Finally, Mr. Chairman, Mr. Vice Chairman, and members of the committee, we need to recognize the human dimension and consequences of trust mismanagement. The lack of an accounting and payment of what is owed prevents the tribes from addressing the very real human needs that we are all so painfully aware of in Indian country. The bottomline is that the tribes do not have the resources they need to adequately address health care, education, unemployment, infrastructure, and the full range of socio-economic needs. The issue is not simply boxes on an organizational chart, but lives that literally hang in the balance. As you can see, I am thoroughly frustrated by this issue. The history of trust management has been a travesty and, without a concerted effort to address the issue, the future will not be any better. The United States has a fiduciary responsibility to Indian country based on numerous treaty obligations. We must satisfy our obligations. We must work together to craft a solution to the underlying trust problem. I look forward to working with all of my colleagues, the Administration, and representatives of Indian country on this important challenge. Thank you. PREPARED STATEMENT OF JOHN BERREY, CHAIRMAN, QUAPAW TRIBE, OKLAHOMA AND VICE CHAIRMAN, INTER-TRIBAL MONITORING ASSOCIATION Mr. Chairman and distinguished members of the committee thank you for the invitation to speak to you today. My name is John Berrey, I am the chairman if the Quapaw Tribe of Oklahoma and vice chairman of the Inter-Tribal Monitoring Association. I believe that my role today is to provide a perspective of the current reorganization in light of my very active collaborative involvement in the "As Is" and "To Be" re-engineering phases of Trust Reform. I want to make it clear that I have a positive outlook, I am also engaged and I have committed much of my life to creating a better system. I am not a rock thrower; I am not negative, I don't always agree but I have been taught by my folks to help guide change with positive input and hard work. I believe that Indian country is married for life with the DOI and the only way to make it work is to work together. What is "As Is"? The "As Is" project was last year's documentation of current Trust management business practices. I was on a team of dedicated folks that traveled throughout Indian country interviewing over 1,000 hard working people who provide Trust services to Native Americans and tribes at every level, every day. We basically took a snapshot of how the DOI and some tribes are currently performing Trust services. We identified in detail how they do their jobs and how the business processes vary from region to region and agency to agency. That was tough work; was away from my family and tribe for 204 days but I met so many people who are dedicated to the Native people that they serve. This detailed "As Is" work product has provided us with a map and basis for the "To Be' Trust re-engineering project. What is the "To Be" re-engineering? This current project will be the redesign of the processes and work flows that make up much of the services provided by the United States to Native Americans. This re-engineering will create a massive change and I believe requires congressional oversight at each phase ensuring that the trustee delegate, the DOI fulfills the trust responsibility of the United States to the Native American Tribes and individuals. I am the leader of the tribal representatives of which we have five members to this re-engineering team. We have a great responsibility to not only participate in the development of these new processes giving our perspective, expertise and input but we have the added responsibility to inform Indian country of our progress and any impact these massive management changes may have on daily life for the beneficiary. To date we have had several meetings and we have really just begun the task. Re-engineering is not just duct taping or cobbling a system together with baling wire; it is total analysis and rebuilding where needed. It requires that we use our imagination to create as well as an ability to extract the best practices identified in the "As Is" model and implement those practices in a redesigned beneficiary centric service delivery model. Beneficiary centric Trust service is the mission of the tribal representatives and the "To Be" team. I believe that beneficiary focus is a mission shared by tribes, Individuals as well as Secretary Norton, Deputy Secretary Griles, The Special Trustee Chief Swimmer and his deputy Donna Erwin including all their respective employees. The definition of beneficiary in this context is: Tribes and Individuals, and not just Individual Indian Money Account holders [IIM] but also the families that stand behind those folks and the unborn future beneficiaries. So why reorganize before re-engineering? That is a question that many people have asked me and I believe my answer may shed some light. Last year while documenting the current DOI management it was very clear that the DOI had a systemic problem causing much of the delays in: Trust service delivery. A single decision or individual did not create the problem but it was the result of a long evolutionary process developed over time. The problem we identified was that the DOI wears so many different hats and has so many conflicting responsibilities it often has problems making critical and final decisions on a timely basis. The regional directors had developed over time a sort of autonomy that resembled small freedoms and the central office was extremely disconnected with the needs of the regional staffs as well as the Beneficiary. So, after 1 year of time consuming and difficult but partially fruitful discussions with the Tribal Task Force, I believe that the DOI decided to implement some necessary changes. Are the changes described and implemented in the recently signed Department Manual going to help? I think in some ways the answer is yes but I am not yet sure; there are so many issues that concern me. What are the effects on the promotion of self-governance and self-determination? What are the effects at my agency that desperately needs resources? When is the issue of lease compliance and enforcement going to result in action at the local level? When can I get the backlogs in probates for my people caught up? When are my fee-to-trust applications going to be signed? Without new Trust land my Tribe is condemned to live in America's largest EPA superfund site. When is the DOI going to replace the old and worn LRIS system with TAAMS 1.49 so we can have a consistent platform that we can transition from to a better systems architecture? These are just a few concerns that I have and I commit to you that I will engage with and work diligently with tribes, Individuals and the Department of the Interior to address these issues and I will not throw rocks. We, tribal leaders, Individuals, Congressional Representatives and the DOI must work together to not only create a better system but to provide opportunities for our young people who may have an interest in participation in the stewardship of Native America. Thank you for this opportunity to, provide input and I also offer myself to the committee and its members my help whenever asked. Testimony of Keller George United South and Eastern Tribes, President and Member of the Oneida Indian Nation Before the United States Senate "Re-Organization of the Bureau of Indian Affairs" Good morning Mr. Chairman and Honorable members of the Senate Committee on Indian Affairs. Thank you for taking time to listen to testimony of tribal leaders regarding the reorganization of the Bureau of Indian Affairs(BIA). My name is Keller George, and I am appearing this morning on behalf of the United South and Eastern Tribes, Inc.(USET). I am a member of the Oneida Indian Nation's Men's Council and have served as USET's President for approximately eight years. As you know, USET is an inter-tribal organization comprised of 24 federally-recognized Indian Tribes. USET is dedicated to assisting its member tribes, through epitomizing the highest ideals of Indian leadership, in dealing effectively with public policy issues and serving the broad needs of Indian people. USET serves a population of approximately 60,000 Indian people in twelve different states. The USET member Tribes feel strongly that they must work for the advancement of Indian people while maintaining a strong sense of self-determination. Because of this strong belief, USET has been actively involved in the Trust Reform and Re-organization efforts from the very beginning. I served as a representative of the USET Tribes, along with James T. Martin, USET Executive Director and Peter Schultz, Vice-Chairman of the Mohegan Tribe of Connecticut, on the initial DOI/ Tribal Trust Reform Task Force. I believe that the experience gained through this process has produced valuable knowledge that can be used by all parties to forge the Bureau of Indian Affairs into an agency that operates more efficiently. USET spent many hours analyzing the various issues of re-organization and trust reform in an effort to provide insight and tribal perspective on the changes that are currently taking place and those that are forecast in the years to come. As a result of our analysis and research, we will address six areas of concern in our testimony today: Reform versus General Operation, Consultation with Tribes, Incorporation of Trust Principles, Creation of an Under-Secretary, Regional Level Re-organization relationships, and Continuing Litigation. Reform/Re-Organization vs. General BIA Operation The first issue that has become a byproduct of the reform process is the struggle between the establishment of an organization that upholds the fiduciary trust responsibility on the one hand, while maintaining general operations on the other. This internal struggle has become obvious in the past several months as the re-organization process has been pushed into its initial phase. USET agrees that trust and other functions need to be separated, however, in the BIA's re-organization structure two competing organizations have developed: The OST and the BIA must compete against each other for authority, resources, and manpower. This struggle will always exist unless certain issues are addressed. From the beginning of the Trust Reform process, Tribes have made it clear that the DOI should not use program dollars to help fund the mistakes of the Administration. Tribes have stressed that the BIA's funding should not be diminished in order to fund the trust efforts of the OST. The BIA is in dire straits and must have additional funds in order to accomplish a truly successful re-organization. USET tribes fear that the majority of trust funding will be directed to the OST where the BIA will have to request the use of funds for trust activities. This makes the BIA subordinate to the funding needs of another organization and the employees of the BIA dependant upon two sources of direction for performing tasks. This could be extremely detrimental to the efficiency of processes within the BIA's new organization. USET is committed to trust reform and the much needed re-organization of the Bureau of Indian Affairs. The mismanagement and trust issues are escalating problems that must be dealt with immediately for the sake of future generations. The Land Consolidation and Fractionation problems alone, if solved today, would take years to organize and properly manage. There are numerous unmet needs in Indian country in addition to Trust Reform which cannot be ignored. Programs such as Law Enforcement, Welfare, Social Services, and Education should not be "taxed" in order to pay for the mismanagement of the federal government's trust responsibility to tribes. New funding must be provided to the BIA for this re-organization process, while other programs should operate as intended without interference from budget restraints due to re-organization. Consultation with Tribes An attempt was made by the DOI/Tribal Trust Reform Task Force to work through many of the current re-organization issues and hold consultation meetings with tribal leaders regarding suggestions from the Task Force. This has since failed due to "road blocks" in the negotiating process. The DOI officials have stated that they have consulted with the tribes on the various re-organization issues that are being instituted, however, this is not totally true. Consultation is not throwing an idea out into Indian country, seeing a negative response, and moving forward with the idea regardless. Consultation is listening to tribal concerns and taking those comments into account. Lately the DOI has made consultation into a mere ritual they must go through in order to push the DOI's agenda. Negotiation is an essential part of consultation and while you may not be able to please everyone, the majority opinion should prevail in the end. Some aspects of the re-organization efforts do reflect tribal views, but the two main points tribes wanted addressed, the Under-Secretary position and Trust Principals, remain untouched. Tribes stated from the beginning of the process that these two items must be incorporated into any re-organization efforts in order to establish a sense of accountability within the BIA. Tribes are still waiting to see these very important priorities given attention. It all comes down to the issue that the Tribes must be re-engaged if the reform process is going to be successful. Tribes are receiving ambiguous and confusing information about the re-organization activities, which is extremely frustrating. Tribes must be involved in the entire process, not just shown the end product. The Department of the Interior and Bureau of Indian Affairs are not holding to their policy of meaningful consultation with tribes. We fear that without consultation and clear information the new re-organized structure will be perceived in the same negative light that has plagued the BIA for years. Trust Principles Recent Supreme Court decisions have concluded that the federal government has avoided fiduciary trust responsibilities and operated with "bad-faith" in its business relationships with Indian tribes. In United States v. Navajo Nation, the Supreme Court stated that the Mitchell I and Mitchell II analysis must focus on a specific right-creating or duty-imposing statute or regulation. In this case, the Court held against imposing a trust obligation on the Government. It reasoned that the existence of a trust relationship alone is not sufficient to support a claim for damages under the Indian Tucker Act (28 U.S.C. §1505). Conversely, in United States v. White Mountain Apache, the Court acknowledged the statute at issue did not expressly subject the Government to fiduciary duties of a trustee. Nonetheless, the Court determined that the Fort Apache property was expressly subject to a trust. In so doing, the Court drew a "fair inference" to find an obligation on the part of the Government to preserve the property as a trustee, and determined that its breach of trust was enforceable by damages. |