NCAI President Proposes Action Plan and Calls for Secretary Meeting with Tribal Leader Trust Modernization Task Force

WASHINGTON, DC – Yesterday, Secretary of the Interior Sally Jewell issued a Secretarial Order that reaffirmed the federal trust responsibility for tribal lands. NCAI President Brian Cladoosby provided the following statement: “We are very glad to see the Department of the Interior taking action to improve the trust system. This Secretarial Order demonstrates Secretary Jewell’s commitment to improving the trust system. This can start discussion for taking concrete steps in the future. Tribes want to define the relationship in a different way that respects tribal sovereignty and tribal economic initiatives. We also look forward to getting to work on specific problems in the trust system.“In fact, at this year’s NCAI Executive Council Winter Session, the NCAI Board adopted a resolution establishing a Trust Modernization Task Force. Participation in the task force is open to all tribal leaders. Fawn Sharp and John Berrey serve as co-chairs. Fawn Sharp is President of the Quinault Indian Nation and was the Chair of the Secretary of the Interior’s Commission on Indian Trust Administration and Reform. John Berrey is the Chairman of the Quapaw Tribe and served on the Trust Reform Task Force during the Bush Administration.“The purpose of this new Task Force is to facilitate and encourage tribal leader action for modernizing the trust land and resource management system, and to work on the broader trust relationship with the entire federal government. Most of this system was designed a century ago or more, and needs to be updated to take advantage of the economic potential of tribal trust resources, expand tribal control, restore tribal lands, and fully protect the federal trust responsibility. We want to see more focus on economic development. I urge Secretary Jewell to meet with the Trust Modernization Task Force in the near future. The NCAI Annual Convention in October presents a particularly promising opportunity for such a meeting.

A Process for Comprehensive Trust Reform

“Tribes have been making progress on trust reform over the last four years and want to keep that momentum going. We have seen significant settlements of trust litigation, the development of a buy back program for fractionated lands, passage of the HEARTH Act to promote tribal control over surface leasing of tribal lands, and new leasing regulations that assist greatly on taxation of permanent improvements among other matters. But there is much more work to be done. 

“We know that we need a comprehensive approach that will include legislation from Congress. However, the timing of legislation can be unpredictable. We also have an Administration that has been very willing to work with tribes on a number of important matters. Therefore, on the way to developing a broad recommendation for trust modernization, the Task Force should also pursue obvious regulatory improvements to the trust management system.

“In part, trust land development involves a process that needs to work better. Indian lands and resources are subject to leases and contracts which produce trust funds to be returned to the tribal and individual Indian owners. We also have a more fundamental job to protect and restore tribal lands, to work on the trust relationship in the federal budget, to ensure that tribal nations get the full economic and tax value of our lands, and to protect our lands as our homelands. We want to make progress on all of these goals, and the following is an outline of a specific action plan:

• Appraisals and Valuation – nearly every trust transaction requires an appraisal from the Office of Special Trustee, and this is the most significant bottleneck in the trust system. We need to eliminate unnecessary appraisals, and permit tribes to rely on independent certified appraisals.
• Lease Compliance and Trespass – Indian tribes have very significant problems with lessees who violate lease terms, and with outright trespass on Indian lands. We need to improve enforcement mechanisms.
• Conflict-of-Interest issues – the Department of Interior, and the Solicitor’s office, oversee a vast range of federal land issues that can come into conflict with their trust responsibility to protect Indian land. We need to create clearer divisions of responsibility.
• Pending trust modernization legislation – Currently, there are bills pending in Congress that would modernize the trust process for tribal lands. H.R. 409 and its Senate companion, S.165, have a demonstration project that would allow comprehensive land use planning and allocation of trust funding in accordance with tribal priorities. H.R. 1548 and S.2132 would authorize several innovative programs and processes for tribes interested in developing conventional and renewable energy resources.
• Probate – Probate of individual Indian lands continues to be a bottleneck for many trust transactions. 
• Self-Determination and Tribal Use of Lands – The HEARTH Act was a good step forward to empower tribes to manage their own lands, we need to continue this progress on subsurface lands, and to provide technical assistance to tribes.
• Planning and Land Management – Tribal planning processes tend to silo into grant-driven plans for housing, transportation, water, power and sewage. Tribes need resources to integrate planning for economic development and jobs, education, agriculture and natural resources, and the development of healthy communities. There is a growing emphasis on planning for rural development and business agglomeration. Tribal industries tend to cluster in certain areas such as: Hotel/Recreation/Entertainment; Agriculture; Oil & Gas; Timber; Commercial Real Estate; Government Contracting; and Retail.
• Federal Responsibilities for Title, Technical Assistance, and Prevention of Land Loss – At its most basic level, the federal government has a responsibility to maintain title to federal Indian lands, to report title quickly and accurately, to include tribal governments in the title management system, and to use that system to prevent land loss.
• Land Restoration – Most reservations have suffered significant land loss and are in a checkerboard pattern that is difficult to manage. Some tribes have lost all of their land. The federal government has a trust responsibility to restore tribal lands for all tribes.
• Land Consolidation – Individual Indian lands are often highly fractionated, and these lands are also very difficult to put to productive use. The Cobell settlement has established a Buy Back Program, where tribes have significant questions and concerns about the centralized federal program. We need to gather more information about the track record so far, and push to make the system effective and allow greater tribal involvement.
• Natural Resources and the Environment – Tribal lands are subject to environmental concerns that affect life in Indian country. At the same time, federal environmental regulations are often unnecessarily burdensome and overly focused on process rather than substance.
• Taxation and Services on Tribal Lands – Indian tribes need to be able to collect taxes and control the revenue in Indian country in order to provide services to their people.
• Access to capital and Financing Development on Indian Lands – Accessing capital to finance development on tribal and individual Indian lands remains a significant challenge. We should learn more about the barriers to investment and attempt to find alternative mechanisms to secure debt and equity investments in Indian Country.
• Updating Regulations, Policies and Procedures - There are likely many other areas of the trust system that could be updated to be more effective.