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BIA - Land-Related Trust Services, Navajo Nation

Introduction

The Bureau of Indian Affairs (BIA) Office of Trust Services (OTS) serves the Navajo Nation through its BIA-Navajo Region Office in Gallup, NM, and BIA-Southwest Office in Albuquerque, NM (for Ramah only). Partnering with other federal agencies, it provides the below land-based services to the Navajo Nation and individual allottees in managing tribal and individual Navajo trust lands and natural resources, which total 17 million surface acres and an equivalent millions of acres of subsurface mineral estates. Since the 1975 ISDEAA (P.L. 93-638), BIA contracts out a significant portion of its services to the Navajo Nation through P.L. 93-638 contracts. Significant surface lease management has also been gradually transferred to the Navajo Nation as the Tribe continues to roll out tribal lease laws in exercise of an unfunded discretion given only to the Navajo Nation by Congress in the 2000 NTLLA, a discretion that has since been extended, with greater flexibility, to all tribes in the 2012 HEARTH Act.

BIA Policies Supporting Tribal Vision

Traditional Ecological Knowledge (TEK)

In November 2021, indigenous traditional ecological knowledge (TEK or ITEK) was recognized by the federal government as “one of the many important bodies of knowledge that contributes to the scientific, technical, social and economic advancements of the United States and to our collective understanding of the natural world.” See Presidential Memorandum (Nov 15, 2021). ITEK is a body of observations, oral and written knowledge, practices, and beliefs that promote environmental sustainability and the responsible stewardship of natural resources through relationships between humans and environmental systems, applied to phenomena across biological, physical, cultural and spiritual systems. The Federal Government is developing a guidance for the BIA on how to partner with Tribal Nations and Native organizations regarding the application of ITEK.

Integrated Resource Management (IRMP)

In 1988, the BIA Integrated Resource Management Planning (IRMP) Initiative changed land use emphasis from single use to a whole system approach — comprehensive, integrated planning that encompasses natural, cultural, economic and social resources for each reservation according to tribal community vision for the future. The hope was that each tribe would assert its own cultural imperatives and establish unique flexible, self-renewing, and multi-use management approaches. However, tribes including the Navajo Nation have not been able to create unique IRMP all these decades due to lack of culturally-knowledgeable technical assistance and funding. Recently, the Navajo Nation has relied on BIA consultants and services for assistance to create subject-matter IRMPS rather than whole vision IRMPs. However, BIA consultants will not be able to establish the Navajo Nation’s tribal vision. Without this tribal vision, any IRMP will be missing its basic element.

It is well-accepted among stakeholders that tribal land “is generally not managed according to tribal priorities and does not reflect that Indian lands are intended for the use and benefit of Indian tribes and their members” but are instead “being managed according to priorities generally associated with (federal) public lands.”  U.S. GAO Report (2015), p. 25. The tribal vision must be established by the Navajo Nation themselves, through community engagement that works.

As set forth in the BIA IRMP Guidelines, an IRMP is a leadership document which contains a Tribe’s vision for the reservation. Having an IRMP in place allows for possible waivers of federal laws, and supports the following elements of leadership, many elements which can only be fulfilled with engagement of an empowered community:

  • A long range vision of how the tribe wishes its resources (including natural, cultural, economic and social resources) to look in 50-100 years;
  • A plan of action to achieve that vision;
  • Identification of bridges between its organizational units as well as between the tribe and outside organizations;
  • Encourages tribal members and managers to acquire effective knowledge needed for coordinated decision making;
  • Encourages the establishment of trust between tribal members and their government.

The federal policy for IRMPs in Indian Country has existed almost as long as the federal policy for Indian self-determination and allows for a great deal of foundational tribal envisioning of the shape of its future communities, including directly involving communities in resource management, and setting forth cultural practices. See  Guidelines for IRMP in Indian Country 2001. With a true envisioning IRMP in place, waivers of conflicting federal regulations can be sought.

Special Note: A draft Bennett Freeze Area IRMP, developed by the BIA, was approved by the RDC of the Navajo Nation Council in 2020 pending completion of an environmental assessment. The Bennett Freeze IRMP focuses on a single element of IRMPs, namely, Identification of bridges between its organizational units and the BIA. 95% of the developed IRMP is an inventory of existing federal and tribal resource management laws, programs, projects and findings, grouped under specific natural resources and historical cultural sites.  The document contains no discussion of cultural land use familial and community patterns and practice, nor any capabilities of tribal members in performing local stewardship functions. It contains no tribal vision. Diné Fundamental Law, Diné bi beenahaz’áanii is mentioned, but not used. Information on the current status of the IRMP is here.

Agricultural & Range Management

The Branch of Agricultural and Rangeland Development of the Division of Natural Resources administers federal laws and regulations and tribal laws and policies pertaining to agricultural land development and management, farmland leases, and rangeland permits pursuant to:

The BIA must inventory and monitor agricultural resources; develop agricultural resources management and conservation plans; and conduct lease and permit administration, compliance, and enforcement.

The BIA Navajo Regional Office has developed Standard Operating Procedures (SOP) and Guidelines to support consistent implementation of the federal regulations for administering grazing and agricultural land use permits on the Navajo Nation. The BIA Navajo Region is given the authority to approve, administer, and grant grazing permits on tribal lands through Title 25 CFR Parts 161, 166, and 167 to regulate grazing and agricultural land use permitting on the Navajo Nation.

The BIA Navajo Region administers grazing through its agency offices and the Navajo Partitioned Lands (NPL) Office. It shares administrative roles with the Resources and Development Committee of the Navajo Nation Council, Navajo Nation Department of Agriculture, and Navajo Nation Courts. These roles and responsibilities have changed over time as the relationship between federal and tribal governments has shifted to place more responsibility for the management of tribal resources from federal to tribal jurisdiction. However, the BIA Navajo Region has the sole authority to issue grazing and agricultural land use permits on the Navajo Nation but based on the recommendation of the Navajo Nation Grazing Committees, Farm Boards, and Eastern Navajo Land Board, which are largely advisory regional bodies with limited delegated functions, comprised of local chapter representatives. BIA considers them “conduits” between permit holders and government.

Agricultural Resource Management

Under the 1993 AIARMA, range management must be in accordance with the goals and objectives in a “agricultural resource management plan” (ARMP) developed by the Navajo Nation, or by BIA in close consultation with the Navajo Nation. While there is no deadline for establishing a ARMP, such an ARMP must be completed within 3 years of initiating steps. An ARMP is normally developed following an “integrated resource management plan” (IRMP) which encompasses a tribe’s complete future vision. The BIA’s Indian Affairs Manual section on ARMPs requires that all its actions move the Tribe towards its vision for the reservation. The full possibilities of an IRMP have yet to be realized on the Navajo Nation.

In 2019, the BIA-Navajo Region received $2,618,330.68 from BIA Central Office to implement an Agricultural Resource Management Plan (ARMP) on the Navajo Nation reservation-wide. The Navajo Nation Fish and Wildlife Department amended its BIA 93-638 contract for the development of a Navajo Nation ARMP and programmatic environmental impact statement (PEIS). This sets the foundation for coordinating with tribal government in achieving environmental compliance with NEPA requirements and the AIARMA.

Below is an important section from the AIARMA regarding waivers of federal policies and regulations:

3712(c) Waiver of regulations

In any case in which a regulation or administrative policy of the Department of the Interior conflicts with the objectives of the agricultural resource management plan provided for in section 3711 of this title, or with a tribal law, the Secretary may waive the application of such regulation or administrative policy unless such waiver would constitute a violation of a Federal statute or judicial decision or would conflict with his general trust responsibility under Federal law.

Irrigation & Water Development

Irrigation, water, and dam safety projects and programs come under the Branch of Engineering in the BIA Navajo Region in coordination with the Bureau of Reclamation (BOR) and with the concurrence of the Navajo Nation.

Navajo Indian Irrigation Project (NIIP). Branch staff provide oversight of the NIIP, constructed by the Bureau of Reclamation (BOR), which delivers irrigation to 110,000 acres east and west of the Chaco River excluding Hogback, Fruitland and Cudeii. The BIA is ultimately responsible for operations and maintenance of NIISP. O&M, as well as on-farm development, are funded by BIA and performed by the Navajo Agricultural Products Industry (NAPI), a tribal enterprise, under PL93-638 contracts. The Branch oversees Tribal Priority Allocations funds for NAPI farming development and operations of the farm laboratory; all land acquisitions, exchanges and withdrawals not specifically assigned to the BOR; and environmental compliance issues during construction of the NIIP (monitoring runoff as part of Endangered Species Act and Clean Water Act). 

Navajo Nation San Juan River Basin Water Rights Settlement pursuant to PL111-11 (2009) funded water development projects on the Navajo Nation for the benefit of communities in exchange for a release of the Navajo Nation’s claims to water that could displace existing non-Indian water uses in the basin. Over 40 percent of Navajo Nation households rely on hauling water to meet their daily needs. Below are major projects constructed by the Bureau of Reclamation in coordination with the BIA Navajo Region, with design relying on private engineering firms:

  • Navajo Gallup Water Supply Project (NGWSP). Originally funded at roughly $1 billion with an original 2024 completion date, completion is delayed and not expected before 2029. When completed, it will convey municipal and industrial water supply from the San Juan River to the eastern section of the Navajo Nation via about 280 miles of pipeline, several pumping plants, and two water treatment plants. In the meantime, BOR works with BIA Navajo Region on workshops and mandatory pre-vegetation planning. The NGWSP will serve 250,000 people by the year 2040 through the annual delivery of 37,764 acre-feet of water from the San Juan Basin. The Project will bring a renewable surface water supply from Navajo Reservoir to both Navajo and non-Navajo communities in northwestern NM.
  • Fruitland-Cambridge Irrigation Project ($7.7M) involves rehabilitation of four water infrastructures to complete by 2023: The Bitsui Siphon Rehab Project is construction Complete. As of 2021, these are still in design status: Fruitland Diversion Dam Rehab Project, Yellowman Siphon Rehab Project, and Canal Seepage Rehab Project.
  • Hogback-Cudei Irrigation Project ($15.4M) involves rehabilitation of five water infrastructures to complete by 2022. All are pending completion: Helium Siphon Rehab Project, Hogback Lateral Rehab Project, Eagle Nest Siphon Rehab Project, Lateral Conversion Project, and Canal Lining Rehab Project. 
  • Conjunctive Groundwater Use Wells Projects ($30M) involves rehabilitation of water wells, waterline interties to main stem lines, and rehabilitate water tanks, to be completed by 2024.

Water monitoring, water management and safety of dams are undertaken by the Navajo Nation pursuant to PL93-638 self-determination contracts, with ultimate responsibility by the BIA Navajo Region. 

Cadastral Survey Development

The Bureau of Land Management (BLM) Cadastral Survey Program, Arizona Office continues to be responsible for completing cadastral surveys on the Navajo Nation in coordination with the BIA. Under a 1982 MOA, technicians from the Navajo Nation Land Department (NNLD) assist in the surveys.

The surveys are ordered in rectangular “townships” denoting section corners and quarter corners, setting brass caps at ½ mile intervals. Brass caps monuments are used to control surveys to locate geographic positions; maintenance and perpetuation of the existing Public Land Survey System (PLSS); and necessary required retracement, resurveys, and surveys of areas requested by NNLD and BIA. Absence of brass caps monuments halt surveys. The map shows completed cadastral surveys in green.

BLM’s survey focus until 2007 was on allotments. The focus thereafter has been on a Navajo Nation Master Plan involving surveying major developed corridor areas to assist chapters with their community land use plans for residential, community, and economic development projects. Most recently, the federal government lifted the Bennett Freeze, which caused the BLM, BIA, and NNLD to develop a plan to protract the Bennett Freeze area within the western agency.

Mineral & Surface Leasing

The BIA-Navajo Region Branch of Real Estate Services (RES) …  

Mineral Leasing. …

Surface Leasing. …

Rights of Way. …

Fee-to-Trust Applications. …

Allotted Lands – Oil & Gas Management

The Federal Indian Minerals Office (FIMO) in the Dept of Interior The Federal Indian Minerals Office (FIMO) was established in 1992 to provide fiduciary and “one stop” services to Navajo Allottees regarding their mineral interests. Their mission is to balance, preserve, protect, and develop the oil I& gas resource on Navajo Allotted lands and to service the Navajo Allottees (orange dots on the map). its BIA-Navajo Region office is in Farmington, NM.

With its 3 partner bureaus Office of Natural Resources and Revenue (ONRR), Bureau of Land Management (BLM), and  Bureau of Indian Affairs (BIA), FIMO performs the below activities:

  • Account, process and distribute oil and gas royalty revenue to Navajo Allottees;
  • Establish resource management plans / environmental impact statements that encompass cultural, community, and environmental concern in allotment areas;
  • Outreach presentations at chapters impacted by oil and gas activities in San Juan Basin and Aneth Field, including outreaches on Land Buy Back program, and Q&As on allottee probates under AIPRA (2004);
  • Inspections, reviews and audits of Navajo Indian Allotted wells for operational compliance and for oil sales, oil drilling operations, and for applications for permits to drill;
  • Process leasing assignments, oil and gas permit applications, and lease terminations, cancellations and expirations in allotment areas.
  • Conduct competitive oil and gas lease sales for unleased allotments.

See 25 CFR Part 212 – Leasing of Allotted Lands for Mineral Development.; and BIA-FIMO Final Audit Report of the Inspector General (2017).

Allotted Lands – Federal Probate Services

The BIA Navajo Region Division of Probate Branch of Probate Estate Services (BPES) staff prepares deceased Navajo allottee property to be probated by the BIA Office of Hearings and Appeals (OHA) in Albuquerque. Allottee probates are not addressed by Navajo Nation tribal law. The governing probate law for allotee property is federal law — the American Indian Probate Reform Act (AIPRA 2004), which requires probate of allotments due to the half-ownership, half-trust land status of each allotment.  Allotments are part of the Navajo Nation checkerboard, located mostly in the Ft. Defiance and Eastern Agencies, but also exist in Shiprock and Western Agencies.

The tasks of the BPES include completing research for probable heirs. Research is completed by contacting family members of the decedent through home visits, searching internet, telephone interviews, writing letters and office visits. Tasks also include outreach to allottees for better understanding of their allotments. The majority of family research work is done at the Navajo Nation Census/Enrollment Office. While the research is shared with the Navajo Nation, allottee property must be probated within the federal administrative system. The Navajo Nation tribal courts have no jurisdiction and play no role in the probate of allottee property.

Wildland Fire Management

The BIA-Navajo Region Branch of Wildland Fire Management provides direct wildfire prevention and response services in coordination with Navajo Nation entities. It is required to investigate all wildfires to determine cause and origin. The Navajo Nation Forestry Department performs some delegated prevention service functions via a PL93-638 self-determination contract. 

Fire Response. Hotshot, Engine, and Aviation (Helitack) crews perform wildfire suppression and response with roughly 30 crew members dispatched within and outside the Navajo region. In the Navajo region, the crew is supplemented by substantial numbers of firefighters (“Navajo Scouts”) working firelines as Administratively Determined Emergency Firefighter hires, paid by the fire hour. Crews meet and train with Navajo Nation Fire & Rescue (NNDFRS).

Ground Fuel Suppression. The Fuels Management Program plans and runs Hazardous Fuel Reduction (HFR) projects that are a combination of thinning, hand piling, machine piling, chipping, broadcast burning, and pile burning, to create a break in the continuity of ground fuels to minimize wildland fire effects.

Investigations & Outreach. Fire Prevention Specialists investigate fires and promote burn registrations and safe burning.

Burn Registrations. BIA does not handle burn registrations. The Navajo Nation Environmental Protection Agency (NNEPA) handles and records community agricultural/field and cultural traditional burn registrations and complaints. Navajo Nation Forestry Dept. receives commercial burn permit requests. 

Public Law 93-638 Contracts

The Indian Self-Determination and Education Assistance Act (ISDEAA) of 1975 (Public Law 93-638), which has been amended in 1988, 1994 and 2000, recognizes that American Indian tribes have an inherent status as sovereign nations. PL93-638 gives Indian tribes the authority to contract with the federal government to operate programs that are otherwise provided by the federal government under its trust responsibility

Multiple such programs are now operated by the Navajo Nation, with basic funding provided under PL93-638 contracts awarded by the DOI Division of Indian Self-Determination (ISD), Navajo Region branch, and BIA is ultimately responsible for all 638 programs. The self-determination policy of 638 contracting provides opportunities for tribes to design their own governmental functions within the larger framework of any mandatory federal laws. Typically, a 638 contract establishes the program or department’s organizational framework and performance standards and provides basic funding for the function. 638-funded personnel are tribal employees.

As of 2021, 638 funds to the Navajo Nation programs total just under $100M, not counting Navajo Rescue Plan Act (ARPA) funds. Below are the programs with roughly estimated funded amounts for the largest programs, which change annually:

Other 638 tribal programs: Navajo Agricultural Products Industry (NAPI) $7M; Navajo Technical University $1.5M; Rock Point Community School; Dine Bi Olta School Board Association, and Alamo Navajo School Board.

Procurement Contracts & Purchase Orders

The BIA-Navajo Region office in Gallup houses the regional branch of the Indian Affairs Division of Acquisitions, which processes procurement contracts and purchasing agreements for BIA/BIE architectural & engineering design & construction, goods, and services. Maintaining and upgrading the deteriorating BIE school conditions, and maintaining and repairing BIA highways within the Navajo Nation, are some services that are contracted out or commercially obtained through vendors through this Division. 

Some recent examples: computer purchases for Kayenta Boarding School and T’sii Nazbah Community School; purchase order for weed inventory, planning and environmental assessment for Land Management District #12 in Shiprock Agency; remediation of asbestos/petroleum in buildings at Tuba City and Crownpoint; renovation of Nazlini Community School, removal of a sheep dip vat site in Naschitti, construction of a sewer lagoon for Wide Ruins Community School; striping and re-striping on BIA roads within Chinle and Western Agencies, renovation of storage water tanks reservation-wide. and removal of noxious weeds in Western Agency. BIA procurements and purchase orders may be awarded to tribal and private entities, and adhere to federal competitive procurement policies and laws. 

Bureau of Indian Education (BIE) Schools

Bureau of Indian Education (BIE) schools on the Navajo Nation are a mix of 32 BIE-operated schools, and 33 schools that receive BIE funding via PL100-297 tribally-controlled school grants and PL93-638 self-determination contracts. Personnel of tribally-controlled schools are not BIE employees and do not qualify for federal pensions. 

Reorganization & reform. In 2014, the DOI issued Secretarial Order No. 3334 – Restructuring the Bureau of Indian Education, detailing an “urgent case for reform” within the BIE. The challenges identified by the order include difficulty in attracting effective teachers to BIE schools located in remote locations, achieving compliance with academic standards in 23 different States, promoting research-based reforms in tribally controlled schools, resource constraints, and institutional and budgetary fragmentation. The order calls for an improvement in the performance of schools and BIE’s responsiveness to the schools’ needs. 

Local school boards of federally funded schools throughout the Navajo Nation are represented by the Diné Bi’ Olta School Board Association. It is the only pan-Navajo association of local school boards officially recognized and empowered by the Navajo Nation Council under 10 N.N.C. §§ 301-305 (2007 Supp.). In 2017, DBOSA filed a Freedom of Information Act complaint seeking transparency in the operations, plans, and activities of BIE relating to its structure, human resources, duties, and operations; BIE’s compliance with laws and orders, and the present and future governance of, grants to, and contracting with schools, including those schools within the Navajo Nation represented by DBOSA. The suit was dismissed in 2019.

Deteriorating school buildings. Building repairs are currently contracted out per project. Property management responsibilities for BIE buildings are scheduled to be transferred from BIA to BIE by July, 2022. 

Technical Assistance – Energy & Minerals

The Division of Energy and Minerals (DEMD) in the Office of the Assistant Secretary, Indian Affairs, provides technical and economic advice and services to Tribes in the development of energy and mineral resources. According to DEMD, (DEMD), it functions much like a full-service consulting firm with an expert team of geologists, engineers, marketing experts, and other key personnel to facilitate all aspects of energy development for Tribes, finding the best companies that fit with Tribal goals, and direct funding through federal grants for evaluation of resource potential; and to establish necessary regulatory frameworks for energy resource development.

With the closure of the Peabody coal mine in Kayenta, the Navajo Nation Minerals Department has been working with DEMD to identify internal mineral development potential and place a value on the rights-of-way on the Navajo Nation. In addition to oil and gas, an identified opportunity in 2020 is high-grade helium in the Four Corners area of the Navajo Nation, which needs the input of community members and permit holders. 

Generally, Indian energy development is hindered by numbers of factors, including complex regulatory framework, tribes’ limited capital and infrastructure, and by limitations of the BIA — lacking staff and data. See, e.g. U.S. GAO Report (2015). Improvements in BIA management since 2015 nevertheless have lacked defined goals and measures See U.S. GAO Report (2022). 

Tribal Governmental Relations

BIA’s Office of Tribal Government Services (OTGS) sends update letters on federal Indian initiatives to the Navajo Nation, and represents the BIA at Navajo Nation governmental meetings including meetings of the NNOPVP, Navajo Nation Council Nabi, committee, and delegates and leadership, and specific Federal Agency project meetings such as BLM RMPA and IWMP EIS. OTGS also refers community requests for CIBs, prospective membership, benefits and scholarship to the Navajo Nation.  The Tribal Operations Specialist (TGS) serves as the Awarding Official Technical Representative (AOTR) for three P.L. 93-638 contracts in coordination with the Awarding Program Official: Tribal Courts, Tribal Scholarships, and Tribal (Census) Enrollment. 

Services by Entities Other Than BIA

Housing Project Block Grants

The Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) provides block grants to the Navajo Housing Authority, a tribal enterprise. Administration is by the block grant program at the Department of Housing and Urban Development (HUD).

Office of Navajo-Hopi Indian Relocation

The Office of Navajo and Hopi Indian Relocation (ONHIR) has authority under section 27 of the Navajo-Hopi Settlement Act of 1974, Pub. L. No. 93-531, 88 Stat. 1712 (Dec. 22, 1974) (Settlement Act), to obligate a portion of its lump-sum appropriation on expenditures that assist the Navajo and Hopi tribes in meeting the economic burdens imposed by relocations under the Settlement Act.

Across decades, as much as $50 million, in annually enhanced Congressional appropriations has been spent by ONHIR on tribal chapters willing to receive relocatees. Established by Congress and answerable directly to Congress, ONHIR has frequently been confused as part of the BIA, but is subject to no Executive Branch Indian policies.

With its tremendous funds, ONHIR has long displaced the BIA as the primary chapter-level infrastructure building servicer. ONHIR has liberally funded construction of senior centers, a travel center, community centers, a cattle demonstration ranch, and even the purchase of cattle and other goods and services for which no express appropriations authority may have been given, and which no permanent spending policy may have been in place.

ONHIR is being phased out and is in final review with no current appropriations, with the Navajo Nation greatly objecting