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Fulfilling the Federal Trust Responsibility, Testimony of Ray Halbritter

The following is testimony given on May 17 by Oneida Indian Nation Representative Ray Halbritter at the United States Senate Committee on Indian Affairs oversight hearing on the topic of “Fulfilling the Federal Trust Responsibility: The Foundation of the Government-to-Government Relationship.

Shekoli, greetings.

Chairman Akaka, Vice Chairman Barrasso and members of the Committee, my name is Ray Halbritter. I am the Nation Representative of the Oneida Indian Nation and a member of the Wolf Clan.

The Oneida Nation is a federally recognized Indian tribe located in Oneida and Madison Counties of Central New York State where our people have lived since time immemorial. The Oneida Nation is also a member of the United South and Eastern Tribes, Inc., an inter-tribal organization representing 26 federally recognized tribes from Texas to Florida and from Florida to Maine. Thank you for this opportunity to testify regarding the state of the trust responsibility of the United States toward federally recognized Indian nations.

I commend this Committee for holding this hearing as the topic is both complex and fundamental to the unique relationship of the governments. As you will undoubtedly conclude from the testimony today, there is serious concern in Indian country regarding the state of this unique trust relationship.

The consequences of flawed implementation of the trust responsibility are many, but the resulting impact on tribal sovereignty is a central concern to tribal governments across the United States. Although this Congress and the current and some past Administrations have been generally supportive of tribal sovereignty and have aspired to honor the trust relationship, states and local governments are often not inclined to acknowledge the uniquely federal relationship, instead often exploiting opportunities affirmatively to undermine it.

Further, recent United States Supreme Court decisions have had the effect of redefining tribal sovereignty and the trust relationship. Some of those decisions have turned the trust relationship on its head, emphasizing its value as a shield from federal liability instead of construing it in a manner that would benefit the very people who were the intended beneficiaries of it. The trust relationship, intended as a protection against aggressive action by states and local governments, has eroded over time, making this hearing and the consideration of the trust relationship timely and very important.

However, nothing that is said today should cause any question regarding whether Indian governments honor the rule of law. Indian nations and the United States, however, disagree as to what that law is, or what it should be. We look to the United States Congress to help avoid tensions that can result from those disagreements. Whether it is in the form of efforts in this Congress to reverse some of the United States Supreme Court’s holdings, such as the legislation to address the Court’s decision in Carcieri, or otherwise, we note with concern a reluctance of some in Congress to act on important initiatives relating to tribal rights. The need for Congressional action is magnified where the United States Supreme Court issues opinions that are contrary to Indian laws and settled expectations. Such judicial decisions create unnecessary tension in the federal-tribal relationship that the trust process is designed to prevent.

I am hopeful that this hearing marks the beginning of a full review of the Federal trust responsibility, as well as its impact on tribal sovereignty. In 2012 we may be entering a new era that requires a more nuanced analysis, taking account of a changing commercial world within which some tribal nations flourish, and others do not. Out of this review, many tribal leaders, including me, would hope to see the establishment of a new long-lasting framework for tribal-federal relations that respects the unique relationship between Indian nations and the United States, instead of a relationship in which the Federal government feels it has sole authority to define and defend our relationship at its discretion.

I respectfully suggest today that we all are ready for the hard work of exploring how to arrive at a regime that furthers the spirit of the trust responsibility, while being responsive to the diverse needs of all Indian nations who struggle with the pressures of varied local circumstances. If people of good will can address foreign conflicts and all manner of complex social issues in non-tribal communities, we can succeed in this endeavor.

In light of the issues discussed by the other witnesses we heard from today, part one of my testimony discusses some of the practical challenges faced by Indian nations, including the Oneida Nation, in gaining the benefits of the trust relationship. Part two discusses the need for the United States to develop a process for protecting tribal interests that looks beyond traditional consultation. Part three explores the need to strengthen relevant and useful government-to- government consultation in light of the increasing sophistication of tribal governments and the increasingly complex issues that confront them. And, part four addresses some ideas for constructing a new framework for the trust responsibility that could endure for the next century

The Foundation of the Trust Relationship and Practical Challenges Indian Nations Face in Local Communities

For many Indian nations, the federal government’s trust responsibility is grounded in the United States’ fulfillment of its treaty obligations, implemented based upon historic and the inherently governmental agreements between each separate Indian nation and the United States. How the relationship works in practice, however, is complicated by the actions of non-federal parties who regularly insert themselves into matters that should be primarily between the United States and Indian nations.

The nature of the federal relationship with Indian nations is a vital part of the history of the United States, some of which is worth considering here.

From the earliest days of the United States, the Founders recognized the importance of America’s relationship with Native nations and Native peoples. They included important references to those relationships in the Constitution. The 100th Congress recognized the influence that Native peoples had in the development of the Constitution in a concurrent resolution that specifically acknowledged the “historical debt” the United States owes to Indian Tribes.

[O]n the occasion of the 200th Anniversary of the signing of the United States Constitution, acknowledges the historical debt which this Republic of the United States of America owes to the Iroquois Confederacy and other Indian Nations for their demonstration of enlightened, democratic principles of government and their example of a free association of independent Indian nations; …

The Indian provisions in the Constitution were given immediate life in treaties into which the United States entered with Indian nations beginning with the Treaty with the Delaware in 1778 and continuing through another 373 treaties. Additionally, in the first decades of the United States, numerous laws were enacted addressing the details of the federal-tribal relationship, even as the federal courts defined the federal government’s trust obligation to Indian nations.

Because of this history, the trust obligation of the Federal government to Native peoples is fundamentally different from any other relationship the United States has with any other distinct group of people and carries elevated obligations. As the American Indian Policy Review Commission Report stated:

“The purpose behind the trust is and always has been to ensure the survival and welfare of Indian tribes and people. This includes an obligation to provide those services required to protect and enhance Indian lands, resources, and self- government, and also includes those economic and social programs that are necessary to raise the standard of living and social well-being of the Indian people to a level comparable to the non-Indian society.”

The United States trust relationship with the Oneida Nation derives from the Treaty of Canandaigua, which was signed in 1794 between the Grand Council of Haudenosaunee and a representative of President George Washington. The Treaty of Canandaigua, which is among the oldest of all treaties signed between the United States and Indian tribes, recognizes rights held by the Six Nations, that extend beyond federally recognized rights that are typically considered within the parameters of the trust responsibility that was initially defined by the Supreme Court in Johnson v. M’Intosh, 21 U.S. (8 Wheat) 543 (1823), and the Marshall Trilogy.

President Washington was authorized to enter into the Treaty of Canandaigua by Article II Section 2 of the Constitution of the United States, which permits the President to negotiate and sign treaties, and grants the Senate authority to ratify them. The Supremacy Clause of the Constitution, Article VI Clause 2, provides that treaties and the Federal laws executing and implementing those treaties are the supreme law of the land. As such, the Treaty of Canandaigua and the rights afforded to the Oneida Nation under the treaty should provide safeguards from adverse actions by non-federal governments.

It says two things that are most relevant for today’s hearing. First, the treaty states that the United States acknowledges the lands reserved to the Oneida, and called our reservation, to be our property; and the United States will never claim our lands, nor disturb us in the free use and enjoyment of our lands; and that our reservation shall remain ours until we choose to sell it to the people of the United States. And, with respect to protecting our lands from outside intruders, such as states and local communities, the United States and the Oneida Nation agreed to the following key provision in our treaty:

Lest the firm peace and friendship now established should be interrupted by the misconduct of individuals, the United States and Six Nations agree, that for injuries done by individuals on either side … complaint shall be made by the party injured to the other … and such prudent measures shall then be pursued as shall be necessary to preserve our peace and friendship unbroken …

Significantly, the Treaty of Canandaigua provides safeguards to both parties – the Oneida Nation and the United States – which preempt hostile actions against the other by third-parties, including non-federal governments. Both the Oneida Nation and the United States are duty-bound to fulfill their obligations to each other under that treaty. The United States enforces its obligations through its trust relationship with the Oneida Nation, and with the other Nations who also are signatories to the treaty.

Notwithstanding the Supremacy of federal treaties, third parties regularly test the United States’ relationship with the Oneida Nation, and often in ways that are intended to interfere with that relationship.

The trend of non-federal parties challenging the federal trust relationship with Tribal nations is obvious in New York, where challenges are designed to undermine the Oneida Nation’s sovereignty. For example, when the United States Supreme Court directed in 2005 that the Oneida Nation should use the Federal government’s administrative process to have its homelands accepted into trust on its behalf, local taxing authorities created new, special arrangements to impose hefty taxes upon the Nation’s homelands, and immediately started foreclosure proceedings calculated to prevent the United States from fulfilling the Supreme court’s directive that lands be taken into trust. This, notwithstanding the Oneida Nation’s staggering economic contribution to the tax base in the local community; we are the largest employer in our region, with the vast majority of our approximately 4,500 employees residing in the local community, paying sales tax, income tax and property taxes amounting to approximately $140 million.

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When non-federal parties overreach, such as in the case of the New York’s use of its tax codes to block transfer of the lands into trust, the duty of addressing those issues falls on the United States pursuant to its treaty obligations. Although the United States sometimes fulfills its obligations, oftentimes it does not – and, when it does, it frequently comes too late. This shifts the burden of preventing unlawful intrusions upon the shoulders of Indian tribes. The burden tribes often face in this circumstance includes vilification and political attacks on themselves, their leaders and even their members.

We have a vivid example of that vilification at the Oneida Nation. In response to my insistence, as the Oneida Nation representative, that local counties follow the law with respect to the Nation’s sovereignty, the Chairman of the Madison County Board of Supervisors used his official state of the county address to attempt to galvanize the local community against me, referring to me as a “[third world dictator]”. This same county, while claiming financial strain from the Oneida Nation not paying taxes which the courts rule were not owed, paid Park Strategies more than $350,000 per year to lobby you and the executive branch to remove our sovereignty, rather than invest the same resources for the betterment . This county claims that the Oneida Nation’s non-payment of taxes somehow was hurting the county, even though our Nation currently holds roughly 1 percent of the lands within the county yet roughly 50 percent of the county’s lands are wholly or partially exempt from the same taxes.

Tribal sovereignty and the trust responsibility obviously are not understood by some local and state elected officials. It is a signal to all of us that we must join together as we consider how to improve the United States’ trust responsibility and do more to ensure better understanding within our communities.

Although no tribal nation ever should rely upon the United States to guarantee a positive working relationship with state and local governments, a revitalized trust relationship is vital protection against the very overreaching that it was intended to address.

The United States Must Reconsider How to Promote its Trust Responsibility

Under such federal policies as self-determination and self-governance, many tribes have re-asserted increasing control of their own destinies, often with spectacular results. However, many other tribes still struggle to guarantee basic public safety and healthcare to their citizenry, much less economic opportunity. Where there has been tribal economic success, there has also been a growing backlash from other elements in the mainstream society that feel threatened by the restoration of tribal rights and by tribal prosperity, one explanation for some of what I described above.

The federal trust relationship has been reaffirmed by nearly every modern President, a very positive and significant political gesture. In the name of federal government’s trust responsibilities towards tribal nations, President Obama issued a Presidential Memorandum on November 5, 2009 that called upon all executive agencies to develop consultation and coordination efforts with tribal governments. The memorandum confirmed the unique political status of tribal nations, as established through treaty, legislation, and judicial decisions, and called for a rededication to President Clinton’s Executive Order 13175. Executive Order 13175 calls for consistent and substantive consultation with tribal nations on the development and implementation of all policies that have tribal implications. The executive order was legally grounded in the federal trust responsibilities and called for agencies to respect tribal self-government, sovereignty, and self-determination. The genesis of that respect is rooted in the early treaty era when tribes were regarded as powers to be treated with respect rather than quelled and subjugated.

The lifeblood of the unique trust relationship between the United States and Indian tribes is consultation, and the pathway to a robust trust relationship is likely through consultation that is redesigned to better meet the needs of both parties to the relationship. Although most modern Presidents have recognized the need for meaningful government-to-government consultation, consultation continues to be regarded by agencies as burdensome and an impediment to federal action rather than a mechanism to protect tribal treaty rights and appropriate federal decision-making. Matters are further complicated when the federal government blurs the important distinction between tribal consultation and all other communication with non-federal interests, even where consultation with non-tribal parties may be required by law.

A case in point is consultation among parties under Section 106 of the National Historic Preservation Act, which compels federal agencies to consider the effects of their actions on historic or cultural properties. In certain circumstances, a local governmental project sponsor and an affected tribe may be consulting with a federal agency. In our recent experience at the Oneida Nation, a project sponsor, which sought federal funding took steps to evade consultation with the Nation, notwithstanding the Nation’s right to be consulted pursuant to the federal agency’s consultation obligation under its trust relationship.

The steps taken by the local project sponsor to keep the Nation from consultation to protect culturally significant artifacts that may have been buried within the path of the project were astounding to behold, especially given that this occurred as recently as 2011. The project sponsor, also seeking state funding, made untrue representations within the state environmental clearance process under state law to cause the state to make certain determinations regarding the potentially negative effects of the project that had to be reconsidered by the state once the relevant state officials became aware of the project sponsor’s actions. Ultimately, the Oneida Nation and the Federal agency that was funding the project negotiated a programmatic agreement. At the end of the day, the project will be built, but it took the Oneida Nation’s vigilance to ensure that the law was followed, and in this instance its role in consulting with the United States proved to be meaningful. Still, a stronger timely response by the federal government would have set the project sponsor on a correct course much sooner. And, happily, once there was intervention by appropriate tribal liaisons within the secretary’s office, that course correction did occur and a programmatic agreement was executed, although ironically the project sponsor refused to sign it because the project sponsor disagreed with a definition of “tribal lands” that was set forth in federal law, supported by the Department of Justice and upheld by multiple courts.

We acknowledge that federal agencies are under significant pressure to fulfill their program mandates to provide funding for needy projects with all deliberate speed, but it is important to be certain that the trust relationship is always at the forefront of the process, lest it becomes a sticking point when Indian nations become aware of the undertaking and assert their right to consult or to object to the project. And, in the most blatant cases, the failure to engage in consultation will only strain government-to-government relationships and impede future potential cooperative efforts between governments.

Not only is the trust relationship and consultation between the Federal government and Indian nations constantly under attack from local governments, but certain local officials in the State of New York have gone so far as to urge New York State Governor Cuomo to repeal the State’s Tribal consultation policy that was adopted in 2009 to protect important tribal interests.

While I am confident that Governor Cuomo will not repeal a policy that shows the State’s leadership and progressive thinking on that score, it is the kind of direct attack against legitimate tribal interests that is worth noting. We are hard pressed to be able to explain such actions by certain local officials, but it serves as a chilling example of how the federal government must work with Indian nations to restore respect for tribal treaty rights and its federal trust responsibility towards Indian nations.

In light of the harsh realities faced by Indian nations within their local communities, this may be an opportune time for the United States to work with Indian nations to develop a new framework to ensure the Federal government’s fulfillment of its trust obligation, taking into account the unique and disparate needs of Indian governments.

The Trust Responsibility, Self-Determination & Strengthening Government-to-Government Consultation

Depending on a specific tribal nation’s political relationship with the United States and the context of particular issues, there will be differences of opinion about what the trust responsibility means, but at a minimum it should make clear the extent of the Federal government’s obligation to ensure that tribal lands are habitable by today’s standards, ensuring that Indian communities are permitted to create or maintain decent schools, hospitals, public safety and infrastructure. It may be that the primary vehicle to ensure the fulfillment of those obligations is to empower tribal governments to create an environment hospitable to economic development. In addition, the federal government should strengthen the government-to-government relationship by integrating the Indian voice more directly into the highest levels of the federal legal and policymaking structure.

Many of these goals may be difficult to achieve in the current environment. As tribes seek recognition of their sovereign rights, others resist, deeming tribal sovereignty a threat to their own power or sovereignty. Therefore, it is important to demonstrate that stronger and more effective tribal governments are not only good for tribes, but also good for surrounding communities, the states within which the tribes reside, and the United States, as a whole. There is already substantial evidence that empowering tribal governments leads to economic success, providing many benefits to surrounding communities. In some cases, especially where tribes have assumed an important governmental or social function (e.g., creating jobs, providing fire, police and emergency services, etc.); this has been recognized by the impacted non-Indian communities.

The Oneida Nation’s story is a prime example of how strengthening tribal sovereignty and tribal economic success benefits surrounding communities. Since 1993, when we opened the first legal casino in the State of New York, the Oneida Nation has invested more than $1 billion in infrastructure in Central New York. We have spent $2 billion on goods and services with non-tribal vendors, with much of that money going to businesses in New York State. We are a major source of employment in a community where many large employers are downsizing. We have generated more than $140 million in income and property taxes for the state and local governments. The result is that the Oneida Nation has used the revenues from gaming operations to improve the lives of its own people, with relatively little financial assistance from the United States. We have invested in housing, health care and education programs for our members, so that we break the cycle of poverty and dependence.

Moreover, our economic success has driven our level of sophistication in business enterprises and diversification, including our acquisition and publication of the Indian Country Today Media Network and Four Direction Productions, an animation and film production company. Commercial strength and diversification has also reinforced our ability to determine our own destiny and to limit our interaction with the United States to matters that are central to the protection of our interests in cultural preservation and the restoration of land within our Reservation boundaries. And, while many Indian nations are similarly situated, many are not, requiring a more profound level of interaction with the United States within the context of their trust relationship.

I do not suggest that self-sufficiency and commercial and governmental sophistication should end the need for the trust relationship. Rather, as self-determination yields self-sufficiency in Indian country, the trust relationship will come to reflect that, and government-to-government relationships and consultation with tribes will change as a result.

Indeed, the HEARTH Act, under consideration by this Congress, is an express recognition of the need to empower tribes to diminish their exclusive reliance on Federal government by being more actively involved in economic development on their lands. They are reflections of a modern view of what the trust responsibility is – empowering tribes to solve their own problems and carve their own destiny but also protecting tribes from external forces that undermine tribal sovereignty. In addition, the Oneida Nation and other tribes are aware that Congress can clarify the law in other important areas of significance in Indian country like strengthening the ability of tribes to have land taken into trust so they can achieve self-determination and self-sufficiency.

Advancing a New Framework for the Trust Responsibility in the 21st Century

The Oneida Nation’s experiences and the testimony that we have heard today leads me to conclude that we may have a meaningful opportunity to consider how to create a new framework for the trust relationship. Such a new framework would consider the complexities of the issue, the unique relationships that Indian nations have with the federal government, the impact that existing laws have upon the implementation of the trust relationship, and, challenges to the relationship posed by other governments.

The need for a rational vision of the trust responsibility that is fully respectful of the rights and views of Indian nations is clear. I respectfully submit that this Committee ensures that our discussion today leads to the development of a new and constructive paradigm to guide Indian nations and the United States for the next century by creating a new bi-partisan American Indian Policy Review Commission. That Commission would be charged with the responsibility of examining these issues and reporting to Congress within two years from its inception with recommendations regarding a new framework for the trust relationship for the next century.

The recommendations of the Commission could address how the trust relationship would work to ensure an acceptable level of habitability on the poorest reservations, including the adequacy of education, health care, public safety and infrastructure. It could also address how the trust relationship could work to empower Indian nations that are on the cusp of economic self-sufficiency to redefine their trust relationship to fit their needs. The charge to the Commission should not be finalized without additional consideration, but it could also include recommendations regarding the following: an appropriate mechanism to ensure that the funding of critical Indian programs are not subject to arbitrary reductions; potential legislation to create a strong presumption in favor of land being accepted into trust at the request of a tribe; the appropriate role of state and local governmental involvement in trust acquisitions and other actions that permit public input into certain federal actions; and, the potential establishment of additional high-level positions within the administration to represent Indian country. The recommendations of the commission would also be intended to demonstrate that strong and effective tribal governments are mutually beneficial not only for tribes, but also good for surrounding communities, and the states within which the tribes are located.

This committee has already played a central role in advancing this discussion through this hearing, and for that I thank you.