on. I don't think there is anyone familiar with the 

Central Council's activity who would have thought the Department 

would deny them or drop them from their list. They have been on 

every list of federally recognized tribes since 1982. In 1975, my 

good friend Morris Thompson was head of the BIA. He was clear 

in a memo that the Central Council was a tribal entity. 

That is what makes the Department's action concerning the 

Central Council so mysterious. When this legislation was being 

considered at the end of the session last year, there were threats 

of a veto if the bill was passed. AB of this morning, we have heard 

no reasons why they should have been bumped off the list. 

This is very disturbing to me and I think that Alaskans deserve 

better than that from their government. It is my intention that this 

bill pass with the help of Chairman Richardson and be sent to the 
78 

President for his signature. I also intend to ask and submit questions to get to the bottom of this mystery, and I am considering 

taking further legislative steps to remedy what appears to be a pattern of dropping the departmental recognition of long-recognized individuals and entities. While I support the Department's responsible use of its recognition powers to extend status to groups and 

individuals, I think the recent development of disorganizing without justification-or derecognizing without justification has to be 

hemmed in. 

Again, Mr. Chairman, I think we can move these bills very rapidly. I look forward to hearing from the witnesses and especially 

those from Alaska. 

Thank you, Mr. Chairman. Mr. FALEOMAVAEGA. I thank the gentleman from Alaska. 

[Prepared statement of Mr. Young follows:) 
79 

HONORABLE DON YOUNG . 

re: Hearing on H.R. 3508/S. 1608 - "Tribal Self 

Governance Act" & S. 1784, "Restore Central Council 

of Tlingit-Haida Indian Tribes to DOl List of 

Federally Recognized Indian Entities" 

Mr. Chairman: 

I want to thank you for holding this hearing today to 

allow us to discuss the Tribal Self-Governance Act and the 

mysterious removal of the Tlingit Haida Central Council from 

the list of federally recognized Indian groups by the 

Department of Interior. I strongly support both bills. 

First, I'd like to welcome all of our witnesses and guests 

here this morning, especially those who have travelled from 

Alaska to be with us today. It's no easy trip, and despite our 

nice weather today, it's never much fun having to leave the 

Great Land to come to the hustle and bustle of the East Coast. 

My support for local decision-making and cutting red 
80 

-2-

tape is well-known; if there's one thing that riles Alaskans 

more than anything, it's being controlled from Washington. 

The Indian Self Governance Act seeks to place more decisionmaking in the hands of people closest to the problems, and to 

trust them to administer programs to benefit their neighbors. 

Since there seems to be little disagreement about the initiative, 

I hope we can move forward with the legislation and send it 

to the White House. 

I'd like to focus this morning on the Tlingit-Haida 

Central Council legislation introduced in the other body by 

Senator Frank Murkowski. I wish it weren't necessary, and 

I'm sorry we have to do it just to correct something I think 

the Department of Interior screwed up. I don't think there's 

anyone familiar with the Central Council's activities who 
81 

-3-

would have thought that the Department would drop them 

from its list. They've been on every list of federallyrecognized tribes since 1982. In 1975, my good friend 

Morris Thompson was head of the BIA, and he was clear in a 

memo that Central Council was a tribal entity. 

That's what makes the Department's actions concerning 

the Central Council so mysterious. When this legislation was 

being considered at the end of the session last year, there 

were threats of a veto if the bill was passed. As of this 

morning, we had heard no reasons why they sh,ould have been 

bumped off the list. This is very disturbing to me, and I 

think that Alaskans deserve better than that from their 

government. It is my intention that this bill pass with the help 

of Chairman Richardson, and be sent to the President for his 
82 

-4-

signature. I also intend to ask and submit questions to get to 

the bottom of this mystery, and am considering taking further 

legislative steps to remedy what appears to be a pattern of 

dropping Departmental recognition of long-recognized 

individuals and entities. While I support the Department's 

responsible use of its recognition powers to extend status to 

groups and individuals, I think the recent development of derecognizing without justification has to be hemmed in. 

Thank you again, Mr. Chairman, and a hearty welcome to 

our guests. 
83 

Mr. FALEOMAVAEGA. Chairman Richardson. 

STATEMENT OF HON. BILL RICHARDSON 

Mr. RICHARDSON. Thank you, Mr. Chairman. I am going to submit my statement in the record. 

Let me just add to what Mr. Young has said, first. He has been 

a very valuable Member of this committee on Indian issues. Over 

the years, he has been most supportive. I agree with him that in 

the brief description I have had of his legislation that it is my intent to support his legislation, to move it rapidly. I think we have 

to correct this problem. 

And I would like to again thank my friend, Mr. Faleomavaega, for subbing for me. I had a conflict downtown. I would ask that Mr. 

Faleomavaega continue chairing this hearing. 

We have some very important witnesses from around the coun- try. I see several of my friends that are here. I hope to stay and 

listen to their testimony. 

Thank you, Mr. Chairman. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. I would like to 

echo, certainly, the sentiments expressed by both Mr. Young and 

Mr. Richardson. I would like to consider that this problem with our 

friends, the Tlingit and the Haida, was a little oversight on the 

part of the administration, that there will be corrective actions 

taken. We will be having the hearing later on as part of Panel IV 

on S. 1784; so with that in mind, shall we continue then with the 

witnesses? 

Mr. Thomas. 

STATEMENT OF RON. EDWARD K. THOMAS 

Mr. EDWARD THOMAS. Good morning, Mr. Chairman, Congressman Young, Chairman Richardson. My name is Ed Thomas. I am 

the President of the Central Council of Tlingit and Haida Indian 

tribes of Alaska, I have been there now for about 10 years. 

We have been one of the original tribes involved in the self-governance movement. We were one of the first to get the planning 

grants, or one of the first ten tribes. We, in our region, operate as 

a consolidated compact and we involve other signatory tribes who 

signed our compact with equal status. And so with that in mind, 

in the interests of time, I will yield to Chris Collison, who is also 

from Ketchikan, and a signatory tribe to our compact. 

I want to thank you for the opportunity for this hearing, and I 

will reserve my comments until the second hearing. Thank you. [Prepared statement of Mr. Edward Thomas follows:] 
84 

CENTRAL COUNCIL 

tlln(jlt anO ha.JOa m01a.n tRIB€5 N ala.ska. 

ANDREW P. HOPE BUILDING 

320 West Willoughby Avenue. Suite 300 

Juneau, Alaska 99801-9983 

TESTIMONY OF 

TilE HONORABLE EDWARD K. TIIOMAS, PRESIDENT 

TI..INGIT AND HAIDA CENTRAL COUNCIL 

BEFORE TilE 

U.S. HOUSE OF REPRESENTATIVES SUBCOMMITfEE ON NATIVE AMERICAN AFFAIRS 

HEARING ON H.R. 3508 

A BIU. TO MAKE SELF-GOVERNANCE AUTIIORfiY PERMANENT 

FEBRUARY 25, 1994 

I. INTRODUCTION 

GREETINGS FROM JUNEAU, ALAsKA! My name is Edward K Thomas. I am President of the 

Central Council of the Tiingit and Haida Indian Tribes of Alaska (Central Council). I am honored 

to present testimony on Self-Governance issues to this distinguished Subcommittee and to lend our 

strong support for this effort to make the Self-Governance authority permanent. 

U. CENTRAL COUNCIL Is A PIONEERING SELF-GOVERNANCE TRIBE 

Central Council was one of the first ten Tribes to receive Self-Governance planning grants 

five years ago. After great difficulty in getting BIA to sit down to negotiate, we finally negotiated 

a Compact in 1991 which became effective January 2, 1992. Under our Compact, Central Council 

assumed responsibility for all of our BIA-funded programs. 

The bulk of our planning grant was used to develop a consensus of all the Tribes in the 

region covered by the BIA Southeast Alaska Agency Office. This resulted in a Compact where each 

community-based I.R.A Tribe that was administering a P.L. 93-{;38 BIA contract at that time joined 

Central Council as an equal partner in the Compact. Permanent Compact language was adopted to 

ensure that no Signatory Tribe would be subordinated to another Signatory Tribe. 

The Southeast Alaska Tribes' initial top priority was to increase tribal program services for 

our needy people by using tribal share dollars BIA had previously spent on bureaucracy and 

administration. We were able to do this in our first Compact year by abolishing an entire BIA 

Agency Office and applying the dollars saved to direct services. This may have made us fewer friends 

within the federal bureaucracy, but it was good tribal self-governance. 

I will not dwell on the problems we have had trying to negotiate funds and implement our 

tribal programs under Self-Governance. Instead, I want to focus my remaining remarks on the good 

things that have happened for Central Council in this new, government-to-government relationship 

we have been building with the United States Congress and various federal agencies. 

III. ExAMPLES OF PROGRESS IN CENTRAL COUNCIL'S SELF-GOVERNANCE 

Under its recent years of Self-Governance experience, Central Council has greatly expanded 

its programs and services, become an even more active contributor in its government-to-government 

TEL. 907/586·1432 FAX 907/586-897J 
85 

TESTIMONY OF THE HONORABLE EDWARD K. THOMAS, PRESIDENT 

TUNGIT AND HAIDA CENTRAL COUNCIL 

FEBRUARY 25, 1994 HOUSE SUBCOMMITIEE ON NATIVE AMERICAN AFFAIRS 

HEARING ON H.R. 3508 (SELF-GOVERNANCE) 

relationship v.ith the United States, strengthened its administrative management structures, increased 

its political ties to other Tribes in Southeast Alaska, and enhanced the responsiveness of its internal 

political structure to its members. 

Under Self-Governance, Central Council has greatly expanded the programs and ser.1ces it 

delivers to its members. Our mission as a tribal government is to care for the welfare of our people. 

One obvious way to measure how well we are doing is to look at the type and level of semces we 

offer our people. In nearly every area, the variety, quantity, and quality of semces has increased in 

recent years. 

Because of our relatively stable base Compact budget and the flexibility of our program 

management tasks under Self-Governance, our key staff are able to conceive of and implement new 

directions which enhance the efficiency of our program operations. These staff are also more able 

to develop new and additional sources of public and private funding, which lever>ges an increased 

value from the Self-Governance funds we have already obtained. 

Self-Governance participation has placed Central Council at the center of emerging federal 

Indian policy. Because we are involved so deeply in policy and implementation matters, we have had 

increasingly close contact with our State congressional delegation and other Members of Congress, 

Congressional Committees such as this one, and of course, White House and federal agency officials. 

Central Council has been able to bring a Self-Governance tribal perspective to its leadership roles 

in inter-tribal efforts to study and restructure the federal agencies and budgeting process. Active 

involvement in these ongoing efforts is a consuming task, because the transition to government-togovernment relationships between the United States and the various Indian Tribes will not be fully 

achieved until the last vestiges of paternalism and control are removed from every federal statute, 

regulation and manual guideline. 

Increasing our responsibilities under Self-Governance has also required Central Council to 

make major efforts to strengthen our administrative management structures. We have much more 

work to do under Self-Governance than before. This work requires far tighter internal management 

controls. We have improved our financial management procedures and upgraded our communication 

and control systems. Our program managers establish perfonnance goals within established budget 

constraints, and then perform regular evaluations designed to spot problems early enough to permit 

efficient improvement. Our membership is best served by an efficient and weD-ordered service 

delivery system, and the continuity and flexibility provided by Self-Governance authority has enabled 

and expanded our capacity in these areas. 

Progr= consolidation and stable base budget authority under Self -Governance bas helped 

make it possible for us to fine-tune our indirect cost proposal so that we now have in place a multiple 

rate that better reflects our actual operations and provides us with greater ability to control costs and 

target funds at the most need. 

As a nsequence of working together with other Tribes to help shape and implement SelfGovernance, Central Council has developed stronger political and programmatic ties with other tribal 

governments in our region of Southeast Alaska and also throughout Alaska and the United States. 

We have learned and gained from this interaction with other Tribes. As a pioneering SelfGovernance Tribe, Central Council has also contributed much to other Tribes in this process. ln one 

case, we have offered to manage on an interim basis the financial administration of another Tribe at 

- Pa~~ 2-
86 

TESTIMONY OF THE HONORABLE EDWARD K. THOMAS, PRESIDENT 

TLINGIT AND HAIDA CENTRAL COUNCIL 

FEBRUARY 25, 1994 HOUSE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

HEARING ON H .R. 3508 (SELF-GOVERNANCE) 

that Tribe's request in order to ensure that critical services to its members are resumed and it is given 

the tools to restore its capacity to operate its own programs. 

The multi-tribal Compact to which Central Council is a Signatory Tribe could serve as a 

model for other Tribes. Central Council initially pursued Self-Governance on its own authority as 

one of the ten original Tribes chosen to begin the Demonstration Project. But later, Central Council 

invited five other Signatory Tribes to join Central Council in a multi-tribal Compact after it saw 

potential advantages for all Indians within the Southeast Alaska Agency Offite region and the 

Interior Department indicated a willingness to forge such a multi-tribal agreement. Since the multitribal Compact embraced all those served within a single BIA Agency Office, this mechanism 

permitted a far less cumbersome approach for abolishing the Agency Office and redirecting its funds 

into program services operated by the Tribes themselves. One result of the multi-tnbal Compact 

approach has been increased political or diplomatic ties between Tnbes in Southeast Alaska. I have 

been invited on numerous occasions to address the governing bodies of other Signatory Tribes on 

various issues, we regularly coordinate our Self-Governance efforts, and our tribal staff assist each 

other in implementing Self-Governance initiatives. While Central Council and the other Signatory 

Tribes may not conclude that a multi-tribal Compact is the best way to achieve these goals in the 

future, our Compact arrangement has served us fairly well up to this time. 

Finally, Self-Governance authorities have enhanced the responsiveness of Central Council's 

internal political and governing structure to its individual members. As a result of Self-Governance, 

our Executive Committee, which serves as Central Council's tnbal council or general governing body, 

has had to make many more decisions that are of a governmental nature than ever before. While 

it has always been open process, our members have more access to our budgeting decision-making. 

Under Self-Governance, we do much better at assessing tribal priority needs and at communicating 

those judgments to our me!llbers. We have increased our efforts to write down and codify the tribal 

codes and laws that our people have followed for centuries, so that we can regain the actual exercise 

of more and more of the .broad self-government power we once enjoyed. 

For these and other examples space and time do not permit me to raise, Central Council 

wishes to thank this Subcommittee and the Congress in general for seeing the tnl>al vision for SelfGovernance and for changing federal law to help make it possible. 

IV. CENTRAL COUNCIL STRONGLY SUPPORTS H.R. 3508 

TO MAKE SELF-GOVERNANCE AUTHORilY PERMANENT 

Centri!l Council strongly suppo:1s H.R. 3508 because it would give permanent statutory 

authority to what has been, to date, an impliedly temporary Demonstration Project. As a Tnbe that 

was among the original ten Tribes in 1988 that developed the vision for the Self-Governance 

initiative, Central Council views each step forward as a very positive event. 

There are many things we wish H.R. 3508 would address. Many of our concerns arc answered 

in great detail in S. 550, which was introduced in early 1993 for discussion purposes by Senator 

McCain. S. 550 prescribes in a highly directive fashion how the federal agencies should carry out 

their responsibilities under Self-Governance. 

However, we are persuaded that it is far more important to take an important journey step 

by step. Making Self-Governance authority permanent is a very important step in and of itself. For 

-Page 3-
87 

TESTIMONY OF THE HONORABLE EDWARD K. THOMAS, PRESIDENT 

TUNGIT AND HAIDA CENTRAL COUNCIL 

FEBRUARY 25, 11194 HOUSE SUBCOMMITTEE ON NATIVE AIIERJCAN AFFAIRS 

HEARING ON H.R. 3508 (SELF-GoVERNANCE) 

this reason, we strongly support H.R. 3508 as introduced and urge that it be quickly and favorably 

reported so that it can be signed into law at the earliest possible moment. We will continue to work 

with the Subcommittee to encourage the Interior Department to adopt the detailed reform efforts 

contained within S. 550. 

V. CENTRAL COUNCIL SUPPORTS INCREASING 

THE NUMBER OF PARTICIPANT TRIBES 

H.R. 3508 lifts the lid on the number of Tnbes authorized to participate in Self-Governance 

from the present maximum of 30 Tnbes to an additional 20 new Tribes each year. 

Central Council supports this increased participation beeause we believe Self-Governance is a wonderful opportunity which others should have access to if they so choose. We commend it to 

all other Tribes ready to face the challenge. 

Central Council also supports the request of its sister Signatory Tribes in Southeast Alaska 

who have asked that Interior negotiate separate Compacts with them. Central Council invited these 

Signatory Tribes to participate alongside Central Council from the beginning, with the understanding 

that once the Self-Governance Project is made permanent, Central Council would likewise support 

these Signatory Tribes' request to have separate Compacts with the United States. Our multi-tribal 

Compact in Southeast Alaska is unique and has certain advantages and disadvantages for all 

concerned, but if a participating Signatory Tribe wishes to have its own Compact, Central Council 

has supported, and will continue to support, such requests. 

VI. CONCLUSION 

We strongly support H.R. 3508. We seek this Subcommittee's support in Central Council's 

continuing efforts to make good on the aspirations contained in our Compact of Self-Governance 

with the United States- that government to government relations between my Tribe and the United 

States wiD be fostered and enhanced, that our tribal government will be strengthened, and that vital 

services will increase so that the life of my people will improve. We believe making the SelfGovernance Project permanent as set forth in H.R. 3508 will go a long way toward making these 

goals more of a reality. Thank you. 

THSG03.TST 

oon/07252. 

-Page4-
88 

Mr. FALEOMAVAEGA. Ms. Collison. 

STATEMENT OF HON. CHRISTINE COLLISON 

Ms. COLLISON. Thank you. My name is Christine Collison; I am 

from Ketchikan, Alaska. I am the President of the Ketchikan Indian Corporation. 

KIC strongly supports the enactment of H.R. 3508. The KIC tribal government believes that the self-governance effort is one of the 

most important Federal policies to affect Indian tribes in the last 

20 years. KIC asks that you clearly indicate in the report language 

that the subcommittee intends H.R. 3508, and specifically Section 

402(a), that deals with continuing participation of tribes, to mean 

that any tribe like KIC, which is now participating as a signatory 

tribe to a multitribal compact, shall be immediately eligible to negotiate a separate, single-tribe self-governance compact with the 

Interior Department. 

During the demonstration phase of self-governance, Interior limited our opportunity to participate. This was through a multitribal 

compact with four other signatory tribes. But now as the number 

of tribes has increased on an annual basis and the project is made 

into a permanent program, our Tribal Council wants the option to 

have a separate single-tribe compact. 

We ask you to avoid enacting any legislative language that could 

be interpreted in such a way that would exclude KIC or any other 

self-signatory tribes from immediately entering into a single-tribe 

self-governance compact with the United States Government. 

KIC has experienced many problems with the BIA's implementation of the self-governance demonstration project. The most recent 

problem is in the area of contract support. It is our position that 

because of the added responsibility of administrating all of our programs, we are entitled to a larger share of contract support. To ensure that the self-governance succeeds, we need to have the resources to do the job. 

All the same, our tribe has experienced many positive things, a 

result of our participation in self-governance. We have had the advantage of increased flexibility in targeting funds towards economic 

development. Last year, we did a pilot project of our dance theater 

with our Haida children. It was marketed for the tourism market, 

which is ever increasing in Alaska, and we hope to bring that back 

again this year, employing some of our GA clients and our native 

dance groups. 

Our tribe is becoming more reliant on our own abilities to develop solutions for our own unique problems. We highly recommend 

passage of H.R. 3508 so that this authority is made permanent. 

Thank you very much. 

Mr. FALEOMAVAEGA. Thank you, Ms. Collison. 

[Prepared statement of Ms. Collison follows:] 
89 

KETCHIKAN INDIAN CORPORATION 

429 DEERMOUNT AVENUE 

Km'cHIKAN, ALAsKA 99901 

907fl25-SlS8 (fax:907/247-0429) 

TESTIMONY OF THE HONORABLE CHRISTINE COLLISON, PRESIDENT 

KETCHIKAN INDIAN CORPORATION 

BEFORE1HE 

U.S. HOUSE SUBCOMMriTEE ON NATIVE AMERICAN AFFAIRS 

ON H.R. 3508 (A BILL PROVIDING PERMANENT AU'Jl{ORITY FOR TRWAL SELF-GOVERNANCE) 

FEBRUARY 25, 1994 

Gooo MORNING. My name is Christine Collison. I am the duly-elected President of 

Ketchikan Indian Corporation, a tnbal government organized under the Indian Reorganization Act 

(I.R.A ). I am pleased to be able to personally present testimony to this Subcommittee on H.R. 

3508, a bill that provides permanent legal authority for the Tribal Self-Governance efforts 

associated with the Department of the Interior and increase the number of Tnbes eligible to sign 

Compacts and Annual Funding Agreements with the Department. 

Ketchikan Indian Corporation (KIC) is a Tnbe that has undergone rapid growth in its 

program responsibilities over the past three years. For many years prior to 1992, we administered 

contracts and grants under P .L 93-638, the Indian Self-Determination Act. For the past three years 

we have joined with Central Council Tlingit Haida and three other Tribes as Signatories to the 

Southeast Alaska Compact of Self-Governance. The five Signatory Tribes to the combined 

Southeast Alaska Tribes' Compact of Self-Governance with Interior are KIC, Tiingit Haida Central 

Council, Organized Village of Kake, Sitka Tribe of Alaska, and Yakutat Native Association. 

KIC strongly supports quick enactment of H.R. 3508. The KIC Tnbal Council believes that 

the Self-Governance effort is one of the most important federal policies to affect Indian Tnbes in 

the last 20 years. Self-Governance allows Tnbes to address issues that arise at the local level. Our 

KIC Tribal Council has determined that our Native students are at risk - their dropout rate is 63%. 

We have redesigned some of our education programs to meet this need. That is just one of the 

many examples of the fleJObility we have under Self-Governance. 

Another benefit is that our Tnbal Council's effectiveness and commitment has improved 

dramatically. Tnbal Council members are now involved in developing policy that gives specific 

direction to program and administrative staff. Council members are more informed about the 

immediate needs of our membership. 

In addition to expressing our strong support for the bill, KIC specifically asked to testify 

today in order to urge this Subcommittee to include Report language similar to that in the Senate 

-Page 1 -
90 

~1\W.C~'<Cfw.E.~OO~~~Q~ 

KETCHIKAN INDIAN CORPORATION 

BEFORE THE U.S. HOUSE SUBCOMMITI'EE ON NA'l'TVE AMERICAN AFFAIRS 

HEARING ON H.l'\. 3&tl& \PERMANENT 'SEl.l'~OVl!RNANCS AUffi01\!T'l) - ~'!!BRUAWI 'Zb, ''Jlllo 

Committee's Report which directs Interior to permit any Tn'be which is a signatory to a multi-tn'ba.l 

Compact to negotiate a separate, sin~e-Tn'be ComQact with the Interior Deq_artmeat. 

KIC asks that you clearly indicate in the Report language that the Subcommittee intend5 

H.R. 3508, and specifically, Section 40Z(a) that deals with the "continuing participation" of Tn'bes, 

to mean that any Tnbe like KIC which is now participating as a Signatory to a mu\ti-tn'bal Compact 

shall be immediately eligible to negotiate a separate, single-Tnbe Self-Governance Compact with 

the Interior Department if that Signatory Tnbe so chooses. (We have included proposed Report 

language as an attachment to our testimony.) KIC understands that three other Signatory Tribes, 

the Organized Village of Kake, Sitka Tnbe of Alaska, and the Yakutat Native Association, also 

seek this same authority. All of us have the full support of the fifth Signatory Tnbe to our multitribal Compact, the 11ingit and Haida Central Council. In fact, we note here KIC's appreciation 

for the role that Central Council played, as one of the original ten Self-Governance Tribes, in 

making it possible for KlC to be a Signatoty Tribe along-side Central Council in the Southeast 

Alaska Tribes' Compact. 

During the Demonstration phase of Self-Governance, Interior limited our opportunity to 

participate only through a multi-Tnbe Compact with four other Signatory Tnbes. But now as the 

number of Tnbes is increased on an annual basis and the project is made into a permanent 

program, our Tnbal Council wants the option to have a separate, single-Tnbe Compact. 

Additionally, virtually all of the infrastructure for KlC to have a separate Self-Governance Compact 

is now in place. A primary example of this is our separate and distinct fund transfer system. We 

ask you to avoid enacting any legislative language that could be interpreted in such a way that 

would exclude KlC or any other Southeast Alaska Signatory Tribe from immediately entering into 

a single-Tribe Self-Governance Compact with the U.S. government. It would be unfair to KIC as 

well as an unnecessary administrative burden en the BIA and OSG if KlC was forced to revert to 

the BIA contracting system and wait its tum in line under Section 402(b) as an "additional Tribe" 

in order to qualify to negotiate a separate Compact. 

KIC began operating our BIA-funded programs under the Compact on January 2, 1992. 

One of our main aims was to reduce a layer of BIA bureaucracy and transform the savings into 

tnbal direct service programs. Our Compact has accomplished this - the Southeast Alaska BIA 

Agency Office was abolished and some of the savings were transferred to our Compact. 

KIC has now begun our third year of Compact administration. At each of its annual 

negotiations, KIC and the other Southeast Alaska Compact Signatory Tnbes have pressed hard for 

a tnbal share of the Central Office budget. Last year, BIA provided only a proportional amount 

(approximately $100,000) to our multi-tribal Compact as a whole, despite the fact that there are 

five separate Signatory Tribes to our Compact. There is no rational basis for denying each 

Signatory Tribe its own Central Office share. 

At the Agency and Area Office budget levels, Interior has uniformly required a tnbal share 

to be calculated based on factors related to the program or account being divided (e.g., if a Tribe 

has 3% of the trust acres in an Agency Office, its tnbal share is 3% of the Agency's realty funds). 

- Page2-
91 

TESTIMONY OF THE HONORABLE CHRISTINE COLUSON, PRESIDENT 

KETCHIKAN INDIAN CORPORATION 

BEfORE THE U.S. HOUSE SUBCOMMrrrEE ON NATIVE AMERICAN AFFAIRS 

HEARING ON H.R. 3508 (PERMANENT SELF-GOVERNANCE AllniORIT'I) -FEBRUARY 25, 1994 

This same approach should be applied to Central Office. Indeed, this Subcommittee and other 

committees of Congress have previously suggested that this be done. Nevertheless, to date Interior 

has refused all efforts to negotiate uniformly and consistently a tribal share of Central Office 

programs. Moreover, the negotiation of program-based tnbal shares of Central Office budgets 

would go a long way to softening the inequity of BlA-wide funding distnbutions. KIC asks this 

Subcommittee's special help in directing Interior in Report language to do so in F.Y. 1995 

negotiations in the coming months. (We have included proposed Report language as an attachment 

to our testimony.) 

KIC has experienced many problems with the BlA's implementation of the Self-Governance 

Demonstration Project. The most recent problem is in the area of contract support. It is our 

position that because of the added responsibility of administering all our programs, we are entitled 

to a larger share of contract support. To ensure that Self-Governance succeeds, we need to have 

the resources to do the job. 

At the same time, our Tnbe has experienced many positive things as a result of our 

participation in Self-Governance. We have realized the benefit of increased tnbal program funds 

as a result of our Compact reducing one layer of the BlA bureaucracy. We have also had the 

advantage of increased flexibility in targeting funds toward economic development priorities of our 

Tribe. We have also been able to increase and improve services to our members in the key areas 

of education and social services. 

We arc eager to have the Tnbal Self-Governance Demonstration Project given permanent 

authority at the Interior Department and ask that you make every effort to secure passage of H.R. 

3508 as quickly as possible. We support the fact that the scope of the bill has been limited so that 

no controversial provisions will delay quick enactment this year. 

Self-Governance is working as envisioned by the 1988 Act that created it. Our Tribe is 

becoming more reliant on our own abilities to develop solutions to our own unique problems. We 

highly recommend passage of H.R. 3508 so that this authority is made permanent. Thank you for 

this opportunity to present our position. I would be happy to answer any questions you might have. 

Attachment 

-Paga3-
92 

TESTIMONY OF THE HONORABLE CHRISTINE COL.USON, PRESIDENT 

KETCHIKAN INDIAN CORPORATION 

BEFORE THE U.S. HOUSE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

HEARING ON H.R. 3508 (PERMANENT SEU'-GOVERNANCE AlJlliORrrY) -FEBRUARY 25, 1994 

ATIACHMENT 

Propo.red Report Language Permitting Any SignalOiy 1libe to Negotiate 

a Sepanlle, Single-1libe Compact 

The Subcommittee also intends subsection 402(a) to permit any Tnbe now 

participating as a Signatory Tribe to a multi-Tnbal Self-Governance agreement to, 

at that Tnbe's option, separately negotiate and participate in a single-Tribe SelfGovernance Compact and Annual Funding Agreement with the Department of the 

Interior. Because such a Tnbe is already participating as a Signatory in a SelfGovernance agreement, its election to go its separate way in a single Self-Governance 

agreement should not be constrained by the statutory ceiling on the number of new 

or additional Tribes permitted to begin participation each year. In particular, the 

Subcommittee expects the Department of the Interior to follow the Subcommittee's 

intentions with respect to any such request received from a Signatory Tnbe 

participating in the Southeast Alaska Tribes' Compact of Self-Governance. 

The Subcommittee is aware that, despite repeated congressional directives, no 

negotiation of tribal shares of BIA Central Office funds has been accomplished that 

is similar in procedure and scope with that used on BIA Area and Agency Office 

budgets during the past three fiscal years. Although significant transfers of funding 

and responsibilities have been accomplished, Central Office budgets remain largely 

untouched. The Subcommittee therefore directs the Interior Department to ensure 

that all Central Office budgets be subjected to the same negotiation process currently 

used with Area and Agency Office budgets, applying the same or similar tnbal share 

formulas and residual percentages used in negotiations at those levels. 

-Page4· 
93 

Mr. FALEOMAVAEGA. Mr. Nuckolls, Governor of the Absentee 

Shawnee Tribe. 

STATEMENT OF BON. LARRY NUCKOLLS 

Mr. NucKOLLS. Thank you. I am here to testify on behalf of the 

Absentee Shawnee Tribe of Indians of Oklahoma. We have been a 

tier one tribe since 1990. We were one of the first seven tribes to 

enter into self-governance, like the Mille Lacs. And we too support 

H.R. 3508. 

We do have some great concerns as far as the funding levels go 

that we have had a decrease from 1993 to 1994 by 17 percent. And 

Arkoma, Oklahoma has an increase of FTEs since that time. Also, 

I believe that as far as our tribe's participation in the demonstration project, we have been successful. 

We are determined more than ever to be sovereign. As you commented on a few minutes ago, what was the difference? The difference is that when we do receive the funding from Congress, that 

we are able to reallocate, determine on our priorities, our tribal 

needs, to be able to move forward in proper planning for operations 

of our tribal government, so we can in fact move forward. 

The problems that the Absentee Shawnee has since 1990 was our 

participation in the shortfall funding that Congress has appropriated. Our belief is that the Bureau of Indian Affairs has not 

streamlined in any effort. When we have to take a 17 percent reduction in our annual funding agreement, and the Bureau of Indian Affairs has not streamlined-in fact, have added FTE's, I cannot see streamlining effects. I can only see where we are reduced 

in 17 percent funding. 

When we got into this in 1990, Dr. Brown was Assistant Secretary. We were entered in the negotiations in good faith, and we 

have negotiated those every year since then. My biggest concernand I personally negotiated that compact, as well as our first IRS 

compact this year-was that if we continue to participate in the 

shortfall funding and not the hard dollars of Bureau of Indian Affairs, then eventually more tribes were going to get into, as we determined in 1990, and we would have major shortfalls in our annual funding agreements. I am before this committee to say today that if I have to take 

another 17 percent decrease next year, as Mrs. Deer has remarked 

in a letter she has addressed to me, that if I am not in agreement 

with the annual funding agreement, I can retrocede. 

We would hate to be the first tribal government in the United 

States to retrocede. But when it continues to be a procession of reduction in our annual funding agreements, we have very big concerns when we have to appropriate over a million dollars of our 

own tribal dollars to make sure that this self-governance is successful. And we are determined-we are sovereign, and we too, like the 

Mille Lacs, are very concerned why we haven't been able to participate in the major line items, budgetary line items of the BIA in 

Washington, DC. 

87-276 0 - 95 - 4 
94 

I do have my written testimony I would like to submit into the 

record; and also the letter, that as Exhibit 1, that we received. I 

do thank you for allowing me at this time to come forth. Mr. FALEOMAVAEGA. Thank you, Mr. Nuckolls. [Prepared statement of Mr. Nuckolls follows:] 
95 

TESTIMONY BEFORE HOUSE ON 

NATIVE AMERJCAN AFFAIRS 

FEBRUARY 25, 1994 

WASHINGTON , D. C. 

CONTENTS: 

I. STABLE FUNDING - TRJBE HAS IDENTIFIED NEEDS FOR STABLE 

FUNDING FOR BOTH PROGRAMMA TIC AND SHORTFALL. 

II. BUREAU OF INDIAN AFFAIRS CONTINUES TO IGNORE ACTS 

MANDA TED BY CONGRESS IN REGARDS TO SELF 

GOVERNANCE. 

PREPARED BY: 

Larry Nuckolls 

Governor 

Absentee Shawnee Tribe 

of Oklahoma 

2025 S. Gordon Cooper Drive 

Shawnee, Oklahoma 74801 

(405) 275-4030 
Congressman Bill Richardson 

Chairman 

Subcommittee on Native 

American Affairs 

96 

I would like t o thank this Committee f o r allowing me t o present 

testimony today on behalf of the Absentee Shawnee Tribe of 

Indians o f Oklahoma . My name is Larry Nuckolls and I am the 

Governor of the Absentee-Shawnee Tribe. Today I shall present 

t estimony on our efforts to be successful as a tier one SelfGovernance Tribe. 

We began this new government t o government relationship in 1990 

and have experienced vario us degrees of success and frustration. 

We have identifi ed o ur Tribal s hare of fundi ng at the l owest 

lev el and as of this date, we along with other self gov ernance 

Tribes, have been repeately denied access t o Central Of f ice 

dollars by the Bureau of Indian Affairs. The Bureau has 

continued to be nonresponsive to the Self Governance Tribes by 

using shortfall funding to fulfill Annual Funding Agreements. 

The Bureau c ontinues to ignore Congressional Acts mandated by 

Congress and the Bureau has refused to reorganize to allow money 

t o be "freed up" f o r annual funding agreements. As more Tribes 

participate in self governance there will be less shortfall 

funding a vailable for the Tribes and with t he Bureau's refusal to 

identify all dollars available for Tribal shares, the self 

governance c oncept will not reach the lev el o f success that I 

feel Congress has intended. 

If it is the position of the Bureau that this program is to fail, 

they could not have made a better effort to insure its failure by 

their actions since 1990 . We are a living example as we testify 

today. In 1993, our Annual Funding Agreement was $ 899,535.00 

which inc luded sho rtfall funding of $ 2 23 ,967 . 00 . The Bur eau, 

without consulting with us after neqoaitions were concluded 

reduced our 1994 Annual Funding Agreement to$ 743,144.00. The 

reduction was s e t by the Bureau when the Bureau determined that 

there were not enough funds available in shortfall to fully fund 

the Absentee - Shawnee Tribe at our funding level established in 

1993. 

When we rec ieved the notification of this reduc tion, we 

requested the reasons justifying this type of reduction without 

notice, to what has amounted to a 17 per cent total r.eduction in 

funding to our Tribal Government. After consulting with the 

office of Self Governance we were told that the Bureau had 

presented to them a position paper on their need to retain more 

of the funding. After their review we were then reduced in 
funding. We were not allowed to respond to this position paper, 

nor were we allowed to review this paper in order to prepare a 

proper response to such an adverse action to our Governmant . 

We proceeded by requesting a meeting with Assistant Secretary Ada 

Deer to resolve these f unding issues. Upon two attempts to visit 

with Seceretary Deer and being received only by her staff, a 

decision on these issues was rendered by Secretary Deer on 

January 25, 1994. (See, Attachment 'A) The decision that 

Secretary Deer rendered was that some of the funding issues were 

to be taken under advisement and if we did not agree with the 

Annual Funding Agreement that she was to sign we could exercise 

our option under the compact and utilize retrocession . If in 

fact the Absentee Shawnee used retrocession, this would not be in 

the best interest of our government to give back much needed 

funding for our Tribe, but could possibly be in the best 

interest of the Bureau if we were to retroceed this funding to 

them. We shall continue our efforts in Self Governanc e despite 

the negative actions by the Bureau of Indian Affairs. 

If this program is to be in fact a true government to government 

relationship, I believe that the Seceretary and the Bureau's l ack 

of sensitivity to Tribal needs must improve dramatically. 

Without their understanding and cooperation self governance 

cannot be successful now or in the future. 

Upon review of our position in Self Governance, we are more 

determined than ever to be successful. After visiting with the 

Office of Self Governance on February 23,1994, we were informed 

that we could establish a stable base funding level, and that 

stable base funding could be accomplished in 1995, according to 

information received by personnel in the office of Self · 

Governance. We were told that four Tribes had accomplished this, 

but we were advised that t he office of Self Governance could not 

make that decision, and that this decision could only be made by 

Secretary Deer. Our concerns with the decision rendered by 

Seceretary Deer in regard to our 1994 funding agreement comes 

down to this, will Secretary Deer adhere to Congressional Acts 

mandated by Congress allowing us to participate in all funding 

levels of the Bureau of Indian Affairs? Congressional intent 

needs to be adhered to, and if the office of Self Governance is 

subject to the direction of Secretary Deer, we beleive that 

Congressional intent in regard to self governance and Bureau 

restructuring is not being adhered to. 

We ask for support from this Committee that would allow the 

Absentee Shawnee Tribal Government to establish a stable base of 

funding for 1995. Recbmendations from this Committee to the 

House Appropriations Subcommittee will allow this Tribal 

Government to have predictable funding. Stable funding will 

allow for further improvements for our Tribal Government's 

planning and operations in the future . 
98 

It is our recomendation that a directive be given to the Bureau 

of Indian Affairs to cease the continued use of shortfall money 

in annual funding agreements. The Bureau's excuse that the 

utilization of hard dollars to fund Annual Funding Agreements 

would create a negative effect on other Tribes is only valid if 

the Bureau has no real intention to implement reoganization. By 

the Bureau's lack of restructuring they continue to use shortfall 

to fully implement Self Governance Annual Funding Agreements. By 

restructuring and following Congressional intent the real purpose 

of self governance can be realized and the Bureau should not have 

had to reduce our Governments Annual Funding Agreement by 17 per 

cent in 1994. 
99 

A: He. ~ "'-~t--

United States Department of the Interior 

OmCE Of THE SECRETARY 

January 25, 1994 

Honorable Larry Nuckolls 

Governor, Absentee Shawnee 

Executive Co~ttee 

2025 s. Gordon Cooper Drive 

Shawnee, Oklahoma 74801 

Dear Governor Nuckolls: 

trA ., 

I am responding to your concerns raised in meetings with mambers of 

my sta~~ during the week of December 13. I apologize for being 

unable to meet with you on the 14th as had been arranged but have 

bean briefed on the matters whiCh you brought to our attention. 

Let me say that I am very concerned about our failure to reach an agreement in accordance with the statutory timaline provided in 

Title XII . This reduces the opportunities of the Congress and 

other tribes to review the Agreement. It also reduces my opportunity to consider and resolve problema 8UCh as those you are raising. Since we are long peat the legal t:l.meframe on t his 

agreement, I will address your issues in part. Since certain of 

these matters may involve policy issues, t will reserve the right 

to reconsider them at a later date and may ChOose to involve the 

Policy Council at that time. 

Firat, with regard to the reduction in the amounts that were base 

transferred from Administrative Services-Agency, Administrative 

Services-Area, and Area Real Estate Services; .1 will confirm the 

decisions communicated earlier ~y the Director of the Office of 

Self-Governance. The purpose of negotiations is to identify the 

tribal share. Though it may not generally be the case, there is 

the possibility for reductions as well as increases in subsequent negotiation• as additional information becomes available causing 

change• in the formula or residual amounts. In a demonstration 

project, suOh errore need to be corrected. 

Second, with regard to the matters you indicated are identified as "To Be Detexmined" following a review by the Policy Council, I wish 

to de~er these it81111J for further study. It would be helpful if the 

Tribe would separately identify these line i.tema and prepare a brief rationale or juatifi.cation for their inclusi.on in the AnnUal 

Funding Agreement. I would like to hear directly from the Tribe on this rather than rely on others to state the Tribe'• position. 
100 

2 

Regarding the "shortfall" and restructurin~ controversy, I can see how the failure of tha Bureau to restructure results in a decrease in the oate~ory two available to participating tribes. 

On the other hand, it seems logical and in keeping with 

COngressional intent that the amount of start-up and 

implementation shortfall would be reduced over e. period of time. 

The large number ot new tribes in the program for 1994 has 

co111plioated the problem by further limiting the funds available 

in this account. Also, nationwide reorganization planning is 

under serious consideration and may affect what we can do and 

when we can do it. I will be looking very carefully at this 

issue in the weeks ahead. There does not appear to be anything that I can do immediately . aince.restructuring must be planned for and it seams clear that little planning has been done. 

Shortfall funds are not available due to the great demand on them. I do pledge to study this matter carefully to determine 

what restructuring is possible and reasonable and to act when I 

have reviewed the situation thoroughly. 

It is now time to finalize our Agreement for 1994. I will sign the Agreement based upon the prepared 1994 Negotiations Summary 

Worksheet which you have also signed making the necessary Changes to the front page of the Agr-ent. If for any reason you do not wish to proceed with this Agreement in 1994, you may utilize retrocession procedures identified in the compact. 

Sincerely, 

~~ J1o.M 

Ada B. Dear 

Assistant Secretary - Indian Affaire 
101 

Mr. FALEOMAVAEGA. Mr. Whitish, chairman of the Shoalwater 

Bay Tribe in Tokeland, Washington. 

STATEMENT OF HON. HERBERT WHITISH 

Mr. WHITISH. My name is Herb Whitish. I am the Chairman of 

the Shoalwater Bay Tribe. I also represent the affiliated-or 

Allottee's Association and Affiliated Tribes, which has about 2,500 

members. It is representative of a great deal of people that own allotments on the Quinault Reservation. 

With that, I would like to go into some of the problems I have 

with self-governance as proposed. I see some real detrimental effects out there to the tribes that aren't participating in the self-governance project. I don't see in any of this legislation, or bills or anything, any protection for the tribes that aren't going with self-governance. I do see bureaus in my area shrinking, and less and less 

services available to me. How are you going to protect my rights, my trust rights? The responsibilities of the Federal Government to the tribes that aren't 

in self-governance, how do you propose to do this? 

In the area that we are talking about now, it all equates into dollars. The pot of gold at the end of the rainbow is shrinking. How 

are we going to do both of these? It is not compatible. Every time 

something goes over to the self-governance tribes, it takes something out of the budget. Where is this going to come from? 

I hear talk of shortfalls. This gentleman here says he hasn't got 

the money to run his programs. Where is that money going to come 

from? I see the Quinault compact, where it says they are getting 

$500,000 increase. Where is the equitable distribution of funds in- volved in this? 

I see trust responsibilities and rights being given by the Bureau 

to certain tribes to look out for the trust allotments and those 

kinds of things on reservations. Where is their protection? 

I can't see the reason to try to make this thing go through so 

fast. 

I appreciate Secretary Deer's comment on a train. It is a train. It is a train that is going out of control, moving down the track so 

fast it is pulling the nonself-governance tribes along with it. And 

they don't have the ability to respond to this. Give us the time to 

look at this. 

I have heard a lot of good statements about the things and the 

positive nature here. But prove them. Find a way to deal with my 

problems. Don't just take people's words for these things. Look at 

it. Slow down the process long enough to take a good, hard look at 

what you are doing to other tribes. I can see this is no more than 

bureaucratic tinkering with the futures of the lives of other tribes. 

You have to slow it down. 

You look at the effects, you talk about budgets. I just go back to 

where is the money going to come from? With the balanced budget 

amendments out here, where is the money going to come from? 

Where is the protections going to come from? 

Senator Inouye himself said that this was an experiment. Don't 

you take the data from an experiment to analyze it, to look at it, 

to figure out what is wrong with it, then fix it? Why make this per-
102 

m~nent legislation? Let's fix what is wrong with it first. Then wE~ 

can. 

I have no problem with self-governance if done correctly. But I 

don't see this being done correctly. This breakneck speed is only 

going to put us in an arena where tribes are going to suffer as a 

consequence. I don't know how to deal with it, but I can sure say 

that if you give us enough time to look at it, then we can find the 

solutions. I urge you to go out, do field hearings, talk to the people 

out there who are affected. 

Not the ones employed by self-governance and the compacts and 

those stuff; the people in the villages. Ask them if they have seen 

any more services or anything else. Ask the people that are being 

affected. Find out if the government is truly representative of thosE~ 

people. That is only fair. That is a fairer process to everyone. That 

is a process that we can live with. 

If you find, down at the end of the road, that it is, then I can 

see it. If you find out at the end of the road that you can deal with 

my concerns on budgets and those things, so be it. 

I myself-self-governance does not fit what the Shoalwater Bay 

Tribe needs, nor the Allottee's Association. We have been given a right~r the Congress has given the right to the Quinault Tribe 

in their compact to deal with my trust resource, my legacy to my 

people. My people depend on those kind of things. 

The Quinault Government is not responsible for my property, for 

my trust responsibility. That is the Federal Government. That is 

my protection. And I can't get it there. Every time that we havt~ 

tried to deal with these issues, and that, we end up with an indispensable party in the court, we can't decide the issue. 

The Quinault Government is not the overriding and the sole government on the reservation. If you look in my testimony, you will 

find many court cases that deal with that. I feel as though this is 

being given and a right of mine is being given away. 

I would urge you, once again, to come out and do field hearings. 

And I would urge you to look within yourself and in your soul and 

answer to me what are you going to do to protect my rights. 

Thank you. 

Mr. FALEOMAVAEGA. Thank you, Mr. Whitish. 

[Prepared statement of Mr. Whitish and addendum follow:] 
yr203.wp 

103 

TESTIMONY OF 

THE HONORABLE HERBERT M. WHITISH, CHAIRMAN 

SHOALWATER BAY TRIBE 

TESTIMONY ON BEHALF OF ALLOTTEES ASSOCIATION 

AND AFFILIATED TRIBES OF THE QUINAULT RESERVATION 

Hearing Before the Native American 

Affairs Subcommittee of the 

House Committee on Natural Resources 

on The Tribal Self Governance Act 

February 25, 1994 

02/24/94 

C5615/00 I 00/Genl 
104 

TESTIMONY OF HERBERT M. WHITISH 

Concerning H.R.3508 

Mr. Chairman and members of the Subcommittee. My name is Herbert M. Whitish. I 

am the Chairman of the Shoal water Bay Tribe and I am appearing before you on behalf of my 

Tribe, as well as the Allottee's Association and Affiliated Tribes of the Quinault Reservation. 

My Tribe is a federally-recognized Indian tribe with a small tribally-owned reservation 

at Tokeland, Washington. Many of our enrolled members, including me, own allotments at the 

Quinault Reservation and we regard our property there as an important element to our Indian 

heritage as well as our lives. 

The Allottee's Association and Affiliated Tribes is an organization representing some 

2,500 non-resident owners of allotments on the Quinault Reservation. In addition to members 

of my Tribe, it represents individual allottees who are members of the Chehalis, Quileute, Hoh, 

Makah, Chinook and Cowlitz tribes, as well as those tribes. In addition, the membership includes 

enrolled members of the Quinault Tribe whose land interests are not being protected or even 

respected by the Quinault Tribe. 

I. Initial Comments. 

It is clear to me that this legislation is premature, in that none of us -- including any 

member of this Subcommittee -- knows what the impacts are from the Demonstration Project. 

This legislation would make permanent what Senator Inouye has called a "great experiment" and 

I believe that there must be definite and long-term assessments of this experiment before we 

make it a permanent program, lest tragedy for Indians results.. The most tragic example of 

experimentation with Indian lives is seen in the policy of Termination which was enacted by 

Congress 40 years ago this year and from which many tribes still have not recovered. Such 

tinkering with Indian people must not be repeated and the impacts of Self-Governance -- both 

short- and long-term-- should be fully examined before Congress takes another step. If Congress 

had stopped in 1954 for a careful look at what it was doing, a great deal of pain and suffering 

just might have been avoided. I urge you to study the past in order to avoid making the same 

type of mistake now. 

On February 18, 1988, Senator Inouye spoke prophetically about the initiation of the 

Tribal Self-Governance Demonstration Project: "I have no way of knowing what the outcome 

will be. It may be a great success, or it may fail. . .. I think it is about time we took bold steps, 

and in taking these steps we may fail. But that is the way we learn." 

Senator Inouye's concerns were well taken, as several small tribes in Western Oregon 

already have learned. The Siletz Agency in Siletz, Oregon, has served five tribes, two of which 

are now Self-Governance tribes. The BIA has announced its intention to close that agency in the 

interests of economy, leaving three small tribes with no agency for service delivery and forcing 

them to deal directly with the Portland Area Office bureaucracy which is hundreds of miles away. 
105 

I look at the Olympic Peninsula Agency which serves my Tribe from a distance of less than 40 

miles and wonder if it will be the next closure and, if so, how far we will have to travel in order 

to obtain our share of what will be a substantially diminished service capacity. This creeping 

reduction of service is real and already occurring; it can be no surprise that we are asking if th<,: 

total teiDJination of services is the next step for tribes not part of Self-Governance though 

reductions in funding until programs are no longer viable. 

These questions probably can't be answered for the reason I already have stated: essential 

studies of the Demonstration Project and Self-Governance as a long-term policy have not been 

conducted. Again, I urge Congress to SLOW DOWN. Do not leap before you look. 

If Congress determines that the legislation should go forward now, then I urge you to 

accept an amendment which would protect the interests of the individual land owners on 

reservations inhabited by Self-Governance tribes, especially reservations such as Quinault where 

the majority allotment ownership is held by Indians who are enrolled in other tribes. 

As an Addendum to this statement is the "History of the Quinault Indian Reservation." 

It explains how and why the Reservation was created for, and allotted to, members of many 

tribes; it also explains some 70 years of litigation in which every federal court looking at these 

issues has confirmed that the Quinault Reservation was created for all of our tribes, arui that the 

various tribes and allottees have independent, legally-protected rights at the Reservation, l!!ld that 

no tribe is the exclusive governing body of the Reservation. I urge each member of the 

Subcornrnittee to read it, for the facts are clear and adjudicated. 

II. Negative Impact of Self-Governance, 

The negative impact from the Demonstration Project is real and being experienced by the 

tribes and landowners I represent. Let me emphasize as a predicate that my Tribe enjoys a 

government-to-government relationship with the United States, as do the other recognized tribes 

represented in the Allottee's Association and Affiliated Tribes. We have trust relationships with 

the United States, and not the Quinault Tribe, but we are being adversely impacted by SelfGovernance at this time because the BIA is ceding to the Quinault Tribe the trust responsibilities 

it owes to us. 

Our Agency Superintendent, Ray Maldonado, has stated that hls top staff spends a large 

proportion of this time dealing with Self-Governance issues, including negotiations and day-today problems. Yet, Self-Governance was designed to take Self-Governance tribes out of the BIA, 

freeing up the reduced staffs and budgets for the remaining BIA tribes. Why are agencies even 

answering Self-Governance phone calls, when to do so means the rest of us are receiving a 

reduced share of an already reduced seryjce and program capacity? The result is that the 

Quinault Tribe receives its huge Self-Governance funding l!ill! continues to draw services from 

the BIA, and Mr. Maldonado has confirmed it! 

2 
106 

The Quinault Tribe is getting a $500,000 increase in its budget while everyone else is 

taking cuts. Where does this revenue come from? Again, it is hard to answer even this simple 

question when no studies have been performed. 

When the Self-Governance tribes can't make ends meet and have to dip into shortfall 

funding, this affects the non-Self-Governance tribes since this money is not available for other 

programs. There is not an infinite pot of gold to draw from but the Self-Governance Project 

seems to create gold for the "haves" while us "have nots" get none. 

We already see a depleted technical assistance available from the BIA to the point that 

we have to try to find funding elsewhere to supplement our tribal programs. And, we don't have 

sufficient funds to pay for full time employees to perform basic service functions which should 

come from the BIA. It is a vicious cycle which will continue unless something is done now. 

Again, it must be assessed. 

Finally, there is a shrinking federal dollar for Indian country. It would be fair for the 

necessary reductions to fall equally on all, but this fundamental notion of fairness is compromised 

by the fact that Self-Governance tribes are allowed to negotiate their budgets before budgeting 

is made for the non-Self-Governance tribes. We know this from BIA officials, but what we do 

not know is how severely our existence is going to be impacted through the precarious reduction 

of funding necessitated by the financial preference given to Self-Governance tribes. Again, 

where is a competent analysis of this problem? 

III. The Trust Responsibility Is Jeopardized by Self-Governance. 

Anticipating that my comments will be denigrated as nothing more than political dissent, 

I would urge the Subcommittee to consider the situation of the Quileute Tribe. Quileute signed 

the Treaty of Olympia at the same time that the Quinault Tribe signed the same treaty. Going 

back to 1924, this joint signatory tribe has repeatedly received judicial confirmation that its rights 

at the Quinault Reservation are equal to, and independent of, those of the Quinault Tribe. Yet, 

Quileute landowners at the Quinault Reservation have no vote with the Quinault Tribe and no 

way of protecting their land from the Quinault Tribe. What happened to the trust responsibility? 

It is possible that the allottees and the tribes I represent are unique throughout Indian 

Country. On the other hand, it is all too possible that we are not alone and that you have simply 

not heard from the other small tribes who will be adversely affected by this legislation. It is a 

fundamental principle of Title I of the Indian Self Determination Act that no "tribal organization" 

may obtain a contract which benefits more than one "Indian Tribe" without the consent of that 

tribe. It is not clear that same principle will apply to Title IV which will become law if 

H.R.3508 is enacted. 

Let me note that Shoalwater Bay and Chehalis are recognized tribes with adjudicated 

rights at the Quinault Reservation as "affiliated tribes" under the Treaty of Olympia. (& 

"History of the Quinault Indian Reservation" at Addendum for a detailed explanation of the rights 

through treaty affiliation.) Along with Quileute, Shoalwater Bay and Chehalis enjoy a 

3 
107 

government-to-government relationship with the United States, liD.d we all are entitled to all 

benefits and protections of the Indian Self Determination Act. We ask Congress to give us those 

benefits and protections by llQ1 endorsing Self-Governance and the continued trampling of our 

rights. 

Rather than rely on the vague policy statement in Section 3 that "self-governance" is 

supposed "to co-exist with the provisions of the Indian Self Determination Act", we think you 

should specifically require that any contract negotiated under this legislation which benefits more 

than one tribe must have the consent of that tribe. We think the legislative history should be 

clear that this sort of consent would apply to situations such as exist on the Quinault Reservation. 

It is axiomatic that the federal government has a trust responsibility to the recognized 

tribes I represent. Moreover, the United States Supreme Court has ruled that the same trust 

responsibility is owed to individual trust landowners at the Quinault Reservation, in Mitchell v 

United States, 445 U.S. 535,542 (1980). Nobody seems to care, as we learned only a few years 

ago when various of our tribes and individual allottees filed litigation in federal court seeking to 

compel the Secretary of the Interior to recognize and protect his trust responsibility to us. This 

action was Confederated Tribes of the Chehalis Indian Reservation et al y Lujan et al , Civil 

No. C89-58R (W.D. Wash.). The Secretary .shlmkl have responded by agreeing to the relief we 

sought-- indeed, as our federal fiduciary, he is obligated to do just this. Instead, he directed his 

attorneys to plead that the Quinault Tribe was an indispensable party to any adjudication of Qllr 

rif.lhts at the Reservation and the action must be dismissed since we could not sue the Tribe 

because it enjoys sovereign immunity. 

With Quinault attorneys in the room as amicus curiae but not parties, the Judge reluctantly 

agreed that the indispensable party technicality barred us from adjudicating our rights in court 

and dismissed. On appeal, the Secretary made the same argument to the Ninth Circuit which on 

a 2-1 vote affirmed the dismissal but with a blistering dissent that we were being denied our 

rights. 

So, here we sit. We have adjudicated federal trust rights at the Reservation which (I} the 

Secretary refuses to protect from Quinault tribal encroachment and (2) we cannot preserve in 

court. Yet, this legislation would give the Quinaults even more power over. our land without 

providing us with any manner of protecting the trust rights we have under federal law. 

IV. If Self-Governance Is to Proceed, 

Our Rights Must Be Protected. 

Our tribes and allottees are in a crisis, due to the BIA's wholesale abrogation of its trust 

responsibilities to us. 

The Secretary cannot contract away his trust responsibility to us. And, indeed, the 

Quinault Compact of Self-Governance purports to preserve our rights at Article IV, Section I: 

4 
108 

Nothing in this Compact is intended to, nor should be interpreted, 

to terminate, waive, modify or reduce the Trust responsibility of 

the United States to the Tribe or individual Indians. The Secretary 

pledges to practice utmost good faith in upholding said trust 

responsibility. 

Neither the Compact nor the current legislation protects us, so we urge that it be amended 

through the inclusion of the following new Section 409 which embodies the Compact's 

guarantees: 

"Sec. 409. PRESERVATION OF RIGHTS. 

"No Self-Governance agreement shall in any way infringe 

on the trust responsibility of the United States to any individual, 

tribe or other entity. Any individual, tribe or other entity who 

believes that the federal trust responsibility between the United 

States and said individual, tribe or entity is being or has been 

adversely impacted by any self-governance agreement or other 

action or inaction of the Secretary of the Interior shall have 

standing in the United States District Courts to litigate any and all 

issues relating to the trust responsibility against the Secretary, and 

the absence in court of any Indian tribe, including tribes with 

which any self-governance agreement is signed shall not be a bar 

or defense to such litigation for any reason, including the doctrine 

of indispensable party. 

Mr. Chairman, I thank you and the Subcommittee for allowing me to speak here today. 

yr200.wp 

02124194 

CS61 5100100/Genl 
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02124194 

CS61S/OOIOO/Genl 

109 

ADDENDUM 

HISTORY OF THE QUINAULT INDIAN RESERVATION 
110 

HISTORY OF THE QUINAULT INDIAN RESERVATION 

Detailed histories of the Treaty of Olympia are found in Halbert y United States, 283 

U.S. 753 (1931); Wahkiakum Band of Chinook Indians y Bateman et al, 655 F.2d 176 (9th 

Cir. 1981); The Ouinaielt Tribe oflndians v The United States, 102 Ct.CI. 822 (1945); ~s 

Y.....Cl.lu:k, 742 F.2d 549 (9th Cir. 1984); and Solicitor's opinion D-40140 (September 2, 1916). 

There is no serious dispute as to the following discussion, since it is based in...t!l1ll on established 

fact and law. 

A. Treaty of Olympia. 

The history of the Reservation must begin with an understanding of the background of 

the Treaty of Olympia, S!!lllil, which was executed by the Quinault and Quileute tribes 

and bands. 

The Treaty of Olympia was preceded by the so-called Chehalis River Treaty Council held 

in 1855 prior to the treaty session at Olympia. Governor Isaac Stevens convened all the coastal 

and interior tribes of the area without understanding the alliances and animosities which existed 

between them. it was his intention, and insistence, to place all of these tribes on a singh: 

reservation which previously bad been set aside for other Indians by the Treaties of Medicir.e 

Creek and Point-No-Point.' Virtually all of the tribes refused to accept such a plan and Governor 

Stevens angrily dismissed the treaty council.' Although the Chehalis River negotiations failed 

to achieve their full purpose, they did result in a treaty between the United States and the 

Quinaults and Quileutes. Later in 1855, aides of Governor Stevens met with the two tribes and 

signed the treaty which was presented to him in Olympia in early 1856. 

At Article II, the treaty guaranteed to the Indians a reservation "sufficient for their wants" 

and ARTICLE VI provided that the President "may consolidate them with other friendly tribt:s 

and bands" on that reservation.' The language about consolidation (or "affiliation") was 

Duwamish Tribe of Indians et al y The United States, 

79 Ct.Cl. 530, 601 (1934). 

In addition to the other case citations noted in the 

text, the Indian Claims Commission found that the 

Chehalis River Treaty Council was an unsuccessful attemt:t 

to negotiate a treaty with the Chinook Indian Tribe and 

various bands of Chinooks which now are components of the 

Chinook Tribe. The Chi nook Tribe and Bands of Indians v.L 

united States, 6 Ind. Cl. Comm. 177, 195 (1958), . 

196 Ct .Cl. 780 (1958) . 

.Ibid, p.47. 
111 

incorporated into the treaty after (a) the failure of negotiations at Chehalis River and (b) the end 

of all negotiations with the Indians other than Quinault and Quileute. 

B. Executive Order of 1873. 

In 1863, an area of 10,000 acres was tentatively defined for the Reservation but it was 

never formally established as such. Ten years later, the Reservation finally was created by the 

Executive Order of November 4, 1873."4 By this order, President Grant stated that he intended 

"to provide for other Indians in that locality" by withdrawing lands from the public domain "for 

the use of the Quinaielt, Quillehute, Quit, and other tribes of fish-eatin~: Indians on the Pacific 

" [Emphasis supplied.) A total of 220,000 acres was then designated for the Reservation. 

C. Land Allotment Laws and Practices. 

Pursuant to the Allotment Act of February 8, 1887 (24 Stat. 388), allotments were being 

made on the Reservation by the turn of the century. However, the tribes which were affiliated 

on the Reservation by the Executive Order were having difficulty in obtaining allotments, a 

situation which Congress sought to remedy through the Allotment Act of March 4, 1911 (36 Stat. 

1345} The Allotment Act of 1911 directed the Secretary of the Interior to make allotments on 

the Quinault Reservation --

to all members of the Hob, Quileute, Ozette or other tribes of Indians in 

Washin~:ton who are affiliated with the Ouinajelt and Ouileute tribes in the treaty 

(of Olympia] . . . and who may elect to take allotments on the Quinaielt 

Reservation rather than on the reservations set apart for those tribes. 

[Emphasis supplied.] 

In Halbert v United States, which is discussed below, the Supreme Court noted that both 

the BIA and Congress recognized that the eight tribes identified above have reserved rights under 

the Treaty of Olympia by virtue of their post-treaty affiliation, and that the 1911 Allotment Act 

was enacted specifically to guarantee their rights to land within the Reservation. 

D. The Lighthouse Reserve. 

There has been a consistent recognition by Congress and the courts that all of the 

affiliated tribes had coequal rights within the Quinault Reservation. By the Act of August 22, 

1914 (38 Stat. 704), Congress authorized the Secretary of the Interior to set aside Indian lands 

within the Reservation for lighthouse purposes, for which payment was to be deposited in the 

United States Treasury not in favor of the Ouinault Tribe but rather "to the credit of the Indians 

Kappler, "Indian Affairs Laws and Treaties," Vol. I, 

p. 923. 

2 
112 

of the Ouinaielt Reservation." [Emphasis supplied.] In addition, Congress reserved the mineral 

rights within the Lighthouse Reserve, again "for the use and benefit of the Indians of the 

~Reservation. " (Emphasis supplied.) 

E. The Halbert Case. 

By about 1916, the allotment process was halted within the Reservation after more than 

600 allotments bad been made. The stated reason for this cessation was that BIA Forestry Staff 

bad concluded that timberlands should not be allotted. Since all agricultural and grazing land~. 

within the Reservation already had been allotted, the BIA determined that there was no land 

remaining which was "suitable" for allotment under allotment law. 

An unallotted Quileute Indian sued to obtain an allotment from the timberland sections of 

the Reservation, and the Supreme Court ruled that he was entitled to an allotment of "timbered 

lands capable of being cleared and cultivated." United States v Payne, 264 U.S. 446, 449 

(1924). Thus, timberlands within the Reservation were to be allotted under federal law 

Following fayru;, allotments primarily were made to Quileutes, Hohs and Quits. Few allotments 

were being made to Chinook, Cowlitz, Makab or Chehalis Indians, so they were forced to litigaU: 

their entitlement thereto in the lial.brn case. 

In Halbert v United States, 283 U.S. 753 (1931), the Supreme Court found that individual 

Indians who were members of the Chinook, Cowlitz, Makab and Chehalis Tribes had a right to 

allotments at the Quinault Reservation because, as a matter of law, they were affiliated with the 

signatory tribes to the Treaty of Olympia. The Court specifically cited the Executive Order of 

1873 and the Allotment Act of 1911 , and noted that Interior had consistently taken the position 

(beginning in 1913) that the 191Ilegislation provided for these tribes and that further legislation 

was not necessary to protect their entitlements to allotments within the Quinault Reservation. 

Moreover, the Court found that post-treaty affiliation clearly was contemplated by the Treaty: 

Strictly speaking there was no affiliation in the treaty. But the treaty did contain 

a provision under which affiliation mijlht be broujlht about. [Emphasis supplied. I 

(283 U.S. at 759) 

As for the inclusion of the other tribes within the affiliation provisions of the Treaty of Olympia 

and the Executive Order of 1873, the Court observed that the affiliating language unquestionably 

applied to them: 

In 1855, the Quinaielt, Quillehute (also called the Quileute), 

Chehalis, Chinook, and Cowlitz Indians were neighboring tribes in 

the southwesterly section of what is now the state of Washington. 

They were all !mown a "fish-eatinll Indians" and lived in small 

villages adjacent to the Pacific coast and the lower reaches of the 

Columbia River. The Quits and Ozettes [also called Makabs) were 
113 

also fish-eating tribes living in coast villages a little north of the 

others•** [Emphasis supplied.] (283 U.S. at 756) 

In addition, the Supreme Court noted at pp. 759-61 that several additional facts in further support 

of its determination that a post-treaty affiliation had occurred: 

I. prior to 1911 , over 750 allotments had been made at the Reservation, more 

than half of which were made to members of tribes other than the treaty 

signatories; 

2. more than 20 percent of the pre-1911 allottees had never resided on the 

Reservation; and, 

3. by 1911 , Congress and the BIA felt it "altogether appropriate" to "speak 

of" the other tribes as being affiliated under the treaty. 

F. Post-Halbert Case Law. 

Since the 1931 ruling in lialhrn, other federal courts have looked at the situation at 

Quinault and the question of post-treaty affiliation. Without exception, they have held that there 

was a post-treaty affiliation under the Treaty of Olympia and the Executive Order of 1873, and 

that the affiliated tribes still enjoy rights as a result of that affiliation. 

1.. The "Boundary Dispute" litigation. 

A survey error led to an incorrect drawing of Reservation boundaries and a slight 

reduction in total land area. Congress authorized litigation in the United States Court of Claims 

to recover from the United States the value of land erroneously excluded from the Reservation 

through this survey error.' The Quinault Tribe filed and sought to prosecute the litigation in...ili 

own name, but the Court concluded that the case could not go forward because the Quinaults do 

not have exclusive rights to the Reservation. The Court confirmed that the Chinook, Quileute, 

Hoh, Quit, Chehalis, Cowlitz and Ozette Tribes have rights~ those of the Quinault Tribe. 

~The Ouinaielt Tribe of Indians v The United States, 102 Ct.CI. 822 (1945). Among its 

Findings of Fact, the Court of Claims stated the following: 

After the date of this Executive Order [of 1873] the plaintiff and the 

Quillehutes, Hobs, Quits, Chehalis, Chinook, Cowlitz, and Ozette tribes, 

and any other tribes in the Territory of Washington who may have been 

affiliated with the Quinaielt and Quillehute tribes were entitled to equal 

Ac t o f February 1 2, 19 2 5 (4 3 Stat . 88 6 ). 

4 
114 

riehts in this reservation. [Emphasis supplied.] Finding of Fact No. 3. 

(102 Ct. Cl. at 825) 

Recognizing the interaction between the treaty provisions allowing for affiliation and the 

Executive Order of 1873, and citing Hlll.b!:.t:t, the Court found that the affiliated tribes are "entitled 

to eQual riehts in the [R]eservation" (emphasis suppliedt since they were affiliated tribes, 

concluding: 

.l1..i.s...lili. therefore, that the Ouinaielts are not entitled to exclusive 

riehts in the reservation. The Quillehutes, Hobs, Quits, Chehalis, 

Chinook and Cowlitz tribes are also entitled to an interest therein. 

[Emphasis supplied.] (102 C.Cls. at 835) 

Subsequent to its 1945 opinion in the Boundary Dispute, the Court of Claims looked at 

the case a second time. The Ouinaielt Tribe of Indians v The United States, 118 Ct.Cl. 220 

(1951 ). Again relying upon Hlll.b!:.t:t, the Court observed, "the Chehalis, Chinook, and Cowlitz 

tribes were [found by the Supreme Court to be] entitled to eQual ri~:hts in the reservation." 

[Emphasis supplied.]' Moreover, the Court observed that the Chinooks were allotted in large 

numbers after the Halbert decision was rendered. 

8 

Finally, the significance of the affiliation was underscored in the 1951 Court of Claims 

ruling when it was evaluating damage awards for the Boundary Dispute claim. The case was 

before the court by virtue of a special and limited statute-- the Act of July 24, 1947 (61 Stat. 

416) -- which permitted the Quinault Tribe to litigate the claim on behalf of itself and the 

affiliated tribes -- and the court determined the value of the land illegally omitted from the 

Reservation, plus interest, to total $87,988.68. However, the original jurisdictional act directed 

that any award be reduced by appropriate set-offs equal to disbursements by the federal 

government to the "tribes and bands" [emphasis supplied] for which the claim was presented; the 

Court noted --

In schedules (prepared by the General Accounting Office] ..... there 

are listed amounts spent by the United States for the benefit of 

these tribes and bands under other than treaty obligations totalling 

(in excess of] $87,995.62. [Emphasis supplied.] (118 Ct.Cl. at 231 ) 

102 Ct .Cl. at 83 5. 

118 Ct .Cl. at 226 . 

.Ibid. 

5 
115 

With this, the case was dismissed because no money was owed the tribes of the Reservation for 

the diminishment in acreage. 

2. The fishing rights litigation. 

Certain Chinook and Cowlitz Indians recently litigated the issue of post-treaty affiliation 

and whether they have federally protected rights to fish as Indians pursuant to the Treaty of 

Olympia. Wabkialcum Band of Chinook Indians v Bateman et al , 655 F.2d 176 (9th Cir. 1981 ). 

Declaring that Hlll.h!:n "does state that the Chinook and Cowlitz are affiliated with the Quinaults 

under the Treaty of Olympia,"9 the Ninth Circuit affirmed that a post-treaty affiliation of 

Chinooks and Cowlitz had occurred at the Quinault Reservation and that they have coequal and 

joint rights and jurisdiction at the Reservation: 

As members of a tribe subsequently affiliated with the Quinault 

under the treaty, [the affiliated tribes] are, however, entitled iQ 

share such ri!lhts as are llranted to the ~ si~:natories by the 

1J:l;aty. [Emphasis supplied.] (655 F.2d at-179-80) 

3. The Willessj Estate litigation. 

The Estate of Joseph Willessi was litigated through the Ninth Circuit by a Quileute Indian 

in order to receive a bequest of land within the Reservation. Williams v Clark 742 F.2d 549 

(9th Cir. 1 984). Both Willessi and the claimant Williams were enrolled members of the Quileute 

Indian Tribe10 and the BIA pleaded that the IRA bars Williams "from receiving an interest in 

trust land on the Quinault Reservation because [he) is neither an heir nor a member of the 

Quinault Tribe of Indians."" The BIA's argument was that Section 4 of the IRA restricts the 

Willessi bequest of lands to "members of the Indian tribe in which the lands ... are located."" 

Since (a) Williams is an enrolled Quileute and (b) the Quileute Tribe has its own reservation, the 

BIA insisted that no Quileute Indian could receive land at the Quinault Reservation for such 

would contravene IRA Section 4. Citing many of the cases noted in this History, the Ninth 

Circuit affirmatively declared that the Quileute Tribe has treaty rights at the, Quinault Reservation 

655 F.2d at 178. 

10 742 F.2d at 550. 

11 

12 ~ IRA Section 4 at 25 U.S.C. §464; 742 F . 2d at 551-. 

6 
116 

and that the Quinault Tribe does not have exclusive authority over the Reservation which 

supersedes the Reservation rights of the other tribes for which it was established-" 

G. The 1935 IRA Election. 

Finally, it is well-docwnented that members of the affiliated tribes-- regardless of whether 

they actually resided within the Reservation -- were permitted to the vote in the 1935 election 

at the Quinault Reservation in order to determine whether the IRA would be applicable thereto. 

These voters included members of the plaintiff tribes and the tribes in which the individual 

plaintiffs are enrolled. The IRA vote determined that the IRA would be applicable to the 

Reservation, which outcome paved the way for the Quinault Tribe and the BIA to attempt to 

deny the Willessi bequest to Williams. However, the Quinault Tribe has refused and failed to 

take the next step in the process, which is the mandatory adoption of an IRA constitution. 14 This 

is importa.n't because Congress established a two-step procedure for implementing the IRA. First, 

an election was required to be held on every Indian reservation, so that Indians could determine 

whether the IRA would be applicable to their reseryation. 1

' Second, if the vote on IRA 

applicability was affirmative, all resident tribes would then decide whether to reorganize under 

the IRA-- that is, whether to become an IRA tribe.

16 The Indians of the Quinault Reservation-

- including the affiliated tribes -- voted to accept the IRA for the Quinault Reservation. 

However, the Quinault Tribe has never reorganized pursuant to the IRA, and it is not an IRA 

tribe. 

yr202.wp 

02124194 

C561 S/00 I 00/genl 

l3 

14 

l5 

16 

742 F.2d at 553-55. 

The Ninth Circuit noted this point in Willi~ms y Clark 

at its footnote 5. 

The reservation elections were established by Section 18 

of the IRA, 25 U.S.C. §478. 

The reorganization of individual tribes or groups of 

tribes within a single reservation is provided for at 

Section 16 of the IRA, 25 U.S.C. §4786. 

7 
117 

Mr. FALEOMAVAEGA. Mr. Bennett. 

STATEMENT OF HON. GEORGE E. BENNETT 

Mr. BENNETT. Thank you, Mr. Chairman. My name is George 

Bennett. I am here representing the Grand Traverse Band of Ottawa and Chippewa Indians. We bring you greetings from Michi- gan. I know you don't have much snow where you are living, but 

we do have, and I had trouble getting out of the airport yesterday; 

but I am thankful that I am here today to testify before the sub- committee. 

I appreciate being here, and our chairman was not able to make 

it, and because of my tenure in the Federal system, he asked that 

I take his place in submitting testimony. It is a matter of the 

record, as you have indicated. We would like to have it recorded, 

and I would like to move forward by making five points with regard to the enactment of this legislation. 

First of all, we support the legislation. Secondly, I think it directs-it does address the sovereignty of Indian tribes. Thirdly, we 

support negotiated-the negotiated waiver clause within the legislation, and request to do so. We do feel that there need to be 

stronger negotiation meetings with the Bureau of Indian Affairs; 

and we also think that there might be a slight problem with the 

central office share of the pot, where it is not trickling down to the 

tribes. The field offices have not been willing to share equitably. I don't know that the-as a matter of fact, we have some 1993 

monies due to us that we haven't gotten, about $163,000. Nor has 

the indirect cost rate been discussed in this legislation. We urge 

the enactment, as I mentioned, of H.R. 3508; but beyond that, we 

need to look to the future, we suggest, to coincide with the priorities of our tribe. We have set in education as the high priority. I 

urge the committee to take a look at that in the coming years. 

As far as other agency involvement, we urge that you move forward with this legislation and that there be an expansion with 

other agencies. With that, I thank the committee. Pleasure to be 

here, and good wishes on your work ahead. Mr. FALEOMAVAEGA. Thank you, Mr. Bennett. 

[Prepared statement of Mr. Bennett follows:] 
118 

The Grand Traverse Band of 

Ottawa and Chippewa Indians 

Route 1. Box 135 Suttons Bay. Mic hrgan 49682 616-271-3538 

TESTIMONY OF THE HONORABLE GEORGE E. BENNETT, TRIBAL COUNCIL MEMBER 

GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS 

BEFORE THE HOUSE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

HEARINGS ON H.R. 3508 (SELF-GOVERNANCE) 

FEBRUARY 25, 1994 

Good morning . I bring you greetings from our Tribal Chairman, the Honorable Joseph c. Raphael, and from the people of the Grand 

Traverse Band of Ottawa and Chippewa Indians. My name is George 

Bennett. I am here today as a member of our Tribal Council, as a representative of my people, and as a spokesperson for our Tribal 

Council. Chairman Raphael was unable to attend this hearing at thE• 

last minute and asked me to provide this testimony in his place. 

I want to thank you for the opportunity to address you and t o discuss the issue before you today that directly affects our people. 

I am here today to ask for your assistance in enacting permanent 

legal authority for the Tribal Self-Governance effort. The Grand 

Traverse Band began administering our programs under 

Self-Governance authority on October 1, 1992 with Interior 

Department funds and added Indian Health Service funds on September 

30, 1993. We have found Self-Governance to be the most positive 

federal policy put forward for Indian people in the 217 years that 

the u.s. Congress has made laws and regulations involving Indian 

people. 

H.R. 3508 authorizes a new government to government relationship on a permanent basis between Indian Tribes and the United States 

government. While it cannot reverse the mistakes of the past, such as the Indian Removal Act of 1830, the General Allotment Act oJ: 

1887, and the federal termination policy of the 1950s and 1960s, it can create a new beginning for Indian Tribes to work within the 

federal system as independent units of government free of the 

paternalism taat has been so devastating for Indian people for so many years. 

Self- Governance has allowed Tribes to grow in local control of our own governments as was the case for Indian people for centuries 

before interaction with non-Indian society. In the case of the 

Grand Traverse Band the Tribe has watched local control over ou.r own budget grow from 13 percent in 1992 to 60 percent in 1994. 

This has allowed the Tribe to address long unmet needs for the first time. We of course have not been able to address all of our unmet needs but now under Self-Governance we can participate more fully with the United States Congress in meeting the unmet needs of 

Indian people. 

- 1 -
119 

The permanent legal authority in H.R. 3508 must be enacted into law so that the federal agencies involved in the Self-Governance 

Demonstration Project are told that Self-Governance is not a passing phase that will go away tomorrow and will not have to be 

taken seriously by the federal agencies. Federal agencies have 

created as many road-blocks as possible to the Self-Governance 

Demonstration Project and the Project is succeeding in spite of 

that fact. This shows that Tribes have the expertise to make SelfGovernance a success and that Self-Governance can improve 

conditions for Indian people. 

We now need to remove the obstructions to good government created 

by the federal agency staff who are interpreting current law to mean they do not have to cooperate with the Demonstration Project. 

They have consistently refused to take seriously the Congressional 

directive to down-size the BIA and IHS in direct response to the 

negotiated transfer of their functions and duties to Tribes under 

Self-Governance. The BIA has slowed the financial process of the 

transfer in funds and our Tribe has yet to receive all funding 

provided for in last year's annual funding agreement. 

I want to say a few specific things about H.R. 3508. We understand 

the procedural reasons why H.R. 3508 maintains the current law's 

exclusion of Indian education funding from Self-Governance 

authority, but after H.R. 3508 is enacted, we urge this 

Subcommittee to move quickly to expand Self-Governance authority to 

Indian education and to other federal agencies. 

The Grand Traverse Band also strongly supports the language in H.R. 

3508 that makes available to a Tribe all funds it would have 

received under contracts and grants plus all funds related to the 

Interior Department • s provision of services and benefits to our Tribe and its members. This is identical to the language in 

current law. We do not want this language changed except to 

clarify that these funds should include those "functionally" 

related to the Department's delivery of services and benefits. 

We also strongly support the regulatory waiver procedures included 

in H.R. 3508. We have been developing several waiver requests to 

streamline the operation of our Compact programs, but have been 

hesitant to propose them given the lengthy, costly, and 

exasperating experience other Tribes have had when they have 

proposed similar regulation waiver requests· to the Department. 

We view the negotiated waiver provisions in H.R. 3508 as absolutely 

necessary. If regulations are needed to properly implement H.R. 

3508, and we are not altogether sure they will be, the spirit of 

Self-Governance requires that the regulations be drafted in a partnership effort between Tribal government and federal government representatives. We · believe the time frames and the specific 

requirements in H.R. 3508 are needed to ensure that the secretary 

comply with the intent of Congress. This language is especially 

reasonable in view of the five years it took BIA and IHS to produce 

- 2 -
120 

proposed regulations on the 1988 amendments that virtually ignored 

substantial Tribal government input. My Tribe heavily contributed 

to that effort to give meaning to the Tribal consultation process, 

only to see its views ignored by the federal regulation writers. 

Enactment of H.R. 3508 is important to us for many other reasons. Despite current law, the BIA has not yet seriously discussed the 

negotiation of Tribal Shares of Central Office funds. The IHS 

Headquarters Office continues to maintain control over the Project 

and prevents many funding issues from being resolved. We have 

completed four months of the fiscal year 94, yet we have not 

received full BIA indirect cost funding for fiscal year 93 and 

contract support funding remains a question for fiscal year 94 even 

though congressional intent is very clear for full funding of 

indirect cost. 

In our IHS negotiations we identified a $33,000,000 line item in 

the IHS budget that we believe should but does not provide direct 

assistance to Indian people and are seeking to negotiate an 

equitable distribution of that fund among Tribes. We feel strongly 

that these and other issues can and will be resolved if we can get 

the cooperation of the federal agencies. One way to begin getting 

better cooperation is to obtain permanent legislative authority. 

We feel that Self-Governance is the way to go for our Tribe at this 

time in our history and feel we should be allowed to proceed on a permanent basis that will allow us to plan positively for the 

future of our people. 

Self-Governance is first and foremost an issue of sovereignty. 

Congress has passed well over 5,000 laws involving Indian people 

since the Treaty process stopped in 1871. If you look at those 

laws and Supreme Court decisions involving Indian people, you find 

that Indian Tribes are domestic Sovereign Nations in this country, 

and consequently should be able to work directly with the United 

States Congress and the Executive Branch on a government to 

government basis to resolve issues of government. This 

governmental partnership is happening here today as Indian Tribes 

are working with Congress in requesting assistance through 

permanent Self-Governance authority that will better permit Indian 

Tribes to take their rightful place within the federal system. We 

ask your support in making this a permanent process so that a message may be sent to the federal agencies that Congress is 

serious about Self-Governance and will no longer endorse the 

paternalistic practices of the federal agencies. 

I thank you for your time today and would personally like to thank 

Chairman Richardson, congressman Williams, congressman Gejdenson, 

Congressman Faleomavaega, Congressman Johnson, Congressman 

Abercrombie, Congressman English, Congressman Thomas, Congressman 

Young, Congressman Baker and Congressman Colvert and other members 

of the full Committee who have taken a positive active role in 

assisting Indian people in this country. 

- 3 -
121 

Mr. FALEOMAVAEGA. The gentleman from Alaska for questions. 

Mr. YoUNG. Thank you, Mr. Chairman. I appreciate it. I would 

like to compliment Mr. Whitefish for his testimony, because I know 

there is some real concern--

Mr. WHITISH. Mr. Whitish. 

Mr. YOUNG. What is it? 

Whitish, I am sorry. And I think you bring a very valid point out. 

And I would like the idea of self-governing primarily because it 

makes people become directly involved in the activities of the trust 

relationship with the government. 

And I understand your concern about the monies and I understand your concern about having field hearings. I think that is very 

important, because sometimes we only hear from one side of the 

issue. And those that are directly affected may not be being heard. 

And so I think that is a good idea, Mr. Chairman. 

We can possibly do this, get into some areas and find out if this 

is just an attempt to increase the power of certain individuals. Or 

is it really an attempt to service the people? 

In my State, we have had some pretty good opportunities nowit has been slowed down-to taking over some through current contractual efforts, some of the activities that BIA, and I suggested 

that. Is there a way we can possibly amend this legislation for 

those tribes that are ready for self-government to be allowed to be 

self-governing, and those that are not ready be protected under the 

trust relationship with the government? Do you think that could be 

done? 

Mr. WHITISH. It would seem to me that the only way you are 

going to pull this off is to put more money into the project. You will 

have to evaluate the needs and those of the individual tribes and 

at least provide them with a baseline budget so that they can draw 

from that so that you can protect them so that this money doesn't 

keep sliding down and down as the drain from self-governance has 

taken it the other way. So that would be my only response to try 

to deal with that issue. 

Mr. YOUNG. Secondly, one of my biggest concerns is every time-

! have been here 22 years and the BIA under the Self-Governing 

Act Contracting Provision was supposed to decrease in size, and if 

I am not mistaken, they have increased their budgets and I am not 

sure that is the way we should be going. 

My complaint is that, if anything, at least the money to run the 

BIA through Department of Interior, if we could designate in areas 

where we have self-governing, get that money that BIA was using, 

decrease the staff and decrease the people involved in BIA, that we 

might be able to have more money for doing what I think is correct, 

and that is servicing the constituency of the tribes. That is going 

to be the real battle. 

When you have a compact or a self-governing group and their 

moneys are cut by the BIA-we don't cut it-and BIA gets a lump 

sum, and their moneys are cut back, you can't function as a compact or as a governing body. 

We are going to have address that because if it ends up like you 

say where they don't get the money and decrease it by direction of 

the BIA, it won't work. Services will be decreased and you will 
122 

have unrest and unhappy people; not just the money, but the services provided. It is a real challenge to us. 

I appreciate your comments and agree with the lady from Ketchikan and her comments. I think we have some areas where the 

tribes are ready, can do the job. I think it would be more cost efficient, but I don't want to get you on the spot when we don't have 

the money to do what we thought you could do. 

That is what we have to do, Mr. Chairman. I am glad you 

brought this up, frankly. I think it is a good point. We will have 

hearings. 

Mr. WHITISH. I would like to make one more comment on that. 

Unless you provide a baseline budget, even if you go in and streamline the Bureau and then push the money towards the tribes, some 

smaller tribes, like my tribe with 150 people, most of those contracts are dealt out on a per-head basis so that, yes, you could do 

that and you could shove the money to me, but the problem is that 

I would not have enough money to have any full-time employees 

to provide the same technical services that the Bureau is. 

So if you try to do that, you are still going to have the long-range 

effect of hurting the tribes because they will not be able to have 

the same services that are presently available through the Bureau. 

It doesn't work that easily, to me. Maybe somebody out there has 

a better mind than mine that can deal with these issues, but I 

think if we get together and talk about these issues, that we can 

come up with some answers and then be able to make this a fairer 

process. 

Mr. YouNG. I agree. Like I say, some are able to walk and some 

are not, but we ought to allow those that want to walk to walk, 

but take care of those that can't. 

There are a lot of tribes, 150, 200, 300 people that would be unable, like you say. The base isn't there, according to the formula. 

That is something we have to consider, the formula. 

We have the same problem in Alaska. If you look at the total enrollment of the Alaskan native versus the total enrollment of the 

American Indian, we won't get maybe the percentages under the 

formula that we are now getting through distribution by the BIA. 

Back to your testimony. This says, "If Congress determines the 

legislation could go forward, I urge you to accept an amendment 

that would protect the interests of an individual landowner on reservations inhabited by self-governance tribes, especially reservations where"-I can't pronounce the word-"the majority allotment 

ownership is held by Indians who are enrolled in other tribes." 

Are you suggesting that there is a possibility that because you 

have land and you are in a tribe, that if you become a self-governing tribe, that they can take that ownership of land away from 

you? 

Mr. WHITISH. They become the self-governing tribe. What I am 

afraid of is that the Bureau, if they start downsizing and eliminating some of these programs, those programs that are dealing with 

forestry and land issues and natural resources will have to go 

somewhere. If there is no Bureau to do that, then it would naturally seem that it would fall into the Quinault Tribe. That tribe 

does not represent five tribes that own property on that reservation. 
123 

If you look on a map, 65 percent of that reservation is owned by 

non-Quinault members. If self-governance goes through, they already have three areas where they are taking trust responsibility 

for individual allotments. If they continue on that, is this an opening for the taking of other trust responsibility from the Bureau, 

being a sign from the Department of Interior to the Quinault Tribe 

to deal with my issues on my property which should rightfully be 

decided by the allotee's association affiliated tribes or each individual tribe that is on here? 

If you look at the court cases that I mentioned, it will show you 

a clear pattern that the Quinault is not the exclusive governing 

body on that reservation. The Tlingit Tribe was co-signers on that 

treaty; yet they are going to be locked from anything to do or say 

on this-if this self-governance goes through. That in my mind is 

a detrimental effect. 

Now we may be just the anomaly, but how do we know this unless we get out there and do those field hearings and find out? 

There may be other instances where this could happen. 

I am only talking about this as an indicator of something that 

is wrong with the process in its present form and unless rectified, 

there is going to have to be some action taken by the tribes if something happens. 

One of the things I have a problem with in the Quinault Tribe 

is that if they were to do an action resulting in damage to say a 

timber claim that I own, can I go and try to sue them? I can't because they passed Article 99 that protects each council member 

from any individual responsibility as a result of their actions. 

You have that. You have the tribal sovereign immunity, plus the 

government could say "If we try to go after them, they can say 

Quinault Indispensable Party." Therefore, we are blocked out of all 

avenues to decide the issue. We are being deprived of due process 

of law. 

The Fifth Amendment of the Constitution says that. Here we are 

not being able to exercise that and I am afraid of that situation. 

I think it needs to be rectified and at least as far as the trust responsibility, this amendment would do that. 

Mr. YOUNG. Mr. Chairman, I appreciate this gentleman's comments because we have some cases in Alaska in my hometown 

where one group deeded over a bunch of land-1 don't think they 

have authority to do that-by taking it away from another group. 

This is going to be heavily debated before it is over. 

I would suggest that your points are well taken and I think we 

have a responsibility to make sure that there is no taking by or 

undoing the Fifth Amendment of the Constitution, and this bill 

may have further to go than we thought it did for the reasons you 

brought up. 

I think the rest of you on the panel recognize his problem, because there is a definite concern here that by governing does not 

give you the rights of taking or abusing an individual of the tribes 

which you will be governing. 

We will have to write this so the individual is protected also. It 

is crucial to me, what I have based a whole career on. One person 

is more important than the mass if he or she is right, not the mass. 

Thank you, Mr. Chairman. 
124 

Mr. FALEOMAVAEGA. Thank you Mr. Young, a majority of one. 

Chairman Richardson? 

Mr. RICHARDSON. Thank you, Mr. Chairman. 

Let me advise Mr. Whitish that we would appreciate him making 

some suggestions to this Act. We are ready to take them in terms 

of amendment suggestions. It seems to me that his problem is not 

with self-governance, but the internal Quinault issue. But I do 

want to stress that it is my view that self-governance is the future. 

We do have some built-in protections in this Act. I think right 

now we have 28 tribes participating, but it is my view that this 

gives tribes more authority. It eliminates bureaucracy that 

shouldn't exist. I think the tribes should make these decisions 

themselves regarding their financial futures and their policy. 

So I am vigorously in the days and years ahead going to push 

this concept. If we can refine it, I am ready to do that, but I think 

it is the future and I know that many of my colleagues on the subcommittee share the view that it is a future. 

Mr. Chairman, I have no further questions. 

Mr. WHITISH. Can I make one more comment? 

Everybody talked before about equating self-governance with sovereignty, but what about the sovereignty of my tribe that doesn't 

feel that that is our future? That is what I am saying, that it 

doesn't look out for all parties involved. 

All I am asking for is an honest read on this so that we can determine because self-governance in my belief is not for my tribe 

and I should not have to catch this train against my will. 

Sovereignty is to decide what is best for your tribe, your situation and not be forced to do something that is not in the best interest of your tribe. That is what they voted me in for. That is my 

job. 

I appreciate that that is the way this train is going. If it has to 

go that way, think about amendments, ways to fix this so it is responsive to everyone's needs. 

Thank you. 

Mr. RICHARDSON. The train is moving and you should give us 

some constructive amendments and we are ready to look at them. 

Mr. FALEOMAVAEGA. Mr. Ron Brown, when we say pilot projects, 

the administration has dealt with the issue of self-governance for 

eight years; in other words, we are dealing with an eight-year experience. 

Mr. Ron Brown, I believe, is currently the Acting Director of the 

Office of Self-Governance. Do you have a response to concerns like 

what Mr. Whitish has said about the rights of those tribes that 

may be affected negatively concerning this concept? 

I think we need your assistance in this. 

Mr. BROWN. Yes, we have. We went through the process taking 

into consideration those tribes that didn't want to go into self-governance. In fact, during the whole process, one of the most important issues is that there be no adverse impact to the 

nonparticipating tribes. 

What we have done so far is use shortfall. For instance, if an 

agency can't give up all of the due amount of money that should 

go to a compact tribe, then instead of using the agency money, we 

would use the shortfall pool. 
125 

As this program evolves, we hope that the Bureau will eventually 

pare down, but as it pares down we will still give the same level 

of services to the non-compact tribes that they had before the compacting took place. 

Mr. FALEOMAVAEGA. Is it your opinion that the 20 tribes that 

have initiated this whole concept of self-governance, has it been 

pretty much to your satisfaction as far as the administration is concerned? 

I realize one of the concerns mentioned by this panel was the 

funding. It seems that every year the money gets tighter or lesser. 

What can you respond to that? 

Mr. BROWN. Well, the funding issue is a real tough issue to deal 

with because the self-governance concept right now is depending on 

the shortfall for the adverse impact that we are talking about. If 

we have other initiatives like the national reduction in programs 

with which we are dealing, that initiative flies in the face of what 

we are trying to do in self-governance. 

What we are trying to do is get the administrative dollars that 

are currently used by the Bureau to process paper, get that money 

out in scholarships, in social services, get it out there to do other 

kinds of things. That is our big initiative. Throughout the process 

we are still worried about the non-compact tribes and I think the 

shortfall thing, the way we are dealing with it right now to make 

sure that the Bureau is still there for those tribes is with the shortfall. 

Mr. FALEOMAVAEGA. Is it the intention of Secretary Deer and 

yourself to provide perhaps some kind of amendatory language in 

the legislation that would answer the concerns Mr. Whitish expressed? 

Mr. BROWN. I think there would be no problem with that. 

Mr. FALEOMAVAEGA. Give us some suggested language for that. 

Thank you. 

[EDITOR's NOTE.-Information not received at time of printing.] 

Mr. FALEOMAVAEGA. I want to thank the members of the panel 

for their testimony. 

On our third panel this morning we are having Hon. Dale 

Risling, Chairman of the Hoopa Valley Tribe of California; Hon. 

Henry Cagey, Chairman of the Lummi Indian Nation, Bellingham, 

Washington; also Hon. Joe DeLaCruz, President, Quinault Indian 

Nation, Taholah, Washington; Mr. Gordon Smith, Operations Manager, Makah Tribe, Neah Bay, Washington; and Mr. William 

Lavell, Former Director of the Office of Self-Governance, Bureau of 

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

PANEL CONSISTING OF HON. DALE RISLING, CHAIRMAN, 

HOOPA VALLEY TRIBE; HON. HENRY CAGEY, CHAIRMAN, 

LUMMI INDIAN NATION; HON. JOSEPH B. DeLaCRUZ, PRESIDENT, QUINAULT INDIAN NATION; MATT KALLAPPA, POLICY 

ANALYST, MAKAH TRIBE; AND, WILLIAM LAVELL, FORMER 

DffiECTOR OF THE OFFICE OF SELF-GOVERNANCE, BUREAU 

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

Mr. FALEOMAVAEGA. We will start with Mr. Risling. 

87-276 0 - 95 - 5 
126 

STATEMENT OF HON. DALE RISLING 

Mr. RISLING. Good morning. 

Thank you very much. 

I appreciate the opportunity to testify here today in support of 

H.R. 3508. I will submit our written testimony for the hearing and 

I will summarize my presentation. 

Mr. Chairman, this legislation represents the cornerstone in thE! 

future of Indian affairs policies. After six years of tribal experimen·· tation and general success and experience with self-governance, the 

administration now proposes limitations and restrictions on our 

progress and accomplishments. 

The self-governance project has been time consuming, expensive 

and often frustrating as we, our governments, have literally pushed 

and pulled the bureaucracy forward. We will not retreat or step 

back, as suggested by the administration. I would like you to keep in mind a couple things. One is that selfgovernance is an optional way of doing business with the Federal 

Government. Each tribe will have that option. Tribes who do not 

feel comfortable with self-governance don't have to enter into corn·· 

pacts. They can progress in that direction at the pace they feel 

comfortable with. 

I think it is important to note that the funding that we receive 

under our compact agreements, according to self-governance, ac·· 

cording to the law, we cannot adversely affect any other tribe with 

this funding. 

I think it is also important to note that the law also assures that 

the Federal trust responsibility will not be diminished in any way 

in regard to these compacts. Let me give you a couple of positive examples of the Hoopa tribal 

progress under self-governance and several examples of obstacles 

we have had to overcome in self-governance implementation. In 

1991, our tribal program produced the second-highest return on the 

sale of tribal timber trust in the Nation despite California's being: 

the lowest BIA-budgeted agency in the Nation. 

In 1994, through self-governance and the implementation of a 

tribally designed alternative rule health care model serve delivery 

system, we are expanding health services to our Hoopa people. A 

small hospital at Hoopa closed in 1988 and will be renovated and 

opened in the near future to serve the entire community. 

In terms of obstacles, the demonstration project clearly allows for 

negotiated transfer of all programs, services, functions and created 

a seemingly endless series of obstructions to stop us from taking 

over the Indian Reservations Roads program, as documented in our 

testimony. 

We are now building roads on our reservation that meet our own 

design and construction standards in less time and at a reduced. 

cost. The demonstration project allows tribes to waive regulations 

to be replaced by tribal guidance documents. 

No regulations have been waived to date, which means the bureaucracy has only allowed self-administration to prevail. The Federal Acquisition Regulation System is comprised of 500 pages of 

procurement regulations. Although we have presented our own 

tribally-relevant procurement policies to the BIA and formally 
127 

sought waiver approval, the bureaucracy has refused, as documented in our issue paper, to submit it with the testimony. 

I have some comments on the waiver process and improved policy formulations. We recommend clear congressional language that 

the negotiated rulemaking process fully respect and support government-to-government principles and that regulations waivers will 

be addressed in this rulemaking forum. 

We recommend that Congress direct that the Interior Department's Office of Self-Governance be isolated from the influence and 

control of the BIA, that the Office of Self-Governance be capable of 

independent management with full-time FTE and financial support. 

We recommend that Congress stipulate that the Director of the 

Office of Self-Governance require Senate confirmation. 

The Clinton Administration has also proposed, as predecessor administrations, that Indian Health Service third-party collections 

offset major budget cuts. These widely optimistic receipt projections 

have been rejected by Congress every year. It is unfortunate that 

this new administration continues the same phony budget projection policies. 

We urge the committee to reject the planned administrative cost 

savings and FTE reductions in fiscal year 1995 for the BIA and Indian Health Service, which would return these funds to the Treasury. Congress should allow these cuts to be redistributed to tribal 

governments. 

Thank you. 

Mr. FALEOMAVAEGA. We thank you very much, Mr. Risling. 

STATEMENT OF HENRY CAGEY 

Mr. CAGEY. Thank you, Mr. Chairman. 

Good morning. 

I am Henry Cagey, Chairman of the Lummi Nation located in 

Washington State. I certainly appreciate the opportunity to provide 

public testimony on H.R. 3508, the Tribal Self-Governance Act to 

permanently authorize the tribal self-governance initiative in the 

Department of the Interior. 

I will try to verbalize my testimony. I would like to request to 

reserve the right to extend my written testimony on the administration recommendations. 

Mr. FALEOMAVAEGA. Without objection. 

Mr. CAGEY. Tribal self-governance is fundamentally about political change in the management of American Indian programs, a 

shifting of responsibilities from the bureaucracy to tribal governments and the management of our unique tribal affairs and the 

empowerment of tribal elected officials to determine priorities on 

the expenditures of financial resources intended for our benefit. 

This is not an anti-bureaucracy policy, but a tribal policy shaped 

and driven by tribal leadership. As you clearly stated, Mr. Richardson, the Self-Governance Act has proposed development of Indian 

country by Indian tribes themselves in the right direction at the 

right time. 

This bill is nothing less than the future of Indian country. 
128 

We certainly agree with the assessment and the historical initia-· 

tives heard by Democratic and Republican leaders in the House 

and Senate. 

I reaffirm that self-governance is not another Federal program,, 

but the very cornerstone of a new improvement in Indian affairs 

policy, supporting tribal self-government and independence and. 

sovereignty as well as a mutual respect government-to-government 

relationship between tribal governments and the United States. 

I am not going t~I don't want to read this anymore. 

Mr. FALEOMAVAEGA. Why don't you just wing it? 

Mr. CAGEY. I want to summarize what I heard this morning. We 

will be submitting written testimony, but I would like to say a few 

things. 

I do appreciate the committee's support of the Act and I have 

heard Mr. Young's comments on the questions. The Act itself is a 

good Act and I have heard Ada Deer talk about some of the things 

on what self-governance has done for our tribes. 

As you heard, the membership of the Lummi Nation has increased quite a bit since we have been self-governing. We are into 

our fourth year of implementation. We are seeing a lot of activity 

happen at home. 

These field hearings on individuals that you are hearing coming 

out, it takes time for our people to understand. It has taken two 

years for our people to really understand the concepts of responsibility. Our council has become more responsible in the last two 

or three years on making its own decisions on its own priorities. 

I stress the fact that this is a really new way of doing things for 

our people, being accountable, being responsible. If there are problems with the way the dollars are being spent or how we are managing, that is up to the tribal people and through our Constitution 

and through our own membership on voting every year whether we 

are doing a good job or not. 

This is not over dollars. It is over control of how we are doing 

things at home. For the last two or three years, I have seen a lot 

of good changes in our people and I really can't stress enough, if 

there are concerns in the amendments or recommendations that 

are coming forward on slowing this process down, then really, it 

will slow it down. 

There is nothing really to hide that we are trying to do with this 

project. 

We are also responsible for the education and communications 

program that is being administered, and I urge Mr. Young to come 

up and look at the library that we have put together on self-governance. 

I hope you will visit some of the people that are actually working 

self-governance to where it should be, but with the people. 

Thank you. 

Mr. FALEOMAVAEGA. Thank you. By the same token, you can come and visit my islands. 

[Prepared statement of Mr. Cagey follows:] 
129 

LUMMI INDIAN BUSINESS COUNCIL 2616 KWINA RD. • BELLINGHAM. WASHING TON 98226-9298 • (206) 734·8180 

DEPARTMENT. 

Testimony of Henry Cagey, Chairman 

Lunvni Indian Nation 

Presented to the 

House Native American Affairs Subcommittee 

Hearing on 

H.R. 3508, the "Self-Governance Act of 1993" 

February 25, 1994 

EXT. 

I appreciate the opportunity to provide public testimony on H.R. 3508, the 

" Tribal Self-Governance Act of 1993" to permanently authorize SelfGovernance with the Department of the Interior with the exception of 

selected BIA Education programs. This bill is companion to the Senate 

measure, S. 1618 which passed the Senate on November 23, 1993. This 

legislation will be remembered as the cornerstone law to improvements of 

future Indian Affairs policies and the government-to-government 

relationships between Indian Tribes and the United States. 

Chairman Richardson, your introductory statement on H.R. 3508 in the 

November 15, 1993 Congressional Record certainly summarized the views 

and expectations of many of the Tribal leaders involved in the advancements 

of the Demonstration Project phase of this historic endeavor. For the 

hearing record, I would like to reiterate your closing statement: 

This bill is the product of 200 years of failed Federal Indian policies, 

18 years of capacity building under the Indian Self-Determination Act, 

and 5 years of experimentation under the Self-Governance 

Demonstration Project. 

The Self-Governance Act was a proposal developed in Indian Country 

by Indian Tribes, themselves. It is the right direction at the right time. 

This bill is nothing less than the future of Indian Affairs. 

Tribal Self-Governance is fundamentally about political change in the 

management of American Indian programs; a shifting of administrative 

responsibilities from the bureaucracy to Tribal governments; and, 

empowering Tribal elected officials to determine priorities in the expenditure 

of financial resources intended for our benefit. Although the Self· 

Governance policies and legislation has bi-partisan Congressional support 

and increasing endorsement from Indian Country, I forewarn that the 

established Federal lndian.Affairs bureaucracy has an arsenal of obstacles to 

covertly dismantle this policy. Any efforts to narrow the Self-Governance 
130 

Testimony of Henry Cagey, Chairman, Lummi Indian Nation 

House Native American Affairs Subcommittee 

Permanent Self-Governance Legislation (H.R. 3508) 

Page 2 

February 25, 1994 

authorities or impose added restrictions on Tribal governments by the 

administration should be rejected by this Committee. 

This hearing provides the first opportunity for the Clinton Administration through 

the Department of the Interior testimony to officially address the Self-Governance 

permanent authorization. We certainly will support improvements in the legislation, 

such as ensuring Tort Claims coverage and other positive aspects of the Indian 

Self-Determination Act apply to Self-Governance. We will oppose any efforts, 

however seemingly insignificant, to restrict progress already achieved with the 

Interior Department. 

The testimony of Assistant Secretary-Indian Affairs Ada Deer at this hearing offers 

a glimpse of the Administration's almost tentative support for H.R. 3508. I would 

like to comment briefly on her broad testimony recommendations . Further 

amendments by the Administration are indicated. Therefore, I also request the 

opportunity to revise and extend our testimony after review of the Interior 

Department legislative recommendations. 

We are certainly pleased that Assistant Secretary Deer states that the "policy of 

Self-Governance is the most significant Federal policy for Tribes since the Indian 

Reorganization Act of 1934." We do oppose specific recommendations by the 

Assistant Secretary including the proposal to make the Self-Governance permanent 

legislation a separate, free-standing law from Indian Self-Determination 

authorizations; the replacement of negotiated rule-making with the traditional 

administrative formal rule-making process; the delay of permanent authorization 

passage until after a comprehensive study is completed in June; and, the need for 

further clarifications, standards and quality control requirements. 

The Tribal Self-Governance Demonstration Project and permanent authorization 

legislation have important foundations and relationships to the predecessor SelfDetermination laws as included in our Compacts of Self-Governance. The linkage 

to Self-Determination provisions is important at this critical stage of SelfGovernance to ensure logical continuity, provide a framework of regulations until 

the waiver process replaces existing rules with Tribal guidance documents, and 

maintains the opportunity of retrocession in the unlikely event such action is 

needed by a Tribe. Therefore, Self-Governance should remain connected to SelfDetermination . 

The proposed negotiated rule-making process is purposely included in the 

permanent authorization bills to require the Department of the Interior and Tribal 

government representatives to enter the new frontier of face-to-face negotiations 
131 

Testimony of Henry Cagey, Chairman, Lummi Indian Nation 

House Native American Affairs Subcomminee 

Permanent Self-Governance Legislation (H.R. 3508) 

Page 3 

February 25. 1994 

over rules and regulations affecting Self-Governance . Given our past negotiation 

experiences over the last six years. I truly believe we can create a meaningful. 

participatory process of debate and dialogue to reach logical conclusions as 

governments at the negotiations table. Although Assistant Secretary Deer 

conjectures that the negotiated rule-making will be a " cumbersome, unworkable 

process that will likely not adequately represent all interests," I expect just the 

opposite provided we enter the process with commitment of how we "can do" 

versus the reasoning of "why we can't." 

The Self-Governance Tribes that have assumed the responsibilities. liabilities and 

challenges of Self-Governance should be the principal parties at the negotiation 

table regarding Self-Governance rules and regulations . Once negotiations are 

complete, these proposed rules can be published for public comment by all 

interested parties. Tribal representatives and Federal officials would then return to 

the negotiations to establish the final rules. Obviously, the existing administrative 

formal rule-making process for P.L. 100-472. Titles I & II took over six years, 

extensive time and expense to reach the current proposed rules stage. I am sure 

we can improve measurably on this traditional process. 

The proposal to hold up passage of the permanent Self-Governance authorization 

until a comprehensive study is completed in June also does not have merit. The 

proposed law simply extends the Title Ill authorization provisions which the Interior 

Department and participating Tribes have experienced for over six years in the 

Demonstration phase. We urge prompt passage of this legislation without delay. 

And finally . the Administration indicates that the Congress, Tribes and 

Administration must address "the Federal relationship and trust responsibility to 

Tribes and individual Indians in the context of Self-Governance" as well as the 

" proper application of standards for ensuring public health and safety and quality 

control in the context of Self-Governance Compacts for certain programs such as 

construction.·· The law already outlines broadly the Federal relationship and trust 

responsibility which has worked well for over six years . In terms of standards and 

quality. the bureaucracy once again is imposing requirements on Indian Tribes that 

are usually left unaddressed by the Federal system. Any other standards. safety 

assurances or quality control issues should be addressed through negotiations. 

I am troubled by the Administration's repeated assertions that non-participating 

Tribes and individual Indians need certain protections when no Tribe or individual 

has proven any negative affects of Self-Governance over the Demonstration period. 

The testimony presented by the Shoalwater Bay Tribe regarding the negative 

impact of Quinault Nation Self-Governance on the Tribe, its members and Quinault 
132 

Testimony of Henry Cagey, Chairman, lummi Indian Nation 

House Native American Affairs Subcommittee 

Permanent Self-Governance Legislation (H .R. 3508) 

Page 4 

February 25, 1994 

allottee landholders is not based on any fact relative to Self-Governance and 

represents the political problems between these parties that have been clearly 

decided by the Administration, Courts and Congress. The attempt to overturn 

these past determinations through an unrelated Self-Governance authorization 

should be rejected by the Committee. In fact, the Olympic Peninsula Agency due 

to Self-Governance shortfall monies has the same Executive Direction and 

Administration funds as before Self-Governance yet is responsible for only half the 

number of Tribes and only twenty percent of the Indian population as before . 

Actually, the Shoalwater Bay Tribe, its members and Quinault allottees are 

experiencing a windfall of available support due to Self-Governance. The BIA is 

the responsible party; not the Self-Governance Tribes, in not improving services to 

these groups. 

Proposed amendments contained in Mr. Whitish' s testimony and circulating 

separately modify the doctrines of indispensability and sovereign immunity in 

litigation affecting Self-Governance Tribes. The changes proposed in these 

doctrines are unnecessary, inappropriate, and would effectively overturn numerous 

court decisions. There is absolutely no reason for Self-Governance Tribes to be 

treated any differently with respect to these judicial doctrines than tribes 

contracting Bureau of Indian Affairs programs under the existing provisions of the 

Indian Self-Determination Act. 

When I speak of covert bureaucratic obstacles to Self-Governance policy 

development, there are knowledgeable people among us who would deny that 

charge. Let me provide several current examples for everyone's consideration and 

enlightenment. 

A. BIA Refusal to Restructure/Reorganize as a Result of Self-Governance 

Negotiations Creating Extensive Demand on Shortfall Funds and Limitation 

on Funds Available for Start-Up and lmplamentation Costs. 

The Self-Governance Supplemental Funds provided initially in the Fiscal Year 1991 

Interior and Related Agencies Appropriations were intended to provide start-up and 

Implementation funds for Self-Governance Tribes embarking on this pioneer 

Demonstration Project. Knowing that time would be required for BIA 

administrative adjustments to the effect of negotiated transfer of "programs, 

services, functions and activities," the Tribes also requested shortfall funds to be 

provided to Tribes in lieu of actual transfer of administrative dollars and 

restructuring to continue the same level of services to other non-participating 

Tribes. The BIA refusal to restructure has resulted in a major portion of these 

Supplemental Funds being expended for Agency shortfall with only $25,000 per 
133 

Testimony of Henry Cagey, Chairman, lummi Indian Nation 

House Native American Affairs Subcommittee 

Permanent Self-Governance legislation (H.R. 3508) 

Page 5 

February 25, 1994 

Tribe available in Fiscal Year 1994 for start-up and implementation costs. By this 

inaction, the Bureau will basically eliminate shortfall monies for new Tribes entering 

the initiative under permanent authority. 

B. The Fiscal Year 1995 Budget Justification Applies Administrative Cost 

Savings and FTE Reductions Disproportionately to those Area and Agency 

Offices with Extensive Self-Governance Involvement Creating Potential 

Mischief on the Allocation of Shortfall Monies and Potential Disruption of 

Services to Non-Participating Tribes. 

The BIA plans to contribute approximately $12 million in Administrative Cost 

Savings and FTE reductions principally through Area /Agency Office program 

consolidations and elimination of program funds, including $700,000 from the 

Portland Area Office which is directly attributable to previous Self-Governance 

negotiations . Although Self-Governance has the same goals as the "Reinvent 

Government" effort, the Bureau budget staff have superimposed these government 

savings designated for the Treasury on top of Area/Agency Offices already heavily 

commined to shortfall reimbursements to Self-Governance Tribes. You can 

imagine the potential administrative chicanery in mixing these two fund transfer 

operations while further reducing the capabilities for these Offices to provide 

services. Self-Governance Tribes have been and will be blamed for service 

disruptions at the local level; shortfall monies dedicated to Self-Governance Tribes 

will be diverted to the Treasury with BIA Budget personnel taking credit; and, Self· 

Governance Tribes will lose rights to their negotiated resources. 

C. Tribal Regulations Waiver Authority under the Demonstration Project Never 

Became Relevant; Tribal Negotiated Rule-Making and Regulations Waiver 

Authority Will Continue to be Subverted and Diminished Under Permanent 

Authorization. 

Tribal government rights under the Self-Governance Demonstration Project to 

waive burdensome or obsolete regulations to be replaced by relevant Tribal 

guidance policies never materialized during the Demonstration Project phase. 

Waiver requests became lost in the maze of the Solicitor' s Office and the BIA 

surname approval process. So , Tribal governments in actuality performed "SelfAdministration" rather than experienced Self-Governance in the Demonstration 

period. Despite President Clinton's Executive Order of October 26, 1993 on 

" Enhancing the Intergovernmental Partnership" to reduce burdensome regulations 

for State, local and Tribal governments, we expected the Interior Department to 

propose restrictions on regulations waiver and negotiated rule-making. In fact, the 
134 

Testimony of Henry Cagey, Chairman, Lummi Indian Nation 

House Native American Affairs Subcommittee 

Permanent Self-Governance Legislation (H .R. 3508) 

Page 6 

February 25, 1994 

Administration has proposed the elimination of the negotiated rule-making 

authorization . We urge this Committee to: 

1. Make the Interior Department' s Office of Self-Governance as autonomous as 

possible from the BIA with independent, sufficient budgets to manage all 

administrative matters associated with Self-Governance; 

2. Provide for Senate confirmation of the Director of the Office of SelfGovernance a requirement for selection to remove this position ftom 

manipulations; and, 

3 . Establish a delegation of authority directly to the Office of Self-Governance 

t o grant Tribal waiver of regulations requests . 

4. Include the OMB Cost Exceptions contained in our Self-Governance 

Compacts as OMB only allowed their application during the Demonstration 

period of the initiative. 

Tribal governments will need clear Congressional authority for Self-Governance to 

move forward under a cooperat ive, mutual decision-making process or the 

bureaucracy will continue to nit-pick against progress. This will ultimately require 

Congressional micro-management until the administrative policy-makers 

comprehend that Self-Governance is the new, permanent way for Tribes to 

conduct their business. 

The Lummi Nation has been a part of this historic, tribally-driven initiative since it's 

inception. On October 27, 1987, our Tribal Chairman at that time, Larry Kinley, 

presented testimony before the House Interior Appropriations Subcommittee 

regarding "Problems and Solutions in the Tribal-Federal Relationship." In that 

testimony , the Lummi Nation stated: 

"The basic issue confronting us today is a cumbersome, unwieldy 

bureaucracy built layer upon layer over the years being pressured by 

frustrated Tribal governments yearning for independence in the 

management of their affairs and seeking a larger share of resources 

allocated for their benefit. 

I truly believe that American Indian Tribes and Congress over the next 

several years should restructure the Federal service and resource delivery 

system to Indian Country to efficiently and effectively address the broad 

spectrum of Tribal government needs from those totally dependent 
135 

Testimony of Henry Cagey, Chairman. Lummi Indian Nation 

House Native American Affairs Subcommittee 

Perman.ent Self-Governance Legislation (H.R. 3508) 

Page 7 

February 25, 1994 

Tribes to Tribes desiring true self-government. The process of change 

is always unsettling and painful. but the new system could still provide 

strong trust protection and allocate a greater share of existing resource 

expenditures to Tribes without drastically increasing government 

appropriations." 

With the passage of permanent legislation. we can better realize the full potential of 

this initiative. Without Self-Governance, as a permanent option for Tribal 

governments. it is likely that the Federal bureaucracy would return to the "business 

as usual" relationship with Tribal Governments and tie Tribal entities to the constraints 

ofthe 93-638 contracting relationship whereby the bureaucracy chooses the priorities; 

determines funding allocations; and, selects Tribal participants. If this initiative were 

to continue as simply another one time "experiment," these Tribally-proposed 

principles would not be taken seriously. The Demonstration Phase of the SelfGovernance initiative is a living example of the Clinton/Gore's concept of reinventing 

Government. We have only scratched the surface of the creative and innovative 

possibilities for the restructuring operations of Tribal government and effective 

Tribal/U.S. relationships .. The Lummi Nation supports and commends your efforts in 

moving forward with permanent legislation. 

The Lummi Nation has helped develop and evolve this initiative for over six(6) years. 

We are in our fourth year of implementation with our Compact of Self-Governance 

with the Department of the Interior and will begin to implement our Compact with the 

Indian Health Service on January 1, 19g4_ We have also coordinated and 

administered the Self-Governance Communication/Education Project (since 1989). in 

coordination with the Jamestown S' Kiallam. Quinault Indian Nation, and the Hoopa 

Valley Indian Tribe. In this short period of time, the Lummi Nation has realized a great 

deal of positive change due to Self-Governance. 

Tribal Community 

• Budget Ordinance: With the adoption of this ordinance, the Tribal community 

members are actively involved in the decision-making processes of their Tribal 

government. This has resulted in greater Tribal control and fiscal 

accountability of all programs and resources. In 1988, prior to SelfGovernance, of 538 registered voter. only 28% of our members voted; in 

1994, 64% of our 816 registered voters participated in our General Elections. 
136 

Testimony of Henry Cagey, Chairman, Lummi Indian Nation 

House Native American Affairs Subcommittee 

Permanent Self-Governance Legislation (H.R. 35081 

Tribal Govemment 

Page 8 

February 25, 1994 

• Lummi Indian Business Council: Restructuring of the Tribal Government has 

occurred to accommodate new responsibilities and authorities. The Council 

now meets weekly rather than monthly. For the first time in Lummi Nation 

history we have a full-time paid Tribal Chairman . The Council focus now is on 

planning for the future, in sharp contrast with the past of simply reacting to 

crisis situations. 

• Tribal Staff: A new awareness has occurred among Tribal Staff. They have 

become accountable to the people and to the Business Council rather than to 

an outside Federal entity and /or representative. 

• Priorities: The Business Council now establishes meaningful Tribal priorities and 

determines the resource allocations for those priorities. Tribal members are part 

of this decision-making process under the auspices of the Tribal Budget 

Ordinance. 

Tribal Programs 

• Veteran Affairs Office: This office was created to service Veterans in meeting 

their social, educational, health, employment and housing-related needs. The 

Lummi Nation has over 330 Lummi Veterans with unique and different needs 

than the general Lummi population. The Office was created in 1992 with SelfGovernance monies. The program is recognized as a regional and national 

model Veterans program for Native Americans. 

• Culture: A new Department was established under Self-Governance . A new 

Ordinance is completed for the Protection of Cultural Resources, Burial and 

Archaeological Sites. 

• Education: The Johnson O'Malley program has expanded from servicing 370 

students, to providing services to over 800 youth. Tribal School teacher 

salaries were supplemented to bring them closer to that of the Washington 

State teachers. Under our Scholarship program, funding has assisted over 80 

students to further their education. We established a Youth Program to 

supplement educational services. This program has serviced over 350 youth. 
137 

Testimony of Henry Cagey, Chairman, lummi Indian Nation 

House Native American Affairs Subcommittee 

Permanent Self-Governance Legislation (H.R. 3508) 

Page 9 

February 25, 1994 

• Law & Order: A full-time criminal investigator has been employed. We have 

cleared the record of many pending cases. A new drug code has resulted in 

drug-related and criminal arrests. 

• Court: The staffing has stabilized and an accumulated back-log of cases have 

been reviewed, evaluated and processed. Tribal code revisions for Criminal, 

Traffic and Rules of Court are being up-dated. 

• Program Support: Support for the following programs: Safe Streets; Senior 

Citizens; Education Commission; Budget Committee; and, our local volunteer 

Fire Department 

• Business Assistance Center: This center, in coordination with the Northwest 

Indian College, provided technical assistance to 150 tribal members who own 

or operate small businesses. 

External 

• Self-Governance Communication/Education: Since 1989, we have 

accomplished the following: conducted 21 workshops across the Nation. with 

participation of over 250 Tribes; made over 200 presentations; wrote, edited, 

published and distributed over 13,550 copies of publications on the Project, the 

Red Book and Worlcshop Manual; currently publish and distribute a national 

Self-Governance monthly newsletter; and, we have recently completed a onehalf hour documentary video on Self-Governance. 

With potential permanent legislative authorization of the Self-Governance Initiative, 

the lummi Nation is excited and we look forward to the future with a new vision for 

our Tribal community. Our vision includes: the reaffirmation and re-establishment of 

the government-to-government relationship with the United States; to move forward 

towards greater self-sufficiency, the possibility of becoming a community that is 

proactive rather than reactive; and, the realization of a Tribal government that is 

accountable and responsible to the people we are here to serve. Through Self· 

Governance , these visions, ideas and hopes for the future can and have become 

realities. Our experiences have proven that through Self-Governance, positive change 

can occur within our Tribal community. We know what our problems are, but most 

importantly, we know what the solutions are and how they can best be implemented. 

We understand the need to proceed at a steady, calculated pace in the development 

of Self-Governance as a permanent way of implementing our government-to· 
138 

Testimony of Henry Cagey, Chairman, lummi Indian Nation 

House Native American Affairs Subcommittee 

Permanent Self-Governance legislation (H .R. 3508) 

Page 10 

February 25, 1994 

government relationship. Yet, it is very difficult to explain to our people why we are 

self-governing in some areas, but not in others. Why we can be flexible in meeting 

the needs with some funding , but still restricted with others. let us not lose sight of 

the need to address the inclusion of the rest of the Federal system that provides 

services. activities and functions to Indians in the very near future . We envision a 

future in which the Tribal governments can comprehensively manage services and 

development according to Tribally-established priorities and Tribally-oriented 

guidelines. 

We know that Self-Governance does not answer all of our Tribal problems and that 

Self-Governance may not be appropriate for all Indian Nations, but for the lummi 

Nation, it is our road to the future . For the first time in over 100 years. we are 

beginning to determine our own successes and learn from our own failures . 

Bill Clinton and AI Gore said it the best with regards to, "Putting People First": 

"We can no longer afford to pay more for--and get less from --our 

government. The answer for every problem cannot always be another 

program or more money. It is time to radically change the way 

government operates--to shift from top-down bureaucracy to 

entrepreneurial government that empowers citizens and communities to 

change our country from the bottom up. We must reward the people 

and ideas that work and get rid of those that don't work.· 

This is the Tribal Self-Governance Initiative ·· the empowerment of Tribal governments 

to improve the quality of life of the Tribal people in our Tribal communities. Your 

support in prompt passage of permanent Self-Governance authorization is strongly 

encouraged. We appreciate and commend you and your many supportive efforts on 

behalf of Indian people . 

I am available for any questions the Committee may have now or during your 

deliberations over permanent Self-Governance authorization provisions. 
139 

Mr. FALEOMAVAEGA. Mr. DeLaCruz. 

STATEMENT OF JOSEPH B. DeLaCRUZ 

Mr. DELACRUZ. Mr. Chainnan, for the record, I am Joe 

DeLaCruz, the President of the Quinault Indian Nation and I really appreciate the opportunity to come before this committee again, 

and I request to submit a written statement to the record of things 

that have been brought up in this hearing. 

Mr. FALEOMAVAEGA. Without objection. All of your statements 

will be submitted. 

Mr. DELACRUZ. I want to point out that I have been coming before these committees for 26 years. I worked with your fonner colleagues to see that Indian people were able to come before these 

committees and express what their wants and needs were instead 

of the old way when Interior and Insular Affairs and Appropriations was Federal bureaucrats coming before the committees. We have a long track record. 

I was involved with the legislation on the Self-Determination 

Act. We thought we had a good piece of legislation at that time 

that was going to begin providing Indian people the opportunity to 

govern themselves and make their own mistakes and grow in this 

Nation instead of being continuously under five generations of paternalism. 

I was there when it came about under the last administration 

through a fluke of some articles in The Tulsa Tribune and Arizona 

Star about corruption and misuse of funds in the Bureau of Indian 

Affairs and Indian Health Service when Congressman Yates in the 

Appropriations Committee asked Secretary Hodel and Dr. Rhodes 

to come before his committee oversight hearing and the administration, at that time represented by Secretary Hodel, said "Let's turn 

everything over to the Indians, and let them sink or swim." 

It was out of that hearing that the idea of self-governance came 

out of, ten tribes originally, ten leaders that had been through 

twenty or thirty years of experience at that time. As it was with 

self-determination, there has been a lot of external-internal interference as far as Indian people trying to grow in this country under 

the generations of paternalism. Today you heard comments from the Chainnan of the Shoal water 

Tribe about the Quinault Indian Nation. There have been I.G. audits, bureau investigations, three court cases showing that these 

peoples' charges are wrong. They submitted stuff to the record. We 

will submit that for the record. 

That is not a place for a hearing on self-governance. Many of the 

people back here that understand Indian tribes have told them 

your problem is at home. If this committee wants to take a look 

at the Dodge General Allotment Act in 1887 and what it has done 

to our people, that is another issue. Congress has and knows a long 

record of what that Act has done to people. No Indian tribe just like the United States can infringe on another person's property on another person's under the Code of Federal Regulations. 

One thing I want to comment on, this is my first opportunity to 

talk on this administration's position on self-governance. We had 
140 

several meetings all with self-governance tribes, all those that were 

interested in self-governance, three or four months ago in D.C. 

We are trying to get to the point, Mr. Chairman, we are back in 

the late 1960's and early 1970's-some of us worked with your peo·· 

ple, with people in the Pacific Islands to work out free association, 

commonwealth relationships and those type of things. 

We were speaking to these things back then. When we had our 

meetings three or four months ago with self-governance tribes and 

various people from the agencies, we agreed on and recommended 

a Federal negotiation process that is in this legislation. 

We want to make sure that it isn't a negotiation process that is 

set up for unions and citizen disputes and those type of things; that 

it is a process that is government-to-government, nation-to-nation. We are trying to get back to where our forefathers were when they 

signed treaties with the United States and get back to the United 

States honoring its word, honoring its commitment and honoring 

its own Constitution. 

I will submit to this committee the record of all the things that 

happened at Quinault, because that is not the issue before this 

committee. It is Indian nations, Indian people, moving ahead. 

Mr. FALEOMAVAEGA. Thank you, Mr. DeLaCruz. [Prepared statement of Mr. DeLaCruz follows:] 
141 

Quinault Indian Nation POST OFFICE BOX 189 ~ TAHOLAH . WASHINGTON 98587 :: TELEPHONE (206l 276-8211 

Testimony of Joseph B. DeLaCruz, President 

Quinault Indian Nation 

Presented to the 

House Native American Affairs Subcommittee 

on H.R. 3508, the "Tribal Self-Governance Act of 1993" 

Hearing of February 25, 1993 

The Quinault Indian Nation expresses appreciation to Chairman Richardson for the 

introduction of H.R. 3508, the "Tribal Self-Governance Act of 1993" on November 15 , 

1993. The Chairman's introductory remarks in the Congressional Record concluded that 

this Tribally-designed legislation is "nothing less than the future of Indian Affairs. " We 

certainly agree with that assessment, yet remain perplexed at the continued reluctance of the 

Indian Affairs bureaucracy to assist in creatively implementing this most logical stage of our 

evolution towards meaningful government-to-government relations. 

We appreciate the expressed support by Assistant Secretary-Indian Affairs Ada Deer for 

H.R. 3508 and her stated belief that the "policy of self-governance is the most significant 

Federal policy for Tribes since the Indian Reorganization Act of 1934. ' I would hope 

through her leadership that the Interior Department will exhibit real change in its attitude 

and behavior towards . the concept, principles and realities of Tribal Self-Governance. 

The views and recommendations of the Interior Department were noticeably brief with the 

expectation that more substantive Administration amendments would be forthcoming. We 

would appreciate the opportunity to express our opinion on these amendments when 

available. In regards to the Assistant Secretary's recommendations on H.R. 3508, the 

Quinault Nation positions include: 

1. Do not Separate Self-Governance from Self-Determination legislation and 

enact a free-standing law. 

The Tribal Self-Governance Demonstration Project is the next step in the SelfDetermination process. The last eighteen years of Indian Self-Determination have 

provided Tribes with extensive experience in managing their own affairs. Under 

Self-Governance, we still administer programs under existing Self-Determination 

rules and regulations until the waiver regulations process replaces these rules with 

more appropriate Tribal guidance provisions. The Title III and proposed Title IV 

authorizations still contain important linkages and protections to established Self-
142 

Testimony of Joseph B. DeLaCruz Page 2 

Permanent Self-Governance Legislation H.R. 3508 

Determination principles and procedures, including retrocession, that should be 

maintained in this transition. Therefore, Self-Governance should continue to be 

linked to Self-Determination. 

2- Respect for the rights of non-participating Tribes already well covered 

under Title III and HR 3508 

The rights of non-participating Tribes and Indian individuals are directly addressed 

in the Title III Demonstration Project phase and the Title IV permanent authorization. 

The bills are straight-forward in this regard . Report language should reiterate the 

intentions of the Congress and Self-Governance Tribes to protect the interests and 

rights of Tribes who choose, as is their sovereign right, not to participate. 

3. Do not replace negotiated rule-making with the administrative formal 

rule-making process; we do not believe the negotiated rule-making will be 

"cumbersome, unworkable process that likely will not adequately 

represent all interests." 

The provision of negotiated ru le-making is intended to require government-togovernment negotiations between Federal officials and Tribal leadership over the 

rules and regulations to govern Self-Governance operations. We are seeking, again , 

creative, logical and streamlined processes that clearly recognize a new Indian Affairs 

policy and communications between Tribes and the United States. Tribal and Federal 

representatives will negotiate the rules and regulations for permanent SelfGovernance legislation and these proposed rules would be published for public 

comment. Tribal governments that have chosen the responsibilities and liabilities 

associated with Self-Governance should have the primary role in determining 

appropriate regulatory guidance. Non-participating Tribes with no stake or 

commitment should be allowed to comment on the proposed rules. Self-Governance 

Tribal representatives and Federal officials will then negotiate the final rules. Our 

last experience with the administrative formal rule-making process for P.L. 100-472 

Titles I & II required five and one-half years plus millions of dollars in Tribal and 

Federal time and expense which has proven to be a cumbersome, unworkable 

process. We challenge the Administration that Self-Governance can do it more 

effectively and efficiently for the mutual benefit of all, but both sides must be willing 

to negotiate as governments. 

4. The enactment of Self-Governance permanent authorization should be 

done immediately and not await the results of a comprehensive study due 

in June 1994 and subsequent Administration amendments. 

The Self-Governance Demonstration Project was actually initiated on December 23, 

1987 with enactment of the Fiscal Year 1988 Omnibus Appropriations measure 
143 

Testimony of Joseph B. DeLaCruz Page 3 

Permanent Self-Governance Legislation H.R. 3508 

providing over six years of experience and experimentation in the Demonstration 

phase. The proposed legislation basically extends the Demonstration provisions into 

permanent authorization. The Administration has had ample time and opportunity 

to study, analyze and reach conclusions on the merits and issues of Self-Governance. 

We urge the legislation to be passed quickly into law. 

5. There is not a clear need to legislatively address the Federal relationship, 

trust responsibility to Tribes and individual Indians, the scope of the 

program, and the application of standards and quality control in the 

context of Self-Governance as proposed by the Assistant Secretary. 

Tribal Self-Governance is NOT another Federal program, but the next logical step 

in our progressive quest for government-to-government relations between Indian 

Tribes and the United States. The Demonstration Project phase has clearly proven 

that the Tribes and the Interior Department can reach agreement and move forward 

on a complex spectrum of issues without micro-managed legislation. The Federal 

relationship, trust responsibility to Tribes and individuals Indians and scope of SelfGovernance are addressed in H.R. 3508. Issues of standards and quality control, 

responsibilities and liabilities should be on the negotiation table between 

governments. 

Department officials and Tribal governments have discussed the need to add clarifications 

to H.R. 3508 that protections such as Tort Claims coverage and authorities such as access 

to GSA and Federal Supply sources contained in Self-Determination laws should also be 

afforded Self-Governance Tribes. As long as these provisions are supportive and not 

restrictive, we would agree. We would also urge the Committee to support the inclusion 

of the ten OMB Cost Exceptions negotiated in the Compacts of Self-Governance as 

authorized in the permanent bill. These Cost Exceptions were only allowed by OMB during 

the Demonstration Project period. 

The Quinault Indian Nation has been a participant in the Self-Governance Demonstration 

Project since the initial authorization in 1988 and is now entering the fourth Fiscal Year of 

implementation of our Self-Governance Compact. Our experience and progress under SelfGovernance clearly has demonstrated the positive results of providing Tribal governments 

the management decision-making empowerment and administrative authority over Tribal 

programs, services and development. 

The Quinault Nation believes the permanent Self-Governance legislation is the cornerstone 

statute in the development of comprehensive and real government-to-government 

relationships between Tribal governments and the United States. Although American Indian 

Tribes are addressed in the U.S. Constitution and our Treaties, Executive Orders and Acts 

of Congress clearly establish in law our rightful presence, we have struggled with political 

and economic pressures over the last two centuries by the dominant society to erode, 
144 

Testimony of Joseph B. DeLaCruz Page 4 

Permanent Self-Governance Legislation H.R. 3508 

diminish and even extinguish our cultures, languages, reservation land titles and rights to 

exist as legitimate , independent governments. 

The sovereign status of Tribal governments is certainly not a new or radical idea, but is 

clearly embodied in American law. Chief Justice John Marshall in the 1832 Supreme Court 

decision of Worcester v. Georgia clearly stated the obvious: 

The Indian Nations had always been considered as distinct, independent 

political communities ... and the settled doctrine of the law of nations is that a 

weaker power does not surrender its independence--its right to selfgovernment--by associating with a stronger. and taking its protection. 

Due to convenience and connivance, elements of American society have sought to redefine , 

subvert and twist the definition of Tribal governments and Tribal rights to our collective 

disadvantage. The Federal bureaucracy, predominantly through the Bureau oflndian Affairs 

and the Indian Health Service, have dominated , controlled and manipulated our lives and 

government operations to the point that American Indians are the most regulated peoples in 

America. 

Other Federal Agencies have sought to redefine our presence to fit uniformity and 

convenience with labels such as organizations, corporations, associations, constituents or 

even vendors. On the other side of the definition game, the Office of Management and 

Budget generally rules that Tribal governments are not included in Congressional assistance 

legislation intended for the common "State and Local Units of Government and Trust 

Territories" designation. Through the Tribally driven Self-Governance legislation, Tribes 

and Congress are tinally setting the record straight and forcing the bureaucracies to 

recognize our government status. We certainly expect this tension of a Federal bureaucracy 

predisposition to uniformity against the Tribal demand for clear recognition to continue on 

into the future . But the fundamental principle is established in the Tribal Self-Governance 

permanent legislation regarding our unique relationships with the United States and our 

inherent right of Self-Governance . 

Self-Governance has empowered the government of the Quinault Nation to determine 

priorities, allocate resources and manage our affairs with minimal Federal intrusion. We 

have consolidated and expanded education and social services to cost-effectively meet the 

needs of our reservation service population according to their personal situation rather than 

a superimposed set of rules. Our Tribal justice system has been strengthened to ensure 

adequate protections and judicial services as the legitimate concern of any government. 

Funds expended on the reservation forests, fisheries and environment are now effectively 

coordinated for logical, comprehensive management. More Quinaults are employed now 

than ever before. More Quinaults are furthering their education and returning home to work 

for their people . 
145 

Testimony of Joseph B. DeLaCruz Page 5 

Permanent Self-Governance Legislation H. R. 3508 

There is no doubt that Self-Governance has benefitted the Quinault commuruues and 

Quinault reservation. We have problems, difficulties and challenges facing us that need to 

be addressed. But the decisions made on priorities and the determination of means and 

methods to address the future are being made by our people, here at home. SelfGovernance is really the forerunner of the Clinton Administration's "Reinvent Government" 

plans to streamline the Federal bureaucracy and "Creating a Government that Works Better 

and Costs Less." 

I am concerned, as I expressed at the Senate Committee on Indian Affairs Oversight Hearing 

on Self-Governance, that the law clearly direct the Federal bureaucracy to deal with our 

Tribal governments as independent, sovereign governments in the future. The new Indian 

Affairs foundation must be carefully, methodically and systematically built on the principle 

of sovereignty. The bureaucratic obstructions and resistance to change is well known as 

we've struggled to establish Self~Gove rnance. The Clinton Administration will soon 

understand this Federal tenacity to maintain and expand power and control. 

The Federal bureaucracy has two centuries of experience and an extensive arsenal of 

resources available to misinterpret, misunderstand and undermine Congressional intent. 

New Federal bureaucracies becoming involved in Self-Governance will employ their own 

tactics, traps and shallow reasoning to frustrate and subvert Self-Governance. The 

provisions for negotiated rule-making in the permanent Self-Governance legislation must be 

unmistakably clear to a child 's level of reasoning that the Federal bureaucracy is negotiating 

government-to-government, nation to nation. 

We don't want Congress to micro-manage each Federal bureaucracy with thousands of pages 

of legislative directives to advance Self-Governance. Therefore, our government role in 

negotiations between governments needs to be crystal clear so even Federal administrators 

can comprehend this basic principle. Hopefully, we can creatively negotiate future rules and 

regulations to implement policies and procedures that finally make sense and support Tribal 

government realities. 

The permanent Self-Governance legislation, as a cornerstone to a new Indian Affairs 

foundation of government-to-government relationships between individual Indian Tribes and 

the United States. is a beginning. There will be those detractors who will seek to diminish 

Tribal jurisdiction due to peripheral concerns such as gaming, water rights or the myriad 

special interest agendas employed against Tribes over the centuries. The Indian Affairs 

foundation, however, recognizes our rights and responsibilities as independent governments 

to exist and develop according to our Tribally-determined priorities. In the future , I 

envision that permanent Self-Governance will involve multiple Federal Departments and 

Agencies with negotiated agreements over multi-year periods. This permanent SelfGovernance statute is a most important first step to an improved future. 
146 

Testimony of Joseph B. DeLaCruz 

Permanent Self-Governance Legislation H.R. 3508 

I have stated many times to many audiences and forums my basic belief: 

No right is more sacred ro a nation, ro a people, than the right ro freely 

determine irs social, economic, polirical and culrural future wirhour external 

interference. 17ze fullest expression of this right occurs when a nation freely 

governs itself. 

Page 6 

On behalf of !he Quinault Indian Nation, I want to express our deep appreciation for the 

understanding, support and respect you have shown to Tribal governments in !he 

development of Self-Governance. We strongly encourage prompt passage of permanent 

Selt~Governance legislation embodied in H.R. 3508 wilh timely negotiations wilh !he Senate 

Committee on Indian Affairs and !heir previously passed bill, S. 1618. We look forward 

to working together wilh Congress as we enter new frontiers in establishing meaningful 

government-to-government relationships between American Indian Tribes and !he United 

States. 
147 

Mr. FALEOMAVAEGA. Mr. Smith is not here. In his place is Matt 

Kallappa, the Policy Analyst for the Makah Tribe of Washington. 

STATEMENT OF MATI' KALLAPPA, MAKAH TRIBE 

Mr. KALLAPPA. Good morning Mr. Chairman and members of the 

committee. 

I bring greetings from the Honorable Chairman of the Makah 

Tribe who was unable to attend today's proceedings. 

My name is Matt Kallappa. I am an enrolled member of the 

Makah Tribe currently serving as Policy Analyst for my tribal 

council. I consider it an honor to represent my tribe and provide 

our testimony today. We wish to submit written testimony within 

the allotted time frame. The Makah Tribe began our self-governance planning efforts in 

November of 1990 and negotiated our compact and first annual 

funding agreement in September 1991 to be effective January of 

1992. 

The Makah Indian Tribe supports passage of H.R. 3508, the 

Tribal Self-Governance Act of 1993. The tribes involved in the selfgovernance demonstration project have successfully demonstrated 

that we are capable of managing and operating tribal programs, activities, functions and services according to tribal priorities. This is 

certainly the case for the Makah Tribe. 

Makah participation in the Self-Governance Demonstration 

Project has localized decision-making and given us flexibility to implement the priorities of our tribe. It has allowed us to both improve the quality and increase the quantity of services to our tribal 

membership. 

More than anything else, it has allowed us to envision the vast 

possibilities available through effective and efficient use of tribal 

resources free from paternalistic and bureaucratic barriers built 

through years under the Bureau of Indian affairs. Our tribe has 

made significant steps of progress by exercising negotiated authorities through self-governance. 

Since our participation in self-governance, the Makah Tribe has 

tripled the amount of scholarship funds for our Higher Education 

program and doubled the funding for vocational education. Now our 

people are seeking and receiving education and training more than 

was possible prior to self-governance. 

We have enhanced our judicial system by establishing a public 

defender, a tribal prosecutor and adult probation officer. These programs did not exist prior to self-governance. 

We have established a full-time juvenile officer for our children's 

protective services and we have doubled the funding for child and 

family therapeutic counseling. We have funded our Tribal Language program, which teaches the Makah language to our children 

and our adults. 

In prior years, funding for this program was based on grants and 

contracts and was inconsistent. We have implemented a comprehensive tribal budgeting and reporting process which are helping to establish a greater sense of accountability overall. 

We have greatly increased our knowledge and understanding of 

the broad range of services funded by the Federal Government to 

the Bureau of Indian Affairs on behalf of Indian tribes. We have 
148 

provided the tribal membership greater opportunity for direct input 

into funding the priorities of the Makah people. An example of 

that, in our most recent election we had the highest voter turnout 

as we have ever had; we had 751 members of our tribe voting in 

the election. 

We have also begun implementation of a plan to improve administrative and management systems by creatively redesigning and 

refocusing our tribal programs and we have added 4 7 new jobs to 

our tribal organization. This partial list highlights only a few of the 

more notable tribal developments under self-governance. 

While our responsibilities have increased greatly, we believe we 

have prospered because we have been able to manage our resources 

according to our own priorities. After all, who better to make decisions for the Makah Tribe than the Makah people themselves? 

In addition to the Tribal Self-Governance Act of 1993, we reeommend that there be only one Office of Self-Governance and that 

it be located in the Executive Office of the President. This would 

firmly establish the government-to-government relationship originally envisioned in the Treaty of 1855. 

Multiple self-governance offices in the administration will force 

tribes to continue negotiating with the numerous federal agencies. 

A single Office of Self-Governance would ensure consistent implementation of government-to-government policy, eliminate duplication of efforts and streamline all self-governance processes. 

We encourage passage of the Self-Governance Act of 1993 because we believe that permanent self-governance legislation will do 

much to address the following issues, will prevent the BIA from 

using the implied nature of a demonstration project as an excuse 

to delay permanently base transferring negotiated funds. 

It will help prevent the BIA from avoiding adjusting itself in 

light of tribal self-governance activity. It will speed up the waiver 

process to allow tribes an opportunity to creatively implement our 

tribal initiatives and it will assure that tribes have the ability to 

implement long range plans established under self-governance. 

The Makah Tribe is convinced that congressional support for this 

tribally driven initiative is absolutely essential for tribes to have 

ample opportunity to set our respective courses for the benefit of 

our future generations. We strongly advocate passage of this critical piece of legislation as a clear statement of that congressional 

support. 

I want to take this opportunity to thank the cosponsors of the 

Tribal Self-Governance Act for introducing and sponsoring this bill, and we look forward to working with Congress in continued efforts 

to enhance the lives of our Indian people both now and in the years 

to come. 

Thank you. 

[Prepared statement of Mr. Kallappa follows:] 
~ 

~ 

149 

MAKAH TRIBAL COUNCIL .: W:!!J:t::i*l*. l~~ ~l~ 

P.O. lOX 115. • NEAH BAY. WA. 98357 · Z06-6q5-ZZD5 

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MAKAH TRlllAL TESTIMONY SUPPORTING PASSAGE OF II.R. 3508, THE 

"TRIBAL SELF-GOVERNANCE ACT OF 1993" 

BEFO.RE Till! !lOUSE NATIVI! AMERICAN AFFAIRS SUIJCOMMITIEE 

fcbmary 2S, 1994 

1\fr. Ch•iunan, mcmher. of the Commiltee, I bring greetings from the llonorRhle 

llnhcrt Morkishtnm. Chait man of the M•hh Tribal Council, who was unable to attend 

tfulny·~ f11(1C"t.rtlittf.t~

My nnme I~ Mntt Knllnppn, I nm ftll tnrnllrtlmrmhr• of the Mfthh Tribe, cuurntlv 

~erving as the Policy Analyst for my Tribal Council. I con~ider it An honor to represent my 

Tribe And provide our testimony todAy. We wish to submit wiitten testimony within the 

allotted timeframe. 

The MAkoh Tribe b~gan our Self-Governance plannin[! efforts in November of 

1990, n•gotiAted our Compact and firs! AnnuAl Funding Agreement in September, 1991 to 

be effective January, 1992. 

The Mahh IndiAn Tribe supports pASsAge of JJ.R. 3508, the "Tribal SelfGovernance Act of 1993". Tribes Involved in the Self-Governance Demonstration Project 

have successfully demonstrated that we Are CApftble of manAging and operating Tribal 

programs, activities, functions and services according to Tribal priorities. This is certainly 

the case for the Makah Tribe. 

Makah participation in the Self-Governance Demonstration Project has localized 

decision making and given tis flexibility to implement the priorities of the Makah Tribe. It 

has allowed u, to both improve the quality and Increase the quantity of service to our 

Tribal membership. More than anything else it has allowed us to envision the vast 

possibilitie!, RVftilahle thrl'lugh err'ec.livf' Rnd efficient u•" nfTribal re~ources, free from 

pRlemalislic and bureaucratic barriers built through years under the Bureau oflndian 

AIT•irs. 

Our Tribe has made sign incant steps or pro[!ress by exercising negotiAted 

authnrllleN thtoUJdl Self-Unver""ltco. Slnco J!ftl!iclpntionln Selr-Oovernftnce the M•knh 

Trifle ha~ : 

I. Tripled the amount of 1choluNhip lhnd~ for our I ligher EduCAtion Program and 

doubled the funding for Vocational Education. Now, our people are seeking and 

receiving education and training, more than was possible before Self-Governance. 
150 

2. Enhanced our Judicial system by esiAblishin!l a Public Defender. Tribal Prosecutor 

and Adult Probalion.(.lfficer. These programs did not exist prior to SelfGovern:tnce. 

3. Established a full-lime Juvenile Officer for children's protective services and 

doubled the funding for child And family therApeutic counseling. 

4. Funded our Tribal Language Program which teaches the Makah languoge lo our 

children and adults. In prior years funding for this prognm was inconsistent and 

limded primarily by grants. 

5. Jmp!emented cmnrrchcnc.i vc Tribal budgeting c;,rl reporting procc;;c; which are 

helping In est•hlish R greater sense ofAccountahilily·nverall. 

6. rire:.t1y incrca ~cd our knowledge And unctrr~ltmdin~ of the broAd range ofservict-!': 

fhndcd hy the fed<'r;~l gnve-r nment on heh:tlf 0f Indian Trihe~ . 

7. Provider! the Tribal mcmher~ltir gre:tler nppnrlunily fcH direct input into funding 

the priorities of the Mnbh People. As An cxomple. in our last TribAl election we 

hnd approximate.ly 75% voter turn-nul . This was a record turn-out, higher than 

fnr Any rl('rliun plim tn St'lf Ouvetnnnr(' 

R. llr!(nn lmplrmrntntlon offt plnn loltnptnvc ntlnoiuisttntive nud mnnagemeut 

systems hy creatively redesigning and re-focusing Trihal programs. 

9. Added 47 new jobs to our Tribal Organization . 

. , his pn!linl list highlights nnlv a few oft he"""" '"'lahlr Tribal devel0p111enls 

1111drr Srlf' Cinvr111AIH't" \Vhilr out rr<:pon~ihilitir41 hn\'r innrn<:rcl Attnlly, \Vt': hrlirvrcl wr 

h:1Vr: pto<:p("trd hrr~11c:c w r- lt~vr hrrn nhlr to fund nc-cntding. tn our lncnl ptimitir~ . Allrr 

all, who heller to make decision• for the MakAh Trihe than the Makah People themsel ves I 

In addition to the "Trihal Sclf (iovern~ re Act 0f 19'1.1". the Makah Tribe 

rccnmmend•thatlhere he only one Office ofSelf Clnvc111anc~ ond thAI it be located in the 

Executive Office of the Pre~idcnt . This would firmly e~lahlish a Government-toGovernment relationship as origin•lly envisioned in our Trea ty of 1855. Multiple selfgovernance offices in the administration will force Tribes to continue negotiating with the 

numerous federal agencies A •ingle Office of Self-(iovernence would insure consistent 

implementation of gove;nrnent-to-government policy, eliminate duplication of effort and 

streamline all self-governance proces.es. 

We encottr:tge p:t ~~:tge of the Self~Govern~mce Act of 1993 because we believe 

that permanent Self Governance legislation will do much lo address the following issues: 

I. Th~ Jll/\ uc:ing thC' implird rmtmc of a "dcnHm~tlnlion ptujccl" ns :l~! excuse lo 

delay permanently hase-lransfening negotintecl limns 

2. The RIA avoiding adjmtinl! il'elfin light of Tribal Self-(iovernance activity. 

3. Speed np the WAiver process to allow Tribes an opportunity to creatively 

implement Tribal initiative~ . 

A••me Ttlhe•' ahllity tn hnJtlemcnt lnng-tnn11e ptnn• c•tnhli•hcd under SelfOovernnnee. 
151 

The Makah Tribe is convinced that Congre~slonal !lupport for this Tribally driven 

initiative is absolutely essential for Tribes to have ample opportunity to set our respective 

counes for the benefit of our fillure ~eneratiou We ~tronaly advocate passage ofthis 

critical piece of legislation as a clear statement of that support. 

We want to take this opportunity to thAnk the co-sponsors of the Tribal Self 

Clovern•nce Act of 1993 for introducing and ~ponsoring this bill. We look forward to 

working with Congre~s in continued efforts to enha~ce the lives of our Indian People both 

now and in the years to come. Thank you. 
152 

Mr. RICHARDSON. Thank you. 

I think our Constitution says that we don't recognize titles of nobility, and that was probably a typographical error here, not giving 

Mr. Lavell proper recognition as the Honorable William Lavell, 

Former Director of the Office of Self-Governance. He is certainly 

very deserving. 

Rather than calling him emperor or king, we call him president, 

so I guess everybody here is honorable unless proven otherwise. My 

apologies for not giving you that proper recognition. 

Mr. Lavell. 

STATEMENT OF WILLIAM LAVELL 

Mr. LAVELL. Thank you, Mr. Chairman. 

Needless to say, I am happy to be here, particularly as a private 

retired citizen. I am Bill Lavell, and I am the former Director of 

the Office of Self-Governance since its inception in December of 

1990 until my retirement January 31 of this year. 

I am honored to be asked to testify at this occasion. I will summarize. 

I go through the history of how we have handled this project and 

I think that is important. It is important for the committee to know 

that we early on decided that there was not any need for regulations and a demonstration. Regulations ought to come after you 

demonstrate whatever you are going to demonstrate. 

When we went into it, the statute was sufficiently clear. This 

was a tribal initiative and we worked this on a partnership base. 

In my office, we sat down with the tribal leaders and worked 

things out, decided how we were going to do things and we did 

them. 

The important phrase there is, we did them. We didn't try to 

plan it to the last, cross the last T, dot the last I. We decided to 

try these things because for many years the tribes have been selfgoverning and had worked through 638 contracts and as a tribal 

attorney in the past, I was aware of the abilities of tribal leaders. 

So we worked through this thing and we tried things out; some 

things worked, some things didn't. We tried different things dif- ferent places. But we have a program, I think, that is working 

beautifully. 

In 1992 and 1993, there was an independent assessment headed 

by Bernard Strickland, a Professor of Law at the University of 

Oklahoma and Chief Editor of the 1982 Edition of Federal Union 

Law and they reported very favorably on the program and reeommended that it be enacted as a permanent program. 

I would like to read my last paragraph. It has been a privilege 

for me to work with tribal leaders in implementing this project. Everything I have learned over 28 years of involvement in the field 

of Indian law and Indian affairs about what tribal leaders need and 

desire for their governments and their people is embodied in this 

program of self-governance except one, sufficient resources, the 

money, to fully address the needs of their people. Unfortunately 

that was beyond the scope of the project. 

However, self-governance has allowed tribal .eaders to better utilize those resources available to them. The self-governance program 

is now ready to be made a permanent program available to any 
153 

tribe that so chooses. Indian self-governance is an idea a long, long 

time in the birthing whose time has finally come. 

If I may read into the record this excerpt from an article written 

by Felix Cohen in 1949. 

On May 20, 1834, not 1934 but 1834, the House Committee on 

Indian Affairs reported that a large part of the activity of the Indian Bureau was being carried on in violation of law and without 

any statutory authority. It urged that the Indian Bureau work itself out of a job by turning over the various jobs in the Bureau itself to Indians and by placing the Indian Bureau employees on the 

various reservations under the control of the various Indian tribes. 

These recommendations were written into law. They are still the 

law. The justice of these recommendations has not been challenged 

for 115 years-that was in 1949. But always the answer of the Indian Bureau is give us more time. We must wait until more Indians have gone to college, until Indians are rich, until the Indians 

are skilled in politics and able to overlook traditional jealousies, 

until the Indians are experts in all fields in which the Indian Bureau now employs experts, but we are never told how the Indians 

are to achieve these goals without participation in their own government. 

Mr. Chairman, as stated in my testimony, the time for self-governance has come. The act of this committee in recommending passage of this bill will be a step-let me share a little vision that the 

tribal leaders have shared with me. They see a future where they 

will come back to you and say how about five-year funding agreements like we do for the territories? 

How about one-stop shopping where we go to one place and do 

a contract for all the Federal funds? All this is going to improve 

the efficiency, improve the entire situation for both the Federal 

Government and the tribes. What this bill is is an act of faith in 

democracy; that is what it is. 

Thank you, Mr. Chairman. 

[Prepared statement of Mr. Lavell follows:] 
154 

STATEMENT OF WILLIAM G. LAVELL, 

BEFORE THE HOUSE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, 

UNITED STATED HOUSE OF REPRESENTATIVES, 

ON H.R. 3508 AND S. 1618, 

A BILL TO PROVIDE FOR TRIBAL SELF-GOVERNANCE 

AND FOR OTHER PURPOSES. 

FEBRUARY 25, 1994 

Mr. Chairman and Members of the Comminee, I am William G. Lavell, former Director of the 

Office of Self Governance from its inception in December, 1990 to the date of my retirement 

from government service on January 31, 1994. I am honored to be asked to testify at this 

important occasion. 

H.R. 3508 is a bill which would make Self-Governance a permanent program available to any 

Indian tribe that chooses to participate. It is before you for consideration because of the SelfGovernance Demonstration project authorized by Title III of P.L. 100-472. 

The intent of the Project was to tum over to the tribes whatever funds would have been spent 

for their benefit at any level and to allow them to determine program and funding priorities on 

their reservations. It was expected that savings would be achieved in overall administrative cos ~ 

and that these savings would be passed on to the tribes. There are two main objectives of the 

Project. First, to increase efficiency in service delivery and second, to make services more 

responsive to the needs of a particular reservation. 

This Project has been a tribal initiative from the beginning and has been administered on a 

partnership basis. We decided early on that we would not promulgate regulations for the 

Demonstration Project--the idea was to deffionstrate through action and interaction. From this 

experience whatever regulations are needed can be developed through the negotiated regulations 

process provided in H.R. 3508. We specifically intended to keep the Project and any permanent 

program as simple as possible, eliminating much regulatory oversight. We have focused on 

implementing the stated purpose of the Project--to tum over to the tribes funds the Secretary 

would have spent for their benefit and allow them to choose the priorities as to where those 

funds would be applied and to design the programs for delivery of services. This is wholly 

consistent with the objectives stated in the Democratic Leadership Council's publication Mandate 

for Change. Chapter 11 : A New Federal Compact: Sorting Out Washington's Proper Role ; and 

with the concepts set forth in the publication Creating a Government that Works Bener and Cos!l! 

Less, the Report of the N·ational Performance Review by Vice President Gore. 

Any regulatory monitoring has been reduced to only that which accountability requires: base 

line measure reports; an annual A-128 audit; an annual trust assessment; a requirement in the 

Compact that each tribe have a procedure for redressing grievances under the Indian Civil Rights 

Act; and, finally , the ultimate monitoring device in any democracy--tribal elections. 
William G. Lavell 

H.R. 3508 & S.1618 

155 

Page 2 

February 25, 1994 

Since the United States is still held .to full responsibility as trustee, we provided for the annual 

trust assessment, modeled on a procedure required of all private trustees, and an expedited 

procedure for the trustee to take over control of any trust program where a trust asset is in 

imminent jeopardy of irreparable harm. 

In 1992 and early 1993, an independent assessment of the project was conducted by an outside 

contractor. Rennard Strickland, Professor of Law at the University of Oklahoma Law School, 

Director of the Center for the Study of American Indian Law and Policy and Editor-in-Chief of 

the 1982 Edition of Federal Indian Law, was the leader of the team. The report finds that the 

Project has been completely successful and recommends that self-governance be made a 

permanent program available to all Indian tribes. 

It has been a privilege for me to work with tribal leaders in implementing this Project. 

Everything I have learned over 28 years of involvement in the field of Indian Law and Indian 

Affairs about what tribal leaders need and desire for their governments and their people is 

embodied in this program of self-governance except one: sufficient resources to fully address 

the needs of their people. Unfortunately, that was beyond the scope of the Project. However, 

self-governance has allowed tribal leaders to better utilize those resources available to them. 

The self-governance program is now ready to be tnade a permanent program available to any 

tribe that so chooses. Indian Self-Governance is an idea, a long , long time in the birthing, 

whose time has fmally come. 
156 

Mr. FALEOMAVAEGA. Thank you for a very moving statement. 

The gentleman from Alaska. 

Mr. YouNG. Mr. Cagey, I have my self-governing groups in Alaska and they work very well and I would like to see the Lummis. I know you have done a great job. I will try to get there as long 

as you take me fishing. 

Mr. DeLaCruz, you heard the statement from Mr. Whitish and 

their main concern, do you see any way you two can work out---

1 am not talking about your internal problems, but in this legislation-you heard my statement. I happen to believe that the small 

tribes have to be serviced and taken care of either by the BIA or 

yourself and especially in land issues. Do you see any problem with 

that? 

Mr. DELACRUZ. Mr. Young, there has never been a problem with 

that. What we have had going on probably since the early twenties 

and again all the way through history, because of U.S. policy of 

how they mixed people in the General Allotment Act, we have had 

arguments and differences amongst people that were put on the 

Quinault reservation, and we have submitted information time and 

time again to the Congress, to the courts, of who makes up the 

Quinault nation. 

These people keep going to court. They keep making charges. 

They won't get the answer they want to hear. I have no problem 

with those people coming to our people, coming to our government 

as governments and meeting with us. They keep going to meetings 

with allegations where there is information that is contrary to 

what they say, but they won't come to meetings where information 

is being provided on self-governance. I want to point out, in the Olympic Peninsula agency there are 

ten tribes. Quinault is one of the ten. Five of those tribes are com- pacting tribes. The Bureau Agency in Washington has not diminished one person because of self-governance; so there are actually 

more people there to provide services to five tribes. The problem that you end up with, and this again, I see it happening through the 638 process, I saw it when the Reagan-Bush 

Administration called some of us in and said we all have to tighten 

our belt one notch, not you five, not you three. 

We were told we were going to get increases in the budgets in 

1993 by the administration. We are told, and we understand, that 

because of the massive national budget deficit, we are going to be 

looking at cuts in 1994, 1995 and 1996. 

But what is happening politically, bureaucrats have a favorit e 

game of going to their favorite chiefs that are naive and mis- informed and pointing a finger at a reason why things are happening. We were just at a 42-tribe affiliated tribe meeting in Spokane, 

Washington and they are pointing the finger at the 1994 budget 

and the administration reduction in force at self-governance, the 

shortfalls that are going on. 

It happened in 1981 and 1982. We are told the cuts will be at 

the top, the huge central offices in Washington D.C., at Indian Hill 

and the Bureau. We are looking at cutting positions and early retirements in the area regional offices. We are going to do the least 

amount of damage as we can at the agency and tribal level. 
157 

In black and white, that is the opposite again. The cuts are at 

the bottom where the rubber meets the road and again we find a 

government that can't keep the truth of the matter and you have 

people pointing the finger because of self-governance. It has nothing to do with self-governance. 

We heard people at the Spokane meeting from the Federal agencies defending the budget cuts and the FTE cuts and the shortfalls 

that is because of self-governance. I know tribes from Oklahoma 

are feeling that type of blame. They are mixing apples and oranges. 

Mr. YouNG. I agree with that. The Indian Health Service has 

been contracted out, yet the Indian Health Service in Alaska's centralized office took no cuts. That is wrong. 

But my concern is, you heard me say before, the allotment question on the reservation, which I believe your business manages--

Mr. DELACRUZ. Yes. We did not take any of the money for the 

management of allotments. That still is with the agency. They have 

around 48 foresters in that division to handle the allotted lands, 

appraisals, and sales for allotted land. 

BIA retained that. They did not take it. 

Mr. YOUNG. This is what we have these hearings for. The truth 

of the matter is that I am going to look carefully at the small tribes 

who do not have the capability and I am going to make sure they 

are not forced in an area where there is a taking. 

Mr. DELACRUZ. We appreciate that. We sat with the Senate and 

House both on Title III. The tribal leaders were the ones that 

wanted to assure that there was language, the demonstration 

project doesn't impact other tribes. There again we have to be part 

of the fact of what is really going on with the Congress when allegations are made. 

Mr. YOUNG. We need all the information. I go back to the BIA, 

and all of you in the room on the panel, would there be any objection, or are you suggesting, or can it be done where we don't have 

to go through the BIA as a direct line item budget request to the 

governing tribes? I am sure you would like that. 

Mr. DELACRUZ. I didn't go through my whole statement because 

of time. One of my recommendations-because again the experience 

that I have been involved in with the Self-Determination Act and 

the demonstration project, is that even as it goes into permanent, 

that there be within Interior basically a separate division that is 

for self-governance to move this project forth; because people blame 

presidents, they blame administrations. 

We still have the same people there that worry about their program, their jobs, and tribal leaders, to be honest, have been behind 

the reorganization, trying to be a partnership. We get, in four years 

we get a new election we run into some of the same things. We feel 

we have the proper words coming out of the administration of how 

we should move forth. 

There are some corrections, and it is a partnership. The evaluations, investigations on self-governance, we have been a part of 

that independence. 

Mr. Lavell mentioned that the contract went to Dr. Strickland at 

the University of Oklahoma rather than an internal evaluation and 

investigation, which again I think right now is happening, the Bu87-276 0 - 95 - 6 
158 

reau is looking at it. We feel the private sector should do those 

things so it clears the air on allegations. 

I didn't want to get into the appropriation funding thing. I think 

that is something that has to go before Mr. Yates on 8 May. There 

are a lot of games being played here with self-governance and selfdetermination on what is going on in the budget. 

I think the Alaska people will tell you that also. 

Mr. YOUNG. My big concern is we can go through this game playing and give you self-governance; if we don't somehow finance it, 

it doesn't work. I am not picking on the BIA. I don't care what administration, the gentleman said 1874, 1949-it has not decreased 

in size and it is a bureaucratic nightmare. 

I am just saying if we are going to make self governance work 

somehow we have to stop that restriction and work with the recognized governments to get the money to you or it is going to fail. 

I don't care how much you tell BIA to do it, they are not going to 

cut the top echelon. They are not going to do it unless we cut them 

here. If they give them a lump sum, guess where the cuts are going 

to come from? 

Mr. DELACRUZ. I concur with what Mr. Lavell said when he has 

talked to tribal leaders that have been involved in this and those 

in self determination. 

At some point of time, some of these things, as we have said in 

hearings before, are not for every tribe. There has to be a severance. I am having some people research some of my statements in 

the early 1970s about some of these issues when I was asking for 

direct funding at that time for a pilot project to show what an Indian Nation can do. 

Mr. YOUNG. Mr. Risling, you are from which tribe? 

Mr. RISLING. The Hoopa Tribe in California. 

Mr. YOUNG. Whereabouts is that located? 

Mr. RISLING. It is in Humboldt County near Eureka. 

Mr. YOUNG. Do you know a guy named Larry Moore? 

Mr. RISLING. No, I don't. 

Mr. YOUNG. He played football with me at Yuba Junior College 

from the Hoopa Tribe, one of the best football players I ever ran 

into. I wondered what happened to him. 

Mr. RISLING. That was the other name I go by. 

Mr. YOUNG. No; he was slim and trim and could run 100 yards 

in 9.9. That is not you. 

Thank you, Mr. Chairman. 

Mr. FALEOMAVAEGA. I thank the gentleman from Alaska for his 

testimony and questions. 

I have raised at previous hearings we need more Jim Thorpes 

and Sonny Sixkillers here in the NFL. Yesterday on the Floor, I 

shared with my colleagues the fact that we have 10 Samoans that 

play in the NFL right now. 

In fact, three of them played in the top four teams that vied for 

the Super Bowl and they all happen to be relatives. It is nice to 

have cousins in the NFL. 

Without objection and for the record, I am submitting a letter 

that was submitted by the Senator from Arizona, Senator McCain, 

who is the Vice Chairman of the Senate Indian Affairs Committee, 

and also the good Senator is the sponsor of Senate bill 1618, the 
159 

companion bill introduced also by Chairman Richardson, which is 

H.R. 3508. 

[EDITOR'S NOTE.-See appendix.) 

Mr. FALEOMAVAEGA. Mr. DeLaCruz, I have a question. 

Mr. Whitish here in his testimony is the Chairman of the 

Shoalwater Bay Tribe and at the same time he is testifying on behalf of the affiliated tribes of the Quinalt reservation and you are 

here this morning as the President or the Tribal Chairman of the 

Quinalt Nation. 

Can you clarify who is testifying on behalf of which tribe? I am 

a little confused here. 

Mr. DELACRUZ. Mr. Whitish is the Chairman of the Shoalwater 

Bay Tribe. We have three lawsuits that they filed, I don't know if 

I can put them into the record, but the Quinault Tribe, Quinault 

Nation was one of the tribes that signed what we call the Treaty 

of Olympia. They get history mixed up. 

The final thing was signed at Quinalt River, but it went to Olympia to be signed. And it was Quinault, Quilute, Tlingit and Ho people that signed the treaty. The United States initially set up a treaty reservation of 10,000 acres and that was for those four signed 

tribes to move all their people to the mouth of the Quinault River 

where the Quinault people's original capital and homeland was 

from their territories north of us. 

Later on there was an Executive Order that expanded the 

Quinault reservation from the original 10,000 acres to 189,000 

acres and the language of the Executive Order was to move all 

fish-eating Indians to that reservation. 

Governor Stevens was ordered by grant at that time to try to 

treaty with the Indians in that territory and move all the Indians 

west of the Cascades to one reservation, and all Indians east of the 

Cascades to one reservation, looking at Yakima and Quinault. 

Over time, some of those peoples moved to the Quinault territory. Some would not move to the Quinault territory. They stayed 

in their aboriginal areas and would not move. Over time, there 

were later executive orders that set up a small Shoalwater reservation south of the river. They set up a Chahalis reservation that is 

up on the Chahalis River 50, 60 miles and they set up a Tlingit 

reservation and a Ho reservation for people that would not move 

from their original homelands, and the people that moved to 

Quinault people called the Quinault Nation. 

Then with the Doss Act-and we all understand that that Act 

was brought about from the courthouse to White House politics of 

America, they wanted to get at Indian resources, whether it was 

farmland, timberland or what, pushed very hard for the Quinault 

reservation to be allotted. 

Our people, if you look at records, were fishermen. They said we 

want part of that, but politics overruled them so they allotted the 

Quinault reservation to all fish-eating Indians, some were Swedes, 

Finns, non-Indians that happened to be around at that time and 

that made up 2300 original allotees of the Quinault reservation 

that .are members of seven tribes mentioned in the Executive Order 

that we recognize in our constitution and by-laws that make up the 

Quinault Nation, but some of the people stayed and had their own 

reservations, their own governments, and even other tribes. 
160 

We have landownerships on Quinalt. People from Makah, people 

from Piat, people from Squaksin Island, Yakima, people who happen to be in that territory. That is the situation. We are saying we 

represent the descendents of those people, our governments estab- lished later. I happen to be a descendent of an allottee. 

My family and my mother and aunts and uncles own a lot of 

lands. Those people don't speak for them. When you look into the 

group you have individual private Indian loggers and the tribe now 

trying to merge and grow. They have a problem with that, although 

non-Indian loggers have been having a field day for years but they 

are not attacking them. 

Mr. DELACRUZ. So you got that history. I will submit all that 

stuff for the record. 

[The information follows:) 
MYTH: 

161 

MYTHS ABOur THE QUINAULT RESERVATION 

February 17, 1994 

The Quinault IndUJn Nation consists only of lndUJns of Quinault ancenry. 

FACT: The Quinault Indian Nation is a consolidated tribe comprised of individuals whose 

heritage can be traced to seven tribes. Membership in the Quinault Indian Nation is open 

as a matter of absolute right to any person of 1/4 or more combined Chinook, Chehalis, 

Cowlitz, Quileute, Hoh, Quinault, or Queets ancestry. Individuals who do not meet the 

blood quantum requirement can be adopted upon vote of the Quinault General Council. 

Each tribe has the right to establish qualifications for enrollment. The Quinault Indian 

Nation has a liberal membership policy that reflects the history of allotment on the 

Quinault Reservation; unlike many other tribes, the Quinault Nation does not require 

proof of descent from a single base roll of Indians residing on the Reservation on a 

particular date. 

The Quinault Indian Nation prohibits dual enrollment as do almost all tribes. The 

Quinault Nation's requirement that an individual choose a single tribe for enrollment is 

not unique or discriminatory. Tribal membership is akin to a declaration of citizenship, 

of political allegiance and identification with a group of people who share common ideals 

and aspirations. 

MYTH: The tribal lands of tlu Quinault IndUJn Reservation an owned in common by tlu 

Chinook, Clulllllis, Cow/itt, Quileute, Hoh, Quinault, and Qutets Tribes. 

FACT: Almost all of the tribal land on the Quinault Reservation owned by the Quinault 

Indian Nation was restored to the Quinault Indian Nation by Acts of Congress specifically 

naming the Quinault Indian Nation, or donated to the Quinault Indian Nation, or 

purchased with the Quinault tribal funds in the name of the Quinault Indian Nation. The 

Quinault Reservation was almost entirely allotted to individual Indian owners before 

1934; little land was left unallotted on the Reservation. 

MYTH: The Quinault lndiml Nation 1uJs never been fomullly rrcogniud Ill tlu tribal governing 

authority for 1M Quinault Indian Reservation. 

FACT: The individuals making this claim have raised their arguments numerous times 

without success before the Administration, Congress and the Courts. The Quinault 

Indian Nation has been repeatedly recognized by the United States as the tribal governing 

authority of the Quinault Indian Reservation. The Administration has recognized the 

Quinault Indian Nation as the only governing body of the Quinault Reservation for 

decades. Congress has recognized the Quinault Indian Nation as the governing tribe of 

the Quinault Indian Reservation at least three times in the last five years. 

- 1 -
162 

In 1988, Congress rejected claims that the Quinault Nation was not the legitimate 

governing tribe of the Reservation and returned almost 12,000 acres of the Reservation 

land to the Nation. 

In 1990, the Senate Indian Affairs Committee stated: 

The Congress has consisrenrly recognized the Quinaulr Indian Narion as the 

governing body of the Quinault Indian Reservarion which includes residents of the 

Chinook, Cowlitx, Chehalis, Quileure, Hoh, Queers, and Quinault tribal groups. 

And in 1991, the same committee stated: 

MYTH: 

FACf: 

In the Pacific Nonhwest, tribal groups were also settled on a few reservarions, 

and accordingly, on the Quinault Reservarion, the Quinault Indian Narion serves 

as a successor in inrerest to the tribes or tribal groups thai wert eligible to settle 

on the reservarion. Today, membership in the Quinaulr Indian Narion is open to 

arry individual of one quaner or more in the aggregate of Quinaulr, Queets, 

Quileure, Hoh, Chehalis, Chinook or Cowlitx ancestry. Marry members of the 

Quinault Indian Narion are eligible for enrollment in the Federally-recognized, 

Quileute, Hoh, Chehalis, or Shoalwarer Tribes, and members of those tribes are 

often eligible to enroll in the Quinault Indian Narion. 

Numerous court tkdsioru luJv~ luld tJuzt 1M Qrmuu.dl Illlliml Natio11 is 1101 1M 

exdusin tribal gov~ming body of t1u QuiMult Restrvatu)tl and sluuu IJI/Ihoriiy wiJh 

other trib~s. 

There have been no such court decisions. The Federal courts have reviewed and 

rejected these claims, including the assertion that court decisions in Wjl!jams y. Clark 

and other cases have determined that the Quinault Indian Nation is not the legitimate 

tribal government of the Quinault Reservation. Most recently in the 1991 decision in 

Confederated Tribe3 of the Cheba!is Indian Resemtjoo et. a!. y. Lujan, 928 F .2d 1496 

(9th Cir. 1991), the United States Court of Appeals for the Nmth Circuit rejected the 

claim that Willialm or any other case cited by Quinault tribal opponents even addresses 

the question of tribal governance on the Quinault Re3ervation let alone questions the 

legitimacy of Quinault tribal government. Yet these non-tribal Indians continue their 

effons to overthrow the Quinault Indian Nation; most recently, they have begun to 

circulale a "ballot• calling for formation of a new tribal government on the Quinault 

Reservation. 

- 2-
MYTH: 

163 

· T1u Quintudt Rtstrvtltion wa.s tnlargtd from 10,000 acns in orrltr to provilk for OIMr 

tribes. 

F ACf: The Quinault Reservation was enlarged from 10,000 acres to 190,000 acres in 

anticipation that Indians from several tribes located in Western Washington who were not 

then residing on any reservation would relocate and become consolidated with other 

Indians who chose to make the Reservation their home. It was anticipated that the 

individuals who did move to the reservation would become part of the Quinault Tribe; 

there was never any intent to provide for wholesale movement of other tribal 

governments onto the Quinault Reservation. In fact, several reservations were 

established to provide land for individuals who refused to relocate and become a part of 

the Indian community on the Quinault Reservation. Nearly all land on the Quinault 

Reservation was eventually allotted to individuals of diverse tribal heritage. The current 

membership requirements of the Quinault Indian Nation reflect this history of allotment 

by providing a right of membership for individual Indians of Quinault, Queets, Quileute, 

Hoh, Chehalis, Shoalwater, Cowlitz, and Chinook tribal heritage. 

MYTH: Most oftlu llldUJn owtJtd land on the Quinault Reservation is owtJtd bJ memben of 

otlur tribes. 

F ACf: As a government, the Quinault Indian Nation owns 28% of the entire Reservation. 

The Quinault Nation and its members together own approximately 67% of the Indian 

owned land on the Reservation. On many reservations, interests in land are commonly 

held by members of other tribes. 

Percentage Of Indian Land Owned On the Quinault Reservation' 

By Members of Various Tribes· 

Quinault (Tribe and Members) 67% 

Quileute 6% 

Hoh 3% 

Chehalis 2% 

Shoalwater 1% 

Unenrolled and other 21% 

1

Based on weighted acreage of tribal fee, tribal trust, and individual trust lands. 

- 3-
164 

MYTH: TM QuiMult Indian Nation routiMly discriminaus against na~ula. 

FACT: The Quinault Indian Nation is required by federal law to provide all persons with 

equal protection under its laws. 

MYTH: TM Quinault Allottees Association was fomud to npnsefll irulividuallan.d owMn ill 

the tribal gove1'71mtfll of the Quinault Reservation. 

FACT: The Quinault Allottees Association was established with the support of the 

Quinault Indian Nation; the Quinault Indiah Nation and many of its members are 

members. The sole purpose of the Quinault Allottees Association was to provide an 

organizational structure for pursuing and financing litigation against the United States for 

mismanagement of the natural Reservation resources. Some individuals, however, have 

attempted to utilize the membership and mailing list to pursue personal agendas aimed 

at overthrowing the tribal government of the Quinault Reservation. At various times, 

organizations such as "Concerned Indians of the Quinault Reservation• or the "Indians 

of the Quinault Reservation, Inc. •, an organization chartered by the State of Washington, 

have emerged, misrepresenting themselves as speaking on behalf of all allottees. 

MYTH: TM individuals sponsoring the ballot for a MW Allotteu Association ll1'f inltnmd ill 

a strong tribal govt1'71mtlll for the QuiMull ResefWIIion. 

FACT: Only a small handful of these individuals actually live on the Quinault 

Reservation; the vast majority live elsewhere and are not interested in the welfare of the 

Reservation community. Several of these individuals have resisted the Quinault Indian 

Nation's efforts to stop uncontrolled exploitation of the reservation's timber resources. 

These individuals object to the exercise of tribal governmental powers as a threat to 

continuation of their unregulated economic activity. When tribal governments began to 

exercise the will of tribal members, tribal officials used governmental power to restrain 

the actions of persons who exploited reservation land and re30\ItCeS to amass personal 

wealth. It is no mere coincidence that many of the most vocal individuals involved in 

the effort to overthrow the government of the Quinault Rexrvation are non-residents who 

have been or are actively engaged in buying and selling reservation lands and timber. 

The report noted: 

Several110n-tribal Indians panicipale in the 1111li-Indianrnow:111D1l as "legilimiur.s 

offactutJl dlstonion. • Typically, the "110n-tribal Indian supporur• is wtaiJJry as 

a ruull of "Mlping my fellaw Indian. • These aatvim gaiMd their wt!allh by 

exploiting otMr Indians by means of, for aample, buying an Indian's lndJv!dual 

allotmefll and selling the same allotment to a 11011-Indian/Or a WJStly higMr price. 

Instead of • allotment of larrd • one could substilllle arry of the following ~ntr 

timber, oil, gravel, water, fish, TlalUral gas, or minerals. 1M (1111li-Indian 

gove1711111!nt) movement Mlps tM ·non-tribal Indian supponer• avoid tribal 

- 4-
MYTH: 

165 

governrne111 regulation. 

T1u QuiiUJuJJ Indiiln Nation uses tlu Indiiln Land Consolidation A.c:t to toh land from 

Indiiln allottees. 

F ACI': Only §207 of the Indian Land Consolidation Act, the escheat provision, has been 

implemented on the Quinault Indian Reservation. This provision was enacted by 

Congress over tribal opposition in order to reduce the cost to the federal government of 

administering small trust interests and to prevent land from becoming unmanageable due 

to a large number of owners. It applies mandatorily to all allotted land on all 

reservations, not just the Quinault Indian Reservation. 

The escheat provision provides for title of small undivided fractional interests in 

allotments ( < 2% and incapable of earning $100 in any one of the five years preceding 

the decedent's death) to pass to the reservation's recognized tribal government unless tbat 

interest is willed to someone who already owns an interest in the same allotment. 

Any allottee can prevent the escheat of trust land subject to §207 of the ll..CA by making 

a will leaving these small interests to family members or other owners trust interests in 

the same allotment. Escheat can also be prevented by families working together to 

consolidate their trust landholdings to insure that no interest is smaller than 2% maximum 

for escheat. The BIA is available to assist allottees with the preparation of wills or land 

exchanges which will prevent the escheat of trust land under the ll..CA. 

The Quinault Indian Nation has never sought to prevent any Indian from leaving land to 

his/her heirs. In fact, the Nation has notified the courts of eligible heirs when an interest 

has been about to escheat so as to provide an opportunity to keep the interests within the 

family. The Quinault Indian Nation encourages owners of trust land potentially subject 

to this provision to work with family members and other individual owners to consolidate 

their ownership interests or to prepare a will to avoid the possibility of escheat. 

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166 

BRIEFING PAPER ON THE QUINAULT NATION 

February 17, 1994 

WHAT IS THE QUJNAUL T NATION? 

The Quinault Indian Nation is recognized by the United States as the tribal entity that exercises 

exclusive political and territorial jurisdiction over the Quinault Indian Reservation. The Nation 

maintains law and order on the reservation, regulates land use, hunting, fishing, building and 

sanitation, levies taxes, and otherwise exercises complete tribal civil and criminal jurisdiction 

over the entire Reservation. Each year the Department of the Interior enters into numerous 

contracts with the Quinault Nation pursuant to the Indian Self-Determination Act for the provision 

of governmental services on the Quinault Reservation. 

The United States has consistently recognized the Quinault Indian Nation as having exclusive 

tribal jurisdiction. In 1947, Congress recognized the consolidated nature of the Quinault Nation 

when it enacted a statute declaring the Quinault Tribe the proper party to pursue • on behalf of 

all Indians having an interest in the Quinaielt Reservation" an action against the United States 

arising from the loss of reservation land as the result of an improper survey. 61 Stat. 416. The 

statute reads in pertinent part: 

mhe Quinaielt Tribe is herel:rj declared to be the proper parry plairuiff for rhe purpose 

of furrher proceedings . . . and for the purpose of prosecuting rhe action to a jinoJ 

conclusion on behalf of all Indians having rights in rhe Quinaielt Reservation as 

established under the rreary of July 1, 1855, and JIJIWQT'y 25, 1856 (12 Star. 971), the 

Executive Order of November 4, 1873, and any subse~nr acts of Congress. 

In support of this legislation, the Secretary of Interior advised ConJress that it "was proper to 

refer to the collective group regardless or tribal blood u the Quinault Indians ••• • The 

Secretary further advised Congress that "[c]ollectively the Indians hanna an Interest in that 

reservation, includin1 those ol the blood ol other tribes consoUdaled with the Quinault 

pursuant to the treaty, Executive Order, and ad or Congress may be regarded u one tribe. • 

H.R. Rep. No. 671, 80th Cong. 1st Sess. (1947). 

The Quinault Indian Nation is this consolidated tribal entity which the United States bas 

consistently recognized as possessing political jurisdiction over the Quinault Reservation and 

beneficial ownership of the una! lotted tribal land on the Reservation. 

In a March 18, 1980 opinion, the Acting Associate Solicitor for Indian Affairs of the Department 

of the Interior affirmed the status of the Quinault Indian Nation as th~t exclusive governing body 

of the Quinwlt Reservation. The opinion relies in part upon the Act of July 24, 1947, 61 Stat. 

416, and upon the Secretary's contemporaneous report to Congress that the Quinault Tnlle was 

the proper tribal representative for all of the Indians having an interest in the Quinault 

Reservation. 

• Pagtl • 
167 

Congress h.u continued to recoifllze the Quinault Nation .u the tribe govemin& the Quinault 

Reservation and as the beneficial owner of tribal lands within the Reservation. In 1962, for 

example, Congress restored to the "Quinault Tribe of Indians" 85 acres of tribal land which had 

been previously appropriated by the United States for lighthouse purposes. Act of October 15, 

1962, 76 Stat. 913. To the same effect is the Act of August 26, 1959, 73 Stat. 427, which also 

returns tribal lands to the Quinault Tribe. 

Reviewing this history of Congressional recognition, the Solicitor's 1980 opinion concludes: 

At Quinault a tribal council does exist which Congress has rtcogniud at ltast sinct 1947 

as representing the Indians of the Quinault Reservation regardless of their originiJI tribal 

ancestry. This has been reaffirml!d at least twice since 1947 when Congress has 

transferred lands to the "Quinault Tribe of Indians. • 

(Citations omitted.) The Solicitor's opinion was later affirmed by the Secretary of the Interior. 

See, Indjans of the Oujnaylt Reseryatjon v Corruni$sjoner oflndian Affaja, 9 ffiiA 81 (1981). 

Congress reaffirmed the Quinault Nation's role as the ~:oveming body of the Quinault Indian 

Reservation and as the appropriate tribal entity to consolidate tribal land ownership on the 

Quinault Reservation in connection with the enactment of P.L. 100-638, 102 Stat. 3327. This 

Act restored 11,905 acres of Quinault Reservation land improperly excluded from the Quinault 

Reservation to the Quinault Indian Nation, and provides the Nation with a share of the revenue 

derived from an additional 5,460 acres of the Olympic National Forest. Revenues received by 

the Quinault Nation from these lands are dedicated to fund the implementation by the Quinault 

Nation of a tribal land consolidation program on the Quinault Indian Reservation. P.L. 1~38 

§8(d), 102 Stat. 3327, 3329; Senate Report 1()()-582, Senate Select Committee on Indian Affairs, 

lOOth Cong., 2d Sess. (Sept. 30, 1988) at 3. 

Helen Sanders and representatives of the Chehalis and Shoalwater Bay Tn"bes among othea 

submitted testimony to Congress in connection with P.L. 1~38 claiming that multiple tribes 

bold equal tribal interests in the Quinault Indian Reservation. They advised Conaress that they 

intended to file suit challenging the Quinault Nation's authority to aovern the Reservation. 

Hearing on S. 2752, Senate Select Committee on Indian Affairs, tOOth Cong., 2nd Sess. (Sept. 

12, 1988). Accordingly, they .uk:ed Congress to have the lands at issue placed in trust for all the 

Indians who might have claims to share in aoverning the Reservation. Conaress declined and 

restored the land at issue to the Quinault Nation alone, so that the Quinault Nation could 

consolidate tribal owneahip of Reservation land. P.L. 1~38, 102 Stat. 3327; Sen. Rep. lOQ582. 

Congress rebuffed these claims because it had previously dec:lared the Quinault Indian Nation the 

proper party to punue the claim for improperly omitted Reservation lands and because Congress 

found that "membeahip in the Quinault Indian Nation is open to all Indian residents of the 

Quinault Reservation who are descendants of the tribes for whom the reservation was 

established.· Sen. Rep. 1()0.582. 

Congress was well aware that individual members of other tribes hold certain property interests 

in the Quinault Indian Reservation. It took pains to preserve and protect those property interests. 

§9(b) of P.L. 1~38 provides: 

·Pag•l· 
168 

Nothing in this Act is inlended to affect or modify-

(b) any property rights which may aist within the exterior boundaries of the Quinault 

Indian Reservation as it aisted prior to enactmellt of this Act .... 

102 Stat. 3327, 3329-30. 

Senator Evans, principal sponsor of P.L. 100~38, explained this provision: 

Mr. EVANS. ... I share the concerns of my co/leaglll! from Washington about the 

implicarioiiS of this legislation with respect to the rights of individuals with inlerests in 

the Quinault Indian Reservation as it aists prior to enactmellt of this legislation. 77re 

Federal couns have ruled thar members of several tribes have cerrain properry inlerests 

in the Quinault Reservation. CciiSeQIII!IItly, provisioiiS in this legislation nate thar it is 

not i11tended to affect or modify any property rights which may e:ri.rt within the boundaries 

of the Quinault Reservation prior to enactmellt of this act. 

134 Cong. Rec. S15303-304 (October 7, 1988.) App. T. 

Senator Evans and Senator Inouye, Chairman of the Senate Select Committee on Indian Affairs, 

also explained that the existence and recognition of such individual property rights do oot affect 

continuing Congressional recognition of the Quinault Indian Nation as the tribal &overning body 

of the Quinault Indian Reservation. 

Mr. INOUYE. Finally, I 110te that S. 2752 expands the boundaries of the Quinault 

Reservation to include approximately 12,()()() acres of Federal/and. S. 2752 provides 

explicit direction to the Secretary of the I11terior to hold lands reforred to in section 1 for 

the be11tjit of the Quinault Indian Nation. 

Mr. EVANS. 77re Senator is correct. Membership ill the QWnault lndl4n Nation is 

currtllt/y open to individuals who have a minimum combilled totill of Ollt-quarter 

Chinook, Ccwlltt, Oldlalis, Quileute, Hoh, QW!eu, or QWnault ancenry. 7hU open 

membership policy ensures rhat the be11tjits of rhJs legislation will be 1llilde avollable to 

all reservation resldenu descended from the origillal tribes who are 1101 m.embtn of other 

fetkrally-recognlud Indian tribes. In any evellt, the bUI does not affect the property 

rights of other tribes or the property rights of indlvldual property OWIItn who are not 

m.embtn of the Quinault Indian Nation. 

77re QWnault Indian Nation has long been recoglliud by the DeparfmDr.t of the Interior 

as the gtNmlblg body of the Quinault Reservation, and ts stmJlarly maud by Congress. 

Each year approprlartoiiS are provided to the QWnault lndlala Nation for law 

errforcemellt, tribal couns,jlsheries and other programs DllmbrJstendfor the berltftz of 

Indian resldellts of the reservation. Funhermore, on two prevfou.r occasions, Congress 

has transferred Federal land within the boundaries of the QWnault Reservatfqn to the 

Quinault Indian Nation. 

- Par• J-
169 

The F~d~ral Couns also have consistemly upheld the eurcis~ of govmtme~~tal power uwr 

the r~servarion by the Quinault Indian Narion. The Mmh Clrcuil has upheld the aercis~ 

by the Quinaull Indian Narion of building, health Q1ld safety ngularions uwr non-Indian 

r~sidems of the Quinault Reservation. The Federal District Coun, in afQI'IIDus decision 

affirmed by the U.S. Supreme Coun, has recognized the Quinault Indian Narion as a selfregularing tribe for the purposes of treazy protected fishing rights. 

Mr. INOUYE. I thanlc my colleague for this clarijicarion. The expressed policy of the 

committee Q1ld of the Congress has been to ajjlrm Q1ld srr~ngthe11 the guwmmem to 

govemment relarionship between the Federal guwmmem Q1ld Indian tribes. The 

provisions of this bill are consistellt with currem Federal Indian policy. The Quinault 

Indian Narion has been an ejfectiw represemariw of the Indians of the Quinault 

Reservarion. I am encouraged that this legis/arion will provide the Quinaull Narion with 

the resources to better manage ils lQ/Id base-for the be11tjit of all reservarion residents. 

134 Cong. Rec. S 15304 (October 7, 1988). 

Since 1988 Congress has clearly indicated its recognition of the Quinault Indian Nation as the sole 

tribal governing authority of the Quinault Indian Reservation on two additional occasions. Thus 

in connection with the ena=ent of the National Indian Forest Resources Management Act, the 

Congress stated: 

The phrase "reservarion 's recognized tribal govemment• is deliberately utilized 

throughout S.1289 Q1ld this report. The phrase is 11tcessary to avoid confusion 

since sewral distinct tribes or descendants of tribes may reside 011 a single 

reservarion. For example, the Congr~ss has consistently r~cog~d the QuiluJl.dJ 

Indian Narion as the governing body of the Quinaull Indian Res~rvarion which 

includes residems of the Ozinook, Cowlm. Ozehalis, Quileute, Hoh, Queers, Q1ld 

Quinault tribal groups. 

Senate Report No. 101-102, 101st Cong. 2nd Sess 9 (1990), accompanying, the National Indian 

Forest Resources Management Act, Title ill of P.L. 101-630, Act of November 28, 1990, 104 

Stat. 4531. And, in connection with atnendments to the Indian Civil Rights Act confirming tribal 

criminal jurisdiction over non-member Indians, the Congress stated: 

In the Pacijfc Northwest, tribal groups wer~ also settled on a few r~s~rvarions, 

Q1ld accordingly, 011 the Quinault R~s~rvario11, the Quinault Indian Narion serws 

as a succnsor In lnt~r~st to the tribes or tribal groups that were ~ligible to settle 

on the nservario11. Today, membership in the Qulnaultlndl411 Narion Is open to 

any Individual of Ollt qUIJTter or more in the aggregate of Quinault, Queers, 

Qulleute, Hoh, Ozehalis, Ozinaok or Cowlm QliCestry. Marry mmrben of the 

Quinault Indian Narion ar~ ~llgible for enrol~nt In the Federal.ly-ncogniud, 

Quileute, Hoh, Ozehalls, or Shoalwater Tribes, Q1ld 11lt17lben of those tribes are 

often eligible to enroll In the Quinault Indian Nario11. 

Senate Report 102-153,102nd Cong. lstSess. 7 (September 19, 1991), aecompanying, P.L. 102-

137, Act of October 28, 1991, 105 Stat. 646. 
170 

WHO CAN BE A ME:MBER OF THE QUINAULT INDIAN NATION? 

The Quinault Indian Nation is a consolidated tribal government, representing the interests of 

individuals of diverse tribal heritage. The members of the Quinault Indian Nation are comprised 

of descendants of the Quinault, Queets, Quileute, Hob, Chehalis, Cowlitz, and Chinook tribes. 

Under the Constitution of the Quinault Indian Nation, any person of 1/4 or more beritaae from 

these groups, either singly or any combination thereof, bas an absolute right to membership, so 

long as that person is not a member of another federally recognized Indian tribe. 1 Persons not 

satisfying this blood quantum requirement may be adopted by action of the General Council. 

This consolidation occurred partly as the result of federal design in allotting land on the Quinault 

Reservation to Indians who resided on the Olympic Peninsula and Southwest Washin&ton and 

encouraging them to relocate to the Reservation. While the allotment process distributed most 

of the Quinault Reservation's land and timber resources to individual allottees some of whom 

were members of other tribes, the Nation's enrollment criteria which accommodates the allotment 

of several tribal groups at Quinault helps insure that the Quinault Nation comprises the largest 

landowning group on the Quinault Reservation. Currently the Nation and its members own 

approximately two-thirds of the Indian owned Reservation land. 

WHAT ARE THE GOALS OF THE QUINAULT INDIAN NATION? 

The goals of the Quinault Indian Nation have been stated as: 

... establish a better rribal organization; to preserw our land base, culture and ide111ily; 

to safegumd our inurests and geMral welfare; to secure the blessings of freedom and 

liberry for ourselves and for our prosperiry. .. · 

Strengthen the Quinault Reservation as a culrural, economic, social, and polirtcal unit 

for the continuing belll!jil of the Tribal members; understand history as it relates to 

presenr problems; and strengthen the rriba/. gUVU111111!nral structure whlch addresses the 

problems ofrribal management; and 

UtUtu the natural resources of the Reservation in the best interest of the 7Hbal members. 

collectively and Individually; create oppornmiliesfor prodllcttw, satlsfjlng emp/Qyment 

for every member of the Quinault Indian Nation who desires to work on or adjacent to 

the Reservation: and 

1 Article II, Section 1 Constitution of the Quinault Indian Nation. Prohibitions against multiple 

enrollment are common among Indian tribes. This should not be surprising since tribal membership is akin to a 

declaration of citizenship, of political allegiance and identification with a groiJI) and its idella and aspirations. 
171 

••• 

Regain an adequate land base; rebuild the fish runs; manage the rimber resource and 

water resource,; and 

... Make available housing and education opportunities, including job training, for both 

young people and adults; provide coTN1UIIIiry services and facilities to promote a 

healthful, productive and sarisfjing living envirollllltnt. 

During the last few decades, the Quinault Indian Nation has moved to intensify its efforts to 

defend and promote social, economic, and political control over its own future. The resurgence 

of Quinault initiatives has called for the formulation of a wide range of internal and external 

policies, plans and strategies covering such matters as natural resources regulation, enactment and 

enforcement of Quinault National laws, and development of economic initiatives. All this to 

ens11re that the rights and interests of its members yet unbom will be proteCted. 

The destiny of any nation depends upon the strength, creativity, discipline, and adaptability of 

its people. The natural and man-made influences which affect the peace, prosperity, and security 

of a nation come from both inside and outside the territorial jurisdiction of the nation, and 

generally fall into the broad categories of political, economic, cultural, and social faetors. 

Survival of a nation depends upon the ability to effectively undertake its own initiatives and to 

respond to changing circumstances. 

Like all nations of the world, the Quinault Indian Nation is constantly confronted with the need 

to make choices and decisions to ensure a way of life that is secure, satisfyin&, fulfilling, 

purposeful, and prosperous. The people of the Nation have historically demollSiral.eQ their will 

to accept the challenges of change, and they have shown discipline and ingenuity in the face of 

often menacing political, economic, and social demands. 

CHALLENGES TO THE LEGITIMACY OF THE QUINAULT INDIAN 

NATION AS THE GOVERNMENT OF THE QUINAULT 

RESERVATION 

Between 1967 and 1977, non-Indians owning property on Indian reservations reacted to the 

increasing success of the Quinault Nation in exercising its JOVemmental powers. Resident and 

absentee non-Indian landownen and businesses objected to the powing exercise of general 

governmeutal powers in areas of taxation, zoning, construction and land-use ordinances. Several 

organizations opposing tribal 30vereignty find their roots in the Quinault Reservation, for 

example, the Quinault Property Owners Association and the Interstate Conaress for Equal Rights 

and Responsibilities. These organizations are part of a network of anti-Indian JIOIIPS formed 

across the United States to challenge tribal efforts on other areas, for example, the Association 

of Property Owners and Residents in Port Madison Area, Salmon and Steelhead Protection Action 

in Washington Now (S/SPAWN), Protect Americans' Rights and Resources (PARR), Citizen's 

Equal Rights Alliance (CERA), United Property Owners of Washinaton (UPOW), Wisconsin 

-Patt6· 
172 

Alliance for Rights and Resources CN ARR), Equal Rights For Everyone (ERFE). These 

organizations are based on a populist and frequently racist ideology that attracts legitimately 

distressed non-Indians as well as bigoted activists like those involved in White Supremacist 

movements. 

Development of these non-Indian groups to challenge tribal governments has been aided by the 

political emergence of the "non-tribal Indian" reservation land owner. The non-tribal Indian, 

regarding individual self-interest as more important than broad tribal interests, object to the 

exercise of tribal governmental powers as a threat to continuation of their unregulated economic 

activity. When tribal governments began to exercise the will of tribal members, tribal officials 

used governmental power to restrain the actions of persons who exploited reservation land and 

resources to amass personal wealth. It is no mere coincidence that many of the most vocal 

individuals involved in the effort to overthrow the government of the Quinault Reservation are 

non-residents who have been or are actively engaged in buying and selling reservation lands and 

timber. 

Several non-tribal India/IS participate in the a/IIi-Indian movenunt as "legilimiurs of 

factual distortion. • TypicaJiy, the •non-tribal Indian suppolter• is wealthy as 11 resull 

of "helping my feUow Indian. • These activists gaiMd their wealth by uploiting other 

India/IS by mta/IS of, for UD171ple, buying an Indian's individual aUot~Mnt 111111 seUing 

the sa1M aUotlMnt to a non-Indilln for a vastly higher price. Instelld of "alJotlMnt of 

lond" one could substitute 11ny of the foUowing words timber, oil, gravel, Wllter, fish, 

/IIJJuraJ gas, or minerals. The (a/IIi-Indian govef71111tnt) movenunt helps the •nontribal Indilln supponer• avoid triblll govef71111tnt ngulJJtiJJn. • 

For years, a small group of individuals has relied upon factual distortion and innuendo in an 

attempt to discredit the legitimacy of the Quinault Indian Nation as the tribal &Qvenunem for the 

Quinault Reservation. Claims and charges levied in the Congress of the United States (see 

previous discussion of P.L. 100-638), with the Administration, and with the Inspector General 

have been investigated and rejected. 

The Federal courts too, have reviewed and rejected these claims, including the assertion that court 

decisions in Wj!ljams y Clark and other cases have determined that the Quinault Indian Nation 

is not the legitimate tribal government of the Quinault Reservation. Most reccmly in the 1991 

decision in Conf;dmled In'bes of !be Cheba! is Indjan Reservation ct a! y Luian, 928 F .2d 

1496 (9th Cir. 1991), the United States Court of Appeals for the Ninth Circuit rejected the claim 

that lYilliaml or any other case cited by Quinault tribal opponems even addresses the question 

of tribal &Qvernance on the Quinault Reservation let alone questions the legitimacy of Quinault 

tribal ICJVermneat. Yet these no!Kribal Indians continue their efforts to overthrow the Quinault 

Indian Nation; most recently, they have begun to circulate a "ballot" calling for formation of a 

new tribal ICJVemment on the Quinault Reservation. 

Because many of the claims of the individuals sponsoring this "ballot" are factually incorrect, the 

following historical background information is provided. 

Ryser. R.C. (1991). Anti·lndian Movement on the Tribal Frontier. Center fO< Wot1d Indigenous 

Studies. Occasional Paper I 16. 

· Par• 7. 
173 

msrORJCAL BACKGROUND 

THE QUINAULT RIVER TREATY 

In early 1855 the United States attempted to negotiate a treaty with the Quinault, Queets, Chehalis, 

Chinook, and Cowlitz looking toward the cession by these tribes of their territory and their consolidation 

on a single reservation. Upper Chehalis Trjbe v United States, 8 Ind. Cl. Com. 436, 442-44 (1960). 

The treaty negotiations which were held at a site along the Chehalis River failed, in large part because 

of Chehalis, Chinook, and Cowlitz objections to being placed together on a single reservation with the 

Quinaults in Quinault territory north of Grays Harbor. lsl. 

The Quileute Tribe was not invited to the abortive treaty negotiations because Governor Stevens did 

not become aware of the Quileute's existence until the Treaty Council commenced. The Minutes of the 

Treaty Council report: 

It was now however found that the Quinaulrs did Ml occupy the whole counrry between the 

Orihalis and rhe Makah 's, but thaJ another and distinct tribe, the Kwil/eyures were inrerml!diare. 

Oui!eute Tribe v United States, 7 Ind. Cl. Com 31 , 32 (1958). 

The Qui!eutes and their subtribe the Hob's principle villages were located in the Quileute and Hob 

River drainages to the north of the Queets and Quinault, and south of the Malcah. lsl. 

Stevens returned to Olympia where be prepared a new treaty before leaving for Eastern 

Washington. The new treaty differed from that presented at the Chehalis River Treaty Council. The 

Chehalis, Chinook, and Cowlitz were dropped as treaty parties and the Hob and Quileute were added. 

Adjustments were made in the identification of the tribal parties in the preamble and the description of 

the cession area to reflect this change. 

Stevens instructed Michael Simmons to meet with the Quinault and Quileute and obtain their 

agreement to the new treaty. Stevens told Simmons to advise the other tribes who had been present at 

the Chehalis ·River Council that he would hold further separate treaty negotiations with them at a later 

date in Olympia. Col. Simmons met with the Quinault, Queets, Quileute, and Hob in July 1855 at 

Taholah and concluded a treaty which Governor Stevens later signed in Olympia. Oujga!elt Tribe y 

Ugjted States. 7 Ind. Cl. Com. 1, 6 (1958); Ouileute Tn1le y United States. mm:a, at 37-8. The Treaty 

with the Quinault was ratified by Congress in 1859, 12 Stat. 971. 

Before Governor Stevens could return from Eastern Washington to conduct further treaty 

negotiations with the Chehalis, Chinook, and Cowlitz war broke out and occupied his attention. In the 

unsettled period tlw followed no further an-angements were made to treat with the Chehalis, Chinook, 

and Cowlitz and a treaty was never concluded with them. 

CREATION OF THE QUINAULT AND 011IER INDIAN RESERVATIONS ALONG THE 

WASHINGTON COAST . 

Under the treaty the Quinault, Queets, Quileute, and Hob Tribes ceded their territory to the United 

States, and the United States agreed to reserve for the use and occupancy of the signatory tribes a tract 

or tracts sufficient for the tribes' wants to which the tribes were required to remove within one year of 
174 

treaty ratification. Article 6 of the treaty also provided the United States with authority to •consolidate" 

the sianatories and "other friendly tribes; • to assign reservation lands to individuals and families willing 

to locate on such lands as a permanent home; and to remove "said Indians" from "said reservation or 

reservations to such other suitable place within the Territory as he may deem fit .... • 12 Stat. 971. 

In 1859 it was decided to protect land for the Upper Chehalis and Satsop at the confluen~ of the 

Black and Chehalis Rivers and notice was published that a reservation would be established at that 

location. A portion of this land was eventually set aside as the Chehalis Reservation. Instead of a treaty, 

the Chehalis Reservation was set apart by Secretarial Order of July 8, 1864, after the Commissioner of 

Indian Affairs advised the Secretary of the Interior that the Chehalis had resisted all suggestions to jointly 

occupy other reservations. Two yeats later the Shoalwater Reservation was established by Presidential 

Executive Order of September 22, 1866 for Chinook and Lower Chehalis Indians. 

The Treaty with the Quinault does not designate the location of the reservations to be established 

for the Indian parties. In 1859 after the ratification of the Treaty, Michael Simmons proposed 

establishment of a reservation encompassing approximately six sections between Point Grenville and the 

mouth of the Quinault River. The reservation was surveyed in 1862. 

In 1871 only the Quinaults were living on the reservation. At the time there were only three 

reservations in southwestern Washington. In addition to the three reservation communities there were 

a number of small bands of Indians who had not moved to any reservation whose tenure was threatened 

by settlers and land speculators. Superintendent Milroy in his 1872 annual report proposed the 

enlargement of the Quinault Reservation. Milroy proposed that the Quileute, Hob, and Queets, together 

with other Indians not then residing on any reservation could be collected on the enlarged reservation. 

The Quinault Reservation was enlarged in accordance with Milroy's recommendation by 

Executive Order of November 4, 1873. However, the Quileutes regatded the Quinault Reservation as 

the property of the Quinaults, and their understanding of the Treaty was that they would have their own 

separate Reservation on the Quileute River and would not be required to relocate to the Quinault 

Reservation. As a result, the United States' hope that the Quileutes would be induced to remove to the 

Quinault Reservation was quickly abandoned. Hardly a yeat went by after the expansion of the Quinault 

Reservation that the local agent did not report that the Quileute Tribe had DOt relocated to the Quinault 

Reservation, and that a separate Reservation should be established on the Quileute River for those 

Quileutes who refused to have any part of the Quinault Reservation. 

But one of the four trib~s that hav~ been 1'1UUie partt~s to the Quinalelt tr~Dly Is on the 

res~rvarto11. 17te Quillut~s, Hohs, and Quits reside at dljf~r~nt points and dlsttmces on the coast 

nonh of the resei""IIOtlon, and say they never agreed to sell their country, n.or did they, to tlu·lr 

knowledge, sign arry treaty disposing of their right to it. '1'1w they were prtst11t at the time the 

tr~ary with them all~ged to have been made. but that the poper that they signed was e:xplalned 

to them to be an agnement to keep the p~ace with the citi:e11:1 of the Ulliled States, and to accord 

them the same rights to come Into the country and trade for fun, &c., as lwd previously been 

accorded to the Hudson Bay Comparry.... They therefore refuse to leave their homes and 

localities in which they then and still resid~. and 1710\11! on the r~sei""IIOtlon which they· (the 

Quileutes, Hohs, and Quits) regard as the ho- and property of the Qulnalelt:r. 

Report of the Superintendent of Indian Affairs for Washington Territory to the Commisaioner of Indian 

Affain, October 1, 1872, reprinted in the Annual Report of the Commisaioner of Indian Affairs for 1872 
175 

at 339-40. 

The tribes of Hohs and Qui/lehutes are srill living upon lands north of rJre limits of rJre 

restrvation. I hQllt! conversed frequently with them upon rJre subject of residing on rJre reserve. 

Although they express themselves friendly, and willing that rJre whites should occupy rJreir land, 

or so much of it as is fit for settlement, they did not understand when they signed rJre treaty tlwl 

they were giving up their homes. They were very peaceable, and In several instances luzve been 

of greas assistance to individuals who hQ1It! been wrecked and cast upon their coast, always 

treating rlrem kindly. 

Report of the Special Indian Agent, Quinaielt Agency to the Commissioner of Indian Affairs, September 

1, 1874, reprinted in the AMual Report of the Commissioner of Indian Affairs for 1874 at 335. 

The Indians living off from the [Quinault] reservation are not disposed to leQllt! their old homes, 

and as the country is mostly unoccupied by white settlers, no means hQ1It! been talcen to bring 

them on to the reserve. In my opinion this reservation Is entirely inadeqUaJe for rJre support of 

these four tribes, although it includes a large area of land, rJre most of it being molllltainous and 

entirely unfit for agriculture. Nature seems to hQ1It! provided rJre means suitable for rJre support 

of each tribe in the way of a stream that affords salmon and other fish for their wants as they are, 

but not enough for oil, should they be dependent on one stream. 

The country occupied by the Quillehute Indians is partly settled by whites, and It Is rJre desire of 

those settlers to hQ1It! them placed upon the reserve. In the event of their becoming troublesome, 

measures will hQ1It! to be taken to remove them. They are opposed to coming to this reserve for 

rJre reason thas they could not maJce a living, which I believe Is trw. 

Report of the Special Indian Agent, Quinaielt Agency to the to the Commissioner of Indian Affairs, 

August 24, 1876, reprinted in the Annual Report of the Commissioner of Indian Affairs for 1874 at 142. 

The other three tribes, viz, Queets, Hohs, and Quillehutes, live as such a distance from the 

agency as to be entirely out of reach. The rwo latter tribes are nor on rJre [QuinaJdt} reservation, 

and are not disposed to leave their old homes .... 

In the treaty made with rJrese Indians the following language Is used In contemplation of their 

removing on to the reserve: "And the said tribes and bands agree· to remove to and settle upon 

the same within one year after the ratification of this treaty, or sooner, If the means are furnished 

them. In rJre mean rime It shall be lawful for rJrem to reside upon any lands not In rJre actual 

clalm and occupation of rJre citizens of rJre United Stases, • & [I'reaty with Quirulielt and 

Quillehllte lndilzns, July 1, 1855, art.2.] No steps hQ1It! been taken to comply wiJh this agreement 

on rJre port of the United Sases, and the Indians are stU/ occupying rJreir old homes. 

Report of the Special Indian Agent, Quinaielt Aeency to the Commissioner of Indian Affairs, August 6, 

1877, reprinted in the Ailnual Report of the Commissioner of Indian Affain for 1877 at 195. 

· Howeattl. Head Chief of the Quillehutes under the treaty then said. 

... Col. Simmons told us when he gave us our papers tlwl we were always to live on our own 

land that we were not to be removed to anorJrer place. 

• PagtiO • 
176 

Tah a howtl or Tah ah ha wbtl. Sub Chief of Quillehutes under the treaty then said. 

I told Mr. Simmons that rrry land was from the Island of Upk.owis opposite Kwediazsarsit doW11 

the coast ro the Hooh River. This was rrry land formerly, and we would ncr sell our right to the 

river where we get our salmon, or to the land at the mowh of the river where we now live. We 

also claim the right to the seacoast as far as our land e.:aends. And we want one half of the 

prairie land where the Camma.s grows. The rest we will sell to Washington. Mr. Simmons said 

it was good and he would do as the Indians wished. Mr. Simmons said I have not bought your 

land. Alii want of you is to look our for cury white man who may be wrecked on your coast or 

come to you in distress. I want you to take care of them. 

Capt Charles Willoughby US Indian Agent then said. 

I wm write to Washington and recommend that lands be reurvedforyou as IIW promised lTy Col 

Simmons. I want you to continue your fisheries for seals and whales as usual, but I WQ/It you 

to pay more arrention to planting and cultivating land and taldng care of your horses and caJtle. 

Don't idle away your time in gambling, bur build homes and fences and furnish your homes with 

comforrs. I have counted ten new homes built since I IIW here one year ago every one of which 

has a working stove and coal oil lamps and many other evidences of civtllzation, all of which I 

am glad to see. 

Proceedings of a Council Meeting with the Quillehuts August 20 and 21, 1879 re. Choice of Agencies. 

The Quillehutes are 35 miles sowhfrom the agency, and all have their homes in one village, and 

not having so good opporruni.ties from improvement, are nct as far advanced as the MaJ:ilhs. 

A great deal of dissatisfaction has been manifested lTy these Indians for the past year and a half 

and with good reason. Something like two years since a white man named Daniel Pullen 1NJile 

entry on the lands on which their village is located, and ever since that timt he has tried to 

e:arctse full control of all the premises and endeavored to have the Indians pull dowiJ their house 

for his acconurrodolion. On receipt of circular No. 128, I immediately wrote the Indian Of/Ice, 

giving jWl parrtculan of the entry and asked to have the entry wu:ated and the land set apart for 

use oftlw Indians. No action has been taken so far as I am advised, although I have frequently 

called atUndon to it in rrry monthly reportS. The Indians make frequent complalnu of the acn 

of Pullm, bur as they are off the reserve I am powerless to giw thml such protealon as they 

should have. TheY have occupied this land from before the /cnowledge of the oldest Indian on the 

coast of cury of their tradillons. The have bui.ll some wry comfortable frame housu and have 

several very large bulldings built in Indian style from lumber manufactured lTy tlremselws, and 

they feel it would be a great hardship to be driven off and lose all their bulldlngs and 

improvements, and all fair-minded people will agree with them. 

• Pagtll • 
177 

Report of the Indian Agent, Neah Bay Agency to the Commissioner of Indian Affairs, August 13, 1885, 

reprinted in the Annual Report of the Commissioner of Indian Affairs for 1885, at 187. 

mE QUIU.EHUTES do not live on a reservation. They are 40 miles south of the agency, on 

the Pacific. They have lived there for, 1 suppose, 100 years, yet the very land upon which their 

village is has been thrown open for settlement, and is now claimed by a white man. This, I thinlc, 

is a piece of great injusrices to these Indians, as I have frequently represented to the Department, 

and had hoped that long ere this they would have been righted. 

Report of the Indian Agent, Neah Bay Agency to the Commissioner of Indian Affairs, August 15, 1887, 

reprinted in the Annual Report of the Commissioner of Indian Affairs for 1887, at 209. 

The Quillehutes are still without a reservation, about which I have frequently written, and hope 

they may have one so soon as the Pullen land case is decided. 

Report of the Indian Agent, Neah Bay Agency to the Commissioner of Indian Affairs, August 11, 1888, 

reprinted in the Annual Report of the Commissioner of Indian Affairs for 1888, at 225. 

Finally, in 1889 the United States acquiesced in the Quileute Tribe's desire to have its own separate 

reservation in the Quileute's ancestral homeland. United States y Moore, 62 F.Supp. 660, 668-69 

(W.D. Wash. 1945), JffJl., 157 F.2d 760, 764 (9th Cir. 1946). In estahlishing this separate reservation 

for the use of the Quileutes who refused to relocate to the Quinault Reservation the United States relied 

upon the removal provision of Article 6 of the Treaty with the Quinault. 

Article 6 of the Treaty as set forth in Appendix M provides in pertinent part: 

The President may hereafter, when in his opinion the interests of the Territory shall require, and 

the welfare of the said Indians be promoted by it, remove them from said reservation or 

reservations to such other suitable place or places within the said Territory as he may deem fit. 

Similarly, the Hob Tribe declined to relocate to the Quinault Reservatinn. And, in 1893 the 

United States set aside a reservation for the Hob Indians who refused to relocate to the Quinault 

Reservation. Executive Order of September 11, 1893 estahlishing the Hoh Reservatinn for "Hoh Indians 

not now residing on any Indian reservation". I Kappler, Indian Affairs, 916 (1904). Although the 

Indian groups for whom the Chehalis, Shoalwater, Quileute, and Hoh Reservatinns were estahlished 

refused to relocate to the Quinault Reservation as political entities, many individuals from these groups 

did relocate to the Quinault Reservation. See e.g., Oujnault Tnl!e y Unite!! States, 7 llld. Cl Com. 1, 

20 (1958). Many of these Indians were assimilated into the Quinault community and are today known 

as Quinaults. See United States y Washington, 384 F. Supp. 312, 374 (W.D. Wash. 1974). Today the 

membership of the Quinault Indian Nation includes many individuals of Chinook, Chehalis, Cowlitz, 

Quileute, and Hoh ancestry, as well as Queets and Quinault. 

ALLOTMENT OF THE QUINAULT RFSERVATION 

Much of the controversy over the legitimacy of the Quinault Indian Nation as the tribal 

government for the Quinault Reservation can be traced to the policy of allotmem. Under the terms of 

the General Allotment Act of 1887, the Quinault Reservation was divided into allotments of 

approximately 80 acres in anticipation that the individuals who received this land would relocate, make 

• Pag•12-
178 

their homes, and become a pan of the reservation community. 

In 1905 the United States began to allot the Quinault Reservation under the terms of the General 

Allotment Act of 1887, 24 Stat. 388, which provided for the allotment of land suitable for agric:ulture: 

upon which Indians were to locate and malce their homes. Both Artide 6 of the Treaty with the Quinault, 

12 Stat. 971, and the General Allotment Act, 24 Stat. 388, required reservation residence as a. 

prerequisite to allotment. 

On many reservations special acts were passed that provided for the disposition of "surplus' 

reservation lands left after allotment of all eligible reservation Indians. See e.g., 36 Stat. 455; 35 Stat. 

458; 35 Stat. 448, 457. In 1911 , Congress passed a special Quinault Allotment Act, 36 Stat. 1345. 

This Act provided that after the allotment of lands to Indians residing on the Reservation, 

"surplus" Quinault Reservation lands were to be allotted 'to all members of the Hoh, Quileute, Ozeae 

and other tribes • who • elect to talce allotments on the Quinault Reservation rather than on the reservation, 

set aside for these tribes. • .!d. 

In 1905, allotment of the Quinault Reservation commenced. In June of that year the allottin11 

agent was instructed to talce applications for allotment from Quinaults, Quileutes, Queers, Hohs, and 

members of those tribes which the Central Office bad been advised were occupying the Reservation. In 

October the allotment instructions were amended and clarified to restrict allotment at Quinault to Indians 

having no rights in land on another reservation. Later instructions in 1906, specifically provide that 

Quileute and Hob Indians located on the Quil eute and Hob Reservation are not entitled to an allotment 

at Quinault. 

Shoalwater Bay Indians were allotted at Quinault based on the erroneous impression that the:1 

were resident on the Quinault Reservation. Indians of the Chehalis, Hob, and Quileute Reservations, 

however, were not allotted. Legislation was introduced in 1910 (SB 5269) to authorize allotment of 

surplus land of the Quinault Reservation remaining after allotment of the Indian residena to Quileute., 

Hob, and Ozette Indians desiring allotments at Quinault, rather than at the Reservations set aside for their 

own tribes. 

Subsequently, the Secretary of the Interior proposed an amendment to this leplation to also 

authorize allotments of surplus Quinault Reservation land to members of "other tribes of Indians in 

Washington, who are affiliated with the Quinaeilt and Quileute Tribes in the treaty of July first, eighteen 

hundred and fifty-five, and January twenty-third, eighteen hundred and fifty-six .... • The Secretary of 

the Interior advised the Chairman of the House Committee on Indian Affain that the amendment was 

designed principally to provide for allotment of certain una! lotted Clallam and Squaxin Island Indians who 

the Secretary stltecl •were at one time affiliated with the Indians on the Quinault Reservation. • 

At the time both the Squaxin and Clallam had been lobbying for land. The Squaxin and Clali31n 

Tribes are respectively parties to the Treaties of Medicine Creek and Point No Point. The Secretary's 

description of the Squaxin and Clallam as "affiliated" with the Indians of the Quinault Reservation and 

his use of the term in the proposed amendment to the allotment bill is not readily explained. 

SB 5269 was enacted with the amendment proposed by the Secretary of the Interior added in the 

House. Act of March 4, 1911, 36 Stat. 1345. The Act provides in its entirety: 

- Pagt JJ • 
179 

Be it enaqed by the Seaare and House of Rmmentatfyy of thl Unjud StatU of Amqt'q In 

Cgngreu qm:mbkd, That thl Secretary of thl Interior be, and hi Is twrtby, Qlll/rortud and 

directed to make allotments on thl Quinaielt Reservation. Washington. under W provisions of 

the allotment laws of the United States, to all members of thl Hoh, Quilelllt, Outtt or oWr 

tribes of Indians in Washington, who are affiliated with W Quinaielt and Quiltuu tribes In W 

trealy of July first, eighteen hundred and fifty-jive, and llliUiiJI'Y twtnty-third, eightttn Jwndred 

and fifty-six, and who may elect to take allotments on W Quinaielt Reservation rat.Vr than on 

the reservations set aside for these tribes, ~ That thl allotments authorized hlreln shall 

be made from the surplus lands on thl Quinalelt Reservation after thl allotments to the Indians 

thereon hove been completed. 

Act of March 4, 1911, 36 Stat. 1345. 

The intent of the Act was to authorize Indians whose reservation contained insufficient land for 

allotment to take allotments from the "surplus land" at Quinault that remained after the allotment of 

Reservation residents. The legislative history and correspondence relating to the Act of March 4, 1911, 

do not discuss the Shoal water Bay or Chehalis Tribes. 

In 1931, the Supreme Court construed the Act of March 4, 1911, to permit the allotment of 

Chehalis, Chinook, and Cowlitz Indians from the surplus lands of the Quinault Reservation, if they were 

without allotment elsewhere. Halbert v United States 283 U.S. 753, 760 (1931). Only those who did 

not already have land at another reservation such as Chehalis received allotments at Quinault. 

The~ Court did not have before it the legislative history of the Act of March 4, 1911, nor 

did it have available to it the extensive documentary record developed in more recent litiption in which 

the United States District Court rejected claims by the Chehalis and Shoalwater Bay Tribes that they are 

entitled to share rights reserved by the Quinaults under the Treaty with the Quinault. 

Nonetheless the Quinault Indian Nation has accommodated the fact that descendants of tribal 

groups other than Quinault have individual properry interests in Quinault Reservation land by adopting 

enrollment provisions that allow individuals of Chehalis, Chinook, Cowlitx, Quilente and Hoh ancestry 

to enroll in the Nation on exactly the same basis, and with the same rights, as persons of Quinault and 

Queets ancestry. This enrollment policy insures that Quinault Indian Nation truly represents the Indians 

of the Quinault Reservation without regard to original tribal affiliation. 

• Pagt U· 
180 

U.S. Department of the Interior 

Offie8 of Inspector General 

AUDIT REPORT 

SELECTED BUREAU OF INDIAN AFFAIRS 

FORESTRY PROGRAM ACTIVITIES 

RELATED TO THE QUINAULT RESERVATION 

REPORT NO. 91-1-1336 

SEPTEMBER 1991 

This report may not be disclosed to anyone other than 

the auditee exc:ept by the Assistant insp~tor General 

for Administration, Offic:e of Inspector General. 

U.S. Department of the Interior. 

Washington D.C. 20240 
• 

181 

United States Department of the Interior 

OFFICE OF INSPECTOR GE.'IERAL 

Washington. D.C. 20240 

SEP 2 7 1991 

MEMORANDUM 

TO: The Secretary 

FROM: Inspector General 

SUBJECf SUMMARY: Final Audit Repon for Your Information • "Selected 

Bureau of Indian Affairs Forestry Program Activities 

Re lated to the Quinault Reservation" 

DISCUSSION: The subject review was initiated as a result of allegations made by 

allottees of the Quinault Reservation. The objective of this review was to evaluate 

allegations related to (1) the timber bidding process, (2) timber sales practices, 

(3) timber rights-of-way, (~) road use fees, (5) fractional land ownerships, and 

(6) accountability of timber harvested from land that was previously owned by the 

U.S. Forest Service. 

We concluded that the allegations were not substantiated except for the allegation 

related to road use fees. In that instance, the Bureau of Indian Affairs did not 

collect or distribute about S26,500 in road use fees applicable to timber harvested 

on the Quinault Reservation. The purchaser of timber is to pay the Bureau a fee 

for hauling timber on reservation roads prior to hauling. According to Bureau 

forestry personnel, road use fees were not collected and distributed because the 

potential for the fees not being collected was low and because the documentation 

for distributing road use fees was not prepared. 

Attachment 

cc: Solicitor 

Assistant Secretary for Indian Affairs 

Assistant Secretary for Policy, Management and Budget 

Deputy Commissioner of Indian Affairs 

Director, Office of Public Affairs 

Prepared by: Harold Bloom 

Extension: 208-4252 
182 

United States Department of the Interior 

OFFICE OF INSPECfOR GENERAL 

Washington, DC. 202~0 

September 23, 1991 

MEMORANDUM AUDIT REPORT 

To: Assistant Secretary for Indian Affairs 

From: Assistant Inspector General for Audits 

Subject: Final Audit Report on Selected Bureau of Indian Affairs Forestry Program 

Activities Related to the Quinault Reservation (No. 91-I-1336) 

INTRODUCTION 

This report presents the results of our review of selected Bureau of Indian Affairs 

forestry activities related to the Quinault Reservation. The review was initiated as 

a result of allegations made by individual Indian landowners (allottees) of the 

Quinault Reservation. This report is the third of si.x reports that we have issued or 

that we plan to issue concerning the Bureau's forestry operations. The sixth report 

will summarize the audit results of the prior five reports. The objective of this 

review was to determine whether the allottees' allegations were valid concerning (1) 

the timber bidding process, (2) timber sales practices, (3) timber rights-of-way, 

(4) road use fees, (5) fractional land ownerships, and (6) accountability of timber 

harvested from land that was previously owned by the U.S. Forest Service. We 

concluded that the allegations by the allottees were not valid except for deficiencies 

related to road use fee collections and distributions (the allegations and our audit 

conclusions are summarized in Appendix 1). We found that about $26,500 in road 

use fees applicable to timber harvested on the Quinault Reservation was not 

collected ($13,300) or distributed (S13,200) by the Olympic Peninsula Agency. 

BACKGROUND 

The Olympic Peninsula Agency Office, which is located in Hoquiam, Washington, 

and is under the direction of the Portland Area Office of the Bureau of Indian 

Affairs, administers timberlands on 10 reservations in western Washington. In fiscal 

year 1989, the Agency managed 154,000 acres of commercial timberland, including 

126,000 acres on the Quinault Reservation. Fiscal year 1989 funding of 

approximately $2.2 million was used to operate the forestry program of the Quinault 

Reservation and support about 40 full-time equivalent positions. The Quinault 

Reservation generated about $5 million in timber sales revenues in fiscal year 1989. 

Approximately 80 percent of the commercial timberland on the Quinault 

Reservation is owned by allottees. 
183 

The principal objectives of the Bureau's forestry program are to maintain, protect, 

enhance, and develop Indian forest resources through the application of sound 

forest management principles. Forests are managed in accordance with the principle 

of sustained yield. Sustained yield is the amount of forest products that a forest can 

produce continuously at a given intensity of managemenL Commercial forestry 

program activities include timber sales, forest development (reforestation and timber 

stand 'improvements), forest management inventory and plans, forest protection, 

forest products marketing and assistance, and forest program management 

SCOPE OF AUDIT 

This review was made because of allegations by allottees of the Quinault 

Reservation regarding ineffective management of the Bureau's forestry program 

activities related to the Quinault Reservation. We examined forestry and realty 

records, interviewed Agency personnel and allottees, and visited timber sales sites. 

Audit work was performed from March through May 1991. This performance 

review was made, as applicable, in accordance with the "Government Auditing 

Standards," issued by the Comptroller General of the United States. Accordingly, 

our review included such tests of records and other auditing procedures that were 

considered necessary under the circumstances. 

As part of our review, we evaluated the system of internal controls to the extent that 

we considered necessary. The internal control weaknesses identified are discussed 

in the Results of Audit section of this report If implemented, the recommendations 

should improve the internal controls. 

We reviewed the Department of the Interior Fiscal Year 1989 Federal Managers' 

Financial Integrity Act Annual Statement and Report to determine whether any 

reported weaknesses were within the objective and scope of our 'review. We 

determined that none of the reported weaknesses were directly · related to the 

objective and scope of this review. 

PRIOR AUDIT COVERAGE 

The Office of Inspector General has issued one audit report in the past 5 years 

related to the forestry program on the Quinault Reservation. The report "Selected 

Forestry Operations of the Portland Area Office, Bureau of Indian Affairs" (No. 91-

I-603), issued in March 1991, concluded that the Bureau had not collected sufficient 

allowable forest management deductions related to timber sales for the Quinault 

Reservation. The report recommended that the Assistant Secretary for Indian 

Affairs, with Tnbal concurrence, increase the forest management deductions for the 

Quinault Reservation to 10 percent of gross proceeds from timber sales. At the 

time of our review, the Bureau was still conferring with the Tribe about increasing 

forest management deductions. 

2 
184 

The General Accounting Office bas not issued any audit reports in the past 5 years 

that pertain to the forestry program of the Quinault Resetvation. 

RESULTS OF AUDIT 

The Olympic Peninsula Agency did not assess and collect or distribute road use fees 

for all timber sales that occurred in fiscal years 1990 and 1991. Timber sales 

contracts and agreements specify the requirements for collecting and distributing 

road use fees. The Agency, however, did not appropriately collect and distribute 

road use fees because Agency officials said that they were a low collection risk and 

because the documentation for distnbuting road use fees was not prepared. As a 

result, road use fees of about $26,500 were not assessed and collected ($13,300) or 

distributed ($13,200) to allottees. 

Road use fees applicable to timber sales for the Quinault Reservation were not 

assessed and collected from purchasers of timber or distnbuted to land allotment 

owners. We found that the Agency did not assess and collect road use fees 

applicable to two timber sales that occurred in November 1989 (Federal Land Bank 

Sale) and November 1990 (Rayonier Timberlands Operating Company Sale--Parcel 

1) . In addition, the Agency bad not distributed road use fees that were collected 

for 26 other timber sales as early as November 1989. 

Timber sale contracts and agreements specify that the purchaser of timber is to pay 

the Bureau of Indian Affairs a fee for hauling timber on reservation roads prior to 

hauling. The contracts also specify that these road use fees are payable to allotment 

owners as soon as they are received by the Bureau. 

Road use fees were not collected because Agency forestry personnel said that they 

considered road use fees for these two timber sales a low risk for uncollectibility. 

i'Jso, road use fees that had been collected were not distributed to allotment owners 

because the Agency's Branch of Forestry had not prepared the documentation that 

specified the allottees and the amounts of road use fees each allottee was to receive. 

Consequently, road use fees of about $26,500 were not assessed and collected 

($13,300) or distributed ($13,200) to allottees by the Agency. 

Recommendations 

We recommend that the Deputy Commissioner of Indian Affairs direct the Olympic 

Peninsula Agency to: 

1. Assess and collect the road use fees for the Federal Land Bank Sale and 

the Rayonier Timberlands Operating Company Sale--Parcel 1. 

3 
185 

2. Prepare the necessary road use documentation for all the undistributed 

road use fees and distnbute these fees and ensure that future fees are distnbuted 

in a timely manner. 

Bureau of Indian Affairs Response 

The August 29, 1991, response from the Acting Deputy Commissioner of Indian 

Affairs (Appendix 2) stated that both recommendations have been implemented by 

the Bureau. 

Office oC Inspector General Comments 

The Bureau's response was sufficient for us to consider both recommendations 

resolved and implemented (see Appendix 3). 

Since all of the recommendations are implemented, no further response to the 

report is necessary. 

The legislation, as amended, creating the Office of Inspector General requires 

semiannual reporting to the Congress on all audit reports issued, actions taken to 

implement audit recommendations, and identification of each significant 

recommendation on which corrective action has not been implemented. 

Harold Bloom 

4 
186 

APPENDIX 1 

Page l of 4 

SUMMARY OF ALLOTIEES' ALLEGATIONS 

AND OFFICE OF INSPECfOR GENERAL AUDIT CONCLUSIONS 

ALLEGATION 

Timber Bidding Process 

The Quinault Tribe's timber enterprise 

(Quinault Land and Timber 

Enterprise) received all of the timber 

contracts on the Quinault Reservation 

by matching the highest bid amount. 

Since the Enterprise was allowed to 

meet the highest bid and receive 

timber contract awards, other loggers 

did not bid on timber sales contracts, 

which resulted in lower timber sales 

amounts. 

5 

CONCLUSION 

Between August 1, 1988, and March 5, 

1991, the Enterprise was awarded 10 

to 25 timber sales contracts because 

the Enterprise matched the highest bid 

amount. This practice was approved 

by the Bureau on October 18, 1988, 

and was in accordance with the Code 

of Federal Regulation (25 CFR 163.8). 

The Enterprise also received 7 of the 

25 contracts during this period 

because it submitted the highest bid. 

For Quinault Reservation timber sales 

contracts awarded in fiscal years 1985 

throu.;h 1988, there was an average of 

2.1 bids that averaged 22.8 percent 

above the Bureau's minimum bid 

amount. However, after the Enterprise 

began matching the highest bid, the 

average number of bids per timber 

sale increased to 2.4, and the average 

bid amount increased to 25 .1 percent 

above the Bureau's minimum bid 

amount for the period October 13, 

1988, through March 5, 1991. Also, 

two logging companies bid on 

Quinault Reservation timber contracts 

after they stated in letters dated 

September 1990 that they would no 

longer bid on Quinault contracts 

because of the Enterprise's practice of 

meeting the high bid to receive the 

contract. 
Timber Sales Practices 

Allotment owners were not paid for 

timber harvested based on amounts of 

timber actually scaled (measured). 

The Quinault Land and Timber 

Enterprise subcontracted all of its 

timber cutting to the Quinault Logging 

Corporation, which is owned by a nonIndian. 

The Bureau did not state volumes and 

values of timber to be sold on the 

power-of-attorney form when the 

forms were submitted to allotment 

owners for signature. 

The Enterprise was not required to 

provide fire boundaries around timber 

cutting areas. 

187 

6 

APPENDIX 1 

Page 2 of 4 

Timber on allotments was sold on a 

lump-sum basis, which is an acceptable 

industry practice. Allotment owners 

benefit from lump-sum sales because 

the owners receive payment for timber 

when it is sold rather than when it is 

removed from the allotment Also, 

the buyers pay for the timber whether 

or not it is harvested or removed from 

the allotment 

The Enterprise and the Quinault 

Logging Corporation formed a jointventure partuership to harvest timber. 

The Quinault Logging Corporation 

hired Indian and non-Indian loggers. 

The volumes and values of timber 

were not included on these forms 

because the Bureau needed to know 

whetlJ.er the majority of the allotment 

owners desired to sell the timber on 

their allotments before· the timber 

sales packages were prepared. It 

would be inefficient to prepare the 

sales packages and find out that 

allottees did not consent to the sales. 

According to Agency forestry 

personnel, a!lottees have the option of 

withdrawing their allotments from 

sales if the Bureau's estimated timber 

values do not meet their expectations. 

The Enterprise and all other timber 

purchasers were subject to the same 

requirements for fire boundaries. 
Timber Rights-of-Wav 

The Quinault Land and Timber 

Enterprise cut 75-foot rights-of-way, 

while other contractors cut only 25-

foot rights-of-way. 

The Enterprise kept money it received 

from the sale of timber that was 

removed from rights-of-way on 

allotments. 

The Enterprise left timber access 

roads in poor condition after timber 

harvests were completed, while other 

loggers were required to maintain 

access roads in good condition. 

Road Use Fees 

Road use fees on some timber sales 

may not have been paid to allotment 

owners. 

Fractional Land Ownership 

Fractional ownership in allotments was 

lost to the Quinault Tribe. 

Accountability of Timber Harvested 

From L3nd Previously Owned bv the 

U.S. Forest Service (North Boundarv 

Area) 

The internal controls over timber 

harvested from the North Boundary 

188 

7 

APPENDIX 1 

Page 3 of 4 

The Bureau required 70-foot rights-ofway for roads that bordered ~.mber 

and 30-foot rights-of-way for roads 

that bordered brush. These standards 

for rights-of-way applied to the 

Enterprise and to all other 

contractors. 

The Bureau properly collected the 

money for timber removed from 

rights-of-way by the Enterprise and 

distributed the money to the allottees. 

We did not identify any timber access 

roads that the Enterprise left in poor 

condition. 

The Bureau did not collect and/or 

distnbu te about $26,500 in road use 

fees to allotment owners. See the 

Results of Audit section of this report 

for further details. 

The Bureau properly transferred 

fractional ownership in allotments in 

accordance with estate probate orders 

that were prepared by administrative 

law judges. 

Timber harvested from the North 

Boundary Area was marked with 
Area may not have been adequate to 

prevent the timber from being 

exported. 

87-276 0 - 95 - 7 

189 

8 

APPENDIX 1 

Page 4 of 4 

yellow paint and stored in piles 

separate from exportable timber. 

Also, the Bureau and other parties 

periodically monitored the storage of 

North Boundary Area timber to 

prevent export. 
IJIIIUPt:r~ro: 

Forestry 

Code 230 

190 

United States Department of the Interior 

BUREAU OF INDIAN AFFAIRS 

WASHINGTON, D.C. 20245 

AUG 2 9 1991 

APPENDIX Z 

Page l of 4 

Memorandum 

To: 

Subject: 

Assistant to the !nspec:t.or General. Audits n 

Deputy Commissioner of Indian Affairs rflz.~..d.Yf/) @z-;__j:fZResponse to the Draft Audit Report on Selected Bureau of l:ldian 

Affairs Forestry Program Activities Related to the Quinault 

Reservation (Assignment No. C-IA-BIA-16-90E) 

'!'hank you for the opportunity to respond to the subject report . On July 19, 

1991, the Portland Area Office prepared a response to the Regional Audit 

Manager regarding the issues raised. Although the ~nemoraudum vas vritten 

prior to the release of t!le draft report, it vas based u.pou a prelimi:l.ary 

draft of the report submitted by the Regional Audit !!anager on June 21 , 

1991, which contained the same issues and recommendations . 

Our Central Office forest:y staff has been in contact with the Area Office 

and has been assured that the July 19, 1991, response is the Portland Area ' s 

final response to the draft report. 'Je have discussed the Area's response 

Iilith them and concur vith ~heir findings and comments. It bas therefore 

been made a.n attachment to t.his !Demorandum and will ser".re as our official 

response to the draft audit report. 

Any questions on this response should be directed to Mr. James Pace, Chief, 

Branch of Timber Sales Management at (202)208-6067. 

Attachment 

9 

192 

APPENDIX 2 

Page 3 of 4 

As indicated to Messrs. Costar and Mi c!l.aal at t:."l.e mee<:ing, 

corr•c-cive a.c.o:ions have already 'cean taken by t!":.e 

superintendent, Olympic Peninsula Agency, in reqard to t..':e t·•o recommendations per-:aininq to road usa faa collactiot".s and 

dist:::-i.butions. A copy of a memorandW!I !::-om t.."l.e supar:.::ltar.dent 

to t.."l.is office concerning this matter _s atta~"l.ad. 

We appreciate the opportunity to meet wit.."l. your sta!! and 

discuss the audit report and the highly professional manr.er in 

which your parscnr.al have conducted their audit act:.vit:.es of 

the torestry program in the Portland Area. 

Attachment 

11 
,..,, 

193 

A?PENDIX 2 

Page 4 of 4 

Office cf Inscec\.or G~~ r!l !f~ Auc~:. ~ace~: :n Se uc::a~ Fc:-as-:.7 Qu1n au l -: /x..,. rte.sar &t ~n (Assi;nmen':. No . C-!A-31~-·:-90 ;} 

ihis memorandt;~~~ acdrassu tht Rocomnendlit1cns pcrt1en of the -subject recort . 

ihe rav1e11 covered s:x sucjec;:, araas. 0( the six, the ).udit Repcr: states 

"that tne a11a;at 1ons by the a l lottfes 11ere ne;:, va li d exea~t for de~ ane u 

ralated to road use faa co ll ections and d1st~1but cns" , 

ihe da\'1c1enc1es 1dent1f1ac c:ncarned t11o areas of n:ad use fees: 

(1) Co11eet1on of road use feel and (2) d1str1but1on to al lottaes of road use 

fees. Co11ect1on of road o.:n fees an forest roads by c:mnere1a1 o;:eratcra 1s 

based en vo1Ullle and rcuta of haul of t1mbar and gravel. Of the ·tvo aalas 

1dent1fi ed, the Federal Land Bank (F~Bl ~urchaae by the Qu 1nau1t Indian Nation 

is.-moro c::rnplex duo to the number of individual allot.'l!onta crossed during 

haul. 

The audit states ~at Forestry plricnna l considerod geymtOnt tc 011ners a "1C"o< 

prior.i ty". iho agency omc:l'las jzu payft!lnts tc a.11 O>tners. ln Fiscal ·Year 

1990, t he agency paid out $8,727,306 to o11ners on timber aa1es. cucjng. thi•-

eame perlod, aooroximata1y $7,500 wore cclle~ed for road use foes. Payments 

due individuals 11era vory small in value. For examola , tho Federal Land Sank 

(FLBl Dayment, 11hich is ~y~1ea1 1n scoDe, shc:wa tl'le fo11o .. i ng; 

(1) 183 A11otmenta .C:roasad (1,<~8e 1nd1v1cua1 C~~Ttars l 

(2.) 17 Parc•1t of FU hetrled (&3 HMBF} 

(3 ) $ s.~e Average payment aw•d each awner 

( 4) $7, 9e5. 71 ~ota 1 payment 

The agency reco;nizad the payment problltll prior to the audit, Agency a.ct1on 

to correct th1$ problem was to raorvaniza a separate accounting sec:t.ion and h1 ra an individual to addra~ road payments, This- sec': ion c:~ntinues to strive 

to overcomo the ever-inc:raasing d1U1cultios o1 making paymt~nU thr:ough tho 

IRMS . I 11ould epprec:iate recognition of thia action in t~ !a r:;>::,-<;. 

The tudit rapo~ stata& that timbor selo ccntra~s require payment prior to 

hau1. Thia aale is different· than gut oDarationa. The RiOC Timber Sale 

Contrae! is adl!lin1atered by tho Quinault Tribe under self-governance. 'llh11t 

the avency has a role in co11e~iona , the Tribel Ac!miniatrator 1s the 

rasgonsi blt entity to ensure contract comclianca. 

In tho Federal Land Sank ~urc:~aae, tne SI~ was raaconaible fer cc 11 oct1cna. our role in this complex sale bebeer, tl'.e Quinault Tribe and a private logging 

i rm on fee land nu bun emcnas1Zed and updated. 

Full paymont fer bot~ sales has beon made I;/ /' _ 

7!-/~~~ jU . ~;;.:~:::.~ ........... .. 12 :.;:.: ..... UC:~!I OT-If t 
194 

APPENDIX 3 

STATUS OF AUDIT REPORT RECOMMENDATIONS 

Finding/Recommendation 

Reference 

1 and 2 Implemented 

13 

Action Required 

None 
195 

Toll Fr~ Number 

1-800-424-5081 

FTS Number 

8-268-3424 

HOTLINE 

P.O. Box 1593 

Arlington, Vrrginia 22210 
196 

1496 928 FEDERAL REPORTER, 2d !ERJES 

gar:>. Sarafite, 376 U.S. 575, 589. 84 S.Ct. AFFIRMED IN PART, REVERSED IN 

841, 849, 11 L.Ed.2.i 921 (l96t). PART, AND REM ANOF.n. 

The district court found that Creech did 

not "advilse the court thAt notification of 

the parties on May 22, 1988, u to the 

natu:-e and scope of the May 29th hearing 

would not provide counael with adequate 

time to prepare for that hearing." Moreover. the district court found th:1t Creech'• 

own delinquency culminated in the limited 

~riod of time bPtWP'-n the daa.dllna tor 

briefing and the May 29th hearing date. 

Further, Creeell'a couna•l admitted u 

much at the May 29th hearing, atating "I 

frankly am not prtpared to present medical 

evidence today and ... that was my confu· 

sion llml it waa &II my {ault ... ," 

Creeeh was ll'iven one week'a notice of 

the nature 11nd scope of the evidentiary 

hllnrin~r . In conjunction wilh Creech'• delinquency and the amount of time for 

Cre•ch to [lrPpal'f! Ilia case between tht 

filin~t of the habeas petition on January 29 

11nd tllt Mny 2!l henring (nnt tn ml!nlion th• 

four years between Creech's initial aenteac:-

ing on January 25, 1982 and the filinr nl 

hi. petition), we eonelude that the cliatriet 

court did r\Ot abu1e ita diserttlon in d"nying 

Creech a continuance. 

X 

We AFFIRM the diltrict eourt on 

Creeeh's claima of ine!!ective uailtance ot 

counsel, ineompetence to plead guilty, in· 

voluntary and unknowing gui!ty plea, deni· 

al ol !:is right to confrontation, and need 

Cor an evidentiary hearinr. We alao AF· 

FIRM the district eourt'a conclusion that 

Creech had no right to a jury trinl on the 

existence o! aggrava.tin& factors and that 

he was not sentenced punuar.t to a manda· 

tory ceath penalty rormula. We REVERSE And direct the diatrict court to 

grant the petition on Creech's claim that 

the sUite trial court relied on improper ag· 

gravat1ng circumat.ancea, and that prohibiting him from introducing evid~nce o! miti· 

gating circumstancu at his resentencin& 

hearing viohltes the Con&titutJOn. 

CONFEDERATED TRIBES OF the CH&. 

HALlS INDIAN RESERVAT!Ol'f, 

Shoalwater Bay Indian Tribe, Chinook 

lndlaa Tribe, Cowlitz Indian Tribe, LIJ. 

llan Payne Penn Pullen, Philip Ward, 

Leo Willlam1, Edward E. Claplanhoo, 

Glenn F. Penn, lola Mary Penn 

William•. Helen Sandera, Leda 

Anderaon, and Gloria Brown, Plain· 

tifl' ... Apptllanta, 

v. 

Manuel Lt:JAN, United !Statu !ec:nr.ar7 

or the lnttrinr, Jome1 Durnley, t:nlted 

. Statel Secrctor7 or Tranaportatlon, De· 

fendant...Appellees. 

No. 9o-35t92. 

United St.Atea Cour' of Appeala, 

Ninth Circuit 

Arrued and Submitted O~t 5, 1990. 

D~id•d April 3, 19111 . 

AI Amended May 23, 1991. 

Aa Amended on Denial of Reheartnr 

and Rehearing En Bane June 13, 1991. 

Indian tr.bee a.ncl individual Indiana 

brought suit neking deel&ratory and injunct.lve relief enjoinina; S.Cretarr of Interi· 

or from dealing with the Quinault Tribe u 

10lc goY•J"nlnl body of a reurvatlon. Tile 

Unite<i Statet Di1tli<:t Court tor the Wut· 

ern Diatrict of Wuhinpn, Barb<U-S J. 

Rothstein, Chief Judge, 129 F.R.D. 171, 

granted G<!vernment's motion to diJmiu, 

and plaintiffs appealed. The Court of At>-

peala, Skopil, Circuit Judgo, ~eld that tuit 

Wll properly dismissed for failure to name 

the Q11inau!t S'ation as a part)l. 

Affirmed. 

O'Scannhlin, Clrc\!it Judge , issued a.n 

opinion concurrin~: In part and diuentmg In 

part. 
197 

CONFEDERATED TRJBES "· LUJAN 149'7 Clio M ftl P.U .. ,. (tlh Clr. I ttl) 

I. Federal Civil Procedure .,.208 Dennil J. Whittleaey & Joaeph S. Gerbaai 

In det.rmininr whether nonp1uty Ia of Collier, Shannun A Sc:ott, Wuhlnrton 

"indil~nublt," diltriet c:ourt muet flnt D.C., and Jill A. S&Jmi, Seattle, Wuh., to; 

ll•temnrwt If abaen\ pertr ~ "nece"*I'J'" to plaindl!s·appallantl. 

aetioni then, if that party CAnnot bt joined, ~111't mUit de\umlne whether party i1 "In• 

dltpenaable" 10 that in equity and rood ~on1eience aotlon ahould be cliami .. ed. 

Fed.Rulea Civ Pro~ Rule 1!1, 28 U.S.C.A. 

2. FtderaJ Courtt .-us 

Diatriet court's decision to dilmiaa a,e. 

tion bued on absence of indlapensable party ia reviewed for abuu of dilcretinn. 

Fed.Rules Civ.Proc.Rule 19, 28 U.S.C.A. 

I. Federal Clvll Procedurt s-xo:t 

Under Federal Rule of Civil Procedure 

19 pc~nlnr to "indiapenaable" partlea, 

there 11 no preciae formula for detennininr 

whether particular nonparty it neceaeary to 

action; determination Ia heully influeneed 

by facta and circumataneea of each cue. 

Fed.Rulfa Clv.Proe.Rult 19(a), 28 U.S.C.A. 

4. Federal Cvll Procedure .. 203 

U11der Federal R11lt of Civil rrocedun 

19 pertaininr to "indiapen.able'' partite, in 

dtttmininr if mbaen\ party il nec ... &l')', 

court muat eonaider If complete relief is 

po1eible amona thOH partie• already in 

action, and muat then c:o111ider whether ab- .. nt party hu lepll)' protected intlrut in 

outl:ome ot action. Fed.Rulea Clv.Proc. 

ltule 19(a), 21 U.S.C.A. 

a. lndlalll •t7(5) 

. Quinault Indian Nation wu indiapenaable party in action brourht by varloue 

rroupa of. fndW. aplnet federal officlall 

cllallenrln1 United Stat11' continulnf rte· 

otnition of Quinault Indian Nation u aole 

aoveminr authority to Quinault Indian 

RllerYation, aa Nation had lepllnteNt In 

IIUption and complete relief could not be 

afforded plalntiffa without Nation: thua, 

blau11 Nation did not waive itt Immunity 

from nonconaenaual actlone in federal 

c:ourt, and beeauae judrment In favor of 

plaintiff& would clearly prejudice Nation on 

rround that judrment would pretumably 

al"r Nation'e exiltln1 authority to CoYern 

l'lllrvation, dlamiual waa nqlllrtd. Fed. Rut" Clv.Proc.Rule 19(a, b), 28 U.S.C.A. 

Richard B. Stewart, David C. Shllton, 

Thomton Withera Field, and Jacqu11 B. 

Gelin, . O.pt. of Justice, WNhin(ton, 

D.C., for de!enda.nta·appellees. 

Richard Reich, Taholah, Waah., tor ami· 

cus euriae Quinr.ult Indian Nation. 

Appeal from the United States Diattict 

Court for the W11tem District of Wuhini• 

ton. 

Bet"" SKOPIL, O'SCANNLAIN and 

FERNANDEZ, Circuit Judrea. 

SKOPIL. Clreuit Judge: 

We are aaked on thia appeal to determine 

It the dlatriot eourt proptrl)' dlemi111d an 

action brou~rht by varlou• groupa of lndi- 1111 aplnat ledei'GI ottlefale. Thea• ln\li1111 chal!enre the United Statea' eontinulnr re~oiJIItion of the Quinault Indian NeUon 

u tilt aolt rovemin( authority for the 

Quinault Indian .Re••rvation. The dl1\ri&:& 

court dl1mi11ed the ~etlon atttr concludinr 

that tha Quinault Nation ie an indl•pene• 

able party that eannot be joined In the 

aetlon: 1~ F.R.D. 171. We aftim1. 

FACI'S .AND PRIOR PROCEEDINGS 

Thla controYeny il root.d in the treaty 

nerotfationa conducted at the Cbthalil Jtly. 

tr Trta~ Council in 18155. Thtre, the United Statu, repreltnted by Oovemor laue 

St.enna, eourht to place all coaatal aa.d 

interior Indian tribes of the Olympic Ptninaula ont.O a amrte reservation. All but two 

tribla refuaed to accept the United States' 

propoaal. The Quinault and the Qulllehute 

limed the Treaty of Olympia. A reserva- tion wu rscablllhed under the term• of the 

truty. 

The treaty reaervation prcved to be inad· 

equate for the needs of the Quinault anti 

QuiUehute Tribu. AI a result, Prealdtnt 
198 

1498 928 FEDERAL REPORTER, 2d SERIES 

Gr&nt laaued the Executive Order of November i, 1873, eniJPginr the re•ePVatian 

and providlnr that it bt "for the uae of the 

Q11inault, Quillehute, Hoh, Q11it, and other 

tribes of fiah-eatin~r Indiana on the Pacific 

couL" Thua, by tnaty and tnl'utlve arder, variou1 tribes of tha Pacific cout be· 

came affiliated with the Quinault. S11 

WGhkiakum Bt~nd of Chirtook India"' v. Balema,., 1155 F.2d 178, 1'71-79 (9th Clr 

1981) (reviewlnr hiatory of the Quinault 

Indian Rcaervatlo11), 

Sever&l of that affiliated tribe• and indi· 

vidual tribal membln filad thi1 ac:tion ank· 

In( to enjoin federal off!ciala from "dtalinll' 

with the Quinault lndfan Nation ... " the 

goveming body of the Quinault Indian Rea· 

ervaaon." They alao ank judgmtmt "dcclarinr that the (plaintlfrt] have equal 

ri(ht.a in the Reaervatlon, are entitled to be 

treated equo.lly aa federally recognfted In· 

dian tribes by (detendanll], and that Lhe 

roverninr body of tht Rt~ervation must be 

con1titutecl eo aa to retl~ thoee rtghtl and 

tht right& of all fndian11 who art allotted &t 

the Keaerv&tion, including the Individual 

plaintiffl." 

The United Statn, on beh&lf of the red· er~l offici~!•, mpondc:d by mavin~r to dia· 

mila . the action on the iround that the 

diatrict ~ourt lacked authority to decide the 

controveny. Spteitically, tha United 

StatAl contended that (1) the district court 

lack.l subjtct matter jllrildiction; (2) the 

action ia barred by a atatute of Umitationa; 

(8) the action raltea a political quation not 

juatitlable by federal courts: (') plaintiffs 

failed to rxhauat adminiatrative l'lmediet: 

and (5) pllintlffa failed to joia an indiaprntable p&rty, the Quinault Indian Nation. 

The diatrict court rultd only an the lut 

rround. holdinC that "plallltlfCa have In· 

dttd failed to name an indiapeneable party 

in thil auit, and therefore the fO'Immtnt 

aiiCCeeda in ita motJon to hll\'t the cue 

dl•mia&ed." 

DISCUSSION 

( 1, 2) Whither & non·part)' ia "lndlapena&ble" ia determined by application of 

Federal Rule of Civil Procedure 19. Undtr 

that rule, tht dietrlct court muat !il'lt determine it an abaent p&rty le "ntetllary" 

to the aetion: then, if that l)ll'ty can11ot be 

joined, the court must determine whether 

the party ia "indlaDtnaable" 10 that In "equity and ~rood conacfence" the aetlon should 

ba diamiated. MoW /rtd(an Trib. v. y,.. 

itr, 910 F.2d 555, S68 (9th Clr.l990). The 

diatrict court'a decilion to dlamiu a.n action 

baaed on tht abaence of an indl1penuble 

party ia reviewed for &n abuae of dlamtlon. /rl. at 557. 

A. Neceaaary Party 

(S, 4] Tftut it nn JINC!iU formula for 

detArmlnin, whether a particular non-party 

Ia necttllry to an aetlon. Sur Rtlld4 11. 

Cou"'f of L01 Afllflll, 687 F.2d 299, 801 

(lith Clr.11182). "The tl<etarmination iJ 

heavily innutnced by the faeta and circum· 

at.anoee of each eJte." ltl.. N everth1.111u. 

Rule 1 O(a) contemplt.tAa a two-part analyeie 

l!l aiel in determininr If an ab .. nt party I• 

neceuary. First, the court muat contider 

if complete relief i1 po .. iblt emon1 thoet 

partie~ already in the action. Second, the 

court mult ooneidtr whtthtr the Ab~ent 

party hal a legally protlcted interest In the 

ou tcomt of the aetion. St~ Makoh /'1UiU!11 

rnb.. 910 F.2d at 558. 

(61 We conclude that th1 Quinault Na· 

tion II a 111ceuary party to the action for 

the reuona recoplud by the dlatrict 

court. Flret, •uccua by the plaintiffa ill 

thla action would not altord complete relief 

to them. Judpent a,ainat the ftderal 

ottlclala would not IHI bill<llnr an the Quinault Nation, which could continue to u- un aoverelrn pow•ra and m&naJtl!ltnt reapon~ibilltlll mer the ruei'Yition. Seeoad, 

the Quinault NaiJon undoubtedly hu 1 It· 

pi lnterut in the lltiptlon. Plainllff• 

uek a complt'- rejec:tion ot the Quinault 

Nation'• current 1t&tua aa the excluaivt 

JIIYtrnlnc authorlt:r of the rceervadon. 

Even partial IUCCtu by the pl&lntiffa could 

aubject both the Qt~lnault Natlo11 111d the 

federal pvernrnent to aubatantl&l rille of 

multJpi. or lnconalttont lepl obllaationa. 

Thua, tha dllttict court proptriJ conclud-

•d thr£ "[t)hl Tribe ia m01t certainly 1 

party •hoae lntereata art afftcttd, and in 

when abaen~:• ~:otnpl•t• rel!.f may no* be 
199 

CONFEDERATED TRI818 y, LUJAN c:n. .... P.J~ a ... ltdiCir. 1"1) 

1499 

afforded." That condualon II entirely con· 

aiatent with other declelona where calll'ta 

have concluded that Indian t.ribea are nee• 

••ary partie• to r.ctlona atfectiar their 

ltpl intemta. s,,, 1.g., McClmdo11 v. 

U~tiud St4t,., 8815 F.2d 6!'7, 818 (9th Cir. 

1919) (Indian tribe ia a nece111ry party to 

an action Mtkln~ to enforce a lean Ill"' 

ment ai~rntd by the tribe); lrflttrpNt M1t 

CMUUII.Gntl, /'IIC. 11. U11ittd SlGtu. BBS 

F.2d 890, 893 (lOth Cir.l989) (Indian tribe Ia 

a 11ecnaarv DirtY to an action aeekinr to 

validate a contract with the tribe); Wichita 

and A.f/fli11ttrl1'ribu of 0/ds.lloma 1. Horlf4 788 F.2d 765, 774 (D.C.Cir.lll86l (Indian 

tribe' a bentficlai'Y intereat in a ttult malc11 

It a neceaaary party to an action by a 

minority tribe aHklnr to obtain rediatributions of future income). 

B. Indilpenaable Party 

Generally, a ntreu .. r)' non·party will be 

joined aa a party. Fed.R.Civ.P. 19(a). Indl· 

an trib11, howeYI:r, 11re IOVtrtlln entitiea 

and are therefore immune from nonconun· aual actiun11 in at.ate or federal court. 

McCl11&do11, 885 F.2d at 629. The partlea 

here qrew that the Quinault Nation haa 

not waived ita immllnity and accordinJI)' 

cannot b• juined in thia action. Con. .. 

quently, our next atep ia to determine if the 

diatrict ~uu11. properly concluded that the 

Qulnault Nation ia an indiapenaable party .a that th• ~~~:l.iun cannot ln " 'equit7 and 

10od con~cience' " proceed In ita abaenct. 

Fed.Jl.Civ.P. lll(a). 

lull 19(b) provide• a four-part teat to 

determine whether a non·part7 ia lndllptn~o 

able to an &c:tion. Some c:ourl& have noted, 

however, that when the ntcet&ary party ia 

immune from auit. there il very little need 

for bllanctnc Rule 19(b) Cactora becauae 

immunity itatlf may bt viewed u the com· pelllnr faetor. Sll Eftlnprilt MVL Ccm· 

ndlaftU, 883 F.2d at 89' (cltlnc Wicl&ita 

""., AfJililll«t Tribll. 7111 P' .2d a~ 777 n. 13~ We have nonttheleu canliltently apo 

plied the foul'part tuc to dettrmln• wheth· 

er Indian lribll are indilpenaablt parti11. 

S" Maltfl.ll l'lldlan Tr'tbr, IUO P'.Zd a~ 1500; 

l.o1114WIIklfllll t1. HGtllGVIGI/1 ~20 F.2d 

1124, 13211 (tth Cir.l9'15), l*rl. d•ni•d, 4211 

U.S. 903, 88 S.Ct. 1492, 47 LEd.2d 152 

(18'r8). 

Rule 19(b) providea that the factora to be 

eanaidered to dttermine whether an action 

ahould be dilmlt11d becaua a non-party ia 

llldllpenaable are: (1) prejudice to any Pll" 

ty or to the abunt party; (2) whether relief 

ean be ahaped to ltuen prejudice: (3) 

whether an adequate remedy, even lf not 

complete, can be awarded without the abo 

aent puty; and {4) whether there uiata 111 

alternative Corum. S11 Ma/Wt India" 

7'ri6t, 910 F.2d at 560. The diatriet court 

applied theat four facton and concluded 

that three of the four !acton favortd dil· 

miual of the aetio11. Specifically, the court 

reaaor:td that a judrment in favor of the 

Jllaintiffa would elearly prejudice the Quinault Nation becauae It would pmumably 

alttr tha Quinault'• axiatinr authority to 

rovem the reaervatloa. The court concluded that no Nlief eould be faakloned to avoid 

that prejudice and that no compromit• poaitlon would 11tiafy platntlffa without Jlr.iu• 

dice to thl Quinault Nation. The c:aurt 

•xpn•••d aympathy that plaintiff• laclrtd a 

qualified fol'llm but neverthel.., concluded 

that "It eani'IOt ipore the rule of l&w 011 

joinder of partin." 

We al(l'M with the diatrlct court. The 

prejudice to the Quinault Nation If tha 

plaintlffl are eucceufvl •"m• from the aame lepl lnter11ta that maka the Qui· 

nault Nation a necenary party to the action. s,. IMu,.,.,U. M1L CoM£ltanu, 

881 F.2d at 894 n. 4 (prejudice tat ullder 

Rule 19(b) ia e11entially the 11me aa the 

Inquiry under Rula 10(a)); Norl.laf'O'P Co,.,. 

.. McDcmrwll Dwglu co.,.,., '108 F.2d 

1030, 1048 n. 15 (9Ul Clr.) (lame), ,.,., 

dffliM, 464 U.S. 848, 104 S.Ct. 158, 78 

L.lld.Jd 144 (11181). Thll'll il 110 parUal or 

compromtu remedy that will not pnjucltce 

the Q~ainawlt Nation. 

Appellanta ntverthelfll arru• that the 

Quinault Nal.iun will not be prejadle.t II 

the action proceeda becaulf 1 favorable 

judpent would only "fulfill rirht.l ruran· 

taed by prior dteiaiona of federal eaurta." 

They further contoitnd that affordin& the 

Qulnt.ult Nation "an opportunity to intel' vane conatitut.u 1 sulttcicnt attempt to 
200 

1500 121 FEDERAL REPORTER, Zd SERIES 

shape relief to le11en any potaible prejudil!t." Mor@Over, they eonttnd that the 

United Statn could adequately rtpnatnt 

the Quinault Nation'• lnttreatl. Finally, 

appellanta argue that dlamiaainr their ac· tion impermlnlbly preeludes rtlltf IIP.Uuae 

no other forum Ia available to them. 

We reject appellants' arrument that tile 

Quinault Nation wUI not bt prejudleed bec:au•• the action s"u only to enforce prior 

decialona. We have !o11nd no deci1ional 

law which apecifically addre1111 the 11.1· 

thority of the Quinault Nation to rovern 

the Quinault Indian Reeenatlon. The au· 

thoritiea ~ited by the appellant& involve 

unly the adjudication of individual 111em· 

ber'a rights. S11 Halbt1't '· Unil•d Statu, 

283 U.S. 75S, 75~, Gl S.Cl. G115, 01&-17, 

75 L.Ed. 1389 (19311 (membtrt of affiliated 

tribe an among thoae entit.led to allotmenta on the Quinault Reaervation); 

WW1am~ v. Clark, 142 F.Zd G-48, 65-4 (lth 

Cir.l984l (mtmbera of affiliated tribe are 

perml .. lbl" devlaeea of Quinault Reaerva· 

tlon Ianda under the Indian Reorganization 

Act), C41rl. dmied, 471 U.S. 1015, 106 S.Ot. 

2017, 815 L.Ed.2d 299 (1985~ At any rate, we do not need to addre11 th!! mviLI ot Lhe 

underly!nr controversy except to conclude 

ttlat the Q11inault Nat.iun mi11h~ U. pntju• 

diced if the action wu allowed to proceed. 

We alao reject appellanLI' theory that the 

Quinault Nation could minimise the poten• 

tial prejudice by intervealnl in the &etion 

and uaerting itl Interests. s.. Molcal& 

lttdio11 Tribl, 910 F.2d at 580 (the ability to 

!nt.el'Yene if it nquire1 waiver of Immunity 

ia not a fa~tor that leuena prejudice). Sim· 

ilarly, th• United State• cannot adequately 

repreaent the Quinault Natlon'a lnttre•t 

without compromiainr the truat obliratiolll 

owed to the plaintiff tribe&. S111 id. (pol.en· 

till intertribal conflict& means the United 

States cannot properly repreaent any ot the 

tribes). Finally, the "lack ot an alternative 

forum does not automatlc:ally prrvent dll· 

mi1aal of a 1uit." /d. Couru have recor· 

nlzed that a plalntitra internt in lit.ipt.inlf 

I. Our historical uae of the trrma "nece.ury• and ''indtapcn11ble" til conjunction with Rulo 19 

provide~ 101'111 eauu fr~r confusion. Lutic:aUV and ln 1hc Vlt',.c"lar, •• twa woN& an l)'ftMI· 

a claim may be outweirhed by a tribe's 

lntereet In maintalnin1 ita •ov~Pre!rn lmmu· 

nity. Su Ent"71ri11 M1t. Couulta11U, 

11U F.2d at 894 (" 'diamiaaal tum• on the 

fact that society hu con~eioualy opted to 

ahield Indian tribe1 from auit without eo11o 

rreaaional or tribal conaent.' ") (quotinr 

Wiellit11 o•d Affilioud Tnb ... 788 F.2d at 

'T'f'T). 

CONCLUSION 

The diltriet eourt did not abuae ita diac:retion in diamiuing thia r.ction punuant to 

l!.ule 19. 

AFFIRMED. 

O'SCANNLAIN, Circuit Judge, 

coneurrlng In part and dissenting In part: 

The majority'• analyeia hu two partl. 

Firat, the majority eoncludea that the Qui-

. nault lndiiUia are a neeetaary Md indiaplnllble party 11nder Rule 19; the court 

then oonolud•• that beoauae the Nation 

cannot bt joined for reaaona of •overeifn 

Immunity, the auit muat be dlamiaaed. 

While I arree that aome of plaintiff•' 

olalm• ahould have bHn diamined, 1 am 

not persuaded that diamiual of the com· 

plain~ at a whola waa proper. I thanfon 

can concur in only part of the court'& judg· 

mant.. Moreover, biiCIUie I believe that the 

majority haa adopted a Draconian and overbroad interpreU.tloll ot the ~ompulaory join· 

dtr rult-\\'hlch unlike •overeirn immunity 

ia an •qultable rule of diaeration-I "" 

apectfully diasent from the majority's rea· aoninJI'. 

AI the mBjority expla!na, Rule 19 hu 

two pertinent plll'tl. Rule lO(a.) prncrlbN 

1tandardl for determining wheth1r a non· 

party II "nece11ary" to th• litiaation, and 

R.ule 19(b) prtaeribea atandarda for deter· 

mlnlnr whether 11 non•purty 11 "ludlapen•· 

able," ao that litigation cannot proceed in 

tha~ non·party'a abaenc:e.' 

ymout: if 11 pany Ia truly "necnury" 111 an action. then prot11m1bl• the action c:annll\ pr. 

c11d without that panr. til• piny ls th111 "lndl• ,.n .. lole." 
201 

CONFIDIRATBD TRIBII v, Lt!JAN 1501 - ..... ,,.. ,_ cwo• ea.. INti 

A 

Rule 19(a) lt.at.a that a non-party: 

who ia aubjeet to "rvice of proc:eu and 

whoae joinder wtll no\ deprive the court 

of juri•diction ovtr the aubject mttter of 

the action shall be joined u a pany In 

the aetlon If (1) in the pel'llln'a abttnce 

complete nlief cannot be aceorded 

amonr tho11 already partie•, or (2) the 

penon c:laima an lntereec relatlnr to the 

Ill bjec:t of the aetlon and ia ao 1ituated 

that the dlapoaltlon of the action In the 

pel'llln'a abeenc:e may (i) u a practical 

matter lmptlr or Impede the penon'• 

ability to protect that i11ter11t or (II) leave 

any of the p111on1 already partlu aubo 

ject to a aubatantial rilk of incurrinr 

double, multiple, or othtrwl•• lnconalat• 

eat obliratlona by reuon of the c:lalmed 

intere1t. 

Fecl.R.Civ.P. 19(a). Applyillr tbue at.An· 

darda to the Quinaulta, the majority con· 

clud11 that they are a nec~~aary party. I 

dltarree. 

Firat, the majority reuon• that the plain· 

t.iCCt' 1\IC:C:eu in thia action WO\Ild not af. 

ford them "'omplete rtller• without joinder 

ot the Q11inault1. The court'• opinion olfen a one-eantence lltplanatlon: "Judr· 

ment arainat the federal offlciala would not 

be bindinr upon the Quinault Nation, who 

could continue to INII't aovereltft poweN 

and manarement r~~ponaiblllt!ea over the 

In order for the dllllnction 10 m1lle any Nna 

In the conll•t of llula 19, thel"'fllft, w. muat m••n lliillm•thinl lau than ac&ual nenulty .,)Mn 

WI apeak of a "nccnury .,..ny.' lndnd, tile 

C\ll'rent c1plioa for Jlula 1 9(a) dMa not 11M til• term "neceM&ry" but IIIIIIM lpUIII of .,...._. · 

to be Jolntd If Peuiblt." l'ed.l.Civ.P. 19(a). .......... wha Rt thlo ddlnitinft .,.,. ftAIIof'ArlletJ 

"whose joinder In the 1eti011 ia ~ • In tha 

effort 10 1111111n ajUII, lnlormtd, and fair mulL 

ftd.A.C:IV,J'. It ldYIIDf7 committce't """ on amended nalo (empllull added); ,,. 1 C. 

WriRht, A. Miller 6 M. Kana. "*-I Prwrnit. 

e/111 hout/a" I I .eN, II l' (Zd ed, 1916) ("tile 

neceaary party labtl haa been ellmlnatal to 

•"'1>hui .. lhattha ...J ,...,.... ofthlt Nle lo to 

brin1 be/ON the COUrt aft pet'IOIII Wh-joinder 

would 1M dnlrabt. for a jutt edjlllllcaiiOII of tha 

IU!Iinii"J. "l"lle• nonoportiu tlleUtll Ill JOIIIIII II 

pauible, bul they.,. not, truly 1peaklna. "ntc• 

Hl&tl 111rtln" unle11 end unlll they nctlfy ahe 

temll of Rul• 19(b). S. i4. I 1601, It 7-1 

rnervatlon." "'"" at 1491. lt Ia, of 

DOIIfte, true tht judpent lf&inlt tM 

named detend&nta would not bi11d the Quf. 

naalta-in the same ten•• tllat judpeltt 

acainat 1 named deftndant can """" bind I IIOII•Pirty.l That Obii!PV&tion i1 ciltfinitiolll~ but it eaya nothinc about the una· vailabiUty of 'Y'flie/ within t)" munlnr of 

Rule lll(a). The plaintiff• have allered 

t!lat f•d•ral off!~lale have "dtni•d their 

richta in the Reaervatlon," have failed to •~rnir.e tl!eir ri&ht "to be treat.d tqually 

u feder.lly reco~:nized lndiu tribK," end 

have lml)l'ft[II'.PI)' Mearnind tl!• Quinault. 

u "the exclu•i" roverninr body of the 

Rl••rvatlon... C'.nmplaint at nn 81, 81, 'a: 

Ill 4ll0 id. at !V 21-61 (aJleJinf liz CIUIII 

of aetlon). rt ia nnt eltn why deelarat.ory 

or Injunctive nlief rendered arain1t the 

named defendants on the" elaim1 woald 

not bt "complete" within the relmnt level 

of flnl!rality. 

Th• Confederated Trlbea probably have no ilha1ion1 that tiiCCIII in thia actl011 will 

afford them complete relief from all their 

trouble• wiUI Ute QNinotdu, bat ddlninc 

"complete rtllet" Ill •udl expanaive tel'!TII 

dtpriYU it ot meanln1. TM rclcm~~~i IIIIUUoll for Rule 19(a) mu1t be whether auc· oeaa in the liti,at.ion ean alford the plain· 

tiffl th1 rtlllf/or 1114ieA tll'fl lltJttt l"'f'Wrd. 

Apin, the "oomplttel\11111 of relilf mu1t 

be analy1ed within the rela .. nt leYel of 

11nerality: the four oomen of the com· 

plaint.• 

(ldCIItllyinl Slui/IJI "· Almlw, ~I U.S. (17 

How.) 130. 139, IS L.E4. lSI (1155), M ona 

Nwrce for gur "'" of th• '''""' .. ,.,..._.,., .. •nd 

"lndlap~nllllle" I~ 1he Je~lnder eon••• and qiiOI· 

ln1 Ill\~ from the Coun's oph\ioll 111 llw 

CUI tl!at indlcttal thai 1111 CO\Irt mtlftt 10111•· 

thlna Ina th1n •n~CU~ary" by 111 uu of that 

won!). 

2. S. l'rrwlilffr 11.dumtM IMir It T11ut Co. v. ,,,.,._, JPO U ... I~ 110. 81 S.C1. 'lJ, 7JI, Ill 

L.U.Zd 9J6 (lHI>: ,.. •'"' Aetcl. c_,.,_, loit~rl•, o/l'rlrliN ;, CMI Mli-. 55 Mlt:h.L 

AllY. 321, JJ~5 o~n>: ,.. ,_,.11) Haurcl, 

lllllilpMu*le l'wrty: n. llilrorierl.l Orllllt o/ e ~I /llo,,,_, 61 CCIIum.LRIY. 1254 

(1961). 

S, ,_ lA J. hi<A>oe .. J. l.~aceo, ,.,_ .. hJMwl 

l'rwerln V 19.07-1 (I], at I Nl to 91 (211 td. 

1990) [hel'lllllfltr Moore 'I FIU"I /N~IiM I ("It 

lftutl he IIOttd thel CGIIIpleil rellcl mrrl 10 
202 

1502 121 FEDERAL REPORTER. Jd SERIBS 

The majority placea eonaiderable weirht 

on thia circuit's recent deolaion in Makah 

Indian Trib• v. Vmtr, 910 F.2d 555 (lth 

Clr.19SOI, but MrJka.l& ie cleaTiy dia&inrvi•hable. The plaintiff Indiana in !rla.lt.Gh 

sou~rh~ l.O Coree the 1ovemment to reallocate a limited number of filhinr allotmente. 

A panel ot thbJ circuit &!tinned the di.trict 

court's diamiual of the suit becau .. the 

plaintiff tribe had failed to join the ~wenty· 

three other tribes which poeawed allotted 

rightl. AI the court explained: 

The [d!Jtrict] court. viewing the 1987 harvest u a trust fund, held that it could 

nnt vant complete rtllef to the Makah 

becauae it would violate the treaty rirhta 

ol other tl'ih••- It held the abtent tribu 

had an intere1t in the auit beca111e "an~ 

rllarw lltct go•• to tit~ frltslcrJ.. mu.t 

com• from [ti&•J otAw tribu." 

MGkah, !HO F.2d at 559 (quotlnJ dlatrict 

court order) (emphuia added). It ia appropriate to dilpo18 Of CIIH like MtJka.ll 

through Rule 19 becauae in auch clreum· 

stance• the court quite Uteraliy cannot Ktve 

the plaintiff the internt that it seeka without simultaneously tatinr that tntereat 

away from the absent non·party. By con· 

ttut, the Confederated Tribu seek to vindicate rirhta to which they altere all Indians on the Quinault Rnervation are enti· 

tied. There is no comp&rahle "truat fund" 

or limited resource at iuue in thia cue: 

here, there ia "no pie to carve up." 

relief u between the persona already parllea. 

""d not u b.twHn a part~ ancl the ab~e~nt 

P4!nGn whose joinder Ia 10u1h1"), q!IQIU In Eldf.dr• "· C•l'fllnle,., 4d N. C•L Cow~ttia Joint 

Apprenrtct~lllp <P Tralnin1 Comm., 662 1'.2d SH, 

537 (91h Clr.I9U), f.-1 d~~tiU. 459 U.S. 917, 

103 S.Ct. lll. 74 L.Bcl.2d Ill (1912); ,._,/so Itt (cllln~o Inter alia, l'uytllup lrtdllllf 1'-rib. v. Po;r 

of T•.:.m~~o 717 F.2d 1251 (9ch Clr.l91l), c•rt. dalfwd swb n~m. r....u-C•If•d• ~,.,.,.., UJ. ~. 

MwclllllhiXIt /"'li•tt 7Wbr, 465 U.S. 1049, 10~ 

S.Cl. c)24, 79 l..ad.2d 720 (198«) and three 

ocher Ninth Circuli case•lln ~1/up, an lnalan tribe pelllloned ror 

declaratory rallaf to quiet tltie to • t.....t of land 

that wu CJ~posed alcer che Army Corps or En1l· 

neeri altered the course of a naYipblt river. 

Defore proceed~nata the mcrua. the ~n n~•~.l 

:nd applied the e~~abllahed Ninth Circuit rule 

th:at an Indian crtbe need not join either the 

federal or tl>c stale 1Qvernrnent in an 4Ciion to 

The Jtakall court itaelf rtcornlzed thla 

di1tinetlon. At th• aame time that t.be 

court amrmed dilmiual of the plaintitfl' 

ehalltnp to the r~ahinr allotment&. it "" 

versed the dlatriat court's dlamiual of their 

ehallenp tc the adminiatrttive proeeaa that 

determinet tho18 allotmentl. The COIIft 

held that an adjudll!ation of thne "proce. 

dural claima" could 1till be eftectlve and 

would not prejudice the a.b .. nt trlb11 "beo 

CIUII Ill of the triba have an equal interlit In an adminittrative prneell that Ia 

lawful." /d.. 

11le rollnr that the Conlederaied Tribea 

s"k would likewise be aD adjudication of 

"procedural," rather than proprietary, 

clalm1. They aHk-&t leut in part, If not 

entirely- d.claratlon and enforcement of 

their rlghtl In the ~ravernmental proce~~e~ 

that moat Immediately aff11r:t their llva. 

All the rtaldent tribee of the Quinault Rea· 

ervat1011 have an equal inten~aL in a !air 

and lawful administration of thete proceaaea; none would b• leritimatel)' preju• 

diced by • judpent reprdinr their respae· 

tlve l'lrhta under the lawa 11mi l.nlatlea that 

rovern the retervation.4 

2 

The ml.jorit:y'a determination !.hat the 

Qulnaulta have 111 lnttrut at riak under 

Rule lB(a)(Z) il simUarly overbroad. The 

court's opinion auerta that "the Quinault 

Nation undoubtedly haa a legal interest In 

the litiption. Plaintiff• sHk a compieta 

protecl 111 triballand~en lhoulh tht federal 

aavernm•nc, u 1rw1ee, leplly holds IItie Ia che 

lribe'l ruhy and evt11 lliough the stale mllht 

challen .. the tribe'a title in a fu1111'11 ac:llon. S. Aqt~N.., 717 P ,:ld at 12S4-S6. 

4. llnder the ma.Jorily't holdlnr, if til• Bureau al 

Indian Attain were auddcnly to anno11ncc uw 

hencefonh 11M Sioux Nallan of Sollth Dailou 

ohall na.,. lftvemina authority nwr the Qui· 

naulc Indian R1seJ'\IaUon. ntilher tl'te Confider· 

atecl Tribal nor che Quin.aulll WDIIId ba able 10 

challcn•• that rulln.. s~"" Q challcnp: would 

require joinder of tile Sloua, wh• are immune 

from 11111. Joinder of che Sioux, however, 

1hould ba Irrelevant ta 1 challeiiJC upon the 

Cluthortty of ftdll'tll of/ltl•b so to dcalgna11 lttt 

S1ou•· 'n\c m.,ority't r.-ninl t:amet danlttt'• 

oualy dote 10 IIIQUiinr thai lndlant have le• 

judicial recourse than ocher American• aplnll 

arbltr1ry exercise• ot fc!Seral power. 
203 

CONFEDERATED TRIBES v. LUJAN uos 

rejection of the Quinault Nation's current 

etatua 1111 the exclueive ronmlng authority 

of the reae"atlon." A 11t. at 1498. Certainly, on one level ot aaalyala, an anhan~• 

ment ol the atandinr ot the Confederated 

Tribu relative to that of the Q11 inaulta 

muat be viewed u an eroaion of the Qui· 

naulta' current atatua, but tn uurt that 

the Quinaulta have a legally proteetable 

intere.t fnr that I'IIUOn aufficient to make 

them a neeeseary party ia to atretch tha 

diPf!~tive of Rule 19(a) very broadly indHd. 

It ia indlaputable that it the plaintiffa prevail. the Quinault.a' "intereata," broadly defined. will suffer. The reltnnt inquiry for 

Rule 19(a), however, m111t bt whether cog. 

nirabl1 l1gal right& ot the abient non-pal" 

ty will be prejudiced by the 111it'a continua· 

tlon.1 "Prejudice to one's telf·intereat" 

and "prejudice to one'a lelally protec!tad 

lntereetl" are not aynonymoua.• An appil· 

cation a( comp11laory joinder princ'iplea u 

broad 11 the majority's would foree diarnia· 

ul of virtually every cut in which the 

5. SH M•W. 910 F.2d a1 5~1 C"lhe c:oun rnu• determine whrther tho ~bK'nt [non·]IIIMY nn 1 '•••IIY f"d'"'" ;",_..,, In the auil.") (ernphllll in ari1inal): Jloor1~ ,-.,., ~ 

I 19.01(l.-11), II 1,_, ("The 'lnlcral' . • • rhu 

main an absenr penon a parry needed for j11• 

adjudlcarlon. mull be a lcplly proi1Ctt4 Inter· 

at, and 1101 merely a flnanalallnluest ar inltl'• 

ell of convenience."). 

6, Fnr example, we woulcl not re1ard evety eon· 

'""''' ol eiCICiriciiY 1111 bt I ll«caii'Y .. rtf tO 

every Judlcl8l proe.cdlnl 1hat inwlvea the IDeal 

public ulility. Even 1h0u1ll ~~~~ery COIIIUIIIIr'l 

"IIIICI'IItl" ml1h1 IN .tfKI.d IIJ lt.. OVICotnc, 

tha; doea n1111 IIIUII that every COIIIUIIIII' hu I 

veiled 1 ... 1 Interest in rht llllptlon. 

11lia anaJotY ia aot u far-fetched u II mflht 

MCm. Jua lin rh&N Oclilio"' alecnrlclly eo11· 

sumert, 1111 ~onflllmted tnbts have an la&cr• 

nt In a fair allocation or their camrnunlly'a 

..,........_.i, in thll cue. 111& power Ia 110litlcti 

rarbu than tlcetrlcal. Cloimifll that the rvr· rtnt allocallon or power II fundal!llntally unfair &n~ inwowalltnl wilh rc•ral 1-..... c.o .. , ..... ared Tribta have undenakln 111 aua lhe ~~Wrn· 

me"'· a "110wcr IOlltCI" ro1111hly enala.- 10 

tht urilily. n.. rnljorlry 1111 cliarniuecs lhe 

Tribes' cernplalnt fur rhtlr failure to join 11thna 

who aloo haw ............... '" f"'llllcal powtlt. 

TIM ..-n why chi• rta~lt II unacceptable 

(and why the llleUIJ r~~UII ia nat) Ia that 1M 

puliliCII power II 1- unllkt nshlnl •IIOI• 

menta, Ia an -nllally publle rl1h1. "In !iii ... tion involvina the aclllldioo&ion of public ri1hu, 

IIOII·plnla who may be adwenely aUtcted by a 

•tlfinttrtlt of a non-party it advenely 

aHe•ted and the Mn·pa.rt.y eannot be 

joined. 

Mort importantly, ~e eourt'a auertloa 

that the plaintiffa aHk "a eomplete rejection" of tJ-.e Quinaulta' "cul'l'l!nt stawa" 

both diatort.a and prejudges the plaintiff•' 

claim. What the plair.tl!ta seek Ia not 1 

rljtctioft of the QuinCLultl' cul'l'l!nt atatua 

but a declar1tion that the Qu!n1ult1 are not 

and never have been entitled to that atatua. 

1f the former were the cue, then presumably the majority would be correct in con· eluding that the Quinaulta have a vested 

lepl intereat and that Rule 19(a) appliea, 

but to reach that same result when the 

plain tiffs seek 1 declaratory judgment It to 

give the (,juina11lta tlle benefit of an unfair 

bootstrap. The cou:t 15 saying that whrth· er or not the Quinau:t.a actually have a 

rl~ht to their current atotua, they ally that 

they clo, and that 11 enough to qualify u a 

protectable intereet 1111der Rule 19(a)(2).

1 

decision in plalnllfra favor do nol havt a .,,.. &cct:ablc lnlcn.'11 which \OIOIIId require lhcir join· dcr under Rule 19." .Woo••~ Fli•r~l Prwe~icr 

1110.07{2....01, 11 19-100 ta 101 (footno~t omit· leG). In acUIIIon IO ltal111 a '"bile r11h1, pellli· 

cal power 11 alao a purely relallve conclpl. If 

1he plalnrirfl haw a wonhy dalrn hare, 1hr" 

this coun should accommaclall 111a1 ;laimwtthaut worrylllf that lhe "'•ll'llfl ••nclt111 of the C)uina\lltl may declin• ,.. a Nault. 

'· The m~ority'' corrf11alon on thit pDint stems rrom ila lrnpllctl uannp11on thai tile pre~a~1 

litlptlan aonwbow challenps the Oulnaulu' 

oo•etoilft 1m""'"''' and 11111 such a challtnll 

cannot proceed without tiM Oulnaulra' conMnl. 

So••rei11n immunily, howe¥er, ia no& 1h1 111118 

here. The errly 18111 11 whether th• Q11lnoliht 

have 1 COiniuble lepl lnlll'lll that elinlulliy 

,_.,.;,. their Joinder undlll' a IINCiitJrll.,.lllfttJ 

application ef a lllmwtiortery fecltl'llrult. Sot· 

llftlln lmm11nily d- nuc b.corne a NIIMinl 

wnaltl.ratlon ,.,lc .. aNI ""Iii .,.. Rn1 ..,.. 

cludu 1111 Qulnaulu'jolllller ia n-ury u"dcr 

thai Nlc. loa Jllllic. Harl111 rxplainad for a unanimous Supreme Coun: 

To A)' th•t A court •mull• dlamlas i" tho 

&bitnet or Pn lndllpcntubll jiAfiJ ;mol that il 

"can1101 procetd" wl&houl him pura 1M maner the wran11 way aJGurtd: a coun does net 

knCIW whtth.r 1 panlcular per1011 Is "i~dilpensable" Willi il h.a eumlned the llluaiiOft 1e determine wh.tbar il aan 11-.1111 wiiiiOUI 

him. 

,.,.,; •• ,, TrttliUHI- '""' ' """' eo.. 390 

U.S, Ill 119, II :u;l, 81 74J. lndftd, If ID)'Ihlnl• 
204 

1504 1!8 FEDERAL REPORTER. 2d 8111£8 

The majority'& final &J'iUment under 

Rule 19(a)(2) Ia that "[e)ven partial aucceaa 

by the pl&lntlf!s could subject both the 

Quinault Nation and the federal JrOVtl'll· 

ment to substentlal risk of m11ltlple or In· 

eonslatent lepl obllrationL" Ant. at 

1498. Thil aentence, which atanda alone 

without reuoninr or analyail, ia cryptic. 

Again, unlike Makalt, the controveray here 

doe• not involve a limited fund or rnouree. 

Vindicatinr any of the auerted richta ot 

the Confederated Tribe• would take noth· 

inr from the Quinaultl (in any non-relative 

aenae) and eertainly nothinr which they 

might later be a1ked to (ive to aomeone 

elae. More importantly, the concern of the 

Rule is to protect "peraona alrtOdf portin " from the riak of ineonelatent leral 

oblliationa. Fed.R.Civ.P. 19(a)(2)(i0 (em· 

phaais added). The Quinaultl are not al· 

ready a putyi therefore, any riak to them 

on thia aeoN ia irrelevant. l respectfully 

•urseat that the majority hu •Imply mla; 

read the Rule. 

B 

Havinr determined that the Quinault& 

are a neeeaaary part;y, th~ majority properly proceed• to determine whether they may 

11 .. jnined. Tt!e mAJority alao coMetly con· cludn that becauae they have aovereip 

immunity and have not eonaentld to auit. 

they may not be. The court then proceeds •.n tii!U!rmiu wheth•r the Quln&ultl &l't 1.11 

the Oulnavlta" SOYCNipl im111unlty Ia only rela- ••nt hv'" aa a (aQtor that -11ba ... ,,.,, com• 

puiSOr)' joinder. S. Fed.R..Civ.P. 19(a) (only I 

party "whou ioind«- will not deprive the coun of jurlltllcllon awr the aubjtet mantr ol the 

ac:tion• caa IN deemed nKelllry); lf!b) (CCNM 

must oontidet •whethar lha plaintiff will ha,. 

an adequlle remedy il till ICtlon Ia dlamluecl 

far nonjoinder"). 

a. BteauiC I do nat believe that tha Oulaaulta aro 

a neceDIO' oany under Rule 19(a), it follows 

th;t I do not bclicvt thai they ,,. an lndhpcn• 

able party under Rule 19(b). Anumin1 f{)r lht 

oakc o/ •• .,...,aftt that tha~ are a ••••lOr)' party, I would !horn dlsaam with tbe majorlty'a 

conclusion that they are inditpenaable. 

9. Before comidtrlnsthc Rule' a four fa:tora, the 

majorhy Rrwt ~jnt& Gut tJ\e Oblerva!lOft oftemfl 

couna thai "when the ncec11ary pany ia lm· mune from Nit. !here is ..,., lillie ncccl for batonclnt 1\ulc lt(b) tac:1on be ... uoc Immunity 

"lndilpen1able" party within the muninc 

of Rule 19(b); but here too the an&lnla 

loH1 force.• 

Rule l;(b) etat .. that It a neea~~~y putf cannot be joined, 

the oaurt ahall detarmina whether in eq· 

uity and rood conacience the action 

ehould pi'OCHd amonr tha parti• before 

it, or should be diamisaecl, the abaeat 

pere011 beln; thue rerarded aa h\dlape~~&o 

able. The fac:ton to be conaiclered by 

the eourt include: [1] flret, to what tX• 

t.ent a judpent rendered in tht pti'SOn'a 

ab .. nee mi;ht be prejudi1!fal to the pereon or tllose already partiea; [2] ~econd, 

the extent to whleh, by protective provi. 

alone In the judpent, by the 1hapinr of 

relief, or other meuurea, the pNjuaiee 

can be leuened or avoided; [8] third, 

whether a jud1ment rendel'td in the per. 

aon'a abaence will be adequate; [4] 

£ourtll, whether the plalntlft will have 111 

adequate remedy if the action il dia· 

mlaud for non•joinder.l 

In applyinl:" theae tour taetore, the dlatr!ct 

eout eonehaclcd that. the r~nt. three eauaMI 

diamiual of the 1 uit. 'nle majority endors-

•• tn.~ detcrmiftatioD, !nat ill ao doiar, lt8 

reuoninr, in my view, exhibit. the •am• lnflrmitiea u ita R11le lll(a) analyeia. 

Ffnt. the majorit)' adopt& \he dlltrlet 

eourt'a reuoninr that "a iudament In faYDr 

lt11lf 1111)' be vltwtd 11 the ;GIIIJ)IIIInl flew. • AIIN II& 1499 (.tlln1 EIIM~ M._,.,_u 

C••vadtelltlo ht& "' Urli,_ &a-. 113 P.2d ItO, 

IM (lOth CJr.l919) (cllinl Wifllitl .t AlflliaMIJ ~ Y, Htlllll, 711 P.Zd 7e, m n. lJ (D.C::.Cir. 

1916))). It Ia lmponaftl 10 clarify aactly wilt! 

tlllt o*"'•'"'" moan&. Auumint thai II\ lmo mune non-pany i1 lntly •necc-ry" to 1h1 litlp. 

lion, 1 wt!iChlnl of equh1ble conccr111 it iml• v1n1 ~~" jqlndcr Ia l•ll:r lmp<Niible wilb0111 thl non·plrty'l ~IIMIII. A ftOI\ooplrly'a iJn. 

munlty Ia thmfon~ concluiiW on whether thai 

non-party m•y be joifiM withgul ill coi\Mllt, tnll 

lmm~nity 111y1 nothlftl abo11t ; ngn.p.arty'llll· 

"il,..,..obility to the lillaotiOII. 

Tbua, if one conclLld• !hat jolftder of an lm· 

mun1 non-party 11 1101 1\tcelll.,.,..._... l111011ld In 

thll ~ne IIIII can (lnd IQilCIIiy mUll) CDR• 

c:ludo th11 tl'll lmmu111 nan·party Ia nol lndt. .,.. .. ,.bl• '" the oull' l.o .. th• liliallloa may 

proceed in thl non-p&rty'a ab1111e~~. S.e 11#1'• 

noll I (ditc:uMi .. lrCIIblln1 UM of tonftl "niiCCio •1"1" ..,ul "'iudi•)RO•la.ablc" In ""I" 10 cOI'\Ic••). 
205 

CONFEDERATED TRIBES"· LUJAN 1605 c:nua• '"" •- ~a.. '"'' of the plain tiff a would elearly prej udlee the 

Quinault Nation bec:auae lt would preeum• 

ably alter the Quinault{&') exlltin1 author!· 

ty to so vern Ule reaervatlon." ""''' at 

1499--1500. By equating "alteration" of 

the QuinaiJlt&' swua with "pnjudi~:~t" ol 

their legal right&, the majority once acain 

interpret& the Quinault&' proteet.ablc inler 

eat& too broadly, viewing "intereats" in ex· tn·lepl terms. Moreover, by implic t.!~ 

le(itimlzing the Qulnaultl' "uiatlnr au· thority to govern," the majority &Jain prejudcee the very aubatance of the plaintiffs' 

elatm.•u 

z 

Second, the majority adapta the dlatrict 

court's eoncluaion that "no relief could be 

fuhioned to avoid that prejudice and that 

no eompromile poaltion would aatlafy [the) 

pl&intltfs witho11t pr~udice to the Quinault · Nation." Anti at 14119. Without aupportinr reuonint: or explanation, the majority 

inaiatl that "[t]htre ia no partial or compromile remedy that will not prejudice the 

Quinault Nation." /d. at 1499. lt ia diffi· 

cult to find theae pronouncements per· 

auulve without any diacueaion of the nature or aubltance of the plaintlffa' claima. 

When facinr auch 1 complicated complaint. 

how can a court be so aure-on tht buil o! 

the pleadinp alon .... that protective provi· 

alone eannot be worked Into a final judr· 

ment to aYoid unfair prejudice! Allllminf 

that the plaintitra prevail, why would the 

court be unable to fuhion relief in 1 man· 

JU. AI llle mi,{Ol'lty corrKII~ puin~ji out, tM prcj· 

udiee anal~• under Rule 19(b) Is eumllally 

the same u 1M neceully ~~~&Iyaii under lui& 

19(a)(Z)(I), S.. Allll II 1499 (cillnl £1tl~ 

w.,. ••• _"' c-ltMII, &IJ P.Zd at 194 IL • 

(I01h Clr.l9f0), aftd No.,1o,.,.,. CnrpL 11. ltlt:Doit• 

~•II DougltU Corp .. 705 P.2d 1030, IOtJ n. I! 

(9th Cir.). em. dMieli. 464 U.S. 149, 104 S.Ct. UO, 78 L.EG.Zd 144 ( l 983)), I therefore olioaane with lhe majority's Rule 19(b) prejudice 

analy•is ror tho wme rea1ona thai I dfaaJrce will! lis J\ulc l9(A) anaiYJilo 

II. Thus, ahhou1h ~~Ca~rate, the majority's obser· 

vation that "a pl1inlilf1 lntemt in lillplinl 1 

claim may be 0\ltwtillhod by 1 tribe's inlerell in 

moin••inint ll&&a~cl'l:iln Immunity" i& not rele· van I whhln the contut of thia CAse. Thit c41ot 

doa not pit the Confederttod Tribes' interet! In lill&allon •salnll the Q,.ina~<l' ln&oroot In ,.,v. 

crel1n immunhy. S. supl'tl note 7. 

ner that would a void prajudke to any lfVit· 

imat. rightl of the Qulnaulta1 The majority don not ane wer these qu" tiona. 

8 

With respect to the third fector, whether 

a judgment rendered In the Quinaulta' abo aence would be adequate, the court's optnlon illargely silent. The implicit argument 

ila non aequltur. My collearuea appear to 

suggest that beeause the Quinaulta are im· 

mune !rom auit, thel'tl can be no effective 

relief. The plaintiffs, however, are not au· 

inr the Quinault&; they are 1uing the 

named federal offici&le, and the relief they 

leek would be summoned entirely from the 

handa of th011 otflciale. The Quinault& do 

not have to be a party in order for the 

!"fiiUUtld relief to be adaquate.11 

4 

The majority admit& that the fourth 

fac:tor wel1ha heavily in favor of the plain· 

tiff1. Given the abaenee of an altArnative 

forum, procelltiinr Ul tile mwitl In tllia 

action ia the pleinti!fa' only hope of obtain· 

ina an adequate rwmedy. In my lriew, tllia 

1incle factor mak11 dilmlaaal of the auit ao harah that it may outwci1h the other thrH 

factore combinld.1

' 

~ 

Finally, Rule 19(b) atatea that the appU· 

eable atandard by which to c:onekler ell four 

of ita !actora ia whether "in equity and 

II. &4o .4,,., " Rllt.U.J' U..l••ll. eQJ P.ld IJI9, 

1328 (9th Clr.l971) ("whether a jud&INnt ren· 

dered In th• peraon's ablene• wtll be adequate 

and wheth1r tha plaintiff Will haw an "eq\lloe 

remedy If the action ia di11111IUid for nonjoin· 

dar" are "lhe ma&l l'l!levallt rnctora pi'OpaAIIj by 

Rula J9(b)" ~nd 1h1 "moat weighty in the ~ir· 

Cl.lml&ancu of the cue 11 bar''), 

The dillrl~ ~ourl iuelf acknowled1rd lbe 

hanhneu of diamluln~; thil ocllon: "Pialnllffs 

dCK:r'bc 1lu:lr pr~.A:wlb,tr~! ailu•dot'l tn th&. suU •• 

a 'Caleh--22.' WhUe the court is aynlpathelic to 

Plllnllffa' fl'llrtratlon 11 their Inability to achlevt jurlad on o~~t~r the patty 11 the hun ot tile 

dl1pu1e, II cannot ianore the l'llle of law on jolnolor of PDI'IIC$." CoH/ob,.loJi TfiNI n/ 1/1• 

CMII•Ih /11Jit1" ReH,.tiolt v. l.M/1111, UP P.R..D. 

171, 175 (W.O. Wuh.l990) (order .,antlnl de· 

fendan"' motion 10 diamlu). 
206 

1606 121 FIDERAI. REPORTER. Jd SERIES 

rood eoneeienct the action ahould prvcted 

amonr the partie• already before [the 

court)." I believe that under thia a1andard 

the prnent action clearly ehould procttd 

and that a better qu11t1on micht bt wheth· 

tr "in equity lftd rood conacienee" thla 

action can bl dilmiJMd. Rule 11 dou not 

il'lftt abient non-partlll a eubtt&Dtive leral nrht to joinder; lt 11 an equitable rule 

ot diacretlon. the purely prarmatic purp01e 

of wl&ldl ia to ettec:t jultict in tlll tmn~IC!i· 

Da11k 

ate we

cf Trut 

. S11 

Co., 

hovldmc 

YO U.S. at 

~ 

11&-26, B8 

S.Ct. at 741-66 (Part II of the opinion). AI 

we aaid in MGkal&. "[t]he Inquiry Ia a praetical one and fac:t •peclfic, and Ia daiiJltd 

to avoid the la~t~h reaulw of rlfld applteation." Mokc.J&, 910 F.2d at SS8 (citatlona 

omitttQ). 

The rule il that if the merita of tht 

~•u•e may be determined without preju· 

dice to the rirhtt of neca1ary partin, 

abt•nL and beyond the jurildlctlon CJf the 

court, It will bl done; aDd a COIIrt of 

equit)' will al.nlin hard t.o reaeh that re· IUit. [Citat!OI\1 omitted.) 

We rtC•r to the rule euablilhed by 

theae authoritin bteauae it illuatrath 

tht cillil'•noe w itb which courta ot equity 

will lttk a way to adjudlc1t1 the merit& 

ot a cut in the abaenc• of lntlrttted 

partl11 that cannot bt brourht in ... • [T)ht ndc u 1tawd ia lntend.d tor the 

benefit o! 1 plaintiff wh011 bill Htl forth 

13. ~ Joinder question &hovld be dtcidld wllh 

teiiQII&bJ. promptnc-. but cltclllon may 

po·operl:r a d!Jflrnd If 14tq11111 lnformallon 

Ia nOt available 11 tht lima. Th11a. the Nil• 

llonlhlp Dl an ab .. ftt ,.,...,. '" •h• mlon, 111d the priiCIIctl erfiC\1 of an adjudication 

upon him and odMn. may nol be allfnc1elllly rewalecl 11 IM plaUin1 llapl In IIIICII I -

II wouJ4 be lppnllriate to defer tt.bicm 1111111 

the ICIIOII - funhcr advanad. 

Fed.l.Civ.P. It advitorJ committee'• 1101t 011 

amendment 10 Nbdlvllloft (b). 

14. The 1966 advt10ry ~mluee's noll on pn· 

erlll ~onllderlliolll fOC' 1l11l1 It al10 IU~I I 

n .. oibltl "''PIICIKIOn fJI CDmpiiiiiCIIY jOinlllr: 

Wbenevw fe&liblt, the penonc mettriallJ ,,. .. --..~ 111 IM tvbject cl In Ktlon . .• 

•holilcl bt joil>ld u panin 10 that chty may 

be heard •IMI a t:omplett dllpothlotl mille. Wllm 11111 COII'Iprehenlivt joilllkr Cll\1101 lie 

IICrDmplllhH ... tht c ... ah011ld be - inod ,..,_..,;,.,/~ •rod 1 cMI .. .....,. 

a c:auu of aetian whieh he •hould, if 

poeaible, he aiY111 an al'portunity to 

prove .... 

Btnr.nli.v. 11. Puci/ft W. Oil Co., 29!1 U.S. 

611, 7Q..71, 5'7 S.Ct.. 61, &a-54, 81 L.Ed. 42 

(1986): .. U(l Moorw'l F1dwoli'Nclk:1 

f 19.01-l(n a& lt-20 (quotlnr Bo~nnn ). 

Th\11, even It a halanelnr ot tilt Rule lll(b) 

fac:ton were to favor diamieaal, it ia cl•r 

that when compullory jni"der pr•ntt a c:loM que1tion the court ahould err au the 

1id1 of eontinulnr the litiptlon. I! n_. 

a&rJ, the action can alway• be dl1miued at 

a later d&te,11 but dlamillal no-with no. 

where elu for the plaintiffs to tum-termi· 

natu the 111erted claims fortv1r. 11 

c 

ln ahort, 1 cannot arret with tilt majority'• couclualon that the action wu pro(ltrly 

dilmitlld for failure to join the Q11inault 

N11tion. I do not believe that the Quinaulta are tither nectaaary or indi•penaablt 1111dtr 

Rule 19. At tilt very leut, it 11 too euly 

to tell if the Quinault& are auch a party. 

Tilt complaint &ll•r• •lx ea11111 of action, 

and without analysm1 the aubatantlve law 

bthmd the11 c:lai1111 and the varialll p011i· 

biUtln for relief, one eannot fairly determint that the auit cannot proeetd. 

II 

To 11y that a Rult 19 dla111iual II inappropriate btp the que&tion of what u ap-

'-" the alt•mallvea Dl p~lr11 wtlh tht 

aetloa ill tht abtma Ill parllcular lnt.....,tcf 

pa'IOIII. and dllllliiUIIJ the ICIIOn. 

Ewn if tht coun i1 m111alcarlln Ill cleeilicm to ,,....... In the ab .. ,_ cl an lntcrbtecl 

pti'IDn, it doa not by that lllkllll tM,rlve illllf 

ol 1ht ~ 10 acljwllcall sa belwetn 1he 

Jl&l'lill alrady Won II throuP Prot*' Ill' 

vlo ol pronu. IIUl llle ~01111 call mab 1 t.,.u,. .,...,.,,., ..,)UIIIM<&o. oal7 bet-.. tba 

piiiiiCI ICt\1111)' jointll in !111 ICIJon. 1111 11'\11 

thai an K&lon bel-n the pard• beror.. tha court m&)' on acca1ion ad_l, 1fflel the 

ablcmt peno11 a1 1 pnctlcal m•n•. or l•w • pany ••J"'9"' to • lau•r ,_,.. .. ,.,., ....-ry 

by 1he abtlf\1 penon. n- are fKIOn 

which lilould bt CDIIIIdered ill dlctcllM 

w11a111r lhl~euon lltOuld proc8d. or llululii tltller be dilmi...C .., ,.., • - "'-· ,.,_ .... ,.tiM-~,__, .. ~, ... ...,_ ,,. ,.,., .... ~ ... '"" /.wtl. 

Flti.R.Civ.P. It aclvl110f7 COIIIII\itt"'' nOte (1111-

pheels a4d-.l). 
207 

CO:llrTEDF.RATED TRIBES v. T.UJAN 1507 Cltcu921 F.zcl 1-!N.Ck. 1991) 

propriate. The answer to that question S.Ct. 691, 7 L.Ed.2d 66-~ (1962), u";:, .-·hich it 

depends on how onr. reads the plaintiff~;' recast the political question dO<!trinc, the 

complaint. A !though th.: comJ)Ia.int alleges Supreme Court pointed to cases that quea· 

six causes of action, they can be ct<luccd to tion the status of Indian tribes as "repteeSllentially three sorts of claims. sentative" of political c:ontnl\'1mlies inapPlaintiffs allege in their third cause of 

;a.ction that they are cntiUed to an injunction requiring defendant "to e~blblish and 

reeogniz:e a ro~·ernini' body of the Reservation pursuant to the Indian Reorg~tion 

Act of June 18. 1934'' and consistent ,.·ith 

declaratory relief requeated in othl!l' por· 

tions of their compblint. Complaint at n 3'i. 

Plaintiffs allege in their sixth eause of ac· 

tion that they are entitled to an injunction 

prohibiting the defendant from "consider· 

ing . .. applica.tiun:'l for construction within 

the Reserv11tion . . . proposed by or 011 behalf of the Quinault Tribe." ld. at fi 41. 

I would aff1ri'T1 dismissal of these claims 

for reasons uf non-justieiabiHty. As defendants argued below, such elaims pre,;cnt 

political questions that lie beyond the adjudicative powers of this courl To the extent that the plaintifis seek a judgme11t 

declaring how the federal government 

should deal with them or the Quinaults as a 

fol'Wal'd-looldng matter. they are asking 

this court for an impermissible encroachment upon the prerogatives o! the other 

branches of government. The Constitution 

itself "xplicltly commits to Congress the 

task of "regulat(ing] Commeree . . . with 

the Indian Tribes." U.S. Const. act. I, § 8, 

cl. 3. Congress, in tum, has explicitly lilt• 

signed "the management of all Indian affairs and of all matters arising out <1f Indian rtlations' ' to the Executive Branch. 25 

U.S.C. § 2 (1990). lndl*!d. in its seminal 

opinion in Baker v. Carr, 369 U.S. 186, 82 

1!1. The Court did point out. llll"'·cver, lbat "there 

i$ no blan.tr.t nil.," of nonjusticiability in cases 

in~ol,;ng the $t.:>tus of Indian tri~. Baker, 369 

l.i.S. at 215. liZ S.Ct. at 709. Governmental actions that UJ:rA<d Consreso·~ authority ""tt the 

Indian,._.,s oppoocd to di:sc:retionary D<:tians c:.-

•cutcd witlri11 that authority-may prac:nt justi· 

ciablc questions; 1Thc courts] "'ill not sund 

impotent before m o~;ous instance of a manifestly unauthoiized exercise of 'PO"W·" 14. at ~17, 112 S.CL ill 710; su: alJo Uni.tetl Stt~~n v. 

S<rndo¥a~ Z3t U.S. za. 46. 34 S.Ct. 1. S, S8 !.Ed. 

107 (1913). 

propriate for judicial I"QS()lution. SRe Baker, 369 U.S. at 211, 215-17, 82 S.Ct. a.l 706, 

709-10'" 

r therefore concur in the eourt's judgment lo the extent that it affirms dismissal 

of U.e third and sixth eaUSCII of action. I 

wmdd affirm, however, on the alternauve 

ground of no11j11sticiability. St:11 U. t;. 

United Sta.tes, 809 f.2d 1406, 1408 (9th 

Cir.1987} ("We may affirm on any ground 

fairly supported by the record.''}. r.~rl. de· 

n.ied IIUO nom. ue v. Kklv.tnc., Inc., -184 

U.S. 1041. lOS S.Ct. 772. 98 L.Ed.2d 859 

(1988). 

B 

Plaintiffs allege in their first cause of 

action that "[t)he Quinault Tribe has ne-;er 

been lawfully and formally federally recognized a& the exclusiv-e governing body of 

the Rescl"o"ation," and that plaintiffs "are 

entitled to judgment declaring that the Quinault Tribe is not the eJ~clusive governing 

body of the Reservation." Complaint at 

111! 28, 32. They further allege that the 

defendants' favoring of the Quinaults denies "their rights in th<> Resetvation" and 

that they "are eatitled to judgment declaring that [the varioua tribes 011 the Resecva· 

tion] have equal riihts in the Re:iervation." 

ld:. at liTi 31, 33. Sirnila.rly, the plaintiffs 

allege in their fifth cause of action that the 

defendants ''ha[ve] implP.mented and (are] 

enforcing the Indian · Laud Consolidation 

Act ... as: tho~.~gh the Quinault Tribe is the 

Tim distinclior>-which represent$ the differ· 

cnc:c between a !lonjustici;lblc challcncc 10 the 

Con.Urution'• deitel'tion of powcn on tb£ one 

hand and a pob:llthtlly ju.Uciablc challenge to 

B"'·err>mmt officials' interpretation of that dell!ga.tion ()n the otl,er-is critical to ~hr. c:asc at 

bar. The Conf..Ueratcd T ribcs' complaint ~P· 

pears to cballetlf,£ both (a) !he lcciti mac:y of I he 

dcfc:ruhants' CJtel'dsc of their authocity ancl (b) 

th., l~timacy of oubota.ati"" decisions clearly 

"'ithin the cWfendants' authority. The l.,tter 

claims arc nonjusticiable under IJdlcv •·· Co,.,., 

the former arc noL 
208 

1508 ttl FEDERAL REPORTER, Zd SERIES 

e:rclu1ive &rOVernin.r body of the Ruerva· 

tion." /d. at ' 43. 

To the extent that the plaintiff• aimply 

seek a declantion of their rlrhta and of the 

scope of the deftndanta' authority und411r 

the Tnaty of Olympia and more PHtnt 

federal lepiatlon, l believe that the dia· 

trict court'• di1mi11&l of their claim• should 

be r~ver~ed and that their claima ahould be 

rein1tat.ed. 'nit Declaratory Judrment 

Act, upon which the plaintiff• have allered 

jurildlction, provld11 that "(i]n a cue of 

actual eontroverty within Ita jurildletlon, 

. . . any court of the United State1, IIPOII 

the f!llnr of an appropriate pleedlng, may 

declare the rirhta and othn lapl relation• 

of any intere•t.ed party 1eeklur 1uch dtcla· 

ration, whrUtw 01' ftOt ,/Krthw rrlir/ (I or 

could br 1ougllt." 28 U.S.C. t 2201(a) (em· 

-phula added~" The Confederated Tribe• 

have inailted reputedly, both In their 

briefa and darlnr orel aJ'I:Umtnt, that what 

they aeelc above all 1111 ia a declaration of 

prevl0111ly ncopilecl 1nd adjudiclted 

rlgbta. [ belieVe that the dlatrict court hu 

both the juriadiction and the obliration to 

provide tllat declaration. 

Indeed, federal eourta have been favorable to almilar claim1 ill the put. Nillt 

yeal'l ago, in WCIAkickllm Ba714 o/ Clli· 

noolc /Jtdian~ "' BatMrua, 655 F.Zd 1 '78 

(9th Cir.l981), thll court acknowledred ita 

obliration to interpret the rirht.a of Indian 

litip.ntl onder the Treaty of Olympia and 

ueoeiated I&WI. ln that cue, th• court 

atfirrn•d the dittrlct court's aummary jadrment den)'inr the plaintiff Indiana' plea for 

ad, Thtre appnrs ,,. ho little daubt that IIIIo 11 •• 

ca• of actual coatrovtl'l)' within [the diatrlct 

court'a) juriadlctlan." U11der 21 U.S.C. I 1342, 

which tlw plalntllh aleo chad In IIMir CDIII• 

plaint, 11)1!. diatric:t couna . . • 1\a.,. orit~nal 

jurbdicllon of all cl¥il llllion~o brautht by any 

Indian tribe or band will\ m aovcrni"' body duly 

J'ICOII!iAd 117 tha s.cntary of the Interior, 

wherein the mallll' Ill controwrqo ari .. • ufttler 

the C:DIIatitullan, lallll. or tr~alla of the Unltlld suu ... " The dcfencllnta 'dmltlecl In their an. owll' lht th• pl•lntlrfo •arc •n ln4han uibe •.• 

with a pwemlnt body duly rcca1nlaed by the 

Secretary of the lnllrior." Complaint at ~ 9: - Anawer at ff 9 (edmlllllll claim), 

17, lncidentall)', the~ Court 11otod lhalthe 

radtnl IO""'IMIII !lad llllulorlly waiwtd ill 

sovertlcn immunll)l for that action and had CCIIIMIIIK 10 111i1. Tht llalula cititd ..., o~e Ha/. 

declaratory and injunctive relief, but lllet 

court pmed the relevant lawa a11cl cleo-..: 

th1 partitt' richta under thoae lawa In tht. 

proc:eaa. Sixty yurt aro, in H•lHrl "' 

Unit1d Stotu, 288 U.S. 758, 51 S.Ct. 81, 

75 L.Ed. 13U (1980), the Sup,.me Cowt 

interpreted the Treaty of Olympia and uaociated law1 and rranted daelantory !'to 

lilf to a IP'OGP of Indiana aeeklnr "to utlbllah and enforce 1111rted rirbt.a U! allot.. 

menta ... in tht Quinalelt (ale] Indian a.. 

lrvation." 288 U.S. at 755, 51 S.Ct. at 

815. 17 

In short, to th• tlttent that the pltinlif& . ••k a declaration of what their rirhta art 

u oppoatd to what their nrhtl IAOtlld 61,' 

their claim• appear to be juaticiable, within 

tht juriadietlon nf th• e1111rt, ancl not cleptndtnt upon the courtroom pretence af 

the Quin&ultJ. f thtrtfON diaatnt fro111 

the majorlty'a affirmance of the dlatrict 

cou11'1 diamiaaal t~f the fil'lt encl filth 

cauua of actio11. 

c 

Th• thirri rr«mp of claim• {a the moat 

troublinr. In numeroua etatementa sprin· 

klecl throurhout thalr ~mplalnt. the plain· 

tiffe have allt~ted violations of "rirhta" !n 

the varueat of ttrm1. Th.y hR.ve nerltetld 

to state with any apeciflclty the aubstantive 

law upon which th111 cl1ima liN baNd. 

Preaumably, this court could affirm dilrnlaul of theae allll'aliona for failure U! atata 

a claim, but liberal pleadlnr rulea counael 

arainst that approach. SH Fed.R.Civ.P. 

lS(a) ("• party may amend the party's 

wt Co .. rt, which wu Dl'lalnally puaecl II the 

tum of th• century, 111u aplll In half 117 • aablequant Con.,..-. and both halvn remai11 ;,. •'· 

feel loday. .!M 21 U.S.C. I llSl (COI'Ifvrilll 

federal juriadlctlon ror allotment cl1l1111)1 25 u.a.c. 1 341 ( ... alwlnl rcdotal ..,.cn;ll" hn~~~tto 

nity for allo11111n1 clalma); ,. •luJ Sdtoliu 11. 

thlltu $r•ru, 421 F.2d 112), IIZ6 (9th C:lr.) 

(lrllel'!lretinl 25 U.S.C. I .S45 u ·a limited 1011· 

ICI!t by the Unltld SIIICI 10 IUil"), ttrf, d .. irt 400 U.S. N2, Ill &.Ct, ~40, Z7 Ll!oi.Zol 146 

( 1970). The p!alntlffs have cued one of the 

utant halvn of the old IIIIUie u 1 belil for JUrlldiCtiOn Ill lllllr COII'Iplalnl, Cclmplalnt It 

V 2 (cllllll 21 U.S.C. I ilSJ). II Ia not clur, 

thereror•. whet he• ...,,.,.,.,. or official ltftnlufti. 

ty would bar conllnuatlon of thla auit on rt· 

mand. 
209 

CHRYSLER CREDIT CORP. v. COUNTRY CHRYSLER, INC. 1509 

Clll u .. P.ltl 1111 IIOIU:Ir. lltll 

pleading only by leave of court or by writ· 

ten conaent of tht adverae party; and ltavt 

ahall be freely fiven when juatloe ao ,... quirea"): .,., .. g., U~tit•d St4tu v. HougAIIm, 864 U.S. 310, 816, 81 S.Ct. 13, 18, 5 

L.Ed.2d 8 (1960) (Rule 1& il a "liwal 

rule{ J pvemln( tilt amendment of plead· 

lnp" and "wu dnicn•d to faclUtate the amendrnwn~ of pleading• except where prtj· 

udlet to the oppoainr party would rtault''): Cord~ 11. Oiblofl. SU U.S. 41, 48, 71 S.Ct. 

99, 103, 2 L.Ed.2d 80 (1967) ("The r.leral 

Rule• reject the t.pproac:h thr.L l'leadlnr Ia a 

pme of akillln which one miutep by eoun· Ml may be deciaive to the outcome."). 

I believe that a fair rt&dlnr o! the com· plaint aun••"- that the plaintiff• may mean to raise civil rirhta claima, and if that 

il their intent, the dietrlct court aurely 

ahould have allowed an opportunity to 

am.nd. The cxtraordinaJ'7 judicial intlrtlt 

in vlndicatinr civil risrhta, the abatnet of an altemetive forum, &lid the embryonic atap 

of thl1 litiption ali add coaaiduablt 

walrht tn what allould be an already atron1 

bill in favor of a liberal treatment of the 

pleadinra. Caaea implieatinr the civil 

rtrhta of Indians are tlpecially aenaitive 

&lid complex. &nd they 1hould not 1!. dlamilled prematurely. t therefore believe 

that thi1 eourt should reverae dlsmilaal ot 

and reinatate tholt clai1111 which may ap. 

pur to be civil rirhta claim• with ~C~ttiflc 

in1tructiona that the diatrict court direct 

the plaintiffs to amend their complaint. 

D 

Plaintiffe allt~e in their ttcond cautt ot 

action that they "art entitled Ul a prahibo 

itory injunction prwliminll"ily and perma· 

nently enjoininr defendant [Lujan) from 

reeorniain( and dealinr with the Quinault 

Tribe u the excl111ive roveminr body of 

the l\11ervatlon." Complaint at V 3l5. 

They aimilarly allera in their fourth cau" 

ot action Lhr.L they are entl~led tO an injunc· 

tlon prohibiting the defendant. from raco~t · 

nieln~t the Quina.ulr.a aa Lho ex.:h••iv~: Rl:a· 

ervatlon authority for mattera dealinr with 

foreat mal'asemcnt, foreat racle, law and 

order, Indian lllnda. &lid natural reaourcn. Jd. at ~~ !UI, 41 . 

To the ut.nt that theae c:laima aeek an inttrpNtat.lon of the relevant ftderal lawa 

and a declaration of the plaintiff•' l'ifhta 

under thote Jan. I w1111ld •PJIIY tile a11aly. 

•i• eurpattd in part II·B abo" and rein· 

atatl their claima. To the ut111t, kii'IIIIYtr, 

that thue clatma aeek "proapective" relief 

that wwld eiiCI'Oach upon the diacretion of Can~NII and the Secretary o! the Intlrior, 

I would apply the analyaia aurreated under 

part II-A above and afflrm di•mi11al for 

nonjllltlclabllity. 

III 

Jn 1um, I eoncur In the majority'• judr· 

ment lnaofar u it affirma dilmiual of 

lOme of the plaintiftl' claima, but I cannot 

endone the majority'• nuoninr u to 

lhote elaima. SpeclflcaDy, I COIICIIr in af. 

firminr diamtaaal of all allerationa the ad· 

jUdicatlon of which would rtquira judicial 

encnaehment upon tilt dlacretionary au. thorlt)' ot the polttleal branchtt of covem· 

meat. 

I diuont from the majorltr'• judpent 

in~ofar u it aftlnna diamitaal of anr other 

clalma, and I dlaunt from the majority'• intarpretatlon and application of the eom· pulaory joinder rule. 

CHRYSLER CREDIT CORPORATION, a Delaware corporation. 

Plalntllf·Appellet, 

V. 

COUNTRY CHRYSLER. INC., an Okla· 

homa eorporatlo•t Max l"ep,.., Mu· 

riel 8. Pepper; Clndr Joan Pepper Gu· 

t•rmtll, Defond•tt and Third-Party 

Plaintlffi..AppeJJuta, . 

... CHRYSLER CORPORATION. 

ThlrCI-Pany Defendant. 

Nn•. 81-il~n. 11~!8n. 

United State• Court of Apptall, 

Tenth Cii'Cilit. 

Mareh 29, 199\. 

Credit corporation brourht ac:tion .... ,,., auwmottve dtalmhip and offieiail 
FROMr 

SUIIJECTr 

210 

United States Department of the Interior 

-o•r,., ... o ,..,. ''''<' •ou ot,ICl ••• J'U 

.,O.flt. I NO, 0•100 .. 9'1tl 

Assistant Secretary-Indian A!faira 

till iiiii&P'\.'P a>CI"•• TOt 

Au: ~~~~ 

. SEP -2 1988 

..e:c~J~ 

Attentionr Congreaoionel and Lagialative Atfaira, 

Marge Wilkino, 4641-MIB 

Portland Area Director 

Attentionr Branch of Forestry 

5.2752, a Bill to Declare that Certain Landa be Held 

in Truat for the Quinault Indian Nation, and tor Other 

Purpoeea 

On August 26, 1988, thia office tranamitted a recommendation that 

the Bureau support the above-referenced legislation. The purpose 

ot thi1 memorandum ia to addr••• whether the Quinault Indian 

Nation is the rightful beneficiary of the land being n1tored to the reservation. I understand aoae partie• have suggested that 

the land be raatored in naae of the allottee• on the reservation. 

In fact, however, the allottee• are thoae who received 

individualized parcels of reaervation land, and even if 

additional landa on the reaervation were to be opened tor allotment it would not be to thoea who previou1ly acquired 

individual allotaenta. If, aa the legi1lation propoaea, the land 

i• restored to the Quinault Indian Nation, than all members of 

the tribe, and not a few individuala, who will reap the benefits 

of tribal land conaolidation. 

The Quinault Indian Nation i1 recognized by the federal 

government aa having exclusive political and territorial 

jurisdiction ovar the Quinault Reservation. See 51 r.R. 25115 

(July 10, 1986) (liat of federally recognizad-riibel entitiea). 

The Quinault Indian Nation i• a conaolidatad political body compriaed of members of varioua tribal anceatriea and ita 

constitution ~:ecoqni:r:ea the ri9ht of any paracn of one 'quarter or mora bleed of the Quinault, Quileute, Boh, Chehalis, Chinook, 

Cowlitz, or Queeta Tribes to enroll in the Quinault Nation. The 

Quinault Nation hal bean retroceded political jurisdiction by the 

State of Washington under the Indian Civil Right• Act, and it haa 

been repeatedly antruated with governmental ra1ponaibilitiea by 

the federal government purauant to the Self Determination Act and 

other federal atatutes. 

The court5 have conaiatently recognized the Quinault Tribe'• 

jurisdictional authority to promulgate and enforce comprehensive 

regulatory laws on the reservation, See, ~· Snow v. Quinault 

Indian Nation, 709 r.2d, 1319 (9th cir:-1983~ cert. denied io4 s .Ct, 655 (l984)r Cardin v DaLaCruze, 671 F.2d ~(9th cir. 

1982), £!!!· denied, l02 s.ct. 293 (1982), Judge Boldt, in the 
211 

landmar~ fishing caaa, United States v. Waohinqton, recognized 

the Quinault Nation aa the entity "maintaining a tribal 

government on the Quinault ~aaervation• for purposes of 

regulating and managing the tribal fi1hery under t~• Treaty of 

Olympia. United States v. Washington, 384 F.Supp . 312, 372 and 

374 (W.O. Wash. 1974). In Cultee v. United Statu, 713 l!'.:ld 1455 

(9th Cir. 1983), the court treated the Quinault Nation aa the 

jurisdictional tribe on the Reservation tor the probata purvoaea 

of the Indian Reorganization Act. Significantly., in Wahkiakum 

Band of Chinook Indiana v. Bateman, 655 F.2d 176 (9th C!r. 1991), 

the court recognized that thoae persona provided allotments on the Reservation have individual rights only, and not the 

governmental or politicaL rlqhta accorded recognised tribea aueh aa the Quinault Nation. 

Congreaa haa twice returned landa to the Quinault Nation. Sea 

Act of October 15 , 1962, 76 Stat. 913r Act of August 26, 19!9; 73 

Stat. 427. Moreover, in 1947 Congress declared the Quinault 

Nation the proper party plaintiff to litigate the boundary survey dispute that the proposed litigation ia intended to resolve. 61 

Stat. 416. Commenting on the 1947 Act, the Secretary of the 

Interior told Congraaa that "collectively the Indiana having an interest in that Reservation, including thoae of the blood of 

other tribes eon•olidate~ with the Quinault pursuant to the 

treaty, Executive Order, and aet of Congr••• may be regarded aa one tribe." see H.R. Rep. No. 671, BOth Cong., ht sen. 3 

(1947). The QUinault Nation hat aa1uaed the re1ponaibility for 

pursuing this aatter with Congress. Therefore, the Quinault 

5ation should be the beneficiary of this lagialation that will 

equitably re•olva the claia. 

Reti4enta of the Quinault Retervation look to the Quinault Indian 

Nation to provide eeaential governaent aervicas auch aa law 

enforcement, social aervice proqrame, resource aanage~ent and 

righta protection. A• we pointed out earlier, thia propoeed 

legialation will greatly enhance the Quinault Nation'• land 

consolidation effort• and be a aajor atap in helping the Tribe 

obtain ita goal of •elf determination and economic aelf 

aufficiency. The benefit of thele efforts will accrue to all 

reaidenta of the Reaervation, including the allottee•, and there 

should be no question but that the Quinault Indian 5ation ia the 

appropriate beneficiary of this propoaed legialation. 
212 

Mr. FALEOMAVAEGA. Could you please? Because I will say now 

that the situation with the Quinault Nation in the testimony that 

Mr. Whitish has presented, you have quite a complicated situation 

in the tribal rivalries and the lawsuits and everything that is involved in this. 

Mr. DELACRUZ. It has been there for a long time, Mr. Chairman. 

There has been times that people that were allotted there have 

come and tried to take over the government, in the 1930's and 

1940's. And the people that have lived on the reservation-defended it, fought all the battles and all the court cases-say, we are 

the Quinault Government. 

I have one of the cases here that is the confederated tribes he 

speaks of, and it has some individuals that were allottees named 

from Quinault, from Makah, some tribal members that demonstrated records in some areas that were involved, Quinault, but 

were not tribal. That says something. So I will leave that. 

Mr. FALEOMAVAEGA. Please. I think I got myself in a hornet's 

nest here. I hope you will take care of my Samoan tribe in Seattle. 

Mr. DELACRUZ. You have some of your people there that don't 

agree with the government, too. 

Mr. FALEOMAVAEGA. Please look after them. They tend to get 

cold all the time. 

Well, I think in reference to what has been said-Mr. Risling, 

Mr. Cagey and Mr. Kallappa-there seem to be some real striking 

examples of the success of the whole self-governance. 

I was very impressed with Mr. Kallappa's testimony, that it 

doesn't seem that by this whole concept and procedurally that this 

has taken a lot of the bureaucratic layers of fumbling and bumbling or whatever goes on here in Washington, especially when you 

said that the scholarships have now tripled for your tribe in terms 

of them. This is certainly one of the areas that is so critically needed throughout Indian country, and I am glad you mentioned that. 

Mr. Cagey, you noted also that it is not a question of dollars that 

is really the essence here; it is the question of control, with what 

limited resources that you are given. And as you well know, this 

is not just a BIA issue; this is a national problem. 

I know from Mr. DeLaCruz's statement, or Mr. Risling, about 

:phoney budget projections. Yes, that is the reason why we have got 

$1.5 trillion debt and a $400 billion deficit. And it is supposed to 

come from some of the most brilliant economists that we have here 

in our country. So, please, I call it phoney budget projections or 

what, but we still have to deal with some of these issues. They are 

very real. 

And the Congress, as well as the President, there always seems 

to be the question of limited resources. And this is not just with 

the Bureau of Indian Affairs; this is throughout the entire Federal 

Government. And how that cut is going to be made is another 

issue. 

I think our friend from Alaska wants to inquire. 

Mr. YOUNG. Mr. Chairman, I appreciate it. I don't really want 

you to comment about it, but I want you to think about it, too. If, 

in fact, we pass this legislation and you are granted self-governing 

all the way through-and the success stories have been cited 
213 

here-I am concerned that that which we give, we will take away 

through other agencies. I want to remind you that can happen. 

We have in Alaska, for instance, we received-and I am a white 

man, but I am partially related, my daughters are stockholders and 

my wife is, and I am a stockholder by the way. I like that; I can 

go to these deals. But now we have another agency coming in and, 

by definition, taking away 98 percent of the land we were granted 

by Congress; 98 percent of the lands that are owned by Alaskan 

natives are now being designated as wetlands. 

And so what have we done? Now we are going to fight that. I 

think we will eventually win it, but be careful as you become governing; you had better be prepared to watch out for the White Father, because he will take away just as quick as what he has given 

you. Just a little something you have to be very much aware of. 

Mr. FALEOMAVAEGA. I appreciate the wisdom expressed by my 

friend from Alaska. I will take it--

Mr. DELACRUZ. Mr. Chairman, could I comment on that? Because we are very much concerned about that. 

We had a very large water restoration meeting up in Tacoma, 

Washington, here a couple weeks ago. And I pointed out to Congressman Dicks and some of the people in the White House thereand I am always watching what is going on with budget as far as 

Indians go. I know we stand at a certain level for a long time; with 

inflation, we are going back. And I seen what happened in 1994 for 

these pots of money to take care of the spotted owl with the President's timber plan, now watershed restoration. There is no new 

money; that is coming from somewhere. 

And I watched it happen all my life when there is a claims settlement and stuff, there is no new money, it comes out of all of us. 

As a student of history, I know that George Washington got paid 

Indian land for the battle. I know the Civil War, there was a pot 

of money to take care of the ceded lands for the treaty in paying 

the Indians, that went for that. And we are still paying for what 

has gone on in this country. 

And I pointed out with this Endangered Species Act, the Marine 

Mammal Act, there is-people have got to watch out, our people. 

And it has got to the point where we can't tolerate. When a little 

pueblo is trying to put a golf course-they haven't touched that territory or land for 10,000 years; there is a snail in danger, you can't 

do that-something is wrong. You ain't going to do this on the 

backs of Indian people again, are you? 

And we are very conscientious of that. And it is very hurtful, 

what we see happening. We have let the administration know, we 

have let Congress know, again, things are happening on the backs 

of our people. 

Mr. FALEOMAVAEGA. Well, I want to thank the gentleman from 

Alaska's sentiments, I think well taken. And certainly this committee would like to encourage all our participants of the different 

panels, the representatives from the various tribes, for your offered 

suggestions on how we may go about improving this legislation. 

And I think all of you should realize, this legislation was not written in heaven, and it can be changed. 

If Jesus had written this, we might have a problem, but the fact 

of the matter is that we do it here on the Earth, and I sincerely 
214 

hope that you will take that and seriously consider that offer for 

your suggestions on how we might improve the legislation; and 

take into consideration the concerns that were expressed, especially 

by Mr. Whitish, for those tribes who may not necessarily want to 

participate in the self-governance concept. But how can we go 

about assuring that those nonparticipating tribes, their allotted resources are not going to be lessened because of that? And I think 

that is a point well taken. 

Mr. F ALEOMA v AEGA. Gentlemen, thank you very much for your 

testimony this morning. 

[Whereupon, at 12:34 p.m., the subcommittee proceeded to other 

business.] 

The Honorable Bill Richardson 

February 25, 1994 

Page Two 

216 

tribes have experienced under self-governance, such as improvements in: education, 

economic development, law enforcement, tribal courts, forestry, publlc works, community 

services, cultural programs, and tribal government operations. In general, self governance 

tribes testified before the Committee on Indian Affairs that: 

1) they are able to more effectively design programs and services that meet 

the needs of tribal members; 

2) self-governance has made tribal governments more responsive to the 

concerns of tribal members; and 

3) self-governance has allowed them to be more independent of the Bureau 

of Indian Affairs. 

For too long the federal government has dictated the policies and procedures that 

govern federal Indian programs. Self-Governance, on the other hand, returns the 

management and decisionmaking authority to the tribes and gives the tribes the flexibility 

to design and allocate funding in a manner that each tribe determines will best meet the 

needs of its citizenry. 

There is no doubt in my mind that self-governance has been a success. One of the 

ways that I measure the success of self-governance is to see how hard the federal 

bureaucracy will fight to maintain the old ways. In this instance, and notwithstanding 

SecretarJ Babbitt's support of the self-governance demonstration project, the BIA continues 

to fight for the status quo. As you correctly noted in your introductory statement, Mr. 

Chairman: 

''The Self-Governance Act was a proposal developed in Indian country by 

Indian tribes themselves. It is the right direction at the right time. The bill 

is nothing less than the future of Indian Affairs." 

I agree with your statement wholeheartedly, and I am proud that we have been able 

to work in a non-partisan fashion to pursue legislation that will allow Indian tribes to freely 

govern themselves. I look forward to working with you to pass permanent legislation this 

year. 
217 

TESTIMONY OF WILMA P. MANKILLER, 

PRINCIPAL CHIEF OF CHEROKEE NATION, 

BEFORE THE SUBCOMMITIEE ON NATIVE AMERICAN AFFAIRS, 

COMMITIEE ON NATURAL RESOURCES, 

U.S. HOUSE OF REPRESENTATIVES 

FEBRUARY 25, 1994 

Mr. Chairman, my name is Wilma Mankiller; I am the Principal Chief of Cherokee 

Nation, the second largest Indian tribe in the United States. I want to thank you for this 

opportunity to testify on behalf of my people on the importance of Self-Governance and what 

that term really means in Indian country. Before I begin I will point out that my written 

testimony addresses issues and problems that I will not get to in my oral testimony. So I refer 

the Chairman and the Subcommittee to my written testimony for a more complete statement of 

Cherokee Nation's concerns, especially in regard to Congressional support of Indian economic 

development programs. 

We at Cherokee Nation applaud your commitment to advancing the policy of SelfGovernance and your effons to make it a permanent federal program. Cherokee Nation was 

among the first tribes to enter into a Self-Governance compact with the United States under Title 

m of the Indian Self-Determination and Education Assistance Act. Having just executed a 

compact for lliS programs last summer, Cherokee Nation has now assumed its responsibilities 

as a Self-Governance tribe to review and enhance the delivery of health services through 

restructuring of the Cherokee Rural Health Network. We believe it is essential to the long term 

success of our health programs that Self-Governance be made permanent. We urge you to 

consider including ms within the scope of HR 3508 when mark-up begins. 

The status of Indian tribes as sovereign governments, especially Self-Governance tribes, 

places a heavy responsibility on both the tribes and the federal government to assure that health 

programs for Indians are responsive to needs and lead to improvement of the overall health of 

persons served by the Indian health care system. The solemn covenants to provide adequate 

health care to the tribes made by the federal government were not merely gratuitous promises 

to Indian people. Rather, these are obligations of the government arising out of treaties, 

agreements, and statutory law in return for cessions of millions of acres of land and other 

significant considerations given by Indian people to the United States. 

Despite Congress' lofty expressions in the Indian Health Care Improvement Act to 

promote the highest level of health care for Indians, Congress has failed to provide adequate 

funding to achieve the clearly-stated purposes of that Act. 1n Oklahoma, the average health care 

cost per person is approximately $2700 per year. Less than $900 is available to Indian clients 

through ms and other federal programs. 

We also feel that the complex funding mechanisms proposed by the President in his 

American Health Care Security Act may be inadequate to fully fund the cost of delivering health 

services by Indian Health Service or Self-Governance tribes undenaking IHS programs at levels 
218 

consistent with the government's trust obligations to Indian people. To be consistent with the 

principles of Self-Governance, we feel that the Administration should have consulted with the: 

tribes in drafting the Indian and IHS sections of the bill. We hope Congress listens carefully 

to the tribes in the upcoming debate on national health care legislation and its impact on Indian 

people. 

The recent elimination of funding through the Centers for Disease Control, interrupting 

a number of IHS AIDS programs, is an example of how funding cutbacks impact Indian country. 

We are faced with an alarming increase in mv -positive Native Americans and patients who have 

developed AIDS. We are expanding our AIDS awareness programs just as the funding for AIDS 

programs through IHS is being reduced. Essential AIDS treatment drugs such as AZT have 

been eliminated from the IHS pharmaceutical formulary. The wisdom of putting tribes in 

control of their own destiny through Self-Governance will be seriously undermined if they are. 

denied the very resources necessary to make adequate health care available to Indian people. 

By assuming full responsibility for planning, designing and implementing health, social 

and educational programs and services previously undertaken by BIA or IHS, Self-Governance 

tribes have become acutely aware of the inadequacies in the funding and the allocation of 

funding appropriated by Congress for other Indian programs besides health care. 

Chronic funding problems are by no means confined to Indian health care. Indian. 

education programs have experienced a similar fate throughout the 20th Century. Since the birth 

of this country, the United States Senate approved some 400 treaties with Indian tribes, 120 of 

which contain education provisions. Nearly one billion acres of land were ceded by tribes in 

these treaties which the federal government viewed in part as agreements to acquire Indian land 

in exchange for education. Now, 125 years after the close of the treaty period, education 

programs for Indians remain critically underfunded. 

For instance, funds allocated by BIA for operating Indian schools are simply insufficient 

to meet the basic education needs of Native American students. We have first-hand knowledge 

of this problem through our experience in operating Sequoyah Indian School on the highway just 

west of Cherokee Nation's offices near Tahlequah, Oklahoma. The formula used to allocate BIA 

school funds, based on the "Weighted Student Unit" ("WSU") formula, continues to use dollar 

figures that were determined to be grossly inadequate nearly four years ago. The national 

average of expenditures per student in non-Indian schools is $5245, and in Oklahoma, $3791 . 

BIA schools are allocated a paltry $2,619 per WSU. The present BIA allocation should be: 

increased to at least the $3499 per WSU recommended by a BIA Working Committee 2 1/2 

years ago. 

Similar funding deficiencies have occurred in the Johnson O'Malley Program. JOM has 

been a supplemental program since 1934. Since 1986, JOM has been experiencing a 

simultaneous steady decline in funding and steady increase in student participation. JOM 

funding should be increased by at least $10 million per year from the current $23 million to $33 

million per year in order to match this sharp increase in student participation. 

2 
219 

Notwithstanding the general inadequacy of Indian education funding, our education 

programs always seem particularly vulnerable in the struggle for federal dollars. Each year, for 

example, desperately needed funds are set aside for Indian Adult Education programs. The mere 

$3.5 million intended for FY 1994 has been diverted out of the program and into Flood Relief. 

We do not question the merits of the Flood Relief program, but we do question the wisdom of 

tapping of critically needed Indian education dollars. 

Another area experiencing chronic problems is the funding of the government's contract 

support obligations under its annual funding agreements and 638 contracts with tribes. In past 

years, BIA has consistently underestimated contract support needs, a practice which leads to an 

inevitable shortfall in this item of cost. The shortfall in FY 1992 of approximately $16 million 

was funded with FY 1993 pro&rammatjc dollars. Cherokee Nation feels that the BIA should not 

have to siphon program funds to pay indirect cost obligations. A recent announcement in the 

Federal Register indicates that the FY 1993 shortfall will be funded with 1994 contract support 

monies, and this, in tum, will contribute to a potentially greater shortfall in FY 1995. Part of 

the shortfall problem can be attributed to the lack of incentive to keep indirect cost rates as 

efficient as possible. Currently, the process actually tends to penalize those tribes with efficient 

contract support cost rates. The Subcommittee should consider requiring the agencies to develop 

a methodology for addressing the tribes' indirect cost needs. 

The contract support cost shortfall problem is insidious, but the Bureau appears to be 

doing little·about it. This Subcommittee should confront BIA and demand a solution. We 

recommend that BIA be required to prepare a 5-year forecast of contract support needs, that the 

forecast be revised annually, that each year the projected needs be reported to Congress and the 

tribes, and that the projected need be included within Interior's annual budget request to 

Congress. We suggest that you consider including language to this effect in H.R. 3508. 

Cherokee Nation and several other Self-Governance tribes feel that the Subcommittee 

should also consider a clarifying change in Section 403(d) of H.R. 3508 relating to transfers of 

federal funds to the tribes under their annual funding agreements. The Senate Committee has 

interpreted this same language in Senator McCain's bill to authorize lump-sum payments to the 

tribes on semi-annual or quarterly basis, but the Bureau and IHS appear to be taking the position 

that they are nevertheless bound by Treasury regulations which would prohibit such payments. 

We disagree with the agencies • position but would request that you clarify Section 403( d) to 

expressly authorize lump-sum payments under funding agreements entered into under Title m or the new Title IV of P.L. 93-638. Accordingly, we propose that the following sentence be 

added at the end of §403(d)(l): 

The funding agreements authorized by this Title and Title m of the 

Indian Self-Determination and Education Assistance Act may 

provide for advance payments to the tribes in the form of annual, 

semi-annual, or quarterly installments. 

3 
220 

I would also request that the Subcommittee consider another clarifying change to Section 

403(b)(l) ofH.R. 3508, one which would expressly authorize tribes to include in their compacts 

employment and training programs undertaken pursuant to P.L. 102-477, the Indian 

Employment, Training and Related Services Demonstration Act. The Departments of Interior 

and Labor appear to be taking the position that these valuable programs cannot be integrated into 

a Self-Governance compact. Again, we disagree with their position but feel that the most 

expedient solution would be a clarifying change to Section 403(b) of H.R. 3508. -

Again, Chairman Richardson, we greatly appreciate your interest in Indian issues and 

your support for the Self-Governance project. I for one feel that Self-Governance has the 

potential to occupy a central position in federal Indian policy in the coming century. 

Accordingly, the manner in which Self-Governance is implemented in these early years of the 

program, and the level of financial support it receives from Congress, will fix the course for the 

program over the next decade or longer and will determine whether it ultimately succeeds or 

becomes yet another wrong tum among the many, many wrong turns in the history of Indian 

affairs in our country. As this Subcommittee takes on the cause of Self-Governance, it should 

be aware that although the program has been federally mandated as a demonstration project for 

several years, it has not been accepted at all levels of BIA and IHS. We continue to experience 

agency resistance to implementation of Self-Governance, especially within IHS. 

Because the purpose of the Self-Governance program is to enhance the inherent 

sovereignty· of tribal governments and strengthen the government-to-government relationship 

between the United States and Indian tribal governments, the program should be strictly limited 

to specific, federally-recognized Indian tribes. Tribal organizations, alliances, and/or coalitions 

which are not federally recognized as tribes should not be admitted as direct participants in the 

program. The Subcommittee should consider adding language to the permanent Self-Governance 

bill malting it clear that only federally-recognized tribes are eligible. 

The success of the Self-Governance program depends upon Congressional support of 

offices of self-governance within Interior and Indian Health Service. For example, in the 

Interior's office, one staff person performs all budget functions and coordinates finance activities 

for more than $100 million in self-governance funding. With the possibility of Navajo Nation 

and numerous smaller tribes entering the program, funding through the program soon may 

exceed $500 million per year. Clearly, the staffing of the office must be increased and its 

operations adequately funded to accommodate the workload of such a rapidly expandin& 

program. With the gradual expansion of the Self-Governance program over the next several 

years there sbou1d be proportionate increases in the financial support of the two offices of SelfGovernance. -

As more and more tribes are admitted into the Self-Governance program, and especially 

if Navajo Nation adopts Self-Governance, the need to restructure and streamline BIA and IHS 

will become unavoidable. I would like to ask the Subcommittee to keep two considerations ia 

mind as the process of restructuring unfolds. 

4 
221 

First, the growth of the Self-Governance program and the concomitant streamlining of 

the agencies should not be viewed as an opportunity to cut back the funding of Indian programs. 

Senator McCain has expressed his sensitivity to this danger and warned against it. I think this 

Subcommittee should also be vigilant against efforts to cut programmatic funding as the federal 

agencies, once our principal advocates of Indian programs, play a smaller roll in the 

management of Indian programs as a result of Self-Governance. 

Second, the Subcommittee Should ensure that the tribes themselves are consulted and 

participate in the planning and implementation of agency restructuring. There is real danger that 

the agencies will give only lip service to tribal participation. 

An example of this has just occurred within the BIA here in Oklahoma. The Department 

of Interior, after consulting few if any affected tribes and with almost no planning, suddenly 

announced in January that the Anadarko Area Office would be consolidated with the Muskogee 

Area Office and the combined office moved to either Oklahoma City or Tulsa. Frankly, we 

were appalled that such a hasty, drastic move would be taken with little if any input from the 

tribes. 

I have always advocated the streamlining ofBIA. However, any streamlining should be 

carefully planned, equitable, and involve meaningful participation of affected tribes. 

Restructuring should occur across the board at all administrative levds of BIA, including the 

Central Office. What has happened here in Oklahoma was a rash, virtually unplanned act of 

budget slashing. We ask that this Subcommittee inquire into the Department's decision to 

combine the two area offices and determine whether any consideration was given to the 

Department's ability to discharge its trust responsibility to Oklahoma tribes and individual 

Indians. 

Once again, on behalf of Cherokee Nation I want to thank the Subcommittee for this 

opportunity to submit written testimony even though I am unable to appear and testify in person. 

We appreciate the Subcommittee's concern for Indian peoples and its support for legislation 

strengthening tribal governments. I look forward to working with the Subcommittee and its staff 

in the future. 

s 

87-276 0 - 95 - 8 
222 

Testimony of 

Bill Anoatubby, Governor of the Chickasaw Nation 

House Subcommittee on Native American Affairs 

March 14, 1994 

Mr. Chairman, on behalf of the people of the unconquered and unconquerable Chickasaw Nation, I extend our appreciation for being given the opportunity 

to provide comments regarding House Resolution 3508. 

My name is BillAnoatubby, and I am the governor of the Chickasaw Nation. 

One of the Five Civilized Tribes, the Chickasaw Nation encompasses more than 

7,648 square miles of south central Oklahoma. The Chickasaw Nation is unique 

among the relocated tribes of America in that we did not trade our homelands for 

new lands in the West; we purchased our lands from the Choctaw Nation. Our 

tribal population places us as the 13th largest Indian tribe in the United States, 

according to the 1990 Census. 

We are pleased that the House Subcommittee on Native American Affairs 

is allowing us this opportunity to provide comments on this legislation. The 

Chickasaw Nation is fortunate to be one ofthe tribes selected to participate in the 

Bureau of Indian Affairs' self-governance program. The program provides 

autonomy for tribal governments at a level not known in Indian Country for 

hundreds of years. Making provisions for self-governance to become permanent 

for tribes is yet another step in assuring tribal governments the exercise of those 

responsibilities and authorities which are rightfully theirs. 

In that process, we have found the Bureau of Indian Affairs to be most 

cooperative in providing assistance. Our experiences to date indicate that the 

BIA has taken self-governance seriously and that the commitment of the BIA to 

the program is without equal among other federal agencies. Should H.R. 3508 

be enacted and signed into law, it will provide the opportunity for tribal 

governments to exercise true self-determination on a permanent and continual 

basis. Self-governance finally affords the tribal governments the ability, the 

opportunity and the authority to truly provide for their respective citizens by 

meeting the specific needs of the various tribal governments' constituencies. We 

commend the BIA for working so hard to make self-governance the reality that 

it has become. This measure shall surely ease and simplify the tasks which lie 

before both the U.S. Department of the Interior and the individual Indian tribal 

governments. 

We are especially pleased that H.R. 3508 makes allowances and provides 

for the smooth transition between tribal self-governance demonstration projects 

and Title IV of this bill, permanent self-governance. By allowing the Secretary 
223 

to select up to 20 new tribes per year to participate in self-governance, the 

commitment of the United States to true government by a tribe is made clear. 

Perhaps our only disappointment with H.R. 3508 is the fact that it 

addresses only those programs administered by the U.S. Department of the 

Interior. The Indian Health Service, which is another federal agency of great 

importance and concern to tribal governments, is not addressed. 

While the Bureau oflndian Affairs is certainly advancing quite rapidly in 

self-governance, the Indian Health Service is also embarking upon the road to 

self-governance with its programs and services; however, the IHS approach to 

self-governance is far different from that taken by the Bureau oflndian Affairs. 

Beginning with the implementation ofPublic Law 93-638, the Indian SelfDetermination and Education Assistance Act, the IHS has set its own path, and 

that path has been one that is far different from other federal agencies. Until 

recently, the rules of operation for the Indian Health Service have been quite 

different from those rules of operation utilized by the Bureau of Indian Affairs, 

despite the fact that both were supposedly operating under the provisions ofP.L. 

93-638. With the new proposed rules under that law, both agencies should now 

be singing from the same songbook. However, such is not and will not be the same 

situation insofar as self-governance is concerned. 

1b the extent that H.R. 3508 affects the Tribal Self-Governance Program 

within the U.S. Department of the Interior, it is an extremely good bill, and we 

endorse it and its intent. We do, however, leave you with the challenge of doing 

the same favor for tribal governments in relation to the Indian Health Service. 

Mr. Chairman, we appreciate being given the opportunity to provide our 

comments on H.R. 3508, and look forward to working with you and the members 

of the Subcommittee on these and otherissues ofimportance in the years to come. 

2 
224 

THE CONFEDERATED SALISH AND KOOTENAI TRIBES 

OF THE FLATHEAD NATION 

P.O. Box278 

Pablo, Montana 59855 

(406) 675-2700 

FAX (406) 675-2806 

.-. 

VM~L.~

.................... 

~T,....,.., _ a.mc:. . SergMniC-Anna 

TNIUL COlMCIL MEMaERS: ..,_.T '1o41c::a'('PIIblo ~ 

RhondaR VIOI~ 

CM:IIe McQa . SecnUty 

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........................ ....,.._.... 

TESTIMONY OF 'MICHAEL T. PABLO, CHAIRMAN 

CONFEDERATED SALISH AND KOOTENAI TRIBES 

OF THE FLATHEAD NATION 

-""--"----- -

ON TRIBAL·SELF-GOVERNANCEAS A PROGRAM '. _';- . '·"'· . , ; 

AND'THE NEED FOR PERMANENT LEGISLATION AUTHORIZING-· 

SELF-GOVERNANCE AS A PoLICY OF THE UNITED STATES . . . . ..... : :' -

\ ;; f ~~f L::--· ' 'i,/ ·~u, .. -.:.~;;'::,,;;~;: ., ,;~ -;~ :; . . Jt~4t$~~,j., .- ,,,,, SUB'MITTED TO 

' :.( '1 . . :f-:THE SUBCOMMIITEE ON NATIVE AMERICAN AFFAIRS · ·. ·. ':''''' ' OF THE HOUSE NATURAL RESOURCES COMMITIEE .. ·:::: .. L; ... ---~- '" --.:-. - , . };~~-~ Lz.:-~-:.;r~: ·~_- .-

. . . -- - . . --~t!~_{;:

FEBRUARY 25, 1994 

-·.·:- :-~· 
225 

Representative Richardson; Thank you for introducing the "Tribal 

Self-Governance Act of 1993" and allowing me the opportunity to provide testimony. This very important piece of legislation is 

supported by the Confederated Salish and Kootenai Tribes. We are anxious to see its passage during this legislative session. 

The Flathead Nation is located in northwestern Montana. As 

signatories to the Hell9ate Treaty of 1855, we ceded over 20 million acres of what now compr~ses western Montana. In return, we reserved 

for ourselves, our children and future generations the 1.25 million acres that comprises the Flathead Indian Reservation and accepted 

that our land and our treaty rights would be protected forever. The 

Tribes of this reservation were self-governing at the time the 

treaty was signed. Although years of failed Indian policies have 

attempted to diminish our independence, we continue to work toward 

Self-Determination. 

We began our involvement with self-governance at the very beginning as one of original ten tribes authorized to participate in 

the Tribal Self-Governance Demonstration Project. In fact, like 

today, the Tribes participated in drafting the legislation and then 

submitted testimony in support of it. The Tribes were awarded a planning grant and immediately began the extensive planning and 

researching process self-governance requires. After lengthy 

negotiations, an agreement between the Tribes and Bureau of Indian 

Affairs (BIA) was signed by both parties. It. was not the "standard 

self-Governance agreement" but rather one which contained a mechanism for the Tribes to first assess the true costs to operate 

all BIA programs. Then, after an agreement was reached with the BIA on the amount required, it would be submitted to the Office of 

Management and Budget (OMB) for further discussion and inclusion in 

the President's annual budget request to Congress. In clear 

violation to the basic principles of Self-Governance, the BIA 

unilaterally cancelled the agreement. The Tribes felt betrayed by 

their trustee. It was clear the BIA was not ready to submit a budget to adequately meet the true costs of providing services authorized 

in law. 

over the next few years, the Confederated Salish and Kootenai Tribes 

continued to pursue the BIA's support of this agreement but to no avail. Yet, we continued to use the internal administrative 

procedures developed for the implementation of the Self-Governance 

compact and the Annual Funding Agreement anticipating our eventual 

resolution of this issue. This did not occur and the Tribes were forced to negotiate a "standard Self-Governance agreement". The 

Tribes have been operating both an IHS and a BIA compact since 

October 1, 1993. 

The Self-Governance Demonstration Project was enacted to forge a new government-to-government relationship between the tribes and the 

federal government. It is an acknowledgement of the need to change 

-1-
226 

the paternalistic natu re of the other federal poli cies regarding 

Indian Country. It shifts the dec ision making responsibility back to the tribes where it rightfully belongs, putting the decis ion with 

those most directly affe cted . It provides the tribes the authority to plan, consolidate a nd a dminister functions, programs, services 

and activities previously administered by the federal government and to redesign the same if the tribes deems it necessa ry. Finally, it 

allows tribes to reallos ate funds. The Flathead Nation has found its 

experience in compacting to be positive. It has provide d the Tribes 

with the opportunity to a chieve true Self-Determination. 

Although the Trib e s ar e supportive of the Self-Governance 

Demonstration Project and a ll of the possibilitie s it brings to tribes, we also have con ce rn s which can be addre ss ed in the 

legislation to make it a pe rma ne nt option for tribes. For example, 

the Tribes are c o nce r ned th a t Indian Heal t h Ser v i ce (IHS) is not inc luded in this l egis l a tion. IHS ha s been a reluc tant p a rticipant 

since 1991 when they we r e for ced by Congress to begin to e xamine the 

feasibility of tribes compacting IHS programs. Their reluc tanc e is 

demonstrated by the IHS ' r e fu sal to extend Federa l Tort Claim Act 

(FTCA) coverage to tribal compa c ted programs when the BIA has not viewed this extension as a pr oblem nor has our own legal s taff been 

able to identify a problem with its extention. By failing to include IHS sends a mixed me s s age about the need to continue the 

good faith efforts especially with those tribes in the compacting 

process. That message is that if they drag their f eet a nd wait out the 1996 time period when the demonstration compo nent ends they 

won't have to go under Self-Governance. We do not see the IHS being 

very cooperative with tribes during the remainder of the 

demonstration project if the see it as a short term pa in that will 

eventually go away. The tribes cannot afford during this time of 

health care refer~ to be on uncertain ground in their funding 

efforts. 

A particular issue for the Flathead Nation i s the continued 

inclusion of language exclud ing the Flathea d Agency Irrigation 

Division or the Flathead Agency Power Div ision from the c ompacting 

process. There is no apparent reason for the e xclusion to co ntinue 

espec i ally in light of the exemplary manner the Tribe s , through 

contracting, have operated the power division. Furthe r more, the 

Tribes support the inclus i on of education funds a va ilable through 

the Tribally Controlled Community College Assistance Act of 1978 and 

those funds for elementary and secondary schools under the f ormula 

developed pursuant to section 1128 of the Education Ame ndments of 

1978. 

One of the problems the Tr ibes have experienced in implementing the 

Self-Governance compact is the uncertainty surrounding the indirect cost associated with the annual funding agreement. In FY94, we are being told by the BIA that we will receive only three-fourths of the amount we anticipated when we developed the Tribal FY94 budget based 

- 2 -
on the rate negotiated by the Tribes and the U.S . Ins pector General. 

The proposed legislation requires the Secretary to submit a report to Congress each y e a r tha t i ncludes the separate v i ews of the tribes 

involved in Self-Governa nce. The Flathead Nation recognizes the 

importance of this reporting process and encourages the inclusion of 

mutually agreed upon ba seline measures as for the b a sis of the 

report. This gives the Tribes a fair .and consistent method to evaluate the impact of self-governance as oppos ed to being at the 

mercy of IHS or BIA to determine its success. It also provides a mechanism to gather qua litative and quantitative data to s upport the 

Tribes efforts to determine unmet needs and add i tional funding 

requirements. 

We are pleased to se e the inclus ion of a waiv er proc ess to be 

implemented by the S ecretary in regards to Fe deral law and 

regulation. The Confede rated Salish and Kootenai Tribes have for too long managed programs, services and activities for the benefit 

of the tribal membership to be hindered by unnecess ary regulations 

such as the Federal Acquisition Regulations (FAR) . We would like 

the legislation to include to a clear appeals process, especially in 

regards to unresolved issues during the negot i ation stage of the 

Compact and the Annual Funding Agreement. 

The Flathend Nation i s c oncerned about failure of IHS and the BIA to adequately addre s s the issue of shortfall funding in their budget 

requests to Congre s s. Although shortfall funding is a temporary 

soiution to the dilemma faced by the federal agencies as they are for c ed to downsize due to the reduced demand for F'ederal services by 

the tribes thro ugh compacting, it must be funded at an adequate 

level and it cannot be confused with the tribes need for full 

funding of its indirect cost rate or other administrative support costs. We find it interesting that BIA central Office has not been 

able to determine a formula for the tribes to access its funds. 

Yet, they continue to attempt to force the tribes to shoulder the 

entire burden of budget cuts and forced BIA reductions. 

The Flathead Nation stands behind the concept of Self-Governance and 

is pleased to support this legislation for it to move from a demonstration project to a permanent option for tribes as we move toward Self-Determination. 

-3-
N :TI-;KSONZAH 

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NARSHAI,L PI.UMMEK 

VIC£.f>R£SIIJ£NT 

Introduction 

228 

NAVAJO NATION WASHINGTON OFFICE 

Written Testimony of the Navajo Nation 

Regarding H.R. 3508, the 

"Tribal Self-Governance Act of 1993" 

March 17, 1994 

MICHAt:l. Bl::CAYE 

lJIRECTOR 

1101 171'11 STREET, N.W., SUITE :!50 

WASHJNG'ION, D.C. 20036 

TELEPHONE (201') 17$..0393 

FACSIMILE (20'l) T7&-8076 

On behalf of President Peterson Zah, the Navajo Nation would like to thank 

the Subcommittee for allowing it to submit its written comments on Tribal SelfGovernance for the hearing record . The Navajo Nation has only recently begun to 

explore the possibility of participating in the Tribal Self-Governance program; 

therefore, the Navajo Nation views this opportunity as an initial step to understand 

the Self-Governance process . 

The Navajo Nation's View on Self-Governance 

The Navajo Nation generally supports the concept of providing Tribal SelfGovernance as a permanent option for American Indian tribes through legislation. 

The Self-Governance compacting process furthers the goal of a government-togovernment relationship between Indian tribes and the United States . In addition, 

based on reports from tribes which have concluded funding agreements under the 

Demonstration Project phase of Self-Governance, it appears that the SelfGovernance processes are working well. 

However. it must be noted that these "Self-Governance" tribes usually have 

a significantly smaller land-base, less population, and accordingly smaller 

percentage of the Bureau of Indian Affairs ("BIA "I budget and program operations 

than the Navajo Nation. In light of these differences and the potentially greater 

complexity for the Navajo Nation, it is the Nation's intent to take a measured and 

comprehensive approach to the planning phase. 

The Navajo Nation Government 

The Navajo Nation is a sovereign nation and operates an expansive tripartite 

government, composed of executive, legislative and judicial branches. This 

structure supports approximately 6,100 employees with four executive offices and 
229 

ten "divisions," analogous to state and federal departments and/or agencies. Each 

division has responsibilities for specific subject areas such as: Natural Resources, 

Community Development, Education, Public Safety and Social Services, and others . 

The Navajo Nation government provides services to the Navajo people 

through funds available from tribal resources and taxes, private, state and federal 

sources, including P.L. 93-638 ("638") contracts. According to the Navajo Nation 

Office of Management and Budget, the current operating budget for the entire 

Navajo Nation government totals approximately $275 million for FY 1994. Fiftyeight percent of the budget is from federal sources, primarily the Indian Health 

Service (IHSl and the Bureau of Indian Affairs (BIA). The Navajo Nation currently 

has sixteen "638" contracts through the BIA and two "638" contracts through 

IHS. 

In late 1993, the Nation received a $250,000 planning grant from the 

Department of the Interior and is currently in the early phases of the SelfGovernance Planning Phase. Given the breadth and complexity of our financial 

structure and federal expenditures, the Navajo Nation plans to proceed carefully 

and cautiously during the Self-Governance planning phase. In developing 

permanent Self-Governance legislation, the Navajo Nation respectfully requests 

Congress to consider tribes such as the Navajo Nation that are unique due to their 

size (land and population), extensive use of "638" contracts. and highly developed 

programs and service delivery systems. 

Section-by-Section Analysis of H.R. 3508 

What follows are specific section-by-section comments on H.R. 3508, from 

the Navajo Nation's perspective. Generally, while we understand the desire to 

provide unique provisions separate from the rest of the Indian Self-Determination 

and Education Assistance Act ("ISDA") for the Self-Governance operations, SelfGovernance nonetheless remains a part of that Act. It would be beneficial to 

clarify through this legislation, which provisions of the remainder of the ISDA apply 

to Self-Governance. In the Navajo Nation's view. Self-Governance is an extension 

of the ISDA and therefore, the provisions of ISDA are also applicable to SelfGovernance. 

Section 3 Declaration of Policy 

In subsection (4) of this section, the Navajo Nation recommends that a 

reference to the ISDA provision which protects the trust responsibility be included. 

Such a reference could incorporate by reference the provision found at Section 210 

of ISDA (25 U.S.C. § 456n). 

Section 4 Tribal Self-Governance 

2 
230 

This section amends the Indian Self-Determination and Education Assistance 

Act by adding a new Title IV, encompassing the remainder of H.R. 3508. The 

comment on clarifying the applicability of ISDA provisions made above is probably 

best integrated here. This comment is made to avoid debates over various 

provisions, such as whether the Federal Tort Claims Act coverage, which is 

extended to contractors pursuant to ISDA, would also be extended to tribes which 

conclude a Self-Governance compact and funding agreement. logically, it would 

seem that provisions which are viewed as beneficial to tribes within ISDA should 

also be available under Self-Governance. 

Section 401 

This section makes Self-Governance permanent, based on the Department of 

Interior demonstration projects . Currently, through other legislation, the Indian 

Health Service is engaged in the "demonstration project" phase of Self-Governance. 

Presumably when that demonstration phase is completed, the concepts contained 

herein can and will be extended to the Indian Health Service and the Department of 

Health and Human Services. Language in the legislative history for this Act should 

be considered to make this point clear. 

Section 402 Selection of Participating Tribes 

Subsection (a) of this section appears to define participation implicitly to 

mean only those tribes which have concluded compacts under the "Demonstration 

Project" . However, reference is made to the Demonstration Project, which includes 

tribes which are at either the planning or negotiation phase. The Navajo Nation 

recommends that this section be revised to make clear what is meant, if 

participation is limited to those with compacts or if it means all tribes at any level 

within the Demonstration Project. Since the Navajo Nation is at the planning level, 

it would be our position that participation include any and all tribes located 

anywhere within the Self-Governance Demonstration Project. 

Subsection lei 

This section defines the applicant pool. Here again, by making planning a 

prerequisite, it appears that tribes currently in the planning phase will not be 

participants. Subsection (2) requires a request to participate; this could best be 

done by reference to the process used to request an ISDA contract. Such an 

approach is familiar to both tribes and the BIA, Department of the Interior. 

In subsection (3). it appears that a tribe must meet the "clean audit" test 

twice, first to receive a planning grant , then once again to become an "applicant". 

Further, though a minor point, the Navajo Nation recommends that line 18 be 

amended by adding the words "significant and • before material. This would make 

3 
231 

the language consistent with the mature contract language in ISDA. (See Section 

4 (h) of ISDA). Currently, the "mature contract" designation has been a 

requirement for planning grant applicants. 

Subsection ldl Planning Phase 

This section addresses the planning phase and establishes the planning grant 

process. 

It appears an additional subsection should be considered requiring the federal 

agency, at no cost, to provide information to tribes to allow completion of planning 

in a comprehensive manner. As Self-Governance moves from the BIA to other 

Department of the Interior bureaus and agencies, some resistance to SelfGovernance may well be encountered. Such a provision will make it clear that 

agencies are required to provide complete up-to-date information. Without such a 

requirement, the planning phase may well simply be incomplete and inadequate. 

Finally, the Navajo Nation recommends that a provision be included in this 

subsection that makes it clear that while planning is a prerequisite to compacting, 

the receipt of a planning grant is not. In other words, if a tribe chooses to rely on 

its own funding to conduct planning, nothing should bar such an undertaking. 

Section 403 Funding Agreements 

Subsection (a) mentions the governing body of the tribe, presumably this 

would again refer to the ISDA provisions for contract authorization by the 

governing body of a tribe. Explicit reference to the ISDA provisions would make 

this requirement more clear procedurally. 

Subsection lei Submission for Review 

Reference is made to the "Agency• in subsection (1) which may tend to be 

interpreted as the BIA Agency. Most, if not all, Navajo Nation activities will be 

conducted at the Area Office level, therefore a different term should be used or 

agency should be used with a lower case "a". 

In light of the discussions involving BIA restructuring, it also becomes ever 

more important to indicate what the purpose of the referral to "other tribes" is 

designed to accomplish. The referral, while innocuous in itself, is problematic if it 

triggers unspecified rights in the "other tribes•. Does this provision contemplate 

that one tribe may object to another's funding agreement? If so, what happens 

then? It appears that without more structure and substance here, inter-tribal 

disputes will be fostered by this provision. At an absolute minimum, the purpose 

of the referral should be articulated in this proposed Act. 

4 
232 

Subsection ldl Payment 

In subsection (21 an apparent oversight has occurred. That section 

addresses the amount of funds to be paid. However, there is no mention of either 

indirect costs or contract support costs. Indirect costs was included in S. 1618 

(the Senate companion bill). so we assume this Is an oversight. Here again, 

reference to the ISDA at Section 106 (25 U.S.C. § 450 J-11 might clarify this 

provision. 

Subsection lei Civil Actions 

In subsection (2) there appears to be a waiver of the requirements of 25 

U.S. C. §§ 81 and 476. It is not clear whether this applies to the tribe generally or 

only to the funds for the Self-Governance agreement. 

The requirements of 25 U.S.C. § 81 are cumbersome and at times 

problematic, but since tribes may be operating with several sources of funds 

including, ISDA contract funds, trust resource funds, and Self-Governance 

agreement funds, a clarification as to the applicability of this provision may well 

avoid later problems. 

Section 405 Reports 

In subsection (b) (2) there appears to be a variance from the Senate 

companion version of this bill. S. 1618 provided that the report "Identify with 

particularity all funds ... n whereas here it provides "identification of all funds ...• 0 

The language in the Senate version appears to be more comprehensive and 

detailed, and is therefore preferable. 

In (b) (3) there is a requirement that the report include the views of tribes. 

To make this provision effective, the Secretary must be required to share the draft 

report with tribes sufficiently in advance to allow the tribes to submit their views. 

Absent such a provision. it is unlikely that tribes will have an opportunity to submit 

material for inclusion in the report . 

Section 407 Negotiated Rulemaking 

These provisions appear to require some refinement. As written, the 

negotiation process appears to require that a majority of the committee be 

representatives of tribes with Self-Governance compacts. Since all tribes may have 

or develop an interest in Self-Governance. this may be problematic due to the 

omission of these tribes. 

Further, there is no time in which rules must be promulgated. The 

5 
233 

negotiated rulemaking process is to begin within 90 days of enactment but no 

deadline for conclusion is stated. It would be beneficial to impose such a deadline, 

and if included, it should be no longer than one year from enactment. 

Conclusion 

Generally, H.R. 3508 appears to be moving in the right direction; it makes 

Self-Governance permanent. Other actions are also needed. For example, S. 550 

addressed the operations of the Office of Self-Governance and some corresponding 

House legislation in this area is also required. 

Further, the structure, funding and activities of the BIA must be evaluated 

closely to ensure that the proposed BIA reorganization changes do not negatively 

impact on the Self-Governance options available to the Navajo Nation. BIA 

reorganization may well negatively impact upon the planning process since the BIA 

may become something of a "moving target". 

The true test of Self-Governance may ultimately be how well the process 

can be adapted to meet the unique and developing structure of the Navajo Nation 

government. One part of our planning will be to determine how well SelfGovernance can complement the Navajo Nation's growth and refinement of its 

internal structure. Any federal initiative must include sufficient flexibility to adapt 

to the needs of all tribes, large and small. Federal legislation cannot dictate a 

particular tribal structure order to meet the federal needs. It currently appears that 

Self-Governance includes that flexibility, but only upon completion of the Planning 

Phase can the Nation be sure. In many respects, it appears that this analysis may 

well become the determinative factor for the Navajo Nation in the Self-Governance 

processes. 

As noted earlier, our views are those of a tribe which has only recently 

entered the Self-Governance arena. As our planning process develops, it is 

possible that these views may change. Ultimately, our measure of the successful 

design of this or any other Self-Governance legislation will be how well SelfGovernance meets the needs of the Navajo Nation. The Navajo Nation appreciates 

the opportunity to present its views on Tribal Self-Governance and looks forward to 

working with the Subcommittee in the near future. 

6 
234 

The Honorable Bill Richardson, Chairman 

Native American Affairs Subcommittee 

House Committee on Natural Resources 

1522 Longworth House Office Building 

Washington, D.C. 20515 

Re: Testimony in Support ofHR 3508 • "Tribal Self-Governance Act of 

1994" 

Dear Chairman Richardson: 

I am writing on behalf of Kawerak, Inc., a consortium of 20 member tribes 

located in the Bering Straits region of Alaaka and a current Self-Governance 

Demonstration Project participant under Title ill ofP.L. 100-472, to add our full 

support to H.R. 3508- "Tribal Self-Governance Act of 1993." 

I urge that this legislation be moved swiftly through the hearing and mark up 

process, and on to an early vote in the I 03rd Congress. I also request that all efforts 

be made to prevent any dilution or compromise of the broad policy and principle 

statements found in HR 3508 and the companion billS. 1618. 

Kawerak fully agrees with your statement made upon inttoducing H.R. 3508: 

"[The Self-Governance Act] is the right direction at the right time. The bill is nothing 

less than the future of Indian Affairs." 

In our view, it is critical that we secure permanent legislation soon· and the 

future of Self-Governance • and then work on refining the details of implementation. 

A clear message needs to be sent to those who continue to oppose the Self· 

Governance initiative that it is here to stay. Opponents should not be allowed to 

thwart permanent legislation by raising complex (as they see it) implementation issues 

and policy concerns. Implementation details can and should be addressed within the 

contert of permanency, through the negotiated rul1~-rnaking and amendment process. 



238 

Chairman Richardson, 2/18/94, p.2 

The Self Governance Demonstration ProJect has worked well for the 

Lower Elwha S'Kiallam Tribe. We are into our second year of administering our 

Bureau of Indian Affa1rs Programs under our Department of Interior Compact of 

Self Governance. At th1s t1me we are 1n the planmng stages, as well, for our 

Indian Health Services programs It seems clear to the tribal community that we 

can do a better JOb of runmng our tnbal health programs on our own, as we are 

successfully doing with the BIA programs 

We thank your Subcommittee for conduct1ng hearings on this legislation 

We strongly support making the Self Governance Demonstration Project 

permanent. The Lower Elwha S'Kiallam Tnbe looks forward to being able to 

admm1ster our Tnbal programs under Self Governance Compacts into 

perpetUity Thank you, Chairman Richardson, for considering this expression of 

support for H R 3508 

cc: The Honorable Norman Dicks 

~9-~ Beverly J. Bennett, 

Chairperson 
239 

}AMESTOWt'J S'KLALLAM TRIBE 

2W683-no9 

Testimony of W. Ron Allen, 

Tribal Chairman and Executive Director 

of the Jamestown S'Klallam Tribe 

before the 

House Native American Affairs Subcommittee 

Oversight Hearing on H.R. 3508, 

The "Tribal Self Governance Act" 

February 25, 1994 

.. ' , FAX 2061683-4366 

Mr. Chairman, I am W . Ron Allen, Chairman of the Jamestown S' Kiallam Tribe . On 

behalf of the Tribe, I thank you for the opportunity to express our thoughts and 

experiences on this historic initiative and to consider legislation that will establish the 

Self-Governance concept as a permanent legal mechanism in implementing the Tribes ' 

governmental status . As w e have not been able to review official Administration 

amendment recommendations to H.R. 3508, we would appreciate to opportunity to 

respond to these amendments when available. 

The Jamestown S'Kianam Tribe concurs with the testimony of the Quinault Indian 

Nation regarding the presentation by Assistant Secretary-Indian Affairs Ada Deer at 

this hearing on H.R. 3508. We also support the Quinault Indian Nation and reject the 

presentation justifications by the Shoalwater Bay Indian Tribe in any attempt to 

diminish or restrict the governmental authority of another Tribal government. The 

Title Il l Self-Governance Demonstration Project and proposed Title IV of H.R. 3508 

clearly protect the rights and resources of other Tribal governments not participating 

in Self-Governance or individual Indians with Trust resources. Accommodations for 

specific Tribal or individual concerns can either be negotiated into a Tribal Compact 

and Annual Funding Agreement or by review through an established administrative 

appeals process. 

SELF-GOVERNANCE AT THE TRIBAL LEVEL: 

The Jamestown S'Kiallam Tribe, located on the Olympic Peninsula in Washington 

State, has 234 enrolled members and a total land base of 36 acres. As one of the 

first seven Tribes to negotiate a Compact of Self-Governance in FY1991 , the 

Jamestown S'Kiallam Tribe is now entering its fourth year of implementation . Our 

Tribe has experienced tremendous growth, opportunity, and change; and , many 

accomplishments have been achieved, both internally and on the national level. The 

goal of the Tribe has been to demonstrate that successful and effective Tribal SelfGovernance is not only 1

possible, but can serve as a model for future Federal Indian 

policy implementing the "government-to-government" relationship with all Tribal 

governments, if they so choose. 
240 

Permanent St/f Gove17UUJce Ugislalion-H.R. 3508 Testimony by W. Ron Allen 

We take strong exception to the criticism and concerns .addressed by the Shoalwater 

Tribe at the February 25, hearing that small Tribes are disadvantaged through the Self 

Governance approach. As the smallest {234 members) and youngest (federally 

recognize'd in 1981) Tribe involved in the Self-Governance initiative, we have clearly 

exhibited thai: we can manage our governmental affairs with the same integrity and 

responsibility as the larger Tribes. 

The Self-Governance concept returns decision-making authority and management 

responsibility to the Tribe and has provided the flexibility to restructure our programs 

to build and address Tribal priorities and needs. The Tribe views Self-Governance as 

a way in which funds can be used in the most effective and Tribally-specific manner 

possible w ithout diminishing the United States' trust responsibility to Indian peoples 

and Tribes . Key areas in which the Tribal Council approved reprogramming of funds 

to benefit more specific Tribal needs include: 

• Consolidation of the Higher, Vocational, and Adult Education programs under one 

department. Funding for tuition and books for all educational purposes are 

budgeted at the beginning of the fiscal year based on information supplied by the 

Tribe' s Education/Employment Counselor. 

• Additional funds for housing to meet minimal annual construction needs. 

• Flexibility of our Social and Cultural Program flexibility to incorporate cultural 

restoration and enhancement ·activities that were not previously available under 

BIA 93-638 programs 

• Enhancement of our Economic Development program to complement ex1stmg 

business development activities being temporarily funded through the HHS' s 

Administration for Native Americans (ANA) 

• Re-prioritization of funding resources to the Natural Resources Department in order 

to encompas~ new resour ce areas, particulariy in water resource and shellfish 

management 

We ·remain enthusiastic about this initiative and have overcome many obstacles since 

the Project was first initiated in 1988. Although many problems still exist, processes 

are improving as we move forward. We have sought to carry out Self-Governance 

in a creative manner most beneficial to our Tribe aiid people. We have continued to 

develop and refine our management, admin.istrative and governmental capacities as 

our leaders , staff, and community become more aware of the exciting possibilities 

afforded to the Tribe under Self-Governance. 

Pag• 2 
241 

Ptmuuatnl ~If G<J•enumct ugis/4JUJn-H.R. 3508 TtJtilllony by W. Ron AUt11 

PROBLEMS ENCOUNTERED IN IMPLEMENTING SELF-GOVERNANCE: 

Although implementation of Self-Governance has provided many opportunities at the 

Tribal level, many problems still exist as we move forward on a national level. SelfGovernance authorizes the transfer of all BIA and IHS "programs, services, functions, 

and activities". This concept has been misinterpreted and misapplied throughout the 

negotiation process between Tribes and the involved Federal Agencies. The lack of 

timely and accurate program and budget information has impeded negotiations and 

is counter to the intent of this initiative relative to the redefining of .our new 

relationships . It is imperative that real negotiations occur and not just simply a 

transfer of funds. Additionally, throughout the negotiation process with the Indian 

Health Service in 1 994, we have been deeply concerned that key project staff of IHS 

have not been providing the type of fair and objective assistance during negotiations. 

A clear message needs to be conveyed to both the BIA and IHS Office of Self 

Governance that staff should be Tribal advocates. 

Another issue of great concern to us is the attitude and expressed objections of 

newly-appointed executive level staff within the BIA regarding the level of funding 

secured by ·some existing Self Governance Tribes. These individuals lack the 

experience and background on the basis for negotiating these amounts by each Tribe, 

and comments conveying these views are unacceptable. There are a wide array of 

circumstances, conditions, and levels of responsibility throughout Indian country that 

justify different levels of funding for Tribal operations. It is not the role of executive 

level staff within the Administration to make determinations regarding equity of funds 

and resources provided to each of the Tribes. One of our concerns is this attitude at 

key policy level positions will perpetuate the old guard bureaucratic mentality to 

preserve the status quo system. 

Stable base funding remains a key issue in attaining Self-Governance goals . In order 

for the participating Tribes to demonstrate success, it is imperative that consistent 

and predictable funding conditions exist. Tribes annually experience difficulties in 

meeting justified cost-of-living salary increases due to the inconsistent Bureau process 

by which the pay cost increases for Tribes are calculated. The BIA does not consider 

inflation costs for Tribes. The Tribe requests the Bureau be required to work with the 

Self-Governance Tribes in establishing fair annual adjustments for costs-of-living and 

inflation as a model for all Tribes. · 

Additionally, the inclusion of a negotiated lump-sum amount for contract support 

costs establishes a base amount for indirect costs associated with those programs 

included in the Self-Governance Annual Funding Agreement. In our judgement, the 

inclusion of support cost funds as part of the funding base provides stability for both 

the direct and indirect components of Tribal services and programs. This lump-sum 

approach is particularly attractive to the stable Tribal operations who are willing to 

manage within a set amount of direct and indirect funds. The Self-Governance 

concept is intended to eliminate the BIA propensity to miscalculate budget projections, 

including Contract Support funding levels, which have resulted in undue hardship to 

P~g• J 
242 

Pennanent Self Governance Legislation-H.R. 3S08 Testimony by W. Ron Allen 

Tribal governments; and to provide protection against future potential BIA errant 

projections for these funds . 

The BIA has failed to restructure administratively to transfer funds negotiated under 

Compacts of Self Governance. Instead, the bureaucracy has forced Tribes to relay on 

shortfall supplemental funds. This prolonged demand on the shortfall account to 

avoid restructuring ·could potentially halt any new Tribes from entering SelfGovernance. With additional Tribes participating in this initiative, it is essential for the 

BIA and the IHS to begin actively restructuring to release funds to allow these stable 

bases to be established. 

The Self-Governance Tribes negotiated ten OMB Cost Exceptions into their Compacts. 

OMB subsequently approved eight of them for the Demonstration period only; and, 

only for Self-Governance Tribes. These logical exemptions were included in S. 141 0, 

the "Indian Self-Determination Act Amendments of 1993." We proposed' these 

attached cost exceptions be included in H.R. 3508. 

The BIA has further confused and exacerbated the situation by applying 

Administrative Cost Savings and FTE reductions disproportionately against 

Area/Agency offices with extensive Self-Governance activities. The administratively 

imposed reductions in the BIA field capabilities has been blamed on Self-Governance. 

This blatant misrepresentation by the EiiA is an old tactic used by the bureaucracy 

creating anti-Self-Governance animosity by other Tribes. 

RECOMMENDATIONS FOR PERMANENT SELF-GOVERNANCE LEGISLATION: 

The key purpose of this proposed Self-Governance legislation is to establish a clear 

message to the Administration that the negotiated transfer of resources and 

management to the Tribes is sufficient evidence to justify making it a permanent 

option. There are a number of reasons why this legislation is necessary. The 

Administration must be given a clear message that the current system is not 

sufficient. The Self-Governance concept and approach has been accepted by the 

Congress and is a vehicle to transport President Clinton's "Mandate for Change" and 

"Reinventing Government" ideas into reality. This approach must be seriously 

implemented by planning and making meaningful changes to administer this mandate. 

We firmly believe that unless the Administration understands that it must accept this 

approach, it will not take the necessary steps to implement this concept. 

Self-Governance is a bold effort requiring the Federal government to understand and 

accept the fact that Tribal governments are competent and capable entities and that 

we are better meeting the needs of our Indian communities while being fiscally 

accountable to our people, as well as Congress. This initiative is intended to eliminate 

the paternalistic relationship of the bureaucracy and to formulate a political 

relationship rather than simply a relationship of administrative and organizationalties. 

Pagt 4 
243 

PemtJJnent Self Governance ugislation-H. R. 3508 Testimony by W. Ron Allen 

From our Tribal perspective, the passage of this bill is essential to the success of the 

Self-Governance concept. There is a continuing, and possibly increasing need for 

nation-wide communication and education on this initiative. Confronting the rumors 

and misconceptions about Self-Governance has been a major task and responsibility. 

We believe there are still misunderstandings regarding this concept in Indian Country 

further education on the purposes, opportunities, strengths, and weaknesses need to 

be conveyed. 

Finally, the treatment of Tribal similar to state and federal gov~rnments as outlined in 

OMB Circular A-87 unduly restricts Tribes in fully utilizing their resources. 

Circumstances are significantly different for Tribal governments than for state and 

federal governments; in many cases, Tribal revenue bases are non-existent. The 

implementing Tribes have proposed special waiver conditions in our Compacts that 

outline essential Tribal needs in utilizing federal resources efficiently and effectively. 

The proposed regulations for P.L. 93-638 and P.L. 100-472 are not reasonable and 

the Tribes have had to weave through a maze of OMB bureaucracy that has very little 

compassion and understanding of Tribal needs and requests. We urge the Committee 

to recognize the need to legislate our proposed regulation waivers to OMB Circular 

A-87 and a rule making process that allows Tribes to participate in the process to 

identify additional waivers allowing adequate Tribal control and management of their 

resources. 

In conclusion, we believe this bill is a positive initiative for the obvious reasons stated 

in this testimony and strongly support and urge its passage during this Congressional 

session. Now is the time to set the foundation for which we will build our future. We 

believe in our vision and have moved forward in making the goals of Self-Governance 

a reality . I would like to thank this Committee for its active involvement and 

commitment in Self-Governance, and we look forward to continuing our work with 

you . 

345\house .tst 

Page 5 
OMB Cost Exception Provisions for Self-Governance 

Compacts Proposed for Inclusion in Self-Governance 

Permanent Authorization 

II ( ) A tribal organization may use funds provided under a SelfGovernance Compact to meet matching or cost participation requirements 

under other Federal and non-Federal programs. 

11

() Without intending any limitation, a tribal organization may, 

without approval, expend funds provided under a Self-Governance 

Compact for the following purposes: 

11 (1) depreciation and use allowances not otherwise 

specifically prohibited by law, including depreciation of facilities 

owned by the Tribe and Tribal organization ::...td constructed with 

Federal fmancial assistance; 

11 (2) publication and printing costs; 

II (3) building, realty and facilities costs, including rental 

costs or mortgage expenses; 

11 (4) automated data processing and similar equipment or 

services; 

"(5) cost of capital assets and repairs; 

11 (6) management studies; 

II (7) professional services other than services provided in 

connection with judicial proceedings by or against the United States; 

11 (8) insurance and indemnification, including insurance 
245 

covering the risk of loss 

or of damage to property used in connection with the Compact 

without regard to the ownership or such property; 

"(9) cost incurred to raise funds or contributions from nonFederal sources for the purpose of furthering the goals and 

objectives of a Self-Governance Compact; 

"(10) interest expenses paid on capital expenditures such as 

buildings; building renovation, or acquisition or fabrication of 

capital equipment, and interest expenses on loans necessitated due 

to Secretarial delays in providing funds under an Annual Funding 

Agreement; and 

"(11) expenses of a Tribal organization's governing body 

to the extent attributable to the management or operation of 

Compacts authorized under this Act. 

349\0MBCoot.349 
246 

The Honorable Congressman George Miller 

u.s. House Of Representatives 

Washington, D.C. 20515 

RE: H.B. 3508, etc. 

Dear Representative Miller: 

February 14,1994 

I watch C-Span more than other T.V. combined. I very much 

appreciate the speech on Bosnia last evening and agree with 

and support what was said. No ethnic group or people should 

be suppressed in the ways of human genocide. You see, I am 

descended from Bosnian ancestors as well as being Native American 

Indian and a member of the Chinook Tribe located in Chinook 

Indian Country (what is commonly known as s.w. Washington State). 

House Bill 3508 establishing Indian Self-Governance on Indian 

Reservations sounds good and noble, but if passed as introduced, 

will rob Chinook Indian people and tribal members of our say 

in treaty and property rights (trees, fish, and a voice in 

participation of tribal government) in the Quinault Indi~n 

Reservation. 

Do you even realize that the Bureau Of Indian Affairs (BIA) 

inserts paragraphs into Congressional legislation with no regard 

to other tribal rights in Reservation's such as Quinault? 

The following is part of the Quinault Tribe's Title 99 which 

the BIA plans to insert when H.B. 3508 passes Congress: 

"99.09.010: (a) the Quinault Indian Nation is immune 

suit, (b) No current of former member of the Quinault 

Business Committee, including the executive 

officers( ••. ) may be subpoenaed or otherwise compelled 

to appear or testify in the Quinault Tribal Court 

or any proceeding which is under the jurisdiction 

of the Quinault Tribal Court concerning any matter 

involving such official's actions pursuant to his/hers 

official duties." 

"99.02.020: No temporary or preliminary restraining 

order may be signed or entered by the Quinault Tribal 

Court in any action against the Quianult Indian Nation 

or it's officer's, employees or agents." 
247 

This enables a dictorial reservation government ·from which over 77\ of the land owning population and over 70\ of the people 

have no recourse. The Chinook Tribe and its members have equal right's in the 

enlarged Quinault Reservation; see Halbert v. United ~' 

283 US 753 (1931), Wahkiakum Band Of Chinook v. Bateman, 655 

F.2d 176, 9th Cir. (1981), ana-wiliTams v. Clark 724 F. 2d 549, 

9th Cir.(1984); cert. denied 471 US 1015, 105:57Ct.R. 2017(1984). 

If the Indian Self-Governance Act passes without proper 

amendments the Quinault Tribe will usurp all authority and selfgovernance rights unto itself within the Quinault Indian 

Reservation. I do not believe the u.s. Congress is intending 

to abrogate Chinook, Chehalis, Cowlitz, Quileute tribal right's 

in the Quinault Reservation. I therefore strongly urge you 

to add appropriate amendants to H.B. 3508 to protect our tribal 

rights as Chinook Indians. 

Respectfully yours, 

/AJ~ Tim Tarabochia, 

Chinook Tribal member, 

P.O. Box 72, Chinook Indian 

Country, Skamokawa. 98647 

enc. Washington State Congressional Delegation 

House Natural Resources Committee 

Letter to the Honorable Rep. George Miller 

u.s. House of Representatives 

Feb. 9, 1994, Page (2) 

0 

87-276 (251) 
ISBN 0-16-046770-5 

90000