Senate Indian Affairs Committee Hearing

Greetings Chairwoman Cantwell, Vice-Chairman Barrasso, Senator Tester and Committee members. My name is Ron Trahan and I serve as the Chairman of the Confederated Salish and Kootenai Tribes ("CSKT" or "Tribes").

On behalf of the Confederated Salish and Kootenai Tribes, I thank you for the opportunity to provide our views on S. 919, including proposed revisions to the bill that are under Committee consideration. CSKT supports the legislation.

This legislation, which would amend the Tribal Self-Governance Act's Interior Department provisions, found in Title IV of the Indian Self-Determination and Education Assistance Act (ISDEAA), has a long history. Ten years ago, in 2004, one of my predecessors, Chairman D. Fred Matt, testified before this Committee on an earlier version of S. 919 (S.1715). Seven years ago, in 2007, another of my predecessors, James Steele, Jr., also testified here on draft legislation to amend the Tribal Self-Governance Act.

The success and resilience of the Tribal Self-Governance Act, and Self-Governance tribes, is unquestioned. The record of success built by Self-Governance tribes is a testament to the foresight and wisdom of tribal and congressional leaders. The late CSKT Chairman Michael ("Mickey") T. Pablo, had fiercely fought for enactment of Tribal Self-Governance legislation and policies. As we have stated before, the record built by CSKT, and Indian country, in administering federal programs would make Mickey proud. Mickey was instrumental in CSKT becoming one of the first ten tribes in the country to participate in the Tribal Self-Governance Demonstration Project in the late 1980's, and he was a key player in the subsequent permanent establishment of Tribal Self-Governance as federal policy.

I would also like to acknowledge the essential contributions of this Committee, and its leadership under former Co-Chairmen Daniel K. Inouye and John McCain, in establishing Tribal Self-Governance as permanent federal policy. The manner in which Congress worked with tribal leaders to develop, test, and then permanently enact the Tribal Self-Governance paradigm is an outstanding model for how policy should be formulated.

CSKT has long asserted that ISDEAA and its 1994 amendments, known as the Tribal Self-Governance Act (Title IV of ISDEAA), have been two of the most important and successful pieces of federal Indian legislation in history. They are a logical progression from the Indian Reorganization Act of 1934, which first set the stage under federal law for tribal governments to once again determine our own affairs, protect our own communities, and provide for our own people in concert with our respective cultures and traditions - something we have done since time immemorial. Fully implementing Tribal Self-Governance is a pivotal step in realizing the federal policy of Indian Self-Determination that was ushered in almost forty years ago.

CSKT's Self-Governance Background

General Background

CSKT has been one of the most active of the many Self-Governance tribes and, as mentioned above, is one of the original ten Self-Governance tribes. We have found the system of Self-Governance contracting, through compacts and annual funding agreements (AFA's), to be highly effective in:2) increasing the efficiency and integrity of federal services to tribes and tribal members; n2) increasing tribal autonomy and self-sufficiency; 3) strengthening the government-to-government relationship between the United States and tribal governments; and 4) developing our Tribal economy. All of these are among the principal objectives identified by Congress in its policy rationale for ISDEAA: [T]he United States is committed to supporting and assisting Indian tribes in the development of strong and stable tribal governments, capable of administering quality programs and developing the economies of their respective communities.

25 U.S.C. [Sec.] 450a(b)

As Congress later stated in enacting the Tribal Self-Governance Act of 1994: The Tribal right of self-government flows from the inherent sovereignty of Indian tribes and nations[. . . .] It is the policy of the Tribal Self-Governance Act to permanently establish and implement self-governance . . . [t]o permit each Tribe to choose the extent of its participation in self-governance.

25 C.F.R. [Sec.] 1000.4(a)(1), (b)(2)

Currently, the CSKT Tribal government annually administers approximately: $25 million in Self-Governance funds; $150 million in contracts and grants; and $44 million in Tribal revenue. Our government alone has 1,000 full-time employees. We are the largest employer on the Flathead Reservation, the largest employer in northwestern Montana, and we contribute over $30 million in payroll and over $50 million in purchasing to the local economy. A report funded by the State of Montana several years ago showed that CSKT contributed $317 million to the Montana economy annually. n1 It is important to remember, however, that the Indian unemployment rate on our Reservation is still much higher than that of the general area population. This is an indicator that we have a long way to go in building our Tribal and Reservation economies. To this end, the Tribal Self-Governance Act remains a vital tool for us.

The following is a list of just several examples of CSKT's successes in administering programs through ISDEAA and Self-Governance:

* In 1986, we signed a contract to take over control and management of the electrical utility on our reservation, then known as the Electrical Division of the Flathead Indian Irrigation Project. We renamed it Mission Valley Power (MVP). This utility serves every home and business on the reservation, Indians and non-Indians alike. It also provides power to the National Bison Range. It is considered one of the best-run utilities in the state of Montana. Since the Tribes took over, MVP has replaced and updated much of the utility's infrastructure yet managed to retain some of the lowest rates in the region. MVP has been 638-contracted and has not been included in subsequent Self-Governance agreements due to the prohibition found in 25 U.S.C. [Sec.] 458cc(b)(4)(C). CSKT supports S. 919's deletion of this prohibition.

* Since 1996, CSKT has contracted the operation of the Bureau of Indian Affairs'(BIA) Land Title Recording Office (LTRO) for the Flathead Indian Reservation. We are aware of only a few other tribes that contract or compact the LTRO program in its entirety. Through Tribal control, we have: greatly decreased waiting time for requested documents; more nimbly adjusted priorities to respond to different needs regarding appraisals, mortgages, leases, etc.; and increased budget efficiencies for a program that is severely underfunded by the federal government. Tribal operation of LTRO functions has also been a key factor in CSKT's record of proactive land acquisitions and reduction of land fractionation through Tribal acquisition of fractionated interests.

* In 1989, CSKT contracted the BIA's Safety of Dams (SOD) program. One of the main objectives of this program is to eliminate or remediate structural and/or safety concerns at 17 locations on the Flathead Indian Reservation as identified by the Department of Interior National Dams - Technical Priority Rating listing. CSKT's SOD Program provides investigations, designs and SOD modifications to resolve the concerns of the dams on the list. The Tribes' SOD Program has been extremely successful and, under our administration, Reservation dams have been modified at a cost significantly lower than originally estimated by the Bureau of Reclamation. Past examples include completion of Black Lake Dam in November 1992 at a savings of approximately $1.3 million below Bureau of Reclamation estimates. The Pablo Dam Modification Project was completed in February 1994 at a savings of nearly $140,000.

* In fiscal years 1997 and 1998 respectively, CSKT began compacting for administration of the Individual Indian Monies (IIM) program for the Flathead Reservation. As of the January 23, 2013Federal Register listing of Tribal Self-Governance agreements with non-BIA agencies, CSKT is the only tribe that currently has such an agreement with the Office of Special Trustee (OST) for these functions.

National Bison Range Complex

With respect to non-BIA programs, the Interior Department has not established a very encouraging record regarding Tribal Self-Governance agreements. As this Committee is well aware, for almost twenty years CSKT has been working to secure a stable funding agreement with the U.S. Fish & Wildlife Service (FWS) for programs at the National Bison Range Complex (NBRC), which is almost entirely located within the Flathead Indian Reservation. The NBRC includes two ancillary National Wildlife Refuges that are located on Tribally-owned land in the center of the Reservation (the Ninepipe and Pablo Refuges).

While the effort has been unnecessarily expensive, frustrating and resource-intensive, it is worth the fight. In addition to the National Bison Range's physical location in the center of our Reservation, the NBRC's bison herd has its origins with the bison herd started and grown by Tribal members in the late 1800's and early 1900's, when bison were threatened with extinction. The NBRC's Ninepipe and Pablo Refuges are the result of Tribal requests in the 1910's and 1920's for the federal government to put the areas around two irrigation reservoirs into protected status for bird conservation. After several years, the United States responded by issuing two Executive Orders designating the areas as Refuges. In 1948, Congress acquired a perpetual easement from CSKT for such Refuge uses at Ninepipe and Pablo, while also recognizing the Tribes' reserved rights on the properties. n2 Collectively, the National Bison Range and the Ninepipe and Pablo Refuges occupy a unique place within our Reservation, our history, our culture, and our hearts.

As this Committee is aware, the CSKT has executed two multi-year AFA's with FWS for programs at the NBRC. The first AFA was signed in 2004, and the second was signed in 2008 at a Washington, D.C. ceremony attended by Interior Secretary Dirk Kempthorne and Montana Senators Jon Tester and Max Baucus. Unfortunately, both of these agreements came to premature ends.

With the negotiation and implementation of the 2008 AFA for NBRC programs, which covered fiscal years 2009-2011, CSKT and FWS built a highly constructive relationship both on the ground and at the policy-maker level. That relationship was reflected in many ways, including: positive status reports; successful annual bison round-ups; positive visitor feedback; and increased general communication and coordination between federal and tribal staffs.

Unfortunately, two non-governmental organizations n3 who have consistently opposed the federal-tribal partnership, challenged the agreement in a federal court action, stating that it violated a number of federal statutes such as the Tribal Self-Governance Act and the National Wildlife Refuge System Administration Act. The court did not rule on any of those substantive claims, but it did find that FWS failed to properly explain its invocation of a categorical exclusion under the National Environmental Policy Act when it approved the AFA, so the court rescinded the agreement on the basis of that procedural violation. The court decision was handed down in September 2010. In the three and a half years since that decision, CSKT has negotiated a new draft agreement with FWS and the agency then began preparing an Environmental Assessment for the draft agreement. It is still in the process of preparing that Assessment.

CSKT is pleased to have a wide pool of support for an NBRC Self-Governance agreement, including from conservation groups such as the National Wildlife Federation (see attached letter from NWF submitted in response to FWS' 2012 request for scoping comments regarding the Environmental Assessment). As stated by then-Chairman and Ranking Member of the House Natural Resources Committee, Congressmen Nick Rahall and Don Young: Working with Tribal governments . . . under the authorization of the Tribal Self-Governance Act should not be viewed any differently than partnering with State governments especially in this instance where the tribe owns the land on which the ancillary facilities of the NBRC National Bison Range Complex [sic] are located. n4

While we have been very frustrated with the length of time that this process is taking, we are hopeful that the improved relationship between CSKT and FWS will result in a satisfactory agreement that will return CSKT staff to the National Bison Range soon so we can continue what was widely-acknowledged to be an effective partnership. As the New York Times said in a September 3, 2003 editorial addressing the Bison Range partnering efforts, "if the Salish and Kootenai can reach an agreement with the Fish and Wildlife Service, something will not have been taken from the public. Something will have been added to it." (copy of editorial attached to this testimony).

To this end, I would like to extend the CSKT Tribal Council's sincere appreciation for our friends in Congress who have long supported a Self-Governance partnership at the NBRC.

Provisions of S. 919

As mentioned at the outset of this testimony, CSKT supports S. 919, including the proposed revision currently under the Committee's consideration. Making Titles IV and V of ISDEAA (Interior Self-Governance and Indian Health Service Self-Governance, respectively) more consistent has long been a goal for Self-Governance tribes. CSKT agrees with S. 919's approach of leaving intact much of the existing statute, while amending some of the current provisions and adding new ones.

CSKT greatly appreciates the inclusion in S. 919 of specific recognition that 50% of costs incurred by a tribe's governing body are reasonable and allowable for purposes of contract support cost determinations. Including this provision in the statute would bring an end to past uncertainties as to whether the federal government would continue this past practice. This has a significant impact on the budget of CSKT and many other tribes. [[Sec.] 104 of S. 919, as introduced]

CSKT particularly supports S. 919's definition for the term "inherent Federal function". While the term is already so defined in Title V, having the definition specifically included for Interior programs is a positive step towards eliminating the confusion over this term during field-level negotiations. [[Sec.] 201(a)("401(6)") of S. 919, as introduced]

As the only tribe currently with a Self-Governance agreement with the OST, we also support S. 919's explicit incorporation of the OST with respect to mandatory Self-Governance agreements. [[Sec.] 201(c)(1)("(a)(2)"]

CSKT appreciates S. 919's inclusion of specific authority for multi-year funding agreements, as this is an issue for which we have encountered some resistance from federal agencies in the past. We have been able to resolve the disagreements successfully, but statutory clarification will prevent needless disagreements on the issue in the future. [[Sec.] 201(c)(1)("(p)(4)"]

CSKT strongly supports the statutory clarification of tribal ability to carry-over funding. This is also an area in which we have had disagreements with federal agencies and we welcome the clarification. [[Sec.] 201(d)("408(k)"]

With respect to contract support funding, it is important that S. 919 retains the existing statutory language mandating funding for contract support costs (25 U.S.C. [Sec.] 458cc(g)(3)). Payment of contract support costs is a prerequisite for realizing the full potential of Tribal Self-Governance objectives. Stronger efforts to secure adequate appropriations for this area are badly needed. In our testimony on prior versions of this legislation, CSKT has repeatedly raised this issue. We have consistently maintained that Congress did not intend for Self-Determination or Self-Governance contracting to be money-losing propositions, yet that is what they have become as long as the federal government refuses to pay tribes what they are due under the law for administration of the programs. Since our last testimony regarding this legislation, the Supreme Court has confirmed, in its Salazar v. Ramah Navajo Chapter opinion, n5 that the federal government is legally obligated to fully pay these costs. We were very disappointed in the Obama Administration's effort to cap contract support cost payments for fiscal year 2014, thereby preventing tribes from pursuing legal claims for full payment. CSKT very much appreciates Congress' rejection of that approach in the FY '14 budget, and we appreciate the leadership of a number of Senators on this Committee in advocating for tribes on this issue.

CSKT supports S. 919's approach of maintaining the existing statutory authority for contracting Interior programs, outside of the BIA, that are of geographic, historical or cultural significance to tribes. It is through the lens of our experiences involving the NBRC that we evaluate the non-BIA provisions of S. 919. The legislation would leave untouched the statutory authority for NBRC contracting, found at 25 U.S.C. [Sec.] 458cc(c). CSKT supports this since we have negotiated multiple agreements under this authority and do not want to see it diminished or impaired in any way. Section 202 of S. 919, both as introduced and in the Committee's proposed amended version, further clarifies that nothing in this legislation would modify this aspect of non-BIA contracting authority. CSKT would strongly oppose any changes or amendments to non-BIA contracting authority that could be used by opponents of tribal contracting to further hamper or prevent Self-Governance partnerships such as those we have built at the NBRC.

CSKT believes more should be done to encourage, rather than discourage, these partnerships. The United States is rapidly falling far behind countries such as Canada and Australia when it comes to federal-tribal partnerships in the management of protected areas such as refuges and parks. CSKT believes that Tribal Self-Governance policies and agreements have been, and can be, strong vehicles for constructive collaboration between the United States and Indian tribes.

Two areas of continuing concern for CSKT which S. 919 does not currently address include the following:

Federal Tort Claims Act (FTCA) coverage. Presently, liability coverage for tribal contractors, including FTCA coverage, is addressed in Title I of ISDEAA at 25 U.S.C. [Sec.] 450f(c). In past AFA negotiations, CSKT has expended a disproportionate amount of time and energy over the issue of whether FTCA coverage existed for tribal volunteers who perform work for a contracted federal program. CSKT has long maintained that tribal volunteers performing federal program work should enjoy the same FTCA coverage as federal volunteers performing such work. Unfortunately, we have not resolved this issue and, as a result, the BIA has agreed to purchase liability insurance to cover Tribal volunteers under our last two NBRC AFA's. While we have found agreement with our position from Interior solicitor offices, we understand that opposition emanates from the U.S. Department of Justice (DOJ). We are generally concerned with what seems to be an increasing practice by the DOJ to narrowly interpret FTCA coverage in circumstances involving tribal contractors, as well as in other situations. This unfortunately has had negative impacts on CSKT's ability to recruit volunteers for contracted programs and/or explain to existing or prospective volunteers the scope of their liability coverage. In plain terms, we believe we have lost potential, and past, volunteers at the NBRC due to this issue. We encourage Committee attention to this ongoing problem.

Full funding of programs. CSKT has been on record with equating the issue of full program funding to effective implementation of ISDEAA and Tribal Self-Governance objectives. Without Congressional commitment to fully funding the federal programs being contracted by Self-Governance tribes, we cannot overcome the resource limitations to making the programs as successful as they need to be. Dwindling, or stagnant, federal funding results in tribes having to supplement federal programs with tribal dollars. This serves as a disincentive to contract under ISDEAA and Tribal Self-Governance. Just a couple of the many examples relevant to Title IV contracts include:

* The recently completed third independent assessment and report on the status of Indian forests and forestry finds that BIA funding for Indian trust forest management is $2.82 per acre - an amount which is only one-third of the funding level for the U.S. Forest Service, which is $8.57 per acre.

* Per capita spending on law enforcement in Native American communities is roughly 60 percent of the national average.

Similar disparities exist for almost all Indian programs contracted under Title IV. While this is an appropriations issue and somewhat of a separate issue from the Self-Governance provisions of S. 919, it is materially related to achieving the goals of the Act and is thus a proper subject for this Committee's attention. Congressional rectification of this issue would be a solid investment into more effective program delivery and better administration of the federal trust responsibility.

Conclusion

The Confederated Salish and Kootenai Tribes are one of many tribes that successfully partner with the federal government under the Tribal Self-Governance rubric. Work remains to be done towards: 1) eliminating disincentives and removing barriers to Self-Governance participation; and 2) encouraging non-BIA Self-Governance activity. The proposed legislation is a good start towards accomplishing those ends.

On behalf of CSKT, thank you for the opportunity to provide testimony and I would like to thank this Committee, its Members, and staff, for your support of Self-Governance. I would be happy to answer any questions.

n1 "Monetary Contributions of Reservations to the State of Montana", prepared by Eleanor YellowRobe, Bureau of Business and Economic Research, University of Montana (submitted to State Tribal Economic Development Commission, Montana Department of Commerce - November 2007) pp. 1, 9-10.] It is important to remember, however, that the Indian unemployment rate on our Reservation is still much higher than that of the general area population. This is an indicator that we have a long way to go in building our Tribal and Reservation economies. To this end, the Tribal Self-Governance Act remains a vital tool for us.

n2 Act of May 25, 1948, 62 Stat. 269, at Section 5(b).

n3 Public Employees for Environmental Responsibility (PEER) and the Blue Goose Alliance.

n4 May 15, 2007 letter to Interior Secretary Dirk Kempthorne from House Natural Resources Committee Chairman Nick Rahall and Ranking Minority Member Don Young, p. 2 (copy attached to this testimony).]

n5 132 S.Ct. 2181 (2012).

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