[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
UNLOCKING INDIAN COUNTRY'S ECONOMIC POTENTIAL
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON INDIAN AND INSULAR AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, March 1, 2023
__________
Serial No. 118-6
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
51-429PDF WASHINGTON : 2023
COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
DOUG LAMBORN, CO, Vice Chairman
RAUL M. GRIJALVA, AZ, Ranking Member
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
Tom McClintock, CA CNMI
Paul Gosar, AZ Jared Huffman, CA
Garret Graves, LA Ruben Gallego, AZ
Aumua Amata C. Radewagen, AS Joe Neguse, CO
Doug LaMalfa, CA Mike Levin, CA
Daniel Webster, FL Katie Porter, CA
Jenniffer Gonzalez-Colon, PR Teresa Leger Fernandez, NM
Russ Fulcher, ID Melanie A. Stansbury, NM
Pete Stauber, MN Mary Sattler Peltola, AK
John R. Curtis, UT Alexandria Ocasio-Cortez, NY
Tom Tiffany, WI Kevin Mullin, CA
Jerry Carl, AL Val T. Hoyle, OR
Matt Rosendale, MT Sydney Kamlager-Dove, CA
Lauren Boebert, CO Seth Magaziner, RI
Cliff Bentz, OR Nydia M. Velazquez, NY
Jen Kiggans, VA Ed Case, HI
Jim Moylan, GU Debbie Dingell, MI
Wesley P. Hunt, T X Susie Lee, NV
Mike Collins, GA
Anna Paulina Luna FL
John Duarte, CA
Harriet M. Hageman, WY
Vivian Moeglein, Staff Director
Tom Connally, Chief Counsel
Lora Snyder, Democratic Staff Director
http://naturalresources.house.gov
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SUBCOMMITTEE ON INDIAN AND INSULAR AFFAIRS
HARRIET M. HAGEMAN, WY, Chair
JENNIFFER GONZALEZ-COLON, PR, Vice Chair
TERESA LEGER FERNANDEZ, NM, Ranking Member
Aumua Amata C. Radewagen, AS Gregorio Kilili Camacho Sablan,
Doug LaMalfa, CA CNMI
Jenniffer Gonzalez-Colon, PR Ruben Gallego, AZ
Jerry Carl, AL Nydia M. Velazquez, NY
Jim Moylan, GU Ed Case, HI
Bruce Westerman, AR, ex officio Raul M. Grijalva, AZ, ex officio
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CONTENTS
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Page
Hearing held on Wednesday, March 1, 2023......................... 1
Statement of Members:
Hageman, Hon. Harriet M., a Representative in Congress from
the State of Wyoming....................................... 1
Leger Fernandez, Hon. Teresa, a Representative in Congress
from the State of New Mexico............................... 3
Statement of Witnesses:
Klatush, Hon. Dustin, Chairman, Confederated Tribes of the
Chehalis Reservation from the State of Washington.......... 4
Prepared statement of.................................... 6
Questions submitted for the record....................... 8
Rupnick, Hon. Joseph, Chairman, Prairie Band Potawatomi
Nation, Mayetta, Kansas.................................... 8
Prepared statement of.................................... 10
Questions submitted for the record....................... 11
Saunders, Wavalene, Vice Chairwoman, Tohono O'odham Nation
from the State of Arizona.................................. 13
Prepared statement of.................................... 14
Questions submitted for the record....................... 17
Robison, Jason, Land and Resources Officer, Cow Creek Band of
Umpqua Tribe of Indians, from the State of Oregon.......... 17
Prepared statement of.................................... 19
Questions submitted for the record....................... 21
Additional Materials Submitted for the Record:
Rupnick, Hon. Joseph, Chairman, Prairie Band Potawatomi
Nation, Supplemental Statement for the Record.............. 35
Submission for the Record by Representative Grijalva
United South and Eastern Tribes (USET), Statement for the
Record................................................. 39
OVERSIGHT HEARING ON UNLOCKING INDIAN COUNTRY'S ECONOMIC POTENTIAL
----------
Wednesday, March 1, 2023
U.S. House of Representatives
Subcommittee on Indian and Insular Affairs
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 9:03 a.m., in
Room 1324 Longworth House Office Building, Hon. Harriet Hageman
[Chairwoman of the Subcommittee] presiding.
Present: Representatives Hageman, LaMalfa, Gonzalez-Colon;
and Leger Fernandez.
Also present: Representative Stansbury.
Ms. Hageman. The Subcommittee on Indian and Insular Affairs
will come to order. Without objection, the Chair is authorized
to declare recess of the Subcommittee at any time. The
Subcommittee is meeting today to hear testimony on ``Unlocking
Indian Country's Economic Potential''.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chairman and the Ranking Minority
Member. I, therefore, ask unanimous consent that all other
Members' opening statements be made part of the hearing record
if they are submitted in accordance with Committee Rule 3(o).
Without objection, so ordered.
I ask unanimous consent that the gentlewoman from New
Mexico, Ms. Stansbury, be allowed to sit and participate in
today's hearing. Without objection, so ordered.
I will now recognize myself for an opening statement.
STATEMENT OF THE HON. HARRIET M. HAGEMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WYOMING
Ms. Hageman. Today, there are 574 federally recognized
Indian tribes with a population of approximately 2.8 million
American Indian and Alaskan Natives living in the United
States. There are approximately 56 million acres of Indian
land, and of that, 46 million acres belong to Indian tribes.
And an additional approximately 44 million acres of land in
Alaska are owned in fee simple by Alaska Native corporations
under unique terms established by Congress to settle Aboriginal
land claims in Alaska.
Although tribes are sovereign governments, some suffer
health, social, and economic disparities, as well as higher
poverty rates in comparison to other non-Native communities.
These disparities contribute to higher rates of unemployment in
Indian Country, and an underdeveloped business and entrepreneur
environment.
For many Indian tribes and Alaskan Natives, real property
holdings are the basis for social, cultural, and religious life
and often their single most important economic resource.
Typically, Indian lands primarily fall into one of three
categories: trust, fee, and restricted fee.
Trust land is owned and managed by the United States
through the Department of the Interior, and these lands are
held in trust for the benefit of an Indian tribe or individual
Indians. It is inalienable and nontaxable.
Restricted fee land is fee simple land that an Indian tribe
or individual Indian may own and hold title but is subject to a
restriction against alienation and taxation. An Indian tribe or
individual Indians also own fee simple land that can be freely
alienated or encumbered without Federal approval.
The current paradigm of the trust responsibility as
conceived and implemented by the government has, in the view of
some, wreaked all manner of harm on tribal communities. When
Federal Indian land is held in trust by the Department of the
Interior, legal title for that land is effectively owned by the
Federal Government.
This distinction means that no decisions about these trust
lands can occur without the approval of Washington bureaucrats.
And this can slow or, in some cases, halt development for
years. It also drives up costs.
While some statutes like the Long-Term Leasing Act have
enabled some tribes to lease their land for longer terms, many
tribes still face the effects of the Non-Intercourse Act which
limits their ability to buy, lease, or sell land for economic
development purposes.
We are going to hear some of those stories today from our
witnesses and what these individual exemptions allowed the
represented tribes to accomplish. Expanding the ability of
tribes to use their land in ways without needing to come to the
government for approval is crucial for furthering self-
determination and economic security.
It is in this spirit that yesterday I introduced a bill
that would allow all federally recognized tribes to authorize
leases of up to 99 years for lands held in trust. This would
get rid of the piecemeal approach Congress has taken on these
requests for the past 67 years.
Congress should continue to provide additional tools to all
federally recognized Indian tribes to conduct the activities
that they choose. Tribal governments already seek to make the
best decisions for their members, for their social, cultural,
and economic security.
We should ensure that Indian lands whether owned in fee,
owned written restricted fee, or held in trust for the benefit
of the tribes are able to be used as the tribes want to use
them.
I look forward to today's discussion and how Congress can
remove onerous restrictions on Indian lands, including trusts
lands, so that the tribes can unlock economic potential and
diversify their business and economic interests.
The Chair now recognizes the Ranking Minority Member for
her statement.
STATEMENT OF THE HON. TERESA LEGER FERNANDEZ, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW MEXICO
Ms. Leger Fernandez. Good morning, all. And thank you to
the witnesses for joining us here today. I would also like to
extend my warm welcome to the Chairwoman, who is now heading up
the Committee. And I look forward to ongoing bipartisan support
on the issues affecting Native American tribes and our
Indigenous peoples as well as the insular areas.
And I think that that is one of the wonderful parts of this
Committee, the Subcommittee. It has always acted in a way that
puts the interests of our Indigenous peoples, our Native
Americans first. And for that, I am very, very pleased and
proud of the great work we have done.
Economic sovereignty is how I often think of these issues,
right? Tribes need economic sovereignty. And today's topic of
Unlocking Indian Tribes Economic Potential is especially timely
after the great bipartisan economic development work we
accomplished last session. We did get a lot done and there is
always more to do. The journey is a journey, right? We
constantly have an obligation to move ourselves forward.
So, last Congress, we passed 26 tribal bills out of the
House of Representatives, 18 of which were signed into law. And
this noted the bipartisanship work we did. And, indeed, the two
bills that we passed last Congress, which we will be hearing
more about today, S. 3773, authorized the leases of land for
the Confederated Tribes of the Chehalis Reservation, and S. 108
to authorize the Seminole Tribe of Florida to transfer lease
certain lands.
And when we brought those bills, and as we talked about
those bills, we pointed out the importance of making sure that
we did not continue to do this on a piecemeal basis, but that
we would create a fix that would apply to all tribes. So, thank
you very much, Madam Chairwoman, for introducing the
legislation. And we look forward to working with you as we move
forward on it.
We laid the groundwork back there for the broader fix
because we know that there are indeed obstacles, especially in
terms of being able to move quickly on issues around developing
tribal land.
I did that work for about 30 years, so I was grinding my
teeth more than once over the difficulties we were having
getting the BIA to move quickly on leases or rights-of-way. I
worked hard to have the BIA change its rights-of-way and
leasing statutes so that it would be easier for tribes to move,
because what we are dealing with is not a silver bullet, but is
one of the important pieces as we move forward.
The Bipartisan Infrastructure Law, for example, we spent
$13 billion for tribal communities. But if we cannot get those
$13 billion into the ground because rights-of-ways or leases
are taking too long, that is going to be a problem, which is
why we actually did appropriate additional monies for the BIA
to address the studies they need to do.
My bill last year dealing with tribal historic preservation
officers, and the whole Section 106 study to provide more
funding for that, to permanently authorize it, would be another
step that we need so those processes move faster.
I need to tell you about one example of a great economic
development engine in New Mexico because I think it is telling
about one way you could do this. So, the 19 pueblos owned,
jointly, former boarding school land in Albuquerque, and they
operate it jointly through a Section 17 corporation.
What they have chosen to do is to provide leases of that
land in a master lease concept, right? So, they get all the
approvals upfront. And then they, themselves, direct the
development of that land so that retailers are renting from
them, so that the BIA is renting office space from the tribes
it serves themselves, generating significant resources.
And one of the things I love about this is, as they are
generating those resources, they are making sure that they are
controlling both the land, the use of the land, and providing
the cultural resources that are so important. So, on that land
is the Indian Pueblo Cultural Center, the center that is one of
the third most visited sites in New Mexico, and we have a lot
of tourism.
That is why I think it is such a beautiful example of, how
do we help tribes do what the Indian Pueblo marketing did in
New Mexico, which is develop their lands, continue to control
the economic destiny, as well as protecting their cultural
heritage.
So, I look forward to hearing the testimony of the
witnesses today as we move to promote tribal economic
sovereignty. Thank you so very much.
Ms. Hageman. Thank you. And I will now introduce our
witnesses. The Honorable Dustin Klatush, Chairman, Confederated
Tribes of the Chehalis Reservation, Oakville, Washington; the
Honorable Joseph Rupnick, Chairman, Prairie Band Potawatomi
Nation, Mayetta, Kansas; the Honorable Wavalene Saunders, Vice
Chairwoman, Tohono O'odham Nation, Sells, Arizona; and Mr.
Jason Robison, Land and Resources Officer, Cow Creek Band of
Umpqua Tribe of Indians, Roseburg, Oregon.
Let me remind the witnesses that under Committee Rules,
they must limit their oral statements to 5 minutes, but their
entire statement will appear in the hearing record. To begin
your testimony, please press the talk button on the microphone,
which I often forget.
And we must use timing lights. When you begin, the light
will turn green. When you have 1 minute left, the light will
turn yellow. And at the end of 5 minutes, the light will turn
red, and I will ask you to please complete your statement. I
will also allow all witnesses on the panel to testify before
Member questioning.
The Chair now recognizes the Honorable Dustin Klatush for 5
minutes.
STATEMENT OF THE HON. DUSTIN KLATUSH, CHAIRMAN, CONFEDERATED
TRIBES OF THE CHEHALIS RESERVATION FROM THE STATE OF WASHINGTON
Mr. Klatush. Good morning, Chair Hageman, Ranking Member
Leger Fernandez, and members of the Committee. My name is
Dustin Klatush, and I am the Chairman of the Confederated
Tribes of the Chehalis Reservation. I appreciate the
opportunity to testify today on the Chehalis Tribes'
recommendations to promote and eliminate barriers to tribal
economic development.
The Chehalis Reservation is located halfway between Seattle
and Portland off Interstate 5 in Southwest Washington State.
Southwest Washington has long been an economically depressed
area, lacking in businesses and jobs for both Tribal members
and non-Natives alike.
Most of the Tribes' 4,800-acre land base is in a flood
plain and the Tribe has very little land suitable for economic
development. For this reason, the Tribe has had to be
innovative with land that it has to maximize our ability to
generate revenue and to provide for our citizens.
The Chehalis Tribe is proud to have accomplished two firsts
in Indian Country. In 2008, the Tribe constructed the first
Great Wolf Lodge Waterpark on Indian lands. The Tribe also
opened the first legal distillery in Indian Country.
Congress helped in an effort by repealing an 1834 law that
prohibited construction of distilleries on Indian lands. The
law was part of the 1834 Non-Intercourse Act and required
Indian agents to destroy and break up distilleries within the
areas. The law even stated that in breaking up distilleries, it
shall be lawful to employ the use of the military force of the
United States.
The Tribes' Talking Cedars brewery and distillery was the
first ever legal distillery in Indian Country. It is also the
largest craft distillery west of the Mississippi River. This
success could not have occurred if Congress had not repealed
the 1834 law. Like the now-repealed distillery law, there are
laws within the Committee's jurisdiction that should be
repealed or be amended to make them more accessible to tribes.
Late last year, Congress added the Chehalis Tribe to the
list of Indian tribes for which the Bureau of Indian Affairs
can approve 99-year leases. The Tribe had received two letters
of intent from outside the companies to develop warehouse
facilities on reservation land that the Tribe owns along major
highways.
Both proposals required leases with terms longer than the
25-initial term, and the single 25-year extension allowed under
the Long-Term Leasing Act. So, we went to work on a bill that
added the Chehalis Tribe to the statute and allowed the
Chehalis Tribe to enter into 99-year leases.
These bills have always been noncontroversial because they
simply allowed the Secretary to approve leases of up to 99
years but did not require it. We were hopeful that the bill
could steadily progress due to legislative process.
What occurred, however, was a drawn-out situation where all
Indian-related bills were being held in the Senate for a reason
unrelated to the merits of the bills themselves. Months dragged
on with no Senate floor movement on nearly all Indian-related
standalone bills, including our bill.
The Tribe was fortunate to finally have its bill approved
by the Senate on December 20, 2022. The House passed the bill
on December 22, 2022, and sent it to the President.
Since the Tribe's bill was signed into law, the Tribe has
reengaged with third-party developers and hopes to find or to
have deals in place soon and begin construction during the
building season this year.
While working to secure passage of the Chehalis Tribes' 99-
year lease bill, the Tribe advocated for an amendment to the
Long-Term Leasing Act that would allow all Indian tribes to
obtain 99-year leases.
We do not believe that individual bills to add tribes to
the statute is a good use of the tribes' or Congress' time and
resources. Given our experience, we urge Congress to amend the
Long-Term Leasing Act to allow all federally recognized Indian
tribes the option to enter into leases with terms of up to 99
years.
Thank you for allowing me to testify today. I look forward
to answering any questions that the Committee may have.
[The prepared statement of Mr. Klatush follows:]
Prepared Statement of the Honorable Dustin Klatush, Chairman,
Confederated Tribes of the Chehalis Reservation
Thank you, Chair Hageman, Ranking Member Leger-Fernandez, and
members of the Committee for holding this oversight hearing. My name is
Dustin Klatush and I am the Chairman of the Confederated Tribes of the
Chehalis Reservation (the ``Tribe''). My testimony will focus on the
Chehalis Tribe's recommendations to promote and eliminate barriers to
tribal economic development.
The Chehalis Reservation was created by Executive Order in 1864 and
is located between the confluence of the Chehalis River and the Black
River. Geographically, the Tribe is located approximately halfway
between Seattle and Portland off Interstate 5. Southwest Washington has
long been an economically depressed area lacking in businesses and jobs
for Tribal members and non-Indians alike.
The Tribe was, and is, a fishing tribe, and diminished fish runs
have made fishing more difficult every year. In the 1970s before
economic development became possible, Chehalis tribal fishermen earned,
on average, $1900 a year. This required many tribal members to work
off-reservation for the state government or for non-Indian businesses
to provide for their families.
The Tribe operates a casino but is always looking for ways to
diversify its economic base to continue to support education, health,
housing, safety, and other services for its members. Approximately 40
percent of Chehalis tribal members are under the age of 18 and will
need jobs in the future.
Most of the Tribe's 4,800-acre land base is in a flood plain and
the Tribe has very little land suitable for economic development. For
this reason, the Tribe has had to be innovative with the land that it
has to maximize its ability to generate revenue and to provide for our
citizens. In this regard, the Chehalis Tribe is proud to have
constructed the first Great Wolf Lodge waterpark in Indian country in
2008.
The Tribe has the following recommendations for the Committee to
consider:
I. ALLOW ALL INDIAN TRIBES TO ENTER INTO 99-YEAR LEASES
In the final days of the 117th Congress, the House approved S.
3773, a bill that amended the Long-Term Leasing Act of 1955 to add the
Chehalis Tribe to the list of Indian tribes for which the Secretary of
the Interior is authorized to approve leases with terms of up to 99
years. House passage sent the bill to the President, who signed S. 3773
into law on January 5, 2023.
The Tribe was, and remains, interested in developing warehouse
facilities on two parcels of its reservation trust land. The warehouses
would serve supply chain needs between the cities of Seattle, Tacoma,
Olympia, and Portland. The Tribe had received two letters of intent for
developing the facilities from outside developers, but both proposals
would have required leases with terms longer than the 25 initial term
and the single 25-year extension allowed under the Long-Term Leasing
Act.
The Tribe promptly began working with the Washington state
congressional delegation to get House and Senate bills introduced as
quickly as possible to add the Chehalis Tribe to the statute. The
Tribe's goal was to secure the amendment into law by the end of the
117th Congress not only to maintain the interest of the outside
developers, but also to enable the Tribe to secure a lease and begin
construction during the Pacific Northwest construction season.
Historically, for an Indian tribe to enter 99-year leases, Congress
has legislatively added the tribe's name at the end of the pertinent
clause in the Long-Term Leasing Act. These have always been treated as
ministerial, non-controversial bills, because they simply allow the
Secretary to approve leases of up to 99 years, but do not require it.
The Chehalis Tribe was hopeful that its bill could steadily progress
through the legislative process.
What ended up occurring, however, was a protracted situation where
all Indian-related bills were being held in the Senate for reasons
unrelated to the merits of the bills themselves. Months dragged on with
no Senate floor movement on nearly all Indian-related standalone bills,
including S. 3773. Finally, the logjam began to break the second week
of December 2022 and individual bills were able to be considered on the
Senate floor. The Chehalis Tribe was fortunate to have been able to
have its bill approved by the Senate on December 20, 2022, and the
House passed the bill on December 22, 2022. The clock could have easily
run out, however, and the Tribe would have had to start anew in the
118th Congress.
Since the Tribe's bill was signed into law in early January, the
Tribe has reengaged with the third-party developers it was
communicating with previously and hopes to have a deal in place soon
and begin construction this year.
During its efforts to secure enactment of its 99-year lease bill,
the Tribe advocated for a going-forward amendment to the Long-Term
Leasing Act to ensure that any Indian tribes that needed longer term
leases would not need to pursue individual bills that are subject to
the vagaries of Congress.
While the Chehalis Tribe was ultimately successful, it does not
believe that individual bills to add tribes to the statute is a good
use of the tribes' or Congress's time and resources. Given our
experience, we urge Congress to amend the Long-Term Leasing Act to
allow all federally recognized Indian tribes the option to enter into
leases with terms of up to 99 years.
II. OTHER FEDERAL LAWS EITHER REMAIN OBSTACLES TO TRIBAL ECONOMIC
DEVELOPMENT OR CAN BE IMPROVED
Various laws in the U.S. Code that are in this Committee's
jurisdiction are either impediments to tribal economic development or
could be amended to make them more useful to tribes. The Chehalis Tribe
has firsthand experience in this regard when, in January 2018, it was
informed that an 1834 law that prohibited construction of distilleries
in Indian country likely prohibited the Tribe's plans to begin
construction on its long-awaited distillery project.
The law in question, which had never been enforced, was part of the
1834 Non-Intercourse Act and prohibited construction of distilleries in
Indian country. The law charged Indian agents with responsibility to
``destroy and break up'' such distilleries in their respective Indian
agencies. The law even provided that in breaking up distilleries, ``it
shall be lawful to employ the use of the military force of the United
States.''
Not desiring war, the Chehalis Tribe instead turned to the
Washington state delegation and this Committee for assistance in
repealing the law. From introduction to enactment, the process took
only nine months, which is a testament to the bipartisan recognition
that these types of outdated laws should not be allowed to impede
progress. In 2020, the Tribe opened the Talking Cedars brewery and
distillery, which is the first ever legal distillery in Indian country
and the largest craft distillery west of the Mississippi River. This
success could not have happened had the 1834 law not been repealed by
Congress.
There are other laws that could and should be repealed or updated.
As the Committee is aware, a separate provision of the Non-Intercourse
Act requires Congress's consent to alienate Indian land. The provision
has been interpreted by some courts as applying to fee land that an
Indian tribe purchases on the open market, which has caused some tribes
delays or difficulties in obtaining financing for economic development
projects. This is another example of an antiquated law that could be
amended to eliminate unintended impacts.
A separate law that can be updated to make it more effective is the
Buy Indian Act, which is within this Committee's jurisdiction. The Buy
Indian Act provides the Department of the Interior and certain agencies
within the Department of Health and Human Services (``HHS'') with the
authority to set aside certain contracts for Indian-owned and
controlled businesses. The Act does not extend to other federal
agencies, however.
The Chehalis Tribe is in the early stages of seeking to supply
neighboring military installations with products from its Talking
Cedars distillery. Currently, the Buy Indian Act does not apply to
departments outside of Interior or HHS, which is a potential
complicating factor in working with Department of Defense procurement
officials. Expanding the Buy Indian Act to other federal agencies would
benefit Indian country and promote tribal economic development.
I thank the Committee for allowing me to provide testimony today
and look forward to answering any questions.
______
Questions Submitted for the Record to Hon. Dustin Klatush, Chairman,
Confederated Tribes of the Chehalis Reservation
The Honorable Dustin Klatush did not submit responses to the Committee
by the appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Westerman
Question 1. Please further expand on your written testimony and
highlight further examples of where your tribal government has been
able to successfully utilize tribal lands for economic benefit.
Question 2. Please further expand from your oral testimony on how
the lack of staffing at the regional Bureau of Indian Affairs
headquarters has affected economic development plans.
2a) What would be your recommendation to Congress or to the Bureau
to improve these issues?
Question 3. Please further expand on your written testimony and
provide an update on the warehouse acilities developmental project.
3a) Will you be pursuing any other projects with the tribe's new
leasing authority?
Question 4. Is there any further information you think the
Committee needs to make good policy regarding land use restrictions for
tribal lands?
______
Ms. Hageman. I thank the witness for his testimony.
The Chair now recognizes the Honorable Joseph Rupnick for 5
minutes.
STATEMENT OF THE HON. JOSEPH RUPNICK, CHAIRMAN, PRAIRIE BAND
POTAWATOMI NATION, MAYETTA, KANSAS
Mr. Rupnick. Good morning, Madam Chair Hageman, Ranking
Member Leger Fernandez, and distinguished members of the
Subcommittee. My name is Joseph Rupnick, and I serve as
Chairman for Prairie Band Potawatomi Nation. I am a Veteran in
the United States Calvary, and I represent about 4,500 Prairie
Band Potawatomi people, most of whom live on the reservation in
Kansas, which is defined by our 1846 treaty with the U.S.
Government.
I am honored to be with you here today to share my thoughts
of Unlocking Indian Country's Economic Potential, particularly
as it relates to the ownership and use of tribal lands.
Originally, our people owned and resided in lands in
Northern Illinois, but we were subject to removal treaties in
1829 and 1833, that relinquished all but 1,280 acres of land.
Our 1846 treaty established a 900-square-mile reservation for
us in Kansas, but development pressures, the Federal
Government's land allotment policies, and outright theft
resulted in most of our lands being lost to non-Indians.
Just a few decades ago, our Nation owned less than 5
percent of the land originally promised us. Today, lands within
our reservation are heavily checkerboarded, meaning that there
are mixed parcels of land within the reservation owned by our
Nation, individual Nation citizens, and non-Indians. And
because this status of land differs based on ownership, so too
does the jurisdiction and taxing authority of the tribal,
federal, state, and county governments.
Frankly, what the government has done to us and our lands,
has been nothing more than to create a mess. And this mess is
compounded by the fact that these lands that we have retained
are considered to be trust, that is lands owned by and under
the jurisdiction of the Federal Government.
In my view, the idea of trust land is not normal and should
be fixed to recognize that our Nation is the owner of our lands
within our treaty-defined reservations and subject to our
primary jurisdiction. The Federal Government should be able to
protect our lands against sale, external taxation, and
regulation, not management or interference with our Tribal
government's land use decisions.
Perhaps the most glaring defect of land trust status is how
it interferes with economic development activities that we wish
to pursue to support our people.
For example, in recent years, we have sought to expand a
retail shopping plaza with a convenience store to support our
Class III gaming facility. We acquired the land in fee from
non-Indian sellers. And we had to apply to the Bureau of Indian
Affairs to have the land taken into trust. That took 14 years,
and it is still not done today.
We had to undergo extensive environmental review because
the land is now considered to be in trust status. The utility
service takes us time to hook up because the Federal Government
has regulations governing rights-of-way and trust lands. We
started this project 22 years ago and it is still not finished.
Nowhere in America, other than Indian Country, does this kind
of bureaucratic stranglehold occur.
To remedy this situation, I recommend that the Subcommittee
considers acting on three different areas to improve the use of
Tribal lands. First, Congress should enact legislation to allow
for any Tribal Nation, at its own choosing, to acquire lands
under the jurisdiction in restricted fee status. Restricted fee
is a long-established form of tribal landownership similar to
trust status, but the land is considered owned by the Indian
Nation, not the Federal Government.
The late Don Young, the former Dean of the House, supported
tribal sovereignty for tribal governments to own their own land
and exercise jurisdiction over them within our reservations. He
developed legislation, the Native American Land Impairment Act,
that he introduced in the 112th Congress and subsequent
Congresses to allow for Indian Nations to acquire restricted
fee lands within our existing reservations.
He proposed a 90-day process that land acquired by the
tribe in fee within the reservation would automatically be
converted to restricted fee status under its ownership and
jurisdiction. Enactment of this legislation would create an
alternative process to the current fee-to-trust application.
All Tribal Nations could save time, money, and strengthen our
ability to engage in economic development within our
reservations.
Some tribes may not like the idea, but would prefer to have
their lands held in trust. That is their right. But for these
Nations that want greater control over our land use from the
Federal Government, we should have the opportunity as well.
Right now, Indian Nations are limited in our ability to
lease our lands without Federal Government approval. And
Congress took the step to enact the HEARTH Act which we have
been using to our advantage. We should simply fix this
situation by enacting legislation that allows any Indians that
want the authority to lease the lands with a 99-year lease.
And we want to thank you, Madam Chairwoman, for introducing
that bill as well. At this time, I would like to thank you
again, Madam Chairwoman, and the Subcommittee members, for this
opportunity to testify today.
For 50 years, the official policy of Congress has been to
support tribal sovereignty and self-determination. More must be
done to make this a reality, and I support tribal economic
self-sufficiency. I am glad to take any questions that you may
have. Thank you.
[The prepared statement of Mr. Rupnick follows:]
Prepared Statement of Joseph Rupnick, Chairman, Prairie Band Potawatomi
Nation
Good morning, Chair Hageman, Ranking Member Leger-Fernandez, and
distinguished members of the Subcommittee. My name is Joseph Rupnick
and I serve as the Chairman of the Prairie Band Potawatomi Nation. I am
a veteran of the United States Calvary and I represent approximately
4,500 Potawatomi people most of whom live on our reservation in Kansas
defined by our 1846 Treaty with the United States government.
I am honored to be with you today to share my thoughts on
``Unlocking Indian Country's Economic Potential,'' particularly as it
relates to the ownership and use of tribal lands for economic
development. Originally, our people owned and resided on lands in
northern Illinois, but we were subject to removal treaties in 1829 and
1833 that relinquished all but 1,280 acres of that land. Our 1846
treaty established a 900 square mile reservation for us in Kansas, but
development pressure, the federal government's land allotment policies
and outright theft resulted in most of our land being lost to non-
Indians. Just a few decades ago, our Nation owned less than 5% of the
land originally promised to us.
Today, lands within our Reservation are heavily
``checkerboarded''--meaning that there are mixed parcels of land within
the Reservation owned by our Nation, individual Nation citizens, and
non-Indians. And because the status of the land differs based on
ownership, so too does the jurisdiction and taxing authority of the
tribal, federal, state, and county governments. Frankly, what the
government has done to us and our lands has been to create a mess.
This mess is compounded by the fact that that the lands that we
have retained are considered to be ``trust lands''--that, is--lands
owned by and under the jurisdiction of the federal government. In my
view, the idea of ``trust land'' is not normal and should be fixed to
recognize that our Nation is the owner of our lands within our treaty-
defined reservations and subject to our primary jurisdiction. The
federal government's role should be to protect our lands against sale
and external taxation and regulation, not management and interference
with our tribal government's land use decisions.
Perhaps the most glaring defect of trust land status is how it
interferes with economic development activities that we wish to pursue
to support our people. For example, in recent years we have sought to
expand a retail shopping plaza with a convenience store to support our
Class III gaming facility. We acquired the land in fee from non-Indian
sellers. We had to apply to the Bureau of Indian Affairs to have the
land taken into trust, which took 14 years. We had to undergo excessive
environmental review because of the land is now considered to be in
trust status. The utility service takes time to hook up because of the
federal regulations governing rights of way on trust land. We started
this project 22 years ago and it is still not finished. Nowhere in
America other than Indian Country does this kind of bureaucratic
stranglehold occur.
To remedy this situation, I recommend that the Subcommittee
consider acting in three different areas to improve use of tribal
lands.
First, the Congress should enact legislation to allow for any
Indian nation at its own choosing to acquire lands under its
jurisdiction in restricted fee status. Restricted fee status is a long-
established form of tribal landownership similar to trust status, but
the land is considered owned by the Indian nation not the federal
government.
The late Don Young, the former Dean of the House, supported tribal
sovereignty for tribal governments to own our own lands and exercise
jurisdiction over them within our reservations. He developed
legislation--the ``Native American Land Empowerment Act''--that he
introduced in the 112th and subsequent Congresses to allow for Indian
nations to acquire restricted fee lands within our existing
reservations. He proposed a 90-day process that land acquired by a
tribe in fee within its reservation would automatically be converted to
restrict fee status under its ownership and jurisdiction.
Enactment of this legislation would create an alternative process
to the current fee-to-trust process. All tribal nations could save
time, money, and strengthen our ability to engage in economic
development within our reservations if we had this tool at our
disposal. Some tribes may not like the idea and would prefer to have
their lands held in trust. That is their right. But for those nations
that want greater control over our land use from the federal
government, we should have that opportunity as well.
In addition, I would like to suggest two other important changes to
expand tribal government authority over our own lands.
Right now, Indian nations are limited in our ability to lease our
lands without federal approval. In 2012, the Congress took a major step
forward when it enacted the HEARTH Act to amend the Indian Long-Term
Leasing Act of 1955 (25 USC 415) to allow for the leasing of trust or
restricted lands of up to 75 years. But, to regain that inherent
authority, a tribe must first ask permission and secure approval from
the federal government to exercise that authority. And to get that
approval, a tribe's laws must have a variety of restrictions and
controls governing land use that are nearly as burdensome as the
federal government's own regulations.
In true fashion, the federal government acted in a manner that
looks like it is respecting tribal sovereignty but loads up the process
with so many other restrictions that you have to wonder whether it's
really worth it.
The Congress should simply fix this situation by enacting
legislation that allows any Indian that wants the authority to lease
its trust lands for 99-years to do so. Again, if a tribe wants to
utilize the existing legal regime, that is their choice. But if other
tribes like ours want a streamlined process, the federal government
should just get out of the way.
Lastly, Congress should amend the Nonintercourse Act to clarify
that it does not apply to the purchase and sale of fee lands. This Act,
one of the first pieces of legislation enacted by the Congress in 1790,
serves an important function to protect the sale and alienation of
Indian lands. But it should not apply to land transactions involving
the purchase and sale of fee lands. Many tribal governments, including
ours, are interested in expanding our economic opportunities into real
estate development, but any future sale could be stopped because of a
restrictive interpretation of the Nonintercourse Act.
In conclusion, I want to thank you again Madam Chair and
Subcommittee members for the opportunity to testify today. For 50
years, the official policy of the Congress has been to support tribal
sovereignty and self-determination. More must be done to make this a
reality to support tribal economic self-sufficiency.
I am glad to take any questions that you may have.
______
Questions Submitted for the Record to Hon. Joseph Rupnick, Chairman,
Prairie Band Potawatomi Nation
Questions Submitted by Representative Westerman
Question 1. Please further expand on your testimony and highlight
further examples of where your tribal government has been able to
successfully utilize tribal lands for economic benefit.
Answer. Our Nation's primary economic activity and source of
government revenue is our Class II and Class III gaming facilities. To
the extent that these facilities are located on our Reservation trust
lands, it can be said that that we have successfully utilized our
tribal lands for economic benefit. However, the primary reason for our
economic success in this area is due to our favorable market location,
our regulatory advantage, and the stability of the federal regulatory
framework.
In addition, we have established two convenience store businesses
for the retail sale of motor fuel and tobacco products under our state
tax compact. However, beyond these ventures, our lands have not
generated much government revenue at all.
We have established a diversified holding company--Prairie Band
LLC--that operates several subsidiaries focused on 8(a) contracting and
other off-territory investments. Only our convenience store and golf
course operations have a component related to operation on our trust
lands. We have also established a hemp farm and a bison ranch, but
neither of these enterprises have generated a profit currently.
As reiterated from my testimony, one primary reason why there has
not been more development of our land is because it is heavily
``checkerboarded''. Agricultural and grazing use is limited because no
one landowner--including the Nation itself--owns enough land to
establish a commercially viable business.
If the Nation were to have the benefit of the tools outlined in my
written testimony--restricted fee land, extended leasing authority, and
liberty to buy and sell fee lands--I believe that the Nation could
achieve more economic success.
Question 2. Is there any further information you think the
Committee needs to make good policy regarding land use restrictions for
tribal lands?
Answer. In addition to the recommendations contained in my written
testimony, there are other changes in federal law and regulation that
must occur before Tribal nations can be more self-sufficient.
First, Congress needs to address the race-based taxation imposed on
non-Indians doing business on Tribal lands. In 1989, the U.S. Supreme
Court authorized state and local governments to tax non-Indian economic
activity occurring on Tribal lands. See Cotton Petroleum v. New Mexico,
490 U.S. 163 (1989). Congress never authorized this activity and it has
served to cripple the ability of Tribal nations to pursue economic
activities within our reservations. This case followed the decision in
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) which upheld the
ability of Tribal governments to impose taxes on non-Indian economic
activity. The clash of these two lines of cases is to create a
situation of ``dual taxation'' that inhibits non-Indian investment
within our nations. It is intolerable and as long as this situation is
allowed to exist, Tribal economies will never truly be free to generate
economic self-sufficiency.
Second, Federal regulations in other areas unrelated to lands
should be reformed to support Tribal economic growth. In 2000, the
Congress directed the Commerce Department to establish a ``Regulatory
Reform and Business Development on Indian Lands Authority'' to
``facilitate the identification and subsequent removal of obstacles to
investment, business development, and the creation of wealth'' within
Tribal nations. See Pub. L. 106-447, 114 Stat. 1936, Nov. 6, 2000. This
law was never implemented.
The Findings set forth in this law are as relevant as ever and
should be addressed without further delay:
``Congress finds that----
(1) despite the availability of abundant natural resources on
Indian lands and a rich cultural legacy that accords great
value to self-determination, self-reliance, and
independence, Native Americans suffer rates of
unemployment, poverty, poor health, substandard housing,
and associated social ills which are greater than the rates
for any other group in the United States;
(2) the capacity of Indian tribes to build strong Indian tribal
governments and vigorous economies is hindered by the
inability of Indian tribes to engage communities that
surround Indian lands and outside investors in economic
activities conducted on Indian lands;
(3) beginning in 1970, with the issuance by the Nixon
Administration of a special message to Congress on Indian
Affairs, each President has reaffirmed the special
government-to-government relationship between Indian tribes
and the United States; and
(4) the United States has an obligation to assist Indian tribes
with the creation of appropriate economic and political
conditions with respect to Indian lands to----
(A) encourage investment from outside sources that do not
originate with the Indian tribes; and
(B) facilitate economic development on Indian lands.
Conclusion. If you have further questions, please do not hesitate to
contact me.
______
Ms. Hageman. Thank you very much. And your entire statement
is in the record. Thank you for your testimony.
And the Chair now recognizes the Honorable Wavalene
Saunders for 5 minutes.
STATEMENT OF WAVALENE SAUNDERS, VICE CHAIRWOMAN, TOHONO O'ODHAM
NATION FROM THE STATE OF ARIZONA
Ms. Saunders. (Speaks Native language.) Good day. My name
is Wavalene Saunders. I am the Tohono O'odham Nation Vice
Chairwoman. Good morning Chair Hageman, Ranking Member Leger
Fernandez, and distinguished members of the Subcommittee.
The Nation is a federally recognized tribe with more than
34,000 members. Our reservation is one of the largest in the
United States, roughly the size of Connecticut. The Nation
appreciates the Subcommittee's focus on economic development,
as this is an issue critically important to the Tohono O'odham
Nation.
We are particularly concerned about how inadequate and
outdated infrastructure thwarts the development of healthy,
diverse tribal economies, including the impact it has on our
small business owners. So, we appreciate this opportunity to
testify.
First, more serious Federal investment in the repair and
maintenance of BIA roads is very, very critical on the Tohono
O'odham Nation, as I am sure it is throughout Indian Country.
Reservation-based businesses must be given the opportunity to
get their products and their customers to market.
The remoteness of our reservation and the extremely poor
conditions of our roads are significant barriers for both
Tribal members and internal partners who otherwise want to
develop businesses in our communities. Chronic underfunding of
the BIA Road Maintenance program leaves our roads severely
compromised by sinkholes, potholes, broken and cracked
pavement, and washed-out bridges. These roads are dangerous for
our members as well as our visitors.
During monsoon seasons, flooding completely washes out our
roads and makes them impassible. According to a December 2018
U.S. Commission on Civil Rights report, deficiencies in
transportation system infrastructure in Indian Country
diminishes opportunities for development, which further impairs
the ability of tribal communities to thrive.
Second, we need better utility infrastructure. Rural
communities such as ours in Indian Country suffer from profound
deficiencies in the availability of basic utilities to provide
adequate drinking water, sanitation, and electricity to a
majority of our communities.
On the Nation, utility hookup is extremely expensive,
creating serious barriers to the development of new businesses.
Lack of utility access impacts not just the operation of a new
business but also its potential workforce. More than 12 percent
of tribal homes lack access to safe drinking water and basic
sanitation which is a rate more than 20 times higher than the
national average.
This fundamental deficiency in the quality of life
undermines the availability and retention of a ready workforce
and poses a significant barrier to creating reservation-based
economic and employment opportunities.
I also want to underscore the importance of
telecommunication and Internet access. Lack of access to
broadband inhibits our ability to spur economic development and
to train a technically skilled workforce as well as continuing
education for all of our students in schools within the
boundaries of the Tohono O'odham Nation.
The state of Arizona found that 95 percent of people living
on tribal lands either have unserved or underserved
telecommunication access. The Nation appreciates Congress'
recent attention to these issues, but continued efforts and
funding are absolutely critical.
Our citizens are challenged by difficulty in securing
capital to develop businesses on trust lands, inadequate access
to banking services generally, and inadequate access to
business and technical training. The Nation would like to see
greater investment in helping potential small business owners
start and grow their own.
Lastly, review and approval by BIA is required for a host
of infrastructure and other development on Indian lands. The
challenges we face as the Tohono O'odham Nation illustrate the
dismal condition of physical infrastructure in rural Indian
Country and the importance of investment in our communities. We
welcome the opportunity to work with the Committee to find ways
to address the challenges. And we thank you for your time in
addressing all of our concerns on behalf of the Tohono O'odham
Nation in Indian Country.
Thank you.
[The prepared statement of Ms. Saunders follows:]
Prepared Statement of the Honorable Wavalene Saunders, Vice Chairwoman,
the Tohono O'odham Nation of Arizona
Thank you Chair Hageman, Ranking Member Leger Fernandez, and
distinguished members of the Subcommittee for this opportunity to
provide the Tohono O'odham Nation's (Nation's) testimony. My name is
Wavalene Saunders, and I am the elected Vice Chairwoman of the Nation.
The Nation is a federally recognized tribe with more than 34,000
members. Our Reservation is one of the largest in the United States,
roughly the size of the State of Connecticut, with the bulk of being
rural and remote. This rural, remote character of the Nation's
Reservation, and our lack of access to fully developed infrastructure,
presents very significant challenges to economic development and job
creation on our lands. For this reason, the Nation sincerely
appreciates the Subcommittee's focus on questions related to the
opportunities and challenges for economic development in Indian
Country. Following below we have identified several areas in which
inadequate and outdated infrastructure materially obstructs the
Nation's ability to develop a healthy, diverse tribal economy and
generate a varied employment base.
Roads and Transportation
It is hard to underscore strongly enough how significant an issue
this is for rural tribal communities. There is no way around the fact
that a tribe needs a strong infrastructure foundation in order to be
able to develop a strong economic base. Reservation-based businesses
must be given the opportunity to get their products--and their
customers--to the market. Where a tribe's transportation system and
general infrastructure are not adequate, entrepreneurs are discouraged
from developing businesses and those that do have a difficult time
succeeding. For the Tohono O'odham Nation and other rural tribal
communities, the remoteness of our Reservation and the extremely poor
condition of our roads are significant factors preventing both tribal
members and external business partners from developing businesses in
our communities. We are particularly concerned about the impact on the
development of small businesses, which are a priority for the Nation.
We feel strongly that only when the transportation infrastructure
problem is addressed can tribal communities begin to establish a
healthy economic base that will support small tribal member-owned
businesses and provide meaningful employment opportunities for tribal
members.
Using the Nation's Reservation as an example, we have hundreds of
miles of severely damaged roads, including 734.8 miles of BIA-managed
roads. Due to the lack of funding for the Bureau of Indian Affairs'
(BIA's) Road Maintenance Program, many of our roads are severely
compromised by sink holes, pot holes, broken and cracked pavement, and
washed-out bridges, making them dangerous for our members and visitors
alike. During monsoon season, flooding completely washes out roads and
makes them impassable, stranding our members, and isolating
communities. These conditions present a real impediment to attracting
business and stimulating the Reservation economy. According to the
December 2018 U.S. Commission on Civil Rights report evaluating the
budgets and spending of federal agencies that administer Native
programs, deficiencies in transportation system infrastructure in
Indian Country diminishes opportunities for development, which further
impairs the ability of tribal communities to thrive. The most recent
data of which we are aware confirms that BIA's Road Maintenance Program
deferred maintenance backlog is still very significant, in Fiscal Year
(FY) 2018 it totaled $498 million and it continues to rise.\1\
---------------------------------------------------------------------------
\1\ NCAI FY 2022 Budget Request at 131-132, available at https://
www.ncai.org/resources/ncai-publications/
NCAI_IndianCountry_FY2022_BudgetRequest.pdf.
---------------------------------------------------------------------------
Housing and Utilities (Water, Sewer, and Electricity)
Similar to the transportation infrastructure deficiencies, rural
Indian Country suffers from profound deficits in the availability of
basic utilities to provide adequate drinking water, sanitation, and
electricity. On the Nation, utility hookup in rural communities is
extremely expensive, creating an often insurmountable barrier to the
construction of the buildings from which economic development can take
place. This impacts not just a potential business's operation, but also
its potential workforce. More than 12 percent of tribal homes lack
access to safe drinking water and basic sanitation, which is a rate
more than 20 times higher than the national average.\2\ This
fundamental deficit in the quality of life undermines the availability
and retention of a ready workforce, and also poses a significant
barrier to creating Reservation-based economic and employment
opportunities. Similarly, without an adequate housing base for tribal
employees, it is nearly impossible to address staffing issues and
shortages.
---------------------------------------------------------------------------
\2\ NCAI FY 2022 Budget Request at 131-132, available at https://
www.ncai.org/resources/ncai-publications/
NCAI_IndianCountry_FY2022_BudgetRequest.pdf.
---------------------------------------------------------------------------
Telecommunications and Internet Access
Lack of broadband access inhibits our ability to spur economic and
business development, and train a technically skilled workforce for
21st-century jobs. According to the U.S. Census Bureau Community Survey
Report (Sept. 2017), the Tohono O'odham Nation (TON) is facing a
``digital divide'' compared to nearby communities, with a large
proportion of residents lacking any access to broadband internet. The
State of Arizona's 2018 Broadband Strategic Plan found that ``162,382
people living on tribal lands (95 percent) have either unserved or
underserved telecommunication infrastructure needs. They do not have
access to fixed advanced telecommunications capabilities, and often
resort to local ``community anchor institutions'' (libraries, schools
and such) for their only connection to the rest of the digital world.''
\3\ (Emphasis added.) The Nation appreciates Congress' recent attention
to these telecommunications, internet, and broadband issues, and urges
that continued efforts in this area are critical.
---------------------------------------------------------------------------
\3\ Arizona Statewide Broadband Strategic Plan at 16, available at
https://azlibrary.gov/sites/default/files/
erate_2018_az_broadbandstrategicplan_final.PDF.
---------------------------------------------------------------------------
Small Business Development and Support
The Nation is particularly concerned about lack of support for
small businesses. We underscore the importance of empowering tribal
members to develop businesses to strengthen our local economy and
provide locally-sourced employment to tribal members. Not only do our
potential entrepreneurs suffer from the infrastructure deficits
described above, they are held back by lack of access to capital and
affordable financial products and banking services and lack of access
to business and legal advice. We would like to see more attention paid
to the difficulties that are specific to on-reservation business
development, such as the difficulties attendant to securing debt for
activities on trust lands and lack of investment overall in tribal
member-owned businesses. Further, the workforce available to tribal-
member-owned businesses often lacks the technical and financial
training needed by these potential employers. Investment in work
training programs for employees inherently helps to promote and
stabilize tribal member small businesses.
In sum, the Nation would like to see a greater emphasis and
investment in helping potential small business owners get their
businesses up and running, with an equal emphasis on getting them the
capital support, business training, and employee retention support they
need to successfully grow those businesses.
Bureau of Indian Affairs Review Processes
Review and approval by BIA is required for a host of infrastructure
development on Indian lands. While these approvals are meant to be
protective of tribes, in reality the length of time it takes to
navigate those processes and obtain those approvals can create
significant barriers to investment and economic development in Indian
Country. For example, according to the U.S. Government Accountability
Office (GAO), BIA's lengthy processes for review of land use
instruments like easements, rights-of-way agreements, and valuations
have hindered tribes from pursuing energy resource development
opportunities that could provide significant benefits to tribes and
their members.\4\ Further, leases of tribal trust land requiring BIA
approval triggers the need to comply with the requirements of the
National Environmental Policy Act, which can be very expensive and the
costs are born by the tribe. Additionally, establishing related
easements or rights of way also require compliance with BIA
regulations. While BIA revised its leasing and right-of-way regulations
within the last ten years to make them less cumbersome, to include
specific leasing provisions for wind and solar leases, and to include
deadlines for BIA approval, those deadlines lack effective enforcement
mechanisms and the BIA approval process is still lengthy. GAO recently
recommended that BIA develop a process to monitor and assess agency
review and response times to help ensure that BIA's process and review
is more transparent and efficient, and to ensure that it is not
unnecessarily hindering tribes' economic development opportunities.
---------------------------------------------------------------------------
\4\ U.S. Government Accountability Office Priority Open
Recommendations: Department of Interior (June 2, 2022) at 2, 7,
available at https://www.gao.gov/assets/gao-22-105603.pdf.
---------------------------------------------------------------------------
We note that while Congress has worked to address this issue with
the enactment of the Helping Expedite and Advance Responsible Tribal
Home Ownership (HEARTH) Act, which allows tribal governments to enact
their own leasing regulations for tribal trust lands, the BIA approval
process for the HEARTH Act ordinance itself can be fairly lengthy and
delay tribal economic development efforts. And, regardless of whether a
Tribe has an approved HEARTH Act leasing ordinance, roads and other
access agreements needed for development may still require approval
under BIA's right-of-way regulations, which again results in BIA
approval delays.
In sum, BIA's lengthy review processes can have negative effects on
tribal economic development in a host of areas where leases, rights of
way, and appraisals on tribal trust lands are needed. Potential
development partners often are unwilling to wait for what seem like
never-ending delays in the BIA regulatory approval process, including
paying for NEPA reviews because BIA does not have funding to complete
them.
Conclusion
The profound infrastructure challenges we face at the Tohono
O'odham Nation illustrate the dismal condition of physical
infrastructure in rural Indian Country generally, and the critical
importance of investment in basic utilities and broadband to seed
economic prosperity in tribal communities. We also underscore the need
for greater focus and investment on tribal member small business
owners. We welcome the opportunity to work with the Committee to find
ways to lessen these challenges and to promote economic development in
Indian Country.
Thank you for your time today. I am happy to answer any questions.
______
Questions Submitted for the Record to Wavalene Saunders, Vice
Chairwoman, Tohono O'odham Nation
Ms. Saunders did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Grijalva
Question 1. Could you share a few examples of how the Nation's
economic development projects have supported your tribal community?
1a) Additionally, can you share how the Nation's business ventures
have supported the broader Arizona economy?
Question 2. Thank you for sharing the Nation's small business
concerns in your testimony.
2a) Can you elaborate on the federal work training programs that
you would like to see created?
Question 3. Your testimony highlights the importance of adequate
transportation systems. We included funding in the Infrastructure
Investment and Jobs Act for BIA road maintenance and construction.
3a) Can you speak to the importance of receiving full funding for
BIA's Road Maintenance Program in relation to economic growth?
______
Ms. Hageman. I thank the witness for your testimony.
The Chair now recognizes Mr. Jason Robison for 5 minutes.
STATEMENT OF JASON ROBISON, LAND AND RESOURCES OFFICER, COW
CREEK BAND OF UMPQUA TRIBE OF INDIANS, FROM THE STATE OF OREGON
Mr. Robison. Good morning, Chair Hageman, Ranking Member
Leger Fernandez, and members of the Subcommittee. My name is
Jason Robison. I am the Land and Resources Officer for the Cow
Creek Band of Umpqua Tribe of Indians. On behalf of Tribal
Chair Carla Keene, and Vice Chair Gary Jackson, I want to thank
you for this opportunity to testify today regarding Unlocking
Indian Country's Economic Potential.
I want to first commend the efforts of this Subcommittee,
the Administration, and tribal leaders across the country for
seeking innovative approaches to promoting tribal self-
governance, and providing more opportunities to tribes to
manage tribal lands and resources according to tribal values,
goals, and objectives. It is a goal we all share, and the Tribe
welcomes this opportunity to participate in discussions which
could help shape new opportunities for tribes throughout the
country.
Cow Creek is one of nine federally recognized tribes in the
state of Oregon. Our Tribe has just over 1,900 tribal members.
And Cow Creek has a rich history in southern Oregon that
reflects its hard work, perseverance, and desire to be self-
reliant.
Cow Creek owns and manages approximately 30,000 acres of
land within Oregon, comprised of approximately 15,000 acres of
fee land, 23,000 acres of trust, and approximately 30,000 acres
are forest lands managed throughout the social, ecological, and
economic goals and objectives laid out in the Tribe's approved
forest management plan.
The Tribe is the second largest employer in Douglas County,
employing approximately 1,000 tribal and non-tribal people. The
Umpqua Indian Development Corporation is the Tribe's primary
economic development engine. UIDC businesses and tribal
resource management provide much of the needed revenues for
tribal government operations which provides social services,
housing, education, health care, and elders care to the
membership.
The Tribe is a strong advocate for Indian self-
determination and self-governance. We operate our governmental
programs under a self-governance compact approved by the Tribe
and the Secretary of the Interior.
Under the compact, the Tribe has been able to redesign
programs and carry out activities under tribal policies and
procedures rather than burdensome processes contained in
Federal manuals and handbooks. This has allowed more efficient
operations which better serves the interests of our Tribal
membership and our environment.
On June 1, 2018, the President signed the Oregon Tribal
Economic Development Act which clarified that transactions
involving land owned in fee by Cow Creek and other Oregon
tribes were not subject to the Non-Intercourse Act.
The Oregon Tribal Economic Development Act makes it crystal
clear that Cow Creek may sell or otherwise develop its fee
lands free from Federal interference, improving its ability to
create economic opportunities while protecting the environment
at or above Federal environmental standards.
In 2010, Congress passed a bill to amend the Act of August
9, 1955, to also authorize the Cow Creek and other tribes in
Oregon to obtain 99-year lease authority. This lease authority
has provided the Tribe with an opportunity to package longer-
term business arrangements on tribal land.
The HEARTH Act of 2012 has also provided opportunities for
expanded lease authorities on tribal lands, in addition to
allowing the Tribe to develop its own regulations and policies
approved by the Secretary of the Interior.
These types of authorities and actions provide tribes with
the ability to conduct business in a more competitive and
attractive environment. They also create certainty for tribes
which is a must if we are to eventually achieve self-
determination and self-governance. Without these types of
authorities and actions, tribes are being punished and held at
a substantial disadvantage.
Restricted fee title is one classification of Indian lands.
However, very few tribes have the opportunity to use this
status to their advantage. We recommend this Committee pursue
opportunities to expand this land use designation across Indian
Country.
The Cow Creek were one of the first tribes in the country
to enter into a demonstration project established under Section
II of the Indian Trust Asset Reform Act, ITARA. Under the ITARA
demonstration project, the Tribe prepared an Indian Trust Asset
Management Plan, or an ITAMP, for forest management. The
approved ITAMP allows the Tribe to perform forest management
activities under tribal law and tribal forestry regulations
rather than Federal rules.
Numerous forest management actions which previously
required Federal agency approval, and could take a year or more
to implement, are now approved solely by the Tribe and
implemented in a manner of a few months or less while still
meeting applicable Federal law.
ITARA has allowed advancement along a pathway to achieve
the Tribe's vision of the forest. This is another example of
our success in strengthening tribal sovereignty. We would like
to see this authority become permanent.
The Tribe has also taken steps to utilize authorities under
the Tribal Forest Protection Act, the Agricultural Improvement
Act, to develop co-management agreements with adjacent Federal
land managers.
These authorities and agreements add to the list of tools
that have been made available to tribes for managing and
protecting tribal members and tribal resources. We request this
Committee assess new authorities that complement or expand
these types of opportunities to tribes.
It is our hope that we can continue to work together across
Indian Country on a bipartisan basis to fix lingering
legislative issues like the Non-Intercourse Act, 99-year lease
authority, the use of restricted fee status, and others in
order to provide all of Indian Country the same opportunity.
It is also our hope that by working together, we promote
new legislation that empowers tribal governments, increases
business opportunities for tribes, promotes tribal sovereignty
and self-governance, and reduces the cost of administrative
burdens of Federal oversight on all designations of tribal
land.
We recommend that the Subcommittee look into legislation
like the HEARTH Act and the Indian Trust Asset Reform Act as
good examples of what works well in Indian Country.
In closing, I would like to thank you for the time and
opportunity to present testimony today regarding Unlocking
Indian Country's Economic Potential. Cow Creek is at the
forefront of many of these new laws. And we would welcome the
opportunity to work with this committee and to you to draft new
legislation. Again, thank you, and I would be happy to answer
any questions.
[The prepared statement of Mr. Robison follows:]
Prepared Statement of Jason A. Robison, Land and Resources Officer, Cow
Creek Band of Umpqua Tribe of Indians
I. Introduction
Good Morning, Chair, Ranking Member, and members of the
subcommittee. My name is Jason Robison, I am the Lands and Resources
Officer for the Cow Creek Band of Umpqua Tribe of Indians (Tribe). On
behalf of Tribal Chairman Carla Keene, and Vice Chair Gary Jackson, I
want to thank you for the opportunity to testify today regarding
unlocking Indian country's economic potential.
I want to first commend the efforts by this subcommittee, the
administration, and Tribal leaders across the country for seeking
innovative approaches to promoting Tribal self-governance, and
providing more opportunities to Tribes to manage tribal lands and
resources according to Tribal values, goals, and objectives. It is a
goal we all share and the Tribe welcomes this opportunity to
participate in discussions which could help shape new opportunities for
Tribes throughout the country.
II. Background
Cow Creek is one of nine federally recognized Tribes in the State
of Oregon. The Tribes has just over 1900 tribal members, and it's
governed by an elected eleven-member council known as the Tribal Board
of Directors. Cow Creek has a rich history in southern Oregon that
reflects hard work, perseverance and the desire to be self-reliant.
Cow Creek owns and manages approximately 38,000 acres of land
within Oregon, comprised of approximately 15,000 acres of fee land and
23,000 acres of trust land. Approximately 30,000 acres are managed for
timber production and other important cultural, and forest values. In
January 2018, the Western Oregon Tribal Fairness Act (WOTFA) conveyed
approximately 17,800 acres of forest land previously managed by the
Bureau of Land Management (BLM) to the Tribe to fulfill their promise
of a reservation.
The Tribe is the second largest employer in Douglas County,
employing approximately 1,000 tribal and non-tribal people. The Umpqua
Indian Development Corporation (UIDC) is the Tribe's primary economic
development engine. Under its auspices, the Tribe operates several
businesses for the benefit of tribal members, local residents, and the
surrounding community. These businesses provide much needed revenues
for Tribal government operations that support the following services:
social services, housing, education, health care, and elders care.
These business also help fund resource management activities.
III. Self Determination
The Tribe is a strong advocate for Indian self-determination and
self-governance. We operate our governmental programs under a self-
governance compact approved by the Tribe and Secretary of the Interior.
Under the compact, the Tribe has been able to redesign programs and
carryout activities under tribal policies and procedures rather than
burdensome processes contained in federal manuals and handbooks. This
has allowed more efficient operations which better serve the interests
of our tribal membership and our environment.
IV. Non-Intercourse Act, Leasing Authority, and the Hearth Act
On June 1, 2018, the President signed the Oregon Tribal Economic
Development Act, Pub.L. 115-179, which clarified that transactions
involving land owned in fee by Cow Creek and other Oregon Tribes were
not subject to the Non-Intercourse Act, 25 U.S.C. Sec. 177, which
generally prohibits tribal conveyances of tribal trust land without
congressional approval. While the Non-Intercourse Act does not apply to
fee lands, individuals without a solid understanding of Indian law
sometimes apply it to fee lands, limiting a tribe's ability to use real
estate for economic development purposes. In these situations, Congress
must step in to clarify that lands may be sold. The Oregon Tribal
Economic Development Act makes it crystal clear that Cow Creek may sell
or otherwise develop its fee lands free from federal interference,
improving its ability to create economic opportunities while protecting
the environment at or above Federal environmental standards.
In 2010, Congress passed a bill to amend the Act of August 9, 1955,
to authorize the Cow Creek Band of Umpqua Indians of Oregon, the
Coquille Tribe of Oregon, and the Confederated Tribes of the Siletz
Reservation, Oregon, to obtain 99-year lease authority for trust land.
Ninety-nine year lease authority has provided the Tribe with the
opportunity to package longer-term business arrangements on Tribal
lands. Additionally, the HEARTH Act has also provided opportunities for
expanded lease authorities on Tribal lands in addition to allowing the
Tribe to develop its own regulations and policies approved by the
Secretary of the Interior. These policies will help streamline future
business leasing opportunities for the Tribe. It also creates certainty
for Tribes which is a must, if we are to eventually achieve self-
determination and self-governance.
These types of authorities and actions provide Tribes with the
ability to conduct business in a more competitive and attractive
environment. Without these types of authorities and actions Tribes are
being punished and held at a substantial disadvantage.
V. Potential benefits of Restricted Fee Land
Restricted fee title is one classification of Indian lands;
however, very few tribes have the opportunity to use this status to
their advantage. We recommend this committee pursue opportunities to
expand the use of this land designation across Indian country by
creating an administrative process for this land designation. This
could significantly reduce barriers to Tribal business development on
fee lands while allowing the Tribe to hold title to the land and
protect the land against alienation.
VI. Land Management/ITARA Demonstration Project
The Cow Creek were one of the first tribes in the country to enter
into the Demonstration Project established under Section II of the
Indian Trust Asset Reform Act (ITARA). This act, which passed Congress
and was signed into law in June 2016, allows Tribes to take another
step in self-determination in management of their Tribal trust
forestlands. Under the ITARA Demonstration Project, the Tribe prepared
an Indian Trust Asset Management Plan (ITAMP) for forest management.
The ITAMP was approved by the Secretary of the Interior in December
2018. Under the approved ITAMP, the Tribe performs forest management
activities under Tribal law and Tribal forestry regulations rather than
the federal rules contained in 25 CRFR Part 163. Numerous forest
management actions which previously required federal agency approval
and could take a year or more to implement are now approved solely by
the Tribe and implemented in a matter of a few months or less while
still meeting Federal standards.
Our forest management under ITARA has been a resounding success
resulting in a high level of sustainable timber production generating
revenue to the Tribe for its governmental programs and providing jobs
to local and state industries, as well as log supply to the local
timber industry. The streamlined processes accomplished under tribal
authority have also resulted in implementation of actions to reduce
wildfire risk, improve forest health and enhance cultural values of our
Tribal forestlands. Rather than federal control, ITARA has allowed
advancement along a pathway to achieve the Tribal vision for our
forest. This is another example of our success in strengthening tribal
sovereignty. We would like to see this authority become permanent.
The Tribe has also taken steps to utilize authorities under the
Tribal Forest Protection Act (TFPA), and the Agricultural Improvement
Act (FARM BILL), to develop Co-management agreements with adjacent
federal land managers. The Tribe was recognized during the White House
Tribal Nations Summit has having one of the largest Tribal Forest
Protection Act proposals, and the largest Forest Service self-
determination agreement to date. We are currently working to secure
similar agreements with the Department of Interior, and the Oregon/
Washington BLM. These authorities and agreements add to the list of
tools that have been made available to tribes for managing and
protecting Tribal members and Tribal resources. We would request this
subcommittee assess new authorities that compliment or expand these
types of opportunities for Tribes.
VII. Fixing Long-term Issues in Indian Country and Promoting Self-
governance
It is our hope that we can continue to work together across Indian
country to fix lingering legislative issues like the non-intercourse
act , 99 year lease authority, the use of restrictive fee status, and
others in order to provide all of Indian country the same
opportunities. It also our hope that by working together we can promote
new legislation that empowers Tribal governments; increases business
opportunity for Tribes; promotes Tribal sovereignty and self-
governance; and, reduces the costs and administrative burdens of
federal oversight on all designations of Tribal lands (Fee, Restricted
Fee, and Trust).
We recommend that this sub-committee look to legislation like the
HEARTH Act, and the Indian Trust Asset Reform Act as good examples of
what works well in Indian Country.
VIII. Closing
In closing, I would like to thank you for the time and opportunity
to present testimony today regarding unlocking Indian country's
economic potential because the Cow Creek Tribe is at the forefront of
many of these new laws and would welcome the opportunity to work with
this committee and you to draft new legislation. Again, thank you and I
will be happy to answer any questions you may have.
______
Questions Submitted for the Record to Jason Robison, Land and Resources
Officer, Cow Creek Band of Umpqua Tribe of Indians
Questions Submitted by Representative Westerman
Question 1. Please further expand on your testimony and highlight
further examples of where your tribal government has been able to
successfully utilize tribal lands/or economic benefit.
Answer. Part of the Cow Creek Band ofUmpqua Tribe of Indian's
(Tribe) mission is to provide for the long-term economic needs of the
Tribe and its members through the economic development of Tribal lands.
The Umpqua Indian Development Cooperation (UIDC) is a federally
chartered corporation and the business division of the Tribe. The Tribe
operates several businesses which create jobs and job training
opportunities for tribal members and the communities in which they
serve. Businesses include: Seven Feathers Casino and Resort; Seven
Feather's Truck and Travel; Seven Feathers RV Resort; Creekside Inn;
Anvil Northwest; Takelma Roasting Company; K-Bar Ranches; and, Seven
Generations Farms. These businesses are mostly located on Tribal trust
lands within the Tribe's restoration act area. The Tribe also manages
more than 30,000 acres of forest lands, which provides revenue to the
Tribe through the sale of forest products. Together, these business
provided funding to support Tribal member services such as: social
services, health care, elders care, housing, and education.
The Tribe is currently evaluating larger scale leasing projects on
Tribal lands utilizing its authority under the Helping Expedite and
Advance Responsible Tribal Home Ownership Act of 2012 (HEARTH Act). The
Tribe is also looking at ways to utilize its existing cooperative
management agreements with the Umpqua National Forest, and new
agreements with the Oregon/Washington Bureau of Land Management (BLM)
to create new economic opportunities for the Tribe and local community
by utilizing forest residuals from forest management projects.
Question 2. Please further expand on your testimony of how your
tribe complies with all Federal laws including those for environmental
protections.
Answer. The Tribe follows all federal laws of general applicability
including but not limited to the Endangered Species Act (ESA), Clean
Water Act (CWA), and Clean Air Act (CAA). The Tribe also follows the
National Environmental Policy Act (NEPA) to the extent that it applies
to federal decisions and actions on Tribal trust land.
Congress has provided Indian Tribes with opportunities to enact
environmental regulations that are tailored to the unique needs of the
Tribal communities. For example, under the HEARTH Act, Tribes have the
ability to develop Tribal leasing regulations which are submitted to
and approved by the Secretary of the Interior (SOI). Once authorized,
Tribes can negotiate and enter into surface leases under their approved
HEARTH Act regulations without further approval from the Department of
the Interior (DOI). The Tribe's HEARTH Act regulations were approved by
the SOI. These regulations included a Tribal environmental review
process that is consistent with applicable federal law. The Tribe's
regulations layout the frame work for evaluating potential effects of
any proposed leasing action while allowing opportunity for input.
Cow Creek is one of two Tribe's in the country that has been
accepted into the Indian Trust Asset Reform Act (ITARA) Demonstration
Project. Under the authority provided by the ITARA statute, the Tribe
prepared and the SOI approved an Indian Trust Asset Management Plan
(ITAMP) which contains Tribal forestry regulations replacing the 25 CFR
163 federal regulations. Under the Tribal forestry regulations, most
all forestry actions (timber sales, timber permits, prescribed burn
plans, forestry enterprise agreements, etc.) previously approved by the
Bureau of Indian Affairs (BIA), often with long delays, are now
approved by the Tribal Chairman under Tribal law. The Tribe has
developed a Tribal Environmental Review Report (TERR) process under its
regulations to evaluate environmental impacts. In addition, the Tribe
utilizes a take avoidance strategy under section 9 of the ESA to
minimize the risk of take to species listed as threatened or
endangered. This strategy includes an evaluation of biological and
ecological data based on site specific conditions and surveys. Section
7 of the ESA no longer applies to Tribal forest management since there
is no federal decision. Section 9 of ESA is much simpler and avoids
long delays (a year or longer) which often happens under Section 7
consultation.
The Tribe has built up its capacity to include a variety of
resource specialists within the following areas: fisheries, wildlife,
forestry, water and environmental, geographic information systems, and
heritage/cultural). The Tribe has also developed additional internal
process and procedures for reviewing and evaluating tribal projects to
maintain compliance with all applicable federal and Tribal laws.
2a) Are there areas of the compliance process that are burdensome
or duplicative beyond what is needed?
Answer. The standard federal process for compliance with federal
environmental laws are often very burdensome and time consuming. The
process often involves multiple federal agencies and multiple
personnel. In many cases, the responsiveness of the federal agencies
involved is lacking due to limited resources resulting in critical
delays to Tribal projects. Furthermore, federal agency staff often lack
local site-specific knowledge and experience with Tribal lands and
activities.
Carrying out Tribal activities w1der the HEARTH ACT and ITARA has
enabled the Tribe to use streamlined processes which are more cost
effective than following federal rules, manuals and handbooks. Further,
implementation of projects under Tribal approval can be accomplished in
a matter of weeks compared to a year of more under federal processes
and approval.
2b) If so, how could Congress improve that process for tribes?
Answer. Congress should continue to look for ways to streamline the
federal environmental review process for Tribes by incorporating
language in future legislation that allows Tribal governments to
develop and implement their own Tribal environmental compliance rules
and regulations for economic development and other management
activities on Tribal lands. The HEARTH ACT and ITARA are good examples
of how this process can work better. Congress should expand on these
authorities to allow tribe's more autonomy over all trust resources in
order to promote tribal sovereignty and self-governance.
Congress should also examine ways to utilize Tribal environmental
review processes on federal lands in order to streamline process and
procedures for co-management and co-stewardship projects. Much like
adopting another agencies NEPA documents, Congress should allow federal
agencies to adopt Tribal environmental review process and procedures
for projects covered under Tribal Forest Protection Act (TFPA)
agreements or other cooperative agreements. Congress should also look
to Tribe's with appropriate environmental capacity to assist federal
agencies with their environmental review and compliance process. This
can be accomplished through the contracting of Tribal resources or by
passing funds through the Tribe to procure additional third-party
resources to perform this work. The 638 agreement works well for this
type of work.
Question 3. Please further expand on your testimony and highlight
what can be done to reduce wildfire risk and increase forest resiliency
when specifically working with adjacent partners, like improvements to
the Good Neighbor program at USDA.
Answer. In order to reduce wildlife risk and increase forest
resiliency, federal agencies must have the ability to plan and
implement preventive measures at a meaningful landscape scale. Federal
agencies must also be provided the human resources and financial
resources to be able to accomplish preventative forest management
activities. Congress should examine ways to increase federal
appropriations to fire-preparedness activities for Tribes and federal
agencies.
Project planning and environmental review process needs to be
streamlined to allow for a more rapid response to climate change and
other threats which have created conditions that support catastrophic
wildfires. This can be accomplished by developing new Categorical
Exclusions (CE), under NEPA, for fuels reduction projects and other
forest management activities. CEs should not just be limited to linear
fuels treatments. Agencies must be allowed to take holistic approach to
managing the entire stand if they are to be successful at reducing
wildfire risk. Fuels reduction should be broaden to include other stand
management activities, and fuels reduction projects should be allowed
across the landscape to create continuity regardless of land use
allocation. In addition, the size of these projects should be
meaningful enough to reduce wildfire risk at a watershed scale.
Congress should direct federal agencies to re-evaluate forest
management plans to reflect current day threats and conditions and
incorporate tribal goals, values, and objectives. Existing plans are
based on an outdated system of reserves which set limits on the federal
government's ability to actively managed forest stands and habitat.
These management plans often associate active management with negative
impacts; however, lack of management has often led to a complete loss
of the habitats and beneficial ecological conditions which these plans
were initially set out to protect/reserve. There needs to be a better
balance between protection and management of biological and ecological
resources, and management of stand conditions which create overstocking
and high fuel levels. In addition, due to conflicting resource values,
agencies aren't able to implement larger landscape scale projects.
Individual resource restrictions or limitations have resulted in very
small scale projects which tend to be very vulnerable to wildfire. As a
result of existing planning goals and objectives, and federal
environmental protections, agency staff often focus on advocating for
resource protections over the long-term health and vitality of the
resources.
The lack of federal land management has also resulted in a loss of
infrastructure that has adversely impacted Tribal and rural
communities. The lack of infrastructure has limited forest restoration
work because it makes meaningful landscape restoration economically
infeasible. Investment in infrastructure requires security and
assurance of supply in order to have the confidence to recapture the
large investments required to develop processing facilities. To address
this issue, Congress should authorize tribes through TFPA contracts
and/or other collaborative agreements, to enter into long-term
agreements (20+ years) with the Forest Service and BLM to guarantee
supply arrangements to anchor future infrastructure development. There
is also a need to create new authorities for Tribal co-management and
stewardship across the landscape or expand the use of the TFPA to
include much larger landscapes.
Local initial attack capacity on most federal lands is lacking and
fire suppression resources are often limited during fires season.
Congress should direct the Secretary of Agriculture to enter into
contracts or cooperative protective agreements with a State(s),
Tribe(s), and/or local fire protection districts or associations for
conducting initial attack and wildfire suppression activities on
federal lands that are nearby and adjacent to Tribal Forest or
agricultural lands. Every attempt should be made to suppress wildfires
as quickly as possible.
Prescribed fire needs to be used as a tool to put fire back on the
landscape to help manage forest fuels, promote forest health, and
further reduce the risk of catastrophic wildfire. Congress should
provide authorities for Tribe's and Federal land management agencies to
conduct prescribed burning demonstration projects across federal
ownerships. Fire needs to be reintroduce and used frequently across the
landscape.
The Agricultural Improvement Act of 2018 (Farm Bill) included
Tribes in the Good Neighbor Authority (GNA) but failed to provide for
the same treatment of revenues received from the sale of timber or
other forest products. Congress should fix this issue in the next farm
bill to allow tribes to retain receipts under good neighbor. I have
inserted some proposed legislative language below:
Funds received from the sale of timber or other commercial
forest products by a Tribe under a good neighbor agreement
shall be retained and used by the Tribe--``(I) to carry out
authorized restoration services on Federal land under the good
neighbor agreement; and ``(II) if there are funds remaining
after carrying out subclause (I), to carry out authorized
restoration services on nearby or adjacent Federal land under
good neighbor agreements, 638 agreements, and/or other
applicable agreements.
The Farm bill also provided authority for the Forest Service to
utilize 638 agreements with Tribal governments to accomplish forest
management activities under the TFPA. This has proven to be valuable
tool for the Tribe's work with the Umpqua National Forest. The use of
638 authority should be expanded beyond TFPA, and its use should be
allowed within all USDA agencies in a manner similar to that of the
DOI. All 638 agreements should be allowed up to 20 years for
consistency with Good Neighbor and Stewardship agreements rather than
the arbitrary five year administrative time limit.
Tribal culture facilitates innovative and integrated forestry
practices. As noted in the Indian Forest Management Assessment Team
(IFMAT) Reports (I, II, and III), Indian forestry has the potential to
provide models for sustainable forestry and resource management that
can be applied on the federal forest estate. IFMAT IV is nearing
completion and Congress should evaluate the findings and
recommendations in this assessment to adopt new approaches to managing
Indian forest lands and adjacent federal forest lands.
Question 4. Is there any further information you think the
Committee needs to make good policy regarding land use restrictions for
tribal lands?
Answer. Congress should develop procedures for Tribes to place fee
land into restricted fee status to allow tribes the opportunity to
manage tribal fee lands subject to tribal laws and regulations, and
applicable federal laws and regulations rather than State laws.
As more tribes pivot toward tribal self-governance and self-
determination, Congress should evaluate new opportunities and
authorities for Tribes to assume more responsibility over Tribal lands
and resources. Congress should also explore new authorities that expand
the use of Co-management and Co-stewardship across federal lands.
Congress should evaluate ways to streamline opportunities for
tribes to lease, transfer, or purchase federal administrative
facilities. The Tribe is currently working on a potential acquisition
of the Tiller Ranger District Offices; however, the current
administrative process may take 10 years or more to work through.
Congress should amend Title V--Forest Service Facility Realignment and
Enhancement Act to expand the size of transferable acreage up to 100
acres; authorize the Secretary of Agriculture to transfer
administrative facilities directly to Tribal governments; and, extend
authorization authority for an additional 5-10 years.
______
Ms. Hageman. I thank the witness for your testimony.
The Chair will now recognize Members for 5 minutes for
questions, and I will be going first.
I am going to direct my first question to Mr. Dustin
Klatush. You stated, and you mentioned in your statement, that
your Tribe felt fortunate to have been able to secure enactment
of a bill in the 117th Congress to allow the Tribe to enter
into leases up to 99 years. Was time of the essence in getting
that bill passed, and why did the Tribe need to get it done
during the last Congress?
Mr. Klatush. First and foremost, we wanted to keep the
interest of the two outside entities that had approached us
about warehouse projects. The more time that passed, the more
likely that outside businesses will lose interest or look
elsewhere.
Also, we wanted to keep the option open to begin
construction during the construction season in our area which
is April to October.
Ms. Hageman. Wonderful. Thank you for that. I would like to
also question Mr. Rupnick. You testified in favor of
establishing a new process for acquiring lands under tribal
jurisdiction in restricted fee status. Do you believe that
restricted fee land status would be more efficient for the
Federal Government as well as for the tribal governments?
Mr. Rupnick. Yes. I do. And part of that is that tribes can
assume jurisdiction over those lands immediately, and thereby
reducing resources needed from the Federal Government to manage
and apply those lands there.
Right now, as I stated in my testimony, we had fee status
application for a trust status that took over 14 years to be
able to get that done for us to try to enhance our operation,
our Class III gaming operation.
With the Federal Government, BIA, Department of the
Interior going through all the different assessments and
everything else and just essentially stonewalling a lot of this
stuff. That is what really hinders tribes when they are trying
to build economic development within a reservation.
So, being able to reduce a lot of that paperwork, being
able to reduce those areas that are required by oversight from
regulations or unneeded regulations, would definitely benefit
the Tribe and help reduce those costs. Thank you.
Ms. Hageman. Well, that makes sense. And I am surprised at
the amount of time that you have referenced in your testimony
as to what it took to be able to develop and move forward with
those projects.
Mr. Robison, in 2016, Congress enacted the Indian Trust
Asset Reform Act which you referred to. And among several
things, it authorized a demonstration project in which Indian
tribes may be authorized to negotiate to assume management and
control of its non-mineral trust assets under a plan approved
by the Secretary of the Interior.
And under the ITARA Demonstration Project, your Tribe took
over some forest management activities, I understand. Can you
tell the Committee specifically what activities this includes
and how ITARA works?
Mr. Robison. Yes. Thank you for the question. So, the
forest management activities that the Tribe assumed are those
same forest management activities that are listed under the
National Indian Forest Resource Management Act.
So, these include things like timber sales, timber permits,
prescribed burn plans, forestry enterprise agreements, and
other authorities that would generally be approved under the
BIA through the National Indian Forest Resource Management Act.
And the way that ITARA works is that as tribes assume
responsibility under the Demonstration Project, they are able
to take on those authorities that the Bureau of Indian Affairs
had been performing on behalf of the tribe. So, now those
decisions are being made by the tribal government, under tribal
rules and regulation, as opposed to Federal rules and
regulations.
Ms. Hageman. OK. Wonderful. Thank you for that. And,
finally, Ms. Wavalene, you commented and testified about the
need for infrastructure and the impact that a lack of roads has
for the rural community that you represent, the rural tribes.
Is the Federal Government involved in all of the decisions
related to road building on your reservation?
Ms. Wavalene. Yes. On behalf of the Tohono O'odham Nation,
the Roads Program is a BIA Roads Program. So, not only the
state but the federal roads that exist on the Tohono O'odham
Nation. So, the bureaucracy that does create, for getting
approvals and partnerships.
I know that the Nation has stepped up to try to remedy some
of the impacts on the roads. But because of liability issues,
we are prohibited from pursuing any of those endeavors in
addressing the potholes, the cracks in the road, and our
bridges, and whatnot. So, it becomes a liability issue if the
Nation is to continue to address those needs.
So, it is the BIA at the Federal level that is technically
responsible for the roads on the Tohono O'odham Nation.
Ms. Hageman. OK. Well, thank you for that. Thank you all
for your testimony in responding. The Chair now recognizes the
Ranking Minority Member for her questioning.
Ms. Leger Fernandez. Thank you, Chairwoman Hageman, and
thank you to the witnesses for your testimony. Vice Chairwoman
Saunders, thank you very much for your testimony that laid out
the multiple obstacles that tribes face, especially in rural
areas.
Can you talk a little bit more about financing, and access
to capital, and workforce development? What do you think are
the biggest financing obstacles for tribal small businesses on
rural reservations?
Ms. Saunders. So, for businesses on the Tohono O'odham
Nation, for whether it be tribal members or anyone wanting to
partner in providing services to the Tohono O'odham Nation, we
are about a good hour, maybe a 50-mile drive from the nearest
city.
So, having to travel the roads and looking at the
investment in regards to their products of services has been a
challenge because of the technical availability of services and
education and for them to invest in our community based on the
distance between the nearest city.
The challenge is that not only our members face for
products that are readily available, but for those individuals
and businesses that do have these products and investing and
traveling to our community and what it all entails.
And more so today with the economy and the prices of all
the products, it hits us on our reservation because of the
delivery of services, and the fees, and how expensive it is.
So, it is really important to invest in small businesses at the
community level, but also for those businesses off the Nation
to really look at their investments and not push it off onto
our tribal members. So, more funding availability to all
businesses at all levels would benefit. It is a win-win
situation. Thank you.
Ms. Leger Fernandez. Thank you. And Chairman Rupnick, in
the discussions about a restricted fee status, I want to just
clarify. The intent is to ensure that the land remains subject
to tribal jurisdiction, not to state jurisdiction, no state
taxation. So, what you are trying to do, is it correct, is to
make a process that is more streamlined for it to come into
restricted status, but that you retain full jurisdiction over
the land? Is that correct?
Mr. Rupnick. That is correct. When you go through the trust
application process, and some of the experiences that we have
had or realized over the last few years, it kind of depends on
the local jurisdiction and who is elected into there. So, when
we apply for land into trust, that goes through the state, then
the county, and all those different agencies can offer up
objections to that whether that land goes into trust.
One of the biggest reasons why is because they realize that
land comes off of their tax rolls. So, they do everything that
they can to make sure that those lands that are held in fee
status are still taxable for the longest amount of period of
time.
That causes a lot of delay because then you are fighting
with county and state governments to be able to move that
process forward. Then you have all of the other regulations
that are coming down from the Department of the Interior,
environmental assessments, so on and so forth, that really
limits the tribe's ability to do anything on that land.
Where if a streamlined process were 90 days, that land is
purchased and moved into a restricted fee status, then the
tribes could immediately start developing lands or whatever
businesses that they wish to pursue on that piece of property.
Ms. Leger Fernandez. Thank you. And, Chairman Klatush, in
your written testimony, you did mention the idea of expanding
the Buy Indian Act. Would you also recommend that we expand the
ability of tribes to compact and contract outside of the two
agencies that are limited to?
I think everybody on this panel has either compacts or
contracts. And would you all agree you would love to have those
expanded to the other agencies? Maybe, we will start with
Chairman Klatush.
Mr. Klatush. The Buy Indian Act, as currently drafted, only
applies to the Bureau of Indian Affairs and the Indian Health
Service. The Department of Defense is not included in the Buy
Indian Act. And I believe that expanding the Act to include the
Defense Department would benefit all tribes.
Ms. Leger Fernandez. OK. Thank you. And maybe I will go
straight over to Mr. Robison. What do you think about expanding
Buy Indian and compacting, contracting?
Mr. Robison. I can't speak to the Buy Indian. But I can say
that anytime we have an opportunity to expand the compact
authorities for tribes, it allows tribes to have a lot more
opportunity for self-governance and a streamlining of processes
and procedures.
Ms. Leger Fernandez. Thank you very much. And I yield back.
Ms. Hageman. Thank you. The Chair now recognizes Mr.
LaMalfa from California.
Mr. LaMalfa. Thank you, Madam Chair, and congratulations on
your role here. We are looking forward to it, so thank you. I
appreciate the panel for your time and travel to be here and be
part of this here today, and express your firsthand concerns
with the processes here we have with them.
I share your frustration as well on getting permitting done
to do some of the other things we need to do, in my rural
Northern California district such as timber harvest, salvage
after fire, water storage, many, many years involved.
So, we are all right in the same boat on that. And we are
looking to find relief for you all and other tribes around the
country on being able to do basic things, economic things that
are good for your membership, and such.
And it was expressed a couple of times too, the amount of
time it takes and also the effort. Now, we are here to
legislate, so it is our job. We have nothing to complain about,
but individual tribes do, for example, we have cases where
there are surplus lands being held by a Federal entity and a
tribe nearby is interested in that, taking it off their books
and put it into play. We have had those. We have more prospects
up in my district too for tribes interested in that.
But it requires an entire piece of legislation to move at
whatever pace it moves through, hopefully, within a 2-year
cycle in Congress, and that has to be frustrating. Because it
is year after year after year or recognition for tribes here
that have had their recognition taken away in the past. So, I
get how frustrating that is and there needs to be a lot more
streamlining to get where you need to go.
So, Vice Chairwoman Saunders, you were talking about your
lands there in Arizona a little bit, and you have, in your
purview, 734 miles of roads that are under BIA jurisdiction to
keep spiffed up. And, obviously, from your testimony, they are
not spiffy.
So, what kind of progress do they make year in, year out,
and is there an entity within the Tribe, for example? Does the
Tribe have its own construction company that it could be doing
that on its own with the right kind of funding?
Ms. Saunders. Thank you for the question. On behalf of the
Tohono O'odham Nation, we have a BIA Roads Program. We have a
Department of Planning and Economic Development that works hand
in hand with the BIA Roads Program. So, looking to address
that, the bureaucracy that it does create for the funding,
channeling the funding through the BIA and getting the
approvals, the time that that in itself takes.
But, definitely, our planning program has really improved
in regards to addressing all of the grants that are available,
all of the funding cycles that come through year in, year out,
the time that it takes to actually get that funding, and a
contract in place to address the roads. And the O'odham Nation
is years behind, so I know that----
Mr. LaMalfa. How many miles of road have been done, let's
say, in the last 3 years, do you think? Just a rough guess.
Ms. Saunders. Less than 100 miles.
Mr. LaMalfa. Less than 100?
Ms. Saunders. Yes.
Mr. LaMalfa. Is that upgrading from perhaps dirt roads
and----
Ms. Saunders. Maintenance and upgrades, and it is also in
collaboration with some funding that came through CBP. Because
we do have Border Patrol that utilize this on our roads as
well. So, partnering with them to address and seek funding, but
also having to still go through the whole BIA process.
Mr. LaMalfa. Quickly, on your water situation, are you on
well water or do you draw, I am not quite sure where you are in
proximity. Do you use Colorado River water for any purpose or
are you all well water? What's your source?
Ms. Saunders. We are a part of the Colorado River, but we
do have a well source on the Tohono O'odham Nation that
delivers water to all of the majority of our communities.
Mr. LaMalfa. OK. Thank you. Let me shift to Mr. Robison
from Cow Creek here. We talked about the three different styles
of how land can be in fee, or trust, or a restricted fee. What
do you find is going to be the most workable for you long term?
You are just up the road from me a little bit. And in the
various things that you are trying to accomplish economically,
what's going to be the best tool for you?
Mr. Robison. Great. Thank you for that question. Really, I
think, having a variety of options on the table for the Tribe
to select from is important. So, I think, as I said in my
testimony today, having restricted fee available for us as an
option, which we don't currently have as an option, is
something we are very interested in.
And one of the challenges is obviously the taxation with
the state but also having additional authorities for us to
manage those fee lands and provide potential business
opportunities. It is extremely important.
Trust lands, as we continue to work through the things like
the Indian Trust Asset Reform Act, the HEARTH Act, we are able
to bring on more regulations and things within the tribal
government which makes things more streamlined. But trust lands
continue to be a challenge for us as well, especially getting
through the fee to trust process.
Mr. LaMalfa. It is so hard, so hard. For the other three
panelists, real fast; yes, or no? Are all three options really
important to you, for the other three here? Yes?
Mr. Klatush. Yes.
Mr. Rupnick. Yes.
Ms. Saunders. Yes.
Mr. LaMalfa. Yes. OK. Thank you. I am sorry there is not
more time. Thank you, Madam Chair. I yield back.
Ms. Hageman. Thank you. The Chair now recognizes Ms.
Gonzalez-Colon from Puerto Rico.
Mrs. Gonzalez-Colon. Thank you, Madam Chair, and
congratulations on chairing this Committee. I am happy to be
here. And thank you, all the witnesses, for being here today.
I was reading all the information regarding this hearing,
and I was very surprised at the multiple levels of restrictions
you have to use your own land.
And in that sense, even as a trust land, fee land, or
restricted fee land, at the end, I believe that land is the
most important resource you have for economic development, for
social, cultural issues. And when you have all those
restrictions, there is no way you can succeed.
So, I am happy this Committee is doing this hearing to see
how we can expedite and allow all the tribes to use their land,
and we are talking about American Indians, and, of course,
Alaskan Natives as well.
So, when I was reading the testimonies, Chairman Klatush,
you said that your Tribe led efforts to repeal the provision on
alcohol manufacturing on Indian lands. Coming from Puerto Rico,
we produce a lot of alcohol and rum, so I know how important
that is. In your testimony, you mentioned that the Tribe opened
its Talking Cedar brewery and distillery in 2020, during the
pandemic.
And my question will be, how are you dealing with that at
this time, and is there something regarding the Buy Indian Act
that you are interested in selling products from this
distillery to the nearby military base?
Mr. Klatush. Yes. So, the distillery and the restaurant
have been doing pretty good since we have opened them. During
the pandemic, the restaurant was one of the few restaurants
open in the area, and we received a significant amount, but I
guess we, Joint Base Lewis McChord, yes.
Mrs. Gonzalez-Colon. And you are working to that end with a
military base to sell your products using the Buy Indian Act to
get all those products coming from the distillery to that
place, right?
Mr. Klatush. Yes.
Mrs. Gonzalez-Colon. OK. What other challenges do you have
to create economic development in your lands?
Mr. Klatush. For Chehalis, one of the biggest issues is
staffing at the Bureau of Indian Affairs. Before, during, and
especially after the pandemic, there just are not enough people
in the Northwest Regional Office to process routine approvals
and tasks.
Most of the staff continues to telework, which for a long
period of time, the Northwest Regional Office did not have a
contracting officer. So, we could not get our 638 contracts
approved. The same goes for approval of business leases, right-
of-ways, and other routine matters.
Mrs. Gonzalez-Colon. Thank you. Mr. Robison, in your
written testimony, you called on this Committee to pursue
opportunities to expand the use of restricted fee lands across
Indian Country, including creating an administrative process
for this land designation.
What should be the proposal, and how expanding the use of
those restricted fee lands will help spur economic activity in
your areas? What specific things can we do here to allow that
growth from happening?
Mr. Robison. Great. I appreciate that question. I think one
of the things that we need to look at is how do we give access
to this restricted fee classification to all tribes as a tool
in their toolbox to manage fee lands subject to or limited,
without having the tax burden and without alienation, right?
So, I think the restricted fee status, what that provides
for Cow Creek is another option for us to look at those fee
lands, hold that title for the Tribe, and use additional
regulations and opportunities through tribal laws and
regulations, working with Congress to provide more efficient
opportunities for economic development.
It is an option we don't have in our toolbox right now, and
I think is an option that we need to be able to look at
different opportunities for economic development.
Mrs. Gonzalez-Colon. Thank you. And my last question will
be to Mr. Rupnick. You said in your testimony that it has been
almost 22 years since your Tribe's retail shopping plaza
project has been in the works and has not been completed yet.
If you could look back and see on the planning stage, what
are the things you have changed in terms of those planning to
accommodate the longtime wait for that retail plaza to open or
the use of the land?
Mr. Rupnick. I think part of that is just the strict
interpretation on some of the regulations that are put in place
that tribes are forced to work with. That would also include
the Non-Intercourse Act, which I think needs to be revised as
well too, because there is a strict interpretation on that.
So, if tribes go out and purchase fee simple land, and they
can develop it, or they can't do anything with it, then you
almost have to have a piece of legislation to allow tribes to
be able to sell that to recoup whatever dollars they have
already invested into that as well.
But some of that process that we have right now is, of
course, it is just a huge bureaucracy when it comes to land
into trust. And being able to streamline that process through
the Department of the Interior would help tribes tremendously
when they are moving either into restricted fee or even that
trust process that gives them that option of how they want to
handle those lands.
Mrs. Gonzalez-Colon. Thank you, sir. My time expired. I
yield back.
Ms. Hageman. Thank you. The Chair now recognizes Ms.
Stansbury from New Mexico.
Ms. Stansbury. All right. Well, good morning, everyone. And
thank you, Madam Chairwoman. I also want to congratulate you on
your chairmanship and welcome you to the Committee, and also to
the Ranking Member, and my sister from New Mexico.
And, also, I want to welcome all of our tribal leaders who
are here, not only on the panel, but in the audience, and also
tuning in today. Thank you for traveling and thank you for
being here with us today.
I am Melanie Stansbury, and I represent New Mexico's 1st
Congressional District, which is proudly home to a number of
tribes and pueblos in New Mexico. New Mexico, of course, is
home to 23 federally recognized tribes and pueblos.
And the first thing that I want to just acknowledge is that
while we are here to talk about economic development
opportunities, our tribes and pueblos are already economic
powerhouses in New Mexico and are, in fact, among some of the
largest employers and generators of income in the state.
In fact, amongst our tribes and pueblos, 19 pueblos
generate over half a billion dollars in revenue alone every
year in our state and employ over 11,000 people statewide.
These enterprises are vital not only to our tribal
communities, but also to our local, and regional, and state
economies, and our primary sources of funding for tribal
government, as our tribal leaders know here, to fund vital
services, including emergency services, roads, elder support,
and so much more.
I also want to just take a moment to highlight a couple of
the pueblos and tribes that are in our district in the 1st
Congressional District. In particular, Sandia Pueblo which is
just north of Albuquerque, which is my hometown, employs
thousands of residents living in the Albuquerque area and has
quite a diversified economic portfolio.
And Mescalero Apache, in the southern portion of my
district, operates an amazing set of enterprises around the
hospitality and ski businesses, as well as a number of other
major enterprises in southern New Mexico.
But as I was listening to the testimony this morning, and
also reading your testimony, I was struck by the number of
barriers that still obviously are presented to so many of our
Tribal Nations in terms of self-determination and nation-
building that extend far beyond even the conversation that we
have had here today.
So, Madam Chairwoman, while we have made a number of huge,
huge steps forward in passing the Bipartisan Infrastructure
Law, which made massive investments, hundreds of millions of
dollars of investments, that have not yet hit many of our
communities, in terms of roads, water, broadband and as well as
the Inflation Reduction Act, which will bring a lot of money
for energy infrastructure, water infrastructure.
And we know that Secretary Deb Haaland and our President
have made a strong commitment to tribal consultation, nation-
building, and economic investment. I was particularly struck by
Chairwoman Saunders' testimony about the many and multivariate
barriers, whether it is infrastructure, broadband, all of these
things.
So, I want to just do a quick lightning round for all of
our panelists because we do have a limited time. You have
presented testimony to us today, and I am going to put you each
on the spot. This is the opportunity to present to all of us
and to the country.
If there was one thing that you could do in Congress that
you personally think would have a major impact on economic
development in your communities or across our Tribal Nations,
what would it be? And I will start with Mr. Klatush.
Mr. Klatush. The Buy Indian Act.
Ms. Stansbury. OK. And Mr. Rupnick?
Mr. Rupnick. There are a couple of things. One of them is
dual taxation. I know that that is not an area for this
Committee here. But, yes, restricted fee, allowing Nations more
tools in their toolbox to be able to use the land as they best
see fit.
Ms. Stansbury. Thank you. And Vice Chairwoman?
Ms. Saunders. I would say the additional funding for
resources for technical assistance, and providing education,
and really looking at the different ways of the bureaucracy,
such as BIA. And just the process in itself to try to
streamline those time frames and the processes in itself for
the benefit of all.
Ms. Stansbury. Thank you. And Mr. Robison?
Mr. Robison. Great. Thank you for the question. I really
think continuing to promote self-governance and tribal
sovereignty by allowing tribes to manage their lands and
resources according to tribal laws and regulations and tribal
policies to meet tribal goals and objectives.
Ms. Stansbury. All right. Well, I am amazed that we got
through everyone. Obviously, this is just the first chapter of
hopefully many conversations about hopefully bipartisan
legislation we could advance to help support our Tribal
Nations. So, we appreciate you being here today. And thank you,
Madam Chairwoman.
Ms. Hageman. Thank you. And I want to thank the witnesses
for your incredibly valuable testimony, and the Members for
their questions. Thank you for being here today.
The members of the Committee may have some additional
questions for the witnesses, and we will ask you to respond to
these in writing. Under Committee Rule 3, members of the
Committee must submit questions to the Committee Clerk by 5
p.m. on Friday, March 3, 2023.
The hearing record will be held open for 10 business days
for those responses. If there is no further business----Mr.
LaMalfa from California does have a follow-up question.
Mr. LaMalfa. Thank you. Thanks for the indulgence on that.
We have you here so I would like the opportunity for follow-up.
Mr. Robison from Cow Creek, I want to touch a little more on
the issues of dealing with the Endangered Species Act, and
timber management, and such as that.
So, what has your Tribe encountered with trying to deal
with timber harvest? And I understand you had a Demonstration
Project that you are looking at on demonstrating better
forestry practices. So, what has the spotted owl species, for
example, brought as part of inhibiting your process there?
Mr. Robison. Thanks for the great question. Under ITARA, we
have taken over all the authorities from the Bureau of Indian
Affairs. So, as far as the spotted owl, we actually do on-site
monitoring and management of spotted owls under our tribal
authorities.
We have a tribal environmental review process that we
follow now, as opposed to the National Environmental Policy
Act. And for our ESA compliance, because we have assumed the
Federal responsibility, we no longer follow Section 7 in
Endangered Species Act. We actually fall under Section 9, the
take avoidance.
So, we use a very comprehensive take avoidance strategy. We
also have the opportunity to develop a species conservation
plan working with the services on tribal lands. So, really, as
we look at tribal land management under ITARA for the tribe,
things have actually gotten quite easier.
To the question though, on working with our adjacent
Federal land partners, that continues to be a challenge for us
as we look at ways to reduce wildfire risk, increase forest
resiliency, and forest health.
We have to find a way to work around the Endangered Species
Act and other environmental laws that are set in place for
obviously good reasons but can be challenging and cumbersome to
actually get good work done on the ground to enhance those
resources.
Mr. LaMalfa. We have had massive wildfires in Northern
California and Southern Oregon. I had a 1 million-acre Dixie
Fire which affected my district. You had large fires in Oregon
last year, or was that 2 years ago? It doesn't matter for right
now. Did it come from Federal land onto tribal land in your
particular situation? And how many acres did it devastate?
Mr. Robison. Yes. So, we actually lost--we had a couple of
fires on tribal lands. Immediately after the Western Oregon
Tribal Fairness Act was passed, where we received 17,800 acres
of BLM lands back to the Tribe, we had about a 3,600-acre fire
that took about 20 percent of that new ownership out. That
actually came on from the state lands onto tribal lands and
resulted in impact.
But here recently, in the last few years, we have had
several fires threatening tribal lands. And we have worked very
diligently with the Umpqua National Forest to try to figure out
how we alleviate the potential threat from those adjacent lands
on the tribal lands.
Just a few years ago, we had the Smith Fire which was a
small fire. It started out 10 to 12 acres. It sat unattended
for about 10 days and then blew up into about a 70,000-acre
fire threatening tribal fee lands and trust lands. So, we have
to find a way to reduce that wildfire risk.
Mr. LaMalfa. Please submit some of your thoughts and watch
what we are going to do in the Subcommittee on Forestry and the
Ag. Committee if you would, and we will be looking at that.
Mr. LaMalfa. Thank you, Madam Chair. I appreciate the
indulgence. I will yield back.
Ms. Hageman. Thank you. Excellent questions and appreciate
the testimony and additional information.
Again, if there is no further business, without objection,
the Committee stands adjourned.
[Whereupon, at 10:10 a.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Supplemental Statement for the Record
Joseph Rupnick, Chairman
Prairie Band Potawatomi Nation
Dear Chair Hageman, Ranking Member Leger-Fernandez, and
Subcommittee Members:
Thank you for the opportunity to testify before the Subcommittee on
March 1, 2023. I was honored to share my thoughts with the Subcommittee
on ``Unlocking Indian Country's Economic Potential,'' particularly as
it relates to the ownership and use of tribal lands for economic
development. This supplemental statement expands upon my remarks for
inclusion in the hearing record.
As the Chairman of the Prairie Band Potawatomi Nation, I represent
approximately 4,500 Potawatomi people, most of whom live on our
reservation in Kansas, defined by our 1846 Treaty with the U.S.
Government. Originally, our people owned and resided on lands in
northern Illinois, but we were subject to removal treaties in 1829 and
1833 that relinquished all but 1,280 acres of that land. Our 1846
treaty established a 900-square-mile reservation for us in Kansas, but
development pressure, the federal government's land allotment policies,
and outright theft resulted in most of our land being lost to non-
Indians. Just a few decades ago, our Nation owned less than 5% of the
land originally promised to us.
Today, lands within our reservation are heavily ``checkerboarded,''
meaning that there are mixed parcels of land within the reservation
owned by our Nation, individual Nation citizens, and non-Indians. And
because the status of the land differs based on ownership, so too does
the jurisdiction and taxing authority of the tribal, federal, state,
and county governments. Frankly, what the government has done to us and
our lands has created a mess.
This mess is compounded by the fact that the lands we have retained
are considered ``trust lands''--owned by and under the federal
government's jurisdiction. In my view, the idea of ``trust land'' is
not normal and should be fixed to recognize that our Nation owns our
lands within our treaty-defined reservations and is subject to our
primary jurisdiction. The federal government's role should be to
protect our lands against the sale and external taxation and
regulation, not management and interference with our Tribal
government's land use decisions.
Perhaps the most glaring defect of trust land status is how it
interferes with economic development activities we wish to pursue in
support of our people. For example, in recent years, we have sought to
expand a retail shopping plaza with a convenience store to support our
Class III gaming facility. We acquired the land in fee from non-Indian
sellers. We had to apply to the Bureau of Indian Affairs to have the
land taken into trust, which took 14 years. We had to undergo excessive
environmental review because the land is now considered to be in trust
status. The utility service takes time to hook up because of the
federal regulations governing rights of way on trust land. We started
this project 22 years ago, but it is still unfinished. Nowhere in
America other than Indian Country does this kind of bureaucratic
stranglehold occur.
To remedy this situation, I recommend that the Subcommittee
consider three different legislative actions to improve the use of
tribal lands.
***
First, Congress should enact legislation to allow for any Indian
nation at its own choosing to acquire lands under its jurisdiction in
restricted fee status. Restricted fee status is a long-established form
of tribal landownership similar to trust status, but the land is
considered owned by and under the jurisdiction of the Indian nation,
not the federal government.
The late Don Young, the former Dean of the House, supported
sovereignty for tribal governments to own our lands and exercise
jurisdiction over them within our reservations. He developed
legislation, the ``Native American Land Empowerment Act,'' that he
introduced in the 112th and subsequent Congresses to allow for Indian
nations to acquire restricted fee lands within our existing
reservations.\1\ He proposed a 90-day process that land acquired by a
tribe in fee within its reservation would automatically be converted to
restrict fee status under its ownership and jurisdiction.
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\1\ See e.g. H.R. 8931, 115th Cong. At https://www.congress.gov/
116/bills/hr8951/BILLS-116hr8951ih.pdf.
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Enactment of this legislation would create an alternative process
to the current fee-to-trust process. All tribal nations could save time
and money and strengthen our ability to engage in economic development
within our reservations if we had this tool at our disposal. Some
tribes may not like the idea and would prefer to have their lands held
in trust, which is their right. But for nations that want greater
control over our land use from the federal government, we should have
that opportunity.
What is restricted fee land status? Trust lands are considered
owned by the United States government for the benefit and occupancy of
a particular Indian tribe. Restricted fee lands are recognized as owned
by the Tribal nation itself, subject to a restriction against
alienation and taxation imposed by federal law.\2\ Restricted fee lands
are managed by a Tribal nation, not the federal government.
---------------------------------------------------------------------------
\2\ See 25 U.S.C. Sec. 177; 25 C.F.R. Sec. 151.2(e).
What would the Land Empowerment Act do if enacted? The Act would
allow any federally-recognized Indian nation or tribe, at its choice,
to convert any or all of their trust lands or tribally-owned fee lands
within its reservation to restricted fee status by giving notice to the
Secretary of the Interior. If the Secretary failed to act on the
tribe's request within 90 days, the land would automatically convert to
---------------------------------------------------------------------------
restricted fee status.
Do restricted fee lands have Indian Country status? Yes. Both trust
land and restricted fee lands are ``Indian Country.'' \3\ are subject
to tribal and federal jurisdiction,\4\ and are immune from state
regulation and taxation.\5\
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\3\ ``Indian Country'' includes ``reservations,'' ``dependent
Indian communities,'' and ``allotments.'' See 18 U.S.C. Sec. 1151.
Tribal nations owning lands in restricted fee status are Indian
Country. See U.S. v. Sandoval, 231 U.S. 28 (1913) (Pueblos); Indian
Country U.S.A., Inc. v. State of Oklahoma, 829 F.2d 937 (10th Cir.
1987) (Creek Nation).
\4\ fee lands that pass into trust status or restricted fee status
are subject to tribal jurisdiction. See Citizens Against Casino
Gambling in Erie County v. Chauduri, (2nd Cir. 2014), at 55-57.
\5\ See Citizens Against Casino Gambling in Erie County v. Hogen,
(W.D.N.Y., Jul. 8, 2008) at 69 (``Congress has treated trust land and
restricted fee land as jurisdictional equivalents in a number of Indian
statutes of general applicability.'').
Is restricted fee land more at risk of state jurisdiction or
taxation? No. Restricted fee land is Indian Country under federal law
and is the equivalent of trust land for jurisdictional purposes.\6\
---------------------------------------------------------------------------
\6\ See CACGEC, supra at 70 (``[W]here land is held in trust or is
subject to a restriction against alienation imposed by law, a state is
without jurisdiction over the land except as permitted by the federal
government.'').
If the Land Empowerment Act is enacted, would it reflect a major
change in federal law? No. The Act is consistent with recent
Congressional action to respect tribal sovereignty over land use to
maximize economic development potential. In 2012, Congress enacted the
HEARTH Act to amend the Long-Term Leasing Act of 1955 to establish a
procedure for tribal governments to gain greater control over leasing
trust lands for a 75-year period.\7\ Congress has also regularly
enacted piecemeal legislation to allow tribes to lease land for 99
years, as discussed further below. And the Indian Trust Asset Reform
Act of 2016 allows for tribes to fully manage their trust land
resources.\8\ The Land Empowerment Act would streamline this process
even further.
---------------------------------------------------------------------------
\7\ See 25 U.S.C. Sec. 415.
\8\ See 25 U.S.C. Sec. 5601 et seq.
What would be the effect of the Land Empowerment Act on tribal
self-government and economic growth? The Act would restore tribal
landownership to lease and regulate our own lands to promote tribal
economic development without federal government management. It would
not change any existing federal law relating to gaming development. But
it would be an important step toward streamlining tribal land use for
economic development and thereby strengthening tribal sovereignty by
---------------------------------------------------------------------------
providing more flexibility and more options for economic growth.
Would the Land Empowerment Act affect the federal government's
funding obligation to Tribes? No. The federal trust responsibility and
federal funding are independent of whether a Tribal nation occupies
trust land or owns restricted fee land. The Act expressly preserves the
federal government's trust obligation to protect the Tribe and its
lands.
Would the Land Empowerment Act affect the status of trust
allotments? No, not without the consent of the allottee.
Could restricted fee lands revert to trust status under the Act if
originally converted to restricted fee status? Yes, however, the
federal government would not be held responsible for any implications
of land use while it was owned by the Tribe in restricted fee status.
Is there a precedent for restricted fee landownership in Indian
Country? Yes, the federal government and federal law has recognized
restricted fee land status since 1790 under the Nonintercourse Act. The
Six Nations of the Haudenosaunee (Iroquois) located in New York State
retain aboriginal title to their lands, which are considered owned in
restricted fee status. Restricted fee land exists in other parts of
Indian Country as well (e.g. Oklahoma, New Mexico).
Has Congress previously acted to allow for the creation of
restricted fee lands? Yes, on two recent occasions Congress has
established a process for Tribal nations to acquire restricted fee
lands.
In 1990, Congress enacted the Seneca Nation Settlement Act, which
allows the Seneca Nation of Indians to utilize settlement funds
appropriated under the Act to acquire restricted fee land within its
aboriginal territory in Western New York State.\9\ Upon the use of
Settlement Act funds to acquire land in fee simple status, the Act
allows the Seneca Nation to give notice to the Secretary of the
Interior and affected local governments of its acquisition. Within 60
days of said notice, the land is automatically converted to restricted
fee status and is considered Indian Country under the Nation's
jurisdiction.
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\9\ See Pub. L. 101-503, 104 Stat. 1292, Nov. 3, 1990 (https://
www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg1292.pdf).
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In 2016, Congress enacted the ``Return of Certain Lands at Fort
Wingate to The Original Inhabitants Act'' for the benefit of the Zuni
Tribe and Navajo Nation.\10\ This law transferred former Fort Wingate
military land back to these two Tribal nations in trust status but
allowed them to convert the lands to restricted fee status at their
discretion.
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\10\ See Cong. Rec. H2735-H2737, May 18, 2016 (attached).
If the Land Empowerment Act is enacted, will it be mandatory for
Tribal governments? No. The decision to convert trust lands into
restricted fee status is a choice. The National Congress of American
Indians, Affiliated Tribes of Northwest Indians, and the United South
and Eastern Tribes have each adopted resolutions supporting the right
of tribal governments to have the choice to acquire lands in restricted
fee status (attached).
***
In addition to establishing a new legal process for acquiring lands
in restricted fee status, I recommend two other critical legislative
changes to expand Tribal government authority to better utilize our
lands for economic development purposes.
Congress should recognize that all Tribal governments have
authority to lease trust lands for up to 99 years. Right now, Indian
nations are limited in our ability to lease our lands without federal
approval. In 2012, Congress took a major step forward when it enacted
the HEARTH Act to amend the Indian Long-Term Leasing Act of 1955 to
allow for the leasing of trust or restricted lands of up to 75 years.
But, to regain that inherent authority, a tribe must first ask
permission and secure approval from the federal government to exercise
that authority. And to get that approval, a Tribe's laws must have a
variety of restrictions and controls governing land use that are nearly
as burdensome as the federal government's own regulations.
In true fashion, the Federal Government acted in a manner that
looks like it is respecting tribal sovereignty but loads up the process
with so many other restrictions that you have to wonder whether it's
really worth it.
Congress should simply fix this situation by enacting legislation
that allows any Indian nation that wants the authority to lease its
trust lands for 99 years to do so. Again, if a Tribe wants to utilize
the existing legal regime, that is their choice. But if other Tribal
nations like ours want a streamlined process, the federal government
should just get out of the way.
***
Lastly, Congress should clarify that the Nonintercourse Act does
not apply to the purchase and sale of Tribally-owned fee lands. This
Act, one of the first pieces of legislation enacted by Congress in
1790, serves an important function in protecting the sale and
alienation of Indian trust or restricted fee lands. But it should not
apply to land transactions involving the purchase and sale of fee
lands. Many Tribal governments, including ours, are interested in
expanding our economic opportunities into real estate development, but
any future sale of such land could be stopped because of a restrictive
interpretation of the Nonintercourse Act. The Nonintercourse Act is
important legislation that should remain in place. However, it should
not be interpreted to interfere with the sale of Tribally-owned fee
land within our outside of reservation boundaries.
***
In conclusion, I want to thank you again, Madam Chair and
Subcommittee members, for the opportunity to submit this supplemental
testimony. For 50 years, the official policy of Congress has been to
support tribal sovereignty and self-determination. More must be done to
make this a reality regarding the use of tribal lands to support the
economic self-sufficiency of sovereign Tribal nations.
*****
This Statement along with attachments is part of the hearing record and
is being retained in the Committee's official files.
The Statement with attachments is available for viewing at:
https://docs.house.gov/meetings/II/II24/20230301/115374/HMTG-118-II24-
20230301-SD003.pdf
______
Submission for the Record by Rep. Grijalva
Statement for the Record
United South and Eastern Tribes (USET)
Sovereignty Protection Fund
The United South and Eastern Tribes Sovereignty Protection Fund
(USET SPF) is pleased to provide the House Subcommittee on Indian and
Insular Affairs (SIIA) with the following testimony for the record of
the March 1, 2023 oversight hearing, ``Unlocking Indian Country's
Economic Potential.'' The inaugural hearing of SIIA in the 118th
Congress focused on the challenges Indian Country faces in pursuing
economic opportunities due to the complex status and restrictions
imposed on Tribal Lands. However, this is just one example of the
barriers that exist as a direct result of shameful federal policies
that sought to terminate Tribal Nations, assimilate Native people, and
to erode Tribal territories, learning, cultures, and economies. Today,
many federal programs' management and funding systems operate under an
archaic model of paternalism that does not support Tribal Nation
sovereignty and self-determination.
In addition to addressing land use and restrictions, USET SPF
offers several additional priorities that must also receive the same
consideration from Congress and the Subcommittee to empower Tribal
Nations to pursue efforts in Nation rebuilding. These include support
for the restoration of Tribal homelands, tax parity, and the expansion
of self-governance contracting and compacting across the federal
government.
USET Sovereignty Protection Fund (USET SPF) is a non-profit, inter-
tribal organization advocating on behalf of thirty-three (33) federally
recognized Tribal Nations from the Northeastern Woodlands to the
Everglades and across the Gulf of Mexico.\1\ USET SPF is dedicated to
promoting, protecting, and advancing the inherent sovereign rights and
authorities of Tribal Nations and in assisting its membership in
dealing effectively with public policy issues.
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\1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
of Texas (TX), Catawba Indian Nation (SC), Cayuga Nation (NY),
Chickahominy Indian Tribe (VA), Chickahominy Indian Tribe-Eastern
Division (VA), Chitimacha Tribe of Louisiana (LA), Coushatta Tribe of
Louisiana (LA), Eastern Band of Cherokee Indians (NC), Houlton Band of
Maliseet Indians (ME), Jena Band of Choctaw Indians (LA), Mashantucket
Pequot Indian Tribe (CT), Mashpee Wampanoag Tribe (MA), Miccosukee
Tribe of Indians of Florida (FL), Mi'kmaq Nation (ME), Mississippi Band
of Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut (CT),
Monacan Indian Nation (VA), Nansemond Indian Nation (VA), Narragansett
Indian Tribe (RI), Oneida Indian Nation (NY), Pamunkey Indian Tribe
(VA), Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy Tribe
at Pleasant Point (ME), Penobscot Indian Nation (ME), Poarch Band of
Creek Indians (AL), Rappahannock Tribe (VA), Saint Regis Mohawk Tribe
(NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians (NY),
Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana (LA),
Upper Mattaponi Indian Tribe (VA) and the Wampanoag Tribe of Gay Head
(Aquinnah) (MA).
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Economic Development in Indian Country and the USET SPF Region
Prior to European contact, Tribal Nations, including USET SPF
members, had a long history of dynamic economies and governance
structures. Robust trade networks connected Tribal Nations and the
goods we produced. As with other aspects of Tribal governance and
infrastructure, the removal, termination, and assimilation policies of
the United States government negatively impacted our traditional
economic trade. Over the course of centuries, Tribal Nations ceded
millions of acres of land and extensive resources to the U.S.--
oftentimes by force--in exchange for which it is legally and morally
obligated to provide benefits and services in perpetuity. Because of
this historic and ongoing diplomatic relationship, the federal
government has trust and treaty obligations to support Tribal self-
governance and self-determination, along with rebuilding Tribal Nations
and economies. Unfortunately, at no point has the federal government
fully delivered upon and upheld these obligations.
In addition to being relegated to fractions of our original
homelands, which can be in remote areas, Tribal Nations lack
governmental parity in economic development opportunities and treatment
under the U.S. tax code. All Tribal Nations, especially USET SPF member
Tribal Nations, vary in levels of economic activity, capacity, and
development. Some Tribal Nations have decades of experience and
familiarity with economic development initiatives, while some are just
starting to pursue these initiatives. This diversity demands that
federal policy not adopt a one-size-fits all approach in supporting
Tribal Nations and businesses to pursue economic development
initiatives to support our communities and engage in Nation rebuilding.
With nearly every aspect of economic development regulated by the
federal government, economic progress in Indian Country is often
stymied by burdens on Tribal Nations and businesses. These burdens have
contributed to a perpetual cycle of social and economic hardship in our
communities, and are a remnant of paternalism that continues to exist
today, despite an evolution away from past policies of termination and
assimilation toward greater Tribal self-determination and self-
governance.
In 2012, the Federal Reserve Board of Governors issued a report on,
Growing Economies in Indian Country, that outlined eight issues as
fundamental challenges to realizing economic growth in Indian Country.
USET SPF's member Tribal Nations, with few exceptions, still
disproportionately contend with these same challenges, such as:
1. Insufficient access to capital;
2. Capacity and capital constraints of small business;
3. Insufficient workforce development, financial management training,
and business education;
4. Tribal governance constraints;
5. Regulatory constraints on land held in trust and land designated
as restricted use;
6. Underdeveloped physical infrastructure;
7. Insufficient research and data; and
8. Lack of regional collaboration.
Though this report is over a decade old, its relevancy today on the
current state of economic challenges in Indian Country highlights the
failures of the federal government in upholding its trust and treaty
obligations to Tribal Nations. Congress and the Administration must
work to free Tribal Nations from over-burdensome laws and regulations
that impede our social and economic success. This is especially
important in an environment of the federal government's failures to
uphold trust and treaty obligations to fully fund programs and services
for Indian Country. Similar to other governments, Tribal Nations
provide vital economic, social, health, and public safety services to
our people. As it is for any other sovereign, economic sovereignty is
essential to our ability to be self-determining and self-sufficient.
While economic success in no way diminishes the United States' moral
and legal obligations to Tribal Nations, it remains critical to our
continued nation rebuilding. Building strong, vibrant, and mature
economies is more than just business development. It requires
comprehensive planning to ensure that our economies have the necessary
infrastructure, services, and opportunities for our citizens to thrive.
And when Tribal Nations and our citizens have economic success,
surrounding communities and their citizens share in the benefits. This
results in stronger Tribal Nations and a stronger America.
Ensure Tribal Nation Economic Parity
The federal government has a responsibility to ensure that federal
tax law treats Tribal Nations in a manner consistent with our sovereign
governmental status, as reflected under the U.S. Constitution and
numerous federal laws, treaties, and federal court decisions. With this
in mind, we remain focused on the advancement of tax reform that would
address inequities in the tax code and eliminate state dual taxation.
Revenue generated within Indian Country continues to be taken outside
our borders or otherwise falls victim to a lack of parity. Similarly,
Tribal governments continue to lack many of the same benefits and
flexibility offered to other units of government under the tax code.
This largely prevents Tribal Nations from achieving an economic
multiplier effect, allowing for each dollar to turn over multiple times
within a given Tribal economy. The failure of the federal government to
recognize Tribal Nations in a manner consistent with our sovereign
governmental status has hindered our efforts to rebuild and grow our
economies.
USET SPF continues to press Congress for changes to the U.S. tax
code that would provide governmental parity and economic development to
Tribal Nations. These efforts included support in previous Congresses
for the Tribal Tax and Investment Reform Act. This bill specified the
treatment of Tribal Nations as states with respect to bond issuance and
modified the treatment of pension and employee benefit plans maintained
by a Tribal Government. It also aimed to modify the treatment of Tribal
foundations and charities, improve the effectiveness of Tribal child
support enforcement agencies, and recognize Tribal governments for
purposes of determining whether a child has special needs eligible for
the adoption tax credit. USET SPF urges the Subcommittee to support
similar legislative efforts in the 118th Congress to increase Tribal
Nation economic parity.
Address Dual Taxation in Indian Country
Dual taxation hinders Tribal Nations from achieving our own revenue
generating potential. Although Tribal Nations have authority to tax
noncitizens doing business in Indian Country, when other jurisdictions
can tax those same noncitizens for the same transactions, Tribal
Nations must lower their taxes to keep overall pricing at rates the
market can bear or forgo levying a tax at all. The application of an
outside government's tax often makes the Tribal tax economically
unfeasible.
Dual taxation undercuts the ability of Tribal Nations to offer tax
incentives to encourage non-Indian business entities onto our lands to
create jobs and stimulate Tribal economies. As long as outside
governments tax non-Indian businesses on our lands--even if a Tribal
government offers complete Tribal tax immunity to attract a new non-
Indian business--that business is subject to the same state tax rate
that is applicable outside our jurisdictional boundaries. As a matter
of economic fairness, we ask SIIA to work with us to support and
advance initiatives that would bring certainty in tax jurisdiction to
Tribal Lands by confirming the exclusive, sovereign authority of Tribal
governments to assess taxes on all economic activities occurring within
our jurisdictional boundaries.
Support Responsible Development in the Energy Sector
USET SPF member Tribal Nations, and our respective Tribal Lands and
energy resources, are located within a large region that presents
diverse geographical environments and opportunities for both
conventional and renewable energy development. Our member Tribal
Nations could benefit from the unlocked potential of those energy
resources and realize energy development goals, through appropriate
Congressional action and investment in Indian Country; and further
actions by the Administration, particularly to promote balanced
geographical representation and inclusion of USET SPF member Tribal
Nations in energy programs.
USET SPF has established its energy priorities, as follows:
Tribal self-determination and control of natural resources
and energy assets, to make conservation and development
decisions to preserve Tribal sovereignty, protect Tribal
assets, and to achieve economic independence, creation of
jobs, and improvement of Tribal citizens' standard of
living.
Tribal capacity building effort involving multiple federal
agencies, universities, and the private sector.
Reform core federal programs, expertise, and funding to
support Tribal energy resource development and market
access.
Remove barriers to the deployment of Tribal energy
resources, such as bureaucratic processes, insufficient
access to financial incentives, and interconnection and
transmission on power grid.
We remain concerned, however, with efforts to streamline energy
development by bypassing requirements under the National Environmental
Policy Act (NEPA). USET SPF is aware of legislative proposals that
would scale back environmental protections and review processes
mandated under NEPA to streamline the approval of domestic energy
development. We do not oppose conventional or renewable energy
development, and many of USET SPF's member Tribal Nations pursue these
activities. However, such development occurring outside of Tribal
Nation jurisdictional boundaries must not come at the expense of our
cultural resources and natural environments or Tribal consultation.
Tribal Nations have already experienced immense land loss, theft, and
the destruction and desecration of our cultural and environmental
resources and aboriginal homelands. We should not be subjected to such
actions again in to further a domestic energy policy agenda.
In addition to our concerns with scaling back NEPA provisions,
several USET SPF member Tribal Nations have had to contend with federal
agencies failing to properly consult with Tribal Nations on proposed
energy projects. This includes wind energy development projects under
the oversight of the Bureau of Ocean Management that have been proposed
for construction, and some of which are currently undergoing
construction, on the Outer Continental Shelf. Several of our member
Tribal Nations were not properly consulted about the permitting of
these wind energy project sites and have not received the resources and
technical assistance required to properly and adequately review
environmental, geological, and other assessments related to these
projects. Funding remains stagnate and inadequate for Tribal Historic
Preservation Officers (THPOs) to conduct reviews of proposed projects
in order to appropriately ascertain the potential cultural and
environmental impacts. We urge the Subcommittee to support increased
funding for THPOs and ensure that efforts to streamline environmental
review process are not implemented at the expense of the destruction of
our cultural resources, sites, and natural environments.
Support the Restoration of Tribal Homelands and Enact a `Carcieri Fix'
Possession of a land base is a core aspect of sovereignty, cultural
identity, and represents the foundation of a government's economy. This
is no different for Tribal Nations. USET SPF Tribal Nations continue to
work to reacquire our homelands, which are fundamental to our existence
as sovereign governments and our ability to thrive as vibrant, healthy,
self-sufficient communities. The federal government's objective in the
trust responsibility and obligations to our Nations must be to support
healthy and sustainable self-determining Tribal governments, which
fundamentally includes the restoration of lands to all federally
recognized Tribal Nations, as well as the legal defense of these land
acquisitions. USET SPF continues to call upon Congress to enact a fix
to the 2009 Supreme Court decision in Carcieri v. Salazar. For too
long, this decision has impeded our ability to rightfully restore our
land bases and pursue Nation rebuilding efforts. Congress must enact
legislation that: (1) reaffirms the status of current trust lands; and
(2) confirms that the Secretary of the Interior has authority to take
land into trust for all federally recognized Tribal Nations.
Support the Expansion of ISDEAA Contracting and Compacting Across the
Federal Government for Tribal Nations
Tribal Nations are political, sovereign entities whose status stems
from the inherent sovereignty we have as self-governing peoples that
pre-dates the founding of the United States. The U.S. Constitution,
treaties, statutes, Executive Orders, and judicial decisions all
recognize that the federal government has a fundamental trust
relationship to Tribal Nations, including the obligation uphold the
right to self-government. Our federal partners must fully recognize the
inherent right of Tribal Nations to fully engage in self-governance, so
we may exercise full decision-making in the management of our own
affairs and governmental services. Despite the success of Tribal
Nations in exercising authority under the Indian Self-Determination and
Education Assistance Act (ISDEAA), the goals of self-governance have
not been fully realized. Many opportunities still remain to improve and
expand upon the principles of self-governance and self-determination.
An expansion of ISDEAA authorities to all programs across the federal
government would be the next evolutionary step in the federal
government's recognition of Tribal sovereignty and reflect its full
commitment to Tribal Nation sovereignty and self-determination. The
expansion of self-governance contracting and compacting will not only
empower us to better serve our citizens and communities, but it will
enhance our abilities to manage our lands. It would empower Tribal
Nations to administer federal programs in co-management, stewardship,
agriculture, deployment and maintenance of critical infrastructures,
and pursue economic development on our lands. It is time for Congress
to enact legislation that expands our self-governance capabilities
across the federal government so that we may fully exercise our
inherent sovereign rights to manage our affairs and resources.
Invest in and Rebuild Tribal Infrastructure--A Marshall Plan for Tribal
Nations
For generations, the federal government--despite abiding trust and
treaty obligations--has substantially under-invested in Indian
Country's infrastructure and engaged in hostile actions against Tribal
Nations. While the United States faces crumbling infrastructure
nationally, there are many in Indian Country who lack even basic
infrastructure. Much like the U.S. investment in the rebuilding
European nations following World War II via the Marshall Plan, the
legislative and executive branches should commit to the same level of
responsibility to assisting in the rebuilding of Tribal Nations, as our
current circumstances are, in large part, directly attributable to the
shameful acts and policies of the U.S. In the same way the Marshall
Plan acknowledged America's debt to European sovereigns and was
utilized to strengthen our relationships and security abroad, the U.S.
should make this strategic investment domestically.
Conclusion
Unlocking the economic potential of Indian Country must take into
consideration several issues and priorities to support Tribal Nation
rebuilding efforts. The historic and ongoing injustices that have
contributed to economic insecurity in Indian Country are symptomatic of
the larger issues we face as Tribal Nations. In large part, this is due
to the failure of the U.S. government to live up to the terms of our
diplomatic, Nation-to-Nation relationship. Development and
implementation of policies and programs that recognize and uphold our
inherent sovereignty and fulfill trust and treaty obligations are
necessary to alleviate economic hardship, rebuild Tribal Nations, and
improve the quality of life for our citizens and communities. Congress
must continue to support and fully fund federal programs that encourage
economic sovereignty through the restoration of Tribal homelands, self-
governance contracting and compacting across all federal programs, tax
parity, and responsible energy development. We welcome the opportunity
to collaborate with the Subcommittee on economic policies that better
honor federal trust and treaty obligations and uphold our inherent
sovereignty to pursue our Nation rebuilding priorities, including
unlocking the potential of international trade via our unique status.