Chairman Doc Hastings' Interview with the Tribal Business Journal
Posted by Neal Kirby on February 06, 2011
Read this recent interview in The Tribal Business Journal where Chairman Doc Hastings answers questions on the establishment of the Subcommittee on Indian and Alaska Native Affairs and other important Indian and Native issues. The interview below is an excerpt from the Tribal Business Journal February 2011 issue:
Q: In General. First, congratulations to you and the incoming Republican majority in the House of Representatives. As the Chairman of the Committee on Natural Resources, what will your priorities be for the 112th Congress?
A: This past November, the American people sent a clear message to Congress: reduce spending, focus on job creation and perform your constitutional duty to oversee the Executive Branch’s policies and decisions. As Chairman of the Natural Resources Committee I plan to make all three of those efforts a top priority this Congress. The committee will conduct thoughtful oversight on a number of issues, including those to help develop tribal economies.
Q: Re-establishment of the Indian and Interior Subcommittee. Every two years, congressional leaders, Indian tribal leaders, and others revisit the issue of re-establishing the Subcommittee on Indian and Interior Issues. Do you expect the subcommittee to return or will the Indian issues be handled at the Full Committee level as they have been since 1995?
A: I am happy to report the establishment of a Subcommittee on Indian and Alaska Native Affairs, to be led by Congressman Don Young of Alaska. Mr. Young has a long, distinguished record of leadership on Indian and Alaska Native issues and I am pleased he has accepted the chairmanship. The establishment of the new subcommittee enables a core group of members to address tribal matters with a special focus that is not always possible when such matters are considered at the Full Committee level or within another subcommittee. It also facilitates consultation between the House and Indian Country, and transparency that voters demanded in the recent November elections.
Q: Economic Development on Indian Lands. What, in your view, are the biggest challenges to greater levels of investment and business activity on Indian lands?
A: There are a number of challenges, but a primary obstacle is excessive federal control of business activity on Indian lands. In our great free enterprise system, investors interested in locating to a reservation or individual allotment cannot tolerate the kind of delays and uncertainty inherent in the current federal system governing investment and business on Indian lands. The current regulatory process is outdated. It is also exposed to political pressure, federal lawsuits, and epic amounts of red tape. As a result, business construction and development in some regions of the United States can be found thriving on non-tribal lands while across the reservation boundary line, tribal lands are found to be vacant.

To their credit, a number a tribes are leading the way in navigating around the federal leasing minefield, establishing themselves as some of the most successful land managers around. Using them as examples, a new federal paradigm ought to be explored to give tribes and individual Indian landowners the option – at their discretion – of enjoying the freedom, risk, responsibility, and reward of managing their lands without obtrusive BIA involvement. Tribes know best how to meet their own land management objectives.

In the next Congress, the Subcommittee on Indian and Alaska Native Affairs will conduct a thorough review of these issues in a manner that respects our unique congressional-tribal relationship and maximizes the tribes’ natural and inherent advantages to create business and job opportunities.

Q: Indian Energy and Natural Resources Development. Indian Country is endowed with huge potential to develop timber, agricultural products, oil, gas, coal, biomass, wind, solar, geothermal and other forms of energy. How can your committee help the tribes interested in developing their resources achieve their potential? Will the committee consider legislation such as the “Indian Energy Parity Act of 2010” that was introduced but not enacted in the 111th Congress?
A: Tribes are indeed richly blessed with “all-of-the-above” energy resources, minerals, and fertile farm and timber resources. I am very familiar with the large, land-based tribes in Washington state that have abundant and well-managed timberlands. Some forestry experts have found these lands to be in better health than the U.S. forest lands abutting the reservations.

Each tribal and individual Indian landowner decides how best to utilize their natural resources, but the federal government should be a better partner than it has been in helping them pursue a wise use of their trust assets.

Concerning energy policy, though there does not appear to be a House version of the “Indian Energy Parity Act of 2010,” the bill contains concepts rooted in self-determination that warrant serious consideration. Energy production is a major component of the Natural Resources Committee agenda in the 112th Congress, and increasing U.S. energy production to grow our economy and create new jobs is a priority of the Republican Majority. Tribal development of energy resources – renewable and non-renewable – will occupy a very important place in our deliberations.

Q: Desert Rock Power Plant. In 2009, the Bureau of Indian Affairs dealt a serious blow to the Navajo Nation’s efforts to build and operate the multi-billion dollar Desert Rock coal-fired power plant. Do you have any plans for the committee to revisit the bureau’s actions regarding this project?
A: Under new Republican leadership in the House, this issue may well be carefully examined. Not only did the Obama Administration’s denial of the permit and lease for the Desert Rock harm the economy of the Navajo Nation, it deprived energy consumers of affordable electricity from a large, efficient, clean coal power plant. On a troubling note, the administration’s actions appear to have been made without adequate tribal consultation, contrary to the pledges made by the president and Secretary of the Interior. In my staff’s review of documents surrounding this controversy, it appears the only entities meaningfully consulted were the environmental activists opposed to the project. The administration should be held accountable for its actions and omissions, particularly when the tribe needs the creation of new, high-wage jobs and new revenues to meet tribal members’ needs.
Q: Cobell Settlement. In the waning days of the 111th Congress, the Senate and House approved the Cobell v. Salazar settlement, providing some $1.14 billion for individual Indian trust account holders and $2 billion to consolidate fractionated Indian lands. You registered some concerns about the settlement, can you discuss those?
A: No one disputes that a settlement of this long-running lawsuit was needed. It could have been resolved much sooner but for the strategy of the Obama Administration and the plaintiffs to avoid public hearings, a separate vote on the merits of the deal, and opportunities to amend it to correct significant flaws identified by respected tribal organizations and leaders, individual Indian allottees, and trust reform experts. Without correction, these flaws may result in inequitable payments to many individual Indians.

I attempted to fix these problems by offering an amendment for the benefit of individual Indians, in accordance with the formal resolutions adopted by Affiliated Tribes of Northwest Indians, the Great Plains Tribal Chairmen’s Association, and the National Congress of American Indians. A key improvement my amendment made was to cap attorney fees at $50 million, and utilize the savings to increase payments to Indian damages claimants. For reasons neither the administration nor the plaintiffs’ attorneys have divulged, both parties agreed that attorneys may be paid in excess of $100 million. This is a high figure by any standard – it represents up to one third of the claims the attorneys litigated. Unfortunately, my amendment was blocked by the Democrat majority.

It is critical to understand that every dollar paid in attorney fees is a dollar out of the pockets of individual Indians. Yet the plaintiffs refused to justify to Congress the need for such an extraordinary amount, and why many individual Indians who suffered gross damages at the hands of the government may get pennies on the dollar.

It remains to be seen what the presiding judge will do, but one thing is certain: every individual class member concerned about the problems in this settlement is urged to write the court as soon as possible.

It may be too late to write a better settlement agreement, but it is not too late to request the presiding judge to change parts of the deal that are within his power to change, for the benefit of individual Indians. Lawyers must not be the primary beneficiaries of this deal.

Q: Trust Reform. In the minds of many, settling the Cobell lawsuit is a prelude to more comprehensive reforms of the management of Indian and tribal trust assets. Do you think the new Indian and Alaska Native Affairs Subcommittee will up trust reform in the new Congress? Will these efforts include considering possible legislative resolutions to the pending tribal trust lawsuits?
A: Though a formal agenda is not yet developed, I do not think the new subcommittee can accomplish a lot without a careful and thorough examination of trust reform proposals. There are some creative concepts in trust reform that can vastly improve tribal self-governance with no cost to the taxpayer and these should be explored. The views of tribes are welcome even before we commence such hearings. Tribes are urged not to wait for the secretary’s new commission on trust reform: after all, the Constitution delegates to Congress – not to the secretary or this commission – power to regulate trade with Indian tribes.

Regarding tribal trust lawsuits, I would be interested in ascertaining the status of the lawsuits and a careful examination of the risks and liabilities of continuing the litigation. The federal debt just reached $14 trillion, and under the deficit reduction rules being implemented in the House of Representatives, it may be difficult to resolve lawsuits by an act of Congress without a full understanding of the risks, liabilities, and costs associated with them. But I can promise that under new House Republican leadership, any efforts in this regard will be transparent and deliberative, not obscure and hasty.

Q: Land into Trust and Gaming. In 2009, the Supreme Court handed down the Carcieri case holding that the Secretary of the Interior may not take land into trust for any Indian tribe that was not “under federal jurisdiction” as of 1934. Do your plans for the 112th Congress include legislation to address the Carcieri decision?
A: The committee will explore a resolution of the controversy surrounding Carcieri in full, open, transparent discussion and debate. My colleagues and I fully understand the importance of fee-to-trust and this will be high on the committee agenda. It is to be hoped that the Department of the Interior will cooperate with the committee in this important endeavor. To date, the department has not been cooperative, severely impinging the ability of Congress to find a resolution. It is also important to note that House consideration of legislation addressing the Carcieri decision must necessarily include the opportunity for representatives to offer amendments that reflect their informed view of how the fee-to-trust process at the Department of the Interior should function.

This should not discourage a tribe from talking to its representative in Congress about specific fee-to-trust needs. Congress is in a better position to assess the merits of fee-to-trust requests than the Department of the Interior. For example, last year Congress enacted a bill to transfer lands from Olympic National Park to the Hoh tribe in trust to increase the size of their reservation and meet housing and other needs. It is doubtful the department was capable of doing this on its own in a manner that would not invite controversy and lawsuits.

Q: Self-Determination and Self-Governance. 2010 was the 40th anniversary of President Nixon’s historic “Message to Congress on Indian Affairs,” which in many ways laid the groundwork for tribes to contract and compact with the United States and to assume greater responsibility for health, law enforcement, social services, and natural resource programs. Should these initiatives be expanded?
A: Yes, without a doubt. I worked on, and helped to pass, the Department of the Interior Tribal Self-Governance Act of 2010 this year. Congress should not limit itself to considering only this type of measure. For example, there has been no work in years on finding a resolution of the disputed San Manuel ruling of the National Labor Relations Board, a ruling that took away tribal governance over labor laws. It is worth exploring ways to move legislation forward to address this. And as a supporter of the HEARTH Act, which authorizes tribes to take on more surface leasing decisions with less federal review, the committee will certainly work on legislation to advance surface leasing liberalization for tribes. The work will not be easy and tribal consultation and tribal support to advance these efforts will be critical. The new subcommittee will look forward to hearing from and meeting tribal leaders on self-governance initiatives.
Q: Water Settlements. In recent years, a number of court-ordered Indian water settlement bills have been approved by Congress. Several more are pending and there are likely to be more in the years to come. Do you support this approach – negotiated settlements – rather than the alternatives, which often involved costly and acrimonious litigation?
A: In general, negotiated settlements between all litigant parties are preferable to endless litigation. Such settlements also provide water-use certainty for tribal and non-tribal communities. As part of future Indian water settlement bills, Congress will be asked to spend hundreds of millions of dollars, depending on the settlement in question. In these times of fiscal austerity, Congress will need to know whether the amounts it is being asked to authorize are good not only for tribal and nearby non-tribal interests, but also for the American taxpayer.
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