S. 3264

STATEMENT FOR THE RECORD
BUREAU OF INDIAN AFFAIRS
U.S. DEPARTMENT OF THE INTERIOR
SENATE COMMITTEE ON INDIAN AFFAIRS

September 23, 2020

Thank you for the opportunity to provide the Department of the Interior’s (Department’s) views on S. 3264, Bridging the Tribal Digital Divide Act of 2020, a bill to expedite and streamline the deployment of affordable broadband services on tribal land.

S. 3264

Title I – Interagency Coordination Program

Title I of S. 3264 directs the Assistant Secretary of Commerce for Communications and Information and the Secretary of Agriculture to establish an Interagency Working Group to be known as the Tribal Broadband Interagency Working Group (Working Group).  S. 3264 identifies the Administrator of the Department of Agriculture’s (USDA) Rural Utilities Service and the Assistant Secretary of Commerce for Communications and Information as the co-chairs of the Working Group, which is tasked with improving Federal coordination, including activities of the USDA, Department of Commerce, Department of Education, Department of Health and Human Services, Department of Housing and Urban Development, Department of Labor, Federal Communications Commission (FCC), Institute of Museum and Library Services, any other appropriate Federal agency, and the Department.

Connecting Indian Country to broadband and energy transmission is a priority for the Department.  In 2020, the FCC Broadband Deployment Report stated that 28% of Native Americans who live on tribal lands lacked access to sufficient broadband capabilities.  The Department has been implementing broadband initiatives since 2017, bringing necessary utilities and communications facilities to rural communities.  These initiatives align with all aspects of the Department’s trust relationship with tribes and individuals.

The Department and its bureaus, including the Bureau of Indian Affairs, currently participate as members of the Administration’s American Broadband Initiative (ABI), an interagency effort co-chaired by the National Telecommunications and Information Administration and USDA to remove regulatory barriers to broadband deployment, leverage public resources for broadband expansion, and maximize the impact of federal broadband funding.  Incorporating a Tribal Broadband Interagency Working Group is consistent with the ABI’s mission to coordinate federal broadband activities.  The Department supports the continued coordination of federal stakeholders and recommends that a representative of the Department chair a new Tribal Working Group within ABI.

Title V – Broadband Rights-of-Way

Title V of S. 3264 directs the Secretary to establish a Tribal Broadband Right-of-Way Pilot Program (Program), which would delegate certain authorities to eligible tribes to grant ROWs over and across tribal land.  Under S. 3264, no fewer than 10 tribes would be selected for the Program, with no fewer than 5 of those tribes from Arizona and New Mexico.  The Secretary’s authority for the Program would expire 10 years from enactment.  Except for individual allotted lands, tribes could obtain the delegated authority to grant a ROW over and across tribal land without further approval of the Secretary.  The ROW must be granted in accordance with approved tribal regulations and for a term not to exceed 25 years, except that the ROW may include an option to renew for two additional terms, each of which may not exceed 25 years.

The Bureau of Indian Affairs (BIA) has the authority to approve ROWs and leases for broadband development on Indian trust land and individual restricted lands.  The BIA protects and maintains the integrity of trust lands and trust resources, as part of the overall bureau mission to enhance the quality of life, to promote economic opportunity, and to carry out the responsibility to protect and improve the trust assets of American Indians, Indian tribes and Alaska Natives.

The Program would connect the selected Tribes’ communities with broadband projects, which furthers the BIA’s mission to support tribal self-determination and self-governance.  The Department is supportive of efforts to streamline approvals needed to support broadband projects, but the Department sees no reason to limit the Program to a few selected tribes.  The Department recommends an eligibility structure similar to leasing authorities available to tribes under the Helping Expedite and Advance Responsible Tribal Home Ownership (HEARTH) Act of 2012, 25 U.S.C. 415(h).  Under the HEARTH Act, once tribal leasing regulations have been approved by the Secretary, tribes are authorized to negotiate and enter into leases without further approvals by the Secretary.  In support of tribal self-determination, the HEARTH Act requires the Secretary to approve tribal leasing regulations, if the regulations are consistent with the Department’s leasing regulations at 25 CFR Part 162 and they provide for an environmental review process that meets HEARTH Act requirements.  Opening up opportunities for all tribes who are interested in developing their own ROW tribal codes and removing bureaucratic obstacles and bottlenecks would more effectively address the need in Indian Country for broadband development.

Under Title V of S. 3264, participating tribes would be given an opportunity to compact and amend their Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5304, funding agreements to include technical assistance in developing their own tribal broadband regulations.  The Department recommends that all federally recognized tribes have the opportunity to receive funding for technical assistance to develop regulations.  In addition, the Department recommends that the bill clearly indicate that Secretarial approval of tribal codes is required, that the codes would be consistent with existing regulations under 25 CFR Part 169, and that environmental reviews be addressed through a tribal process similar to the HEARTH Act requirements.

The Department strongly supports efforts to expand broadband capacity in Indian Country.  If the legislation is addressed as noted above, it would be an important step toward allowing tribes greater control in developing broadband projects on their lands for their communities.  Tribal control of the broadband ROW regulatory process over tribal lands would reduce the time and expense currently required in seeking ROW approval from BIA.

Conclusion

The Department appreciates the opportunity to present its views on S. 3264.  We welcome the opportunity to work with the Committee to provide technical assistance that will improve this legislation, and thereby expand broadband capacity in Indian Country.