1.
This Act may be cited as the
Tribal Acknowledgment and Indian
Bureau Enhancement Act of 2005
.
2.
Congress finds that—
(1)
the United States has an
obligation to recognize and respect the sovereignty of Native American people
who have maintained social, cultural, and political identity;
(2)
each Native American tribal
government that represents an Indian tribe that has, to the maximum extent
practicable, maintained social, cultural, and political identity during the
historical period is entitled—
(A)
to establish
government-to-government relations with the United States; and
(B)
to the rights relating to
sovereign governments;
(3)
the Bureau exercises
responsibility for determining whether Native American groups—
(A)
constitute
federally-acknowledged Indian tribes; and
(B)
for that reason, are to be
acknowledged by the United States as sovereign nations;
(4)
in recent years, the
decisionmaking process used by the Bureau to resolve claims of tribal
sovereignty has been widely criticized; and
(5)
in order to ensure continued
public confidence in the decisions of the Federal Government pertaining to
tribal acknowledgment, it is necessary to reform the acknowledgment
process.
3.
The purposes of this Act
are—
(1)
to establish administrative
procedures to extend Federal acknowledgment to certain Indian groups;
(2)
to extend to Indian groups
that are acknowledged—
(A)
the protection, services, and
benefits available from the Federal Government in accordance with the Federal
trust responsibility with respect to Indian tribes; and
(B)
the immunities and privileges
available to other federally-acknowledged Indian tribes by virtue of their
status as Indian tribes with a government-to-government relationship with the
United States;
(3)
to ensure that, if the
Federal Government extends acknowledgment to an Indian group, the Federal
Government does so based on clear, factual evidence derived from an open and
objective administrative process;
(4)
to provide clear and
consistent standards of administrative review of documented petitions for
Federal acknowledgment; and
(5)
to clarify evidentiary
standards and expedite the administrative review process by providing adequate
resources to process documented petitions.
4.
In this Act:
(1)
The term
acknowledgment, with respect to a determination by the Secretary,
means acknowledgment by the United States that—
(A)
an Indian group is an Indian
tribe having a government-to-government relationship with the United
States;
(B)
the members of the Indian
group are eligible for—
(i)
the protection, programs, and
services provided by the United States to members of Indian tribes because of
the status of those members as Indians; and
(ii)
the immunities and privileges
available to an Indian tribe by virtue of the government-to-government
relationship of the Indian tribe with the United States;
(C)
the Indian group has the
responsibilities, powers, limitations, and obligations of an Indian tribe;
and
(D)
the Indian group is subject
to the same authority of Congress and the United States to which other Indian
tribes are subject.
(2)
The term Bureau
means the Bureau of Indian Affairs of the Department of the Interior.
(3)
The term
Department means the Department of the Interior.
(4)
The term documented
petition means a petition for acknowledgment consisting of—
(A)
detailed arguments made by a
petitioner to substantiate the claim of the petitioner to existence as an
Indian tribe during the historical period; and
(B)
the factual exposition and
all documentary evidence necessary to demonstrate that the arguments address
the mandatory criteria for acknowledgment described in section 9(b).
(5)
The term historical
period means the period beginning when a petitioner first sustained
contact with non-Indians and continuing through the date of submission of a
documented petition under this Act.
(6)
The term Indian
means an individual that is a member of an Indian group or Indian tribe.
(7)
The term Indian
group means any Indian or Alaska Native aggregation within the
continental United States that the Secretary does not acknowledge to be an
Indian tribe.
(8)
The term Indian
tribe means any Indian group that the Secretary determines to have met
the mandatory criteria for acknowledgment described in section 9(b).
(9)
The term
petitioner means any Indian group that submits to the Secretary a
letter of intent requesting acknowledgment.
(10)
The term
Secretary means the Secretary of the Interior.
5.
Indian groups eligible for acknowledgment
(a)
This Act applies only to an
Indian group that—
(1)
is indigenous to the
continental United States;
(2)
is not acknowledged as of the
date of submission of a documented petition under this Act; and
(3)
presents evidence of a
substantially continuous tribal existence, and functioning as an autonomous
entity, throughout the historical period.
(b)
The following groups shall
not be eligible to submit a documented petition under this Act:
(1)
Any Indian tribe, organized
band, pueblo, community, or Alaska Native entity that, as of the date of
enactment of this Act, is acknowledged.
(2)
An association, organization,
corporation, or group of any character that is formed for the purpose of
seeking Federal acknowledgment after December 31, 2002.
(3)
Any Indian group, political
faction, or community that separates from the main population of an Indian
tribe, unless the Indian group, faction, or community establishes to the
satisfaction of the Secretary that the Indian group, political faction, or
community has functioned as an autonomous Indian group throughout the
historical period.
(4)
Any Indian group, or
successor in interest of an Indian group (other than an Indian tribe, organized
band, pueblo, community, or Alaska native entity described in paragraph (1)),
that, before the date of enactment of this Act, in accordance with part 83 of
title 25, Code of Federal Regulations, petitioned for, and was denied,
acknowledgment based on the merits of the documented petition (except that
nothing in this paragraph excludes any group that Congress has identified as an
Indian group but has not identified as an Indian tribe).
(5)
Any Indian group the
relationship of which with the Federal Government was expressly terminated by
an Act of Congress.
(c)
Indian groups with pending petitions
(1)
An Indian group the
documented petition of which, as of the date of enactment of this Act, is under
consideration by the Secretary in accordance with part 83 of title 25, Code of
Federal Regulations (as in effect on the day before that date), and for which a
determination of acknowledgment is not final and effective as of that date,
shall be subject to this Act.
(2)
Nothing in paragraph (1)
shall affect the order in which a documented petition of an Indian group
described in that paragraph is considered by the Secretary.
(d)
Claims of previous acknowledgment
Section 83.8 of title 25,
Code of Federal Regulations (as in effect on the date of enactment of this
Act), shall apply with respect to a petitioner that claims acknowledgment
before the date of enactment of this Act.
6.
(a)
An Indian group that seeks a
determination of acknowledgment and that can meet the mandatory criteria for
acknowledgment described in section 9(b) shall submit to the Secretary, before
or simultaneously with submission of a documented petition, a letter of intent
to seek acknowledgment.
(b)
Approval of governing body
A letter of intent shall be
produced, dated, and signed by the governing body of the Indian group
submitting the letter.
7.
(a)
Publication of list of Indian tribes
Not less often than every 3
years, and more frequently as determined by the Secretary, the Secretary shall
publish in the Federal Register a list of all Indian tribes.
(b)
Guidelines for preparation of documented petitions
(1)
The Secretary shall make
available guidelines for the preparation of documented petitions that
include—
(A)
an explanation of the
criteria and other provisions relevant to the consideration by the Secretary of
a documented petition;
(B)
a discussion of the types of
evidence that may be used to demonstrate satisfaction of particular
criteria;
(C)
general suggestions and
guidelines relating to the manner in which and locations at which research
relating to a documented petition may be conducted; and
(D)
an example of a format for a
documented petition (except that the example shall not preclude the use of any
other format).
(2)
Supplementation and revision
The Secretary may supplement
or update the guidelines as the Secretary determines to be necessary.
(c)
The Secretary—
(1)
shall, on request by a
petitioner, provide the petitioner with suggestions and advice regarding
preparation of a documented petition; but
(2)
shall not be responsible for
any research necessary to prepare a documented petition.
(d)
Notice to groups with a letter of intent
The Secretary shall provide
to each Indian group that, as of the date of enactment of this Act, has
submitted a letter of intent to the Secretary under section 6(a) but has not
yet submitted a documented petition, a notice informing the Indian group that
any documented petition submitted by the Indian group shall be considered in
accordance with this Act.
8.
Requirements for documented petition
(a)
A documented petition
submitted to the Secretary under this Act—
(1)
may be in any readable form
that contains detailed, specific evidence in support of a request to the
Secretary for acknowledgment;
(2)
shall include a
certification, signed and dated by members of the governing body of the
petitioner, stating that the documented petition is the official documented
petition of the petitioner; and
(3)
shall include thorough
explanations and supporting documentation pertaining to each of the mandatory
criteria for acknowledgment described in section 9(b).
(b)
Satisfaction of mandatory criteria
To be acknowledged under this
Act, a petitioner shall meet each of the mandatory criteria for acknowledgment
described in section 9(b).
(c)
(1)
Subject to paragraph (2), the
Secretary shall not acknowledge a petitioner if the Secretary determines that
evidence presented by the petitioner or any other person is insufficient to
demonstrate that the petitioner meets each of the mandatory criteria for
acknowledgment described in section 9(b).
(2)
Standards for meeting mandatory criteria
With respect to a mandatory
criterion for acknowledgment described in section 9(b)—
(A)
the Secretary shall consider
a petitioner to have met the mandatory criterion if the Secretary determines
that it is more likely than not that the evidence presented demonstrates that
the petitioner has met the mandatory criterion; and
(B)
conclusive proof of the facts
relating to the mandatory criterion shall not be required in order for the
Secretary to consider the mandatory criterion to have been met.
(d)
Consideration of situations and limitations during historical
period
(1)
In considering a documented
petition under this Act, the Secretary shall take into account—
(A)
evidentiary situations and
limitations (including limitations inherent in demonstrating the historical
existence of community and political influence or authority) during the
historical period; and
(B)
periods during the historical
period for which evidence relating to the documented petition is demonstrably
limited or not available.
(2)
Substantially continuous basis of existence
In demonstrating the
historical existence of community and political influence or authority with
respect to any mandatory criterion for acknowledgment described in section
9(b)—
(A)
a petitioner—
(i)
shall make such a
demonstration on a substantially continuous basis; but
(ii)
shall not be required to make
the demonstration with respect to each point in time during the historical
period; and
(B)
any fluctuation in tribal
activity during any period of time shall not be the sole reason for a denial of
acknowledgment.
9.
Mandatory criteria for acknowledgment
(a)
To be acknowledged under this
Act, a petitioner shall meet each of the mandatory criteria described in
subsection (b) to the satisfaction of the Secretary.
(b)
(1)
Identification on a substantially continuous basis
(A)
A petitioner shall
demonstrate that the petitioner has been identified as an Indian group in the
United States on a substantially continuous basis since 1900.
(B)
Previous denials of status
The Secretary shall not
consider any evidence that the status of the petitioner as an Indian group has
previously been denied to be conclusive evidence that the criterion described
in subparagraph (A) has not been met.
(C)
Evidence relating to identity
In determining the Indian
identity of a petitioner, the Secretary may use as evidence 1 or more of the
following:
(i)
An identification of the
petitioner as an Indian group by any department, agency, or instrumentality of
the Federal Government.
(ii)
A relationship between the
petitioner and any State government, based on an identification of the
petitioner by the State as an Indian group.
(iii)
Any dealings of the
petitioner with a county or political subdivision of a State in a relationship
based on an identification of the petitioner as an Indian group.
(iv)
An identification of the
petitioner as an Indian group by an anthropologist, historian, or other
scholar.
(v)
An identification of the
petitioner as an Indian group in a newspaper, book, or similar medium.
(vi)
An identification of the
petitioner as an Indian group by an Indian tribe or by a national, regional, or
State Indian organization.
(vii)
An identification of the
petitioner as an Indian group by a foreign government or an international
organization.
(viii)
Such other evidence of
identification as may be provided by a person or entity other than the
petitioner or a member of the membership of the petitioner.
(2)
(A)
A petitioner shall
demonstrate that a predominant portion of the membership of the
petitioner—
(i)
comprises a community
distinct from the communities surrounding that community; and
(ii)
has existed as a community
throughout the historical period.
(B)
Evidence relating to community
In determining whether the
membership of the petitioner meets the criteria described in subparagraph (A),
the Secretary may use as evidence 1 or more of the following:
(i)
Significant rates of marriage
within the membership of the petitioner, or, as may be culturally required,
patterned out-marriages with other Indian populations.
(ii)
Significant social
relationships connecting individual members of the petitioner.
(iii)
Significant rates of informal
social interaction that exist broadly among the members of the
petitioner.
(iv)
A significant degree of
shared or cooperative labor or other economic activity among the membership of
the petitioner.
(v)
Evidence of strong patterns
of discrimination or other social distinctions against members of the
petitioner by nonmembers.
(vi)
Shared sacred or secular
ritual activity encompassing a majority of members of the petitioner.
(vii)
Cultural patterns
that—
(I)
are shared among a
significant portion of the members of the petitioner;
(II)
are different from the
cultural patterns of the non-Indian populations with whom the membership of the
petitioner interacts;
(III)
function as more than a
symbolic identification of the petitioner as Indian; and
(IV)
may include language,
kinship, or religious organizations, or religious beliefs and practices.
(viii)
The persistence of a named,
collective Indian identity during a continuous period of at least 50 years,
notwithstanding any change in name.
(ix)
A demonstration of historical
political influence or authority of the petitioner (such as political influence
or authority demonstrated under paragraph (3)).
(C)
The Secretary shall consider
a petitioner to have provided sufficient evidence of community under this
paragraph if the petitioner provides to the Secretary evidence demonstrating
that, throughout the historical period—
(i)
(I)
more than 50 percent of the
members of the petitioner reside in a particular geographical area exclusively,
or almost exclusively, composed of members of the group; and
(II)
the balance of the membership
maintains consistent social interaction with other members of the
petitioner;
(ii)
not less than 50 percent of
the marriages of members of the petitioner are between members of the
petitioner;
(iii)
not less than 50 percent of
the members of the petitioner maintain distinct cultural patterns, including
language, kinship, and religious organizations, or religious beliefs or
practices;
(iv)
distinct community social
institutions (such as kinship organizations, formal or informal economic
cooperation, and religious organizations) encompass a majority of the members
of the petitioner; or
(v)
the petitioner has met the
criterion described in paragraph (3) using evidence described in paragraph
(3)(A).
(3)
Political influence or authority
(A)
A petitioner shall
demonstrate that the petitioner has maintained political influence or authority
as an autonomous entity over members of the petitioner throughout the
historical period.
(B)
Evidence relating to autonomous nature
In determining whether a
petitioner is an autonomous entity under paragraph (1), the Secretary may use
as evidence 1 or more of the following:
(i)
A demonstration that the
petitioner is capable of mobilizing significant numbers of members and
significant member resource for purposes relating to the petitioner.
(ii)
Evidence that most of the
members of the petitioner consider actions taken by leaders or governing bodies
of the petitioner to be of personal importance.
(iii)
Evidence that there is
widespread knowledge, communication, and involvement in political processes of
the petitioner by a majority of the members of the petitioner.
(iv)
Evidence that the petitioner
meets the criteria described in paragraph (2) at more than a minimal
level.
(v)
A demonstration by the
petitioner that there are conflicts within the membership that demonstrate
controversy over valued goals, properties, policies, processes, or decisions of
the petitioner.
(C)
Evidence of exercise of political influence or
authority
The Secretary shall consider
a petitioner to have provided sufficient evidence to demonstrate the exercise
of political influence or authority if the petitioner demonstrates that
decisions by leaders of the petitioner (or decisions made through another
decisionmaking process) have been made throughout the historical period with
respect to—
(i)
the allocation of group
resources such as land, residence rights, or similar resources on a consistent
basis;
(ii)
the settlement on a regular
basis, by mediation or other means, of disputes between members or subgroups of
members of the petitioner (such as clans or lineages);
(iii)
the exertion of strong
influence on the behavior of individual members of the petitioner, such as the
establishment or maintenance of norms and the enforcement of sanctions to
direct or control behavior; or
(iv)
the organization or
influencing of economic subsistence activities among the members of the
petitioner, including shared or cooperative labor.
(D)
A petitioner that meets the
criteria described in paragraph (2)(A) shall be considered to have provided
sufficient evidence to meet the criterion under this paragraph.
(4)
Governing document and membership criteria
(A)
A petitioner shall include in
the documented petition of the petitioner a copy of the governing document of
the petitioner in effect as of the date of submission of the documented
petition that includes a description of the membership criteria of the
petitioner.
(B)
If no written governing
document described in subparagraph (A) exists, a petitioner shall include with
a documented petition a detailed statement that describes—
(i)
the membership criteria of
the petitioner; and
(ii)
the governing procedures of
the petitioner in effect as of the date of submission of the documented
petition.
(5)
(A)
A petitioner shall include in
a documented petition submitted under this Act—
(i)
a list of all members of the
petitioner as of the date of submission of the documented petition, as
certified by the governing body of the petitioner, that includes for each
member—
(I)
a full name (and maiden name,
if any);
(II)
a date and place of birth;
and
(III)
a current residential
address;
(ii)
a copy of each available
former list of members of the petitioner; and
(iii)
a statement describing the
methods used in preparing those lists.
(B)
Requirements for membership
In determining whether to
consider the members of a petitioner to be members of an Indian group for the
purpose of a documented petition described in subparagraph (A), the Secretary
shall require that the membership consist of descendants of—
(i)
an Indian group that existed
during the historical period; or
(ii)
1 or more Indian groups that,
at any time during the historical period, combined and functioned as a single
autonomous entity.
(C)
Evidence of tribal membership
In making the determination
under subparagraph (B), the Secretary may use as evidence 1 or more of the
following:
(i)
Tribal rolls prepared by the
Secretary for the petitioner for the purpose of distributing claims money or
providing allotments, or for other any other purpose.
(ii)
Any Federal, State, or other
official record or evidence identifying members of the petitioner as of the
date of submission of the documented petition, or ancestors of those members,
as being descendants of an Indian group described in clause (i) or (ii) of
subparagraph (B).
(iii)
Any church, school, or other
similar enrollment record identifying members of the petitioner as of the date
of submission of the documented petition, or ancestors of those members, as
being descendants of an Indian group described in clause (i) or (ii) of
subparagraph (B).
(iv)
An affidavit of recognition
by tribal elders, tribal leaders, or a tribal governing body identifying
members of the petitioner as of the date of submission of the documented
petition, or ancestors of those members, as being descendants of an Indian
group described in clause (i) or (ii) of subparagraph (B).
(v)
Any other record or evidence
identifying members of the petitioner as of the date of submission of the
documented petition, or ancestors of those members, as being descendants of an
Indian group described in clause (i) or (ii) of subparagraph (B).
(6)
Membership composed primarily of individuals who are not
members of an Indian tribe
(A)
Except as provided in
subparagraph (B), a petitioner shall demonstrate that the membership of the
petitioner is composed primarily of individuals who are not members of an
Indian tribe.
(B)
A petitioner may be
acknowledged if the membership of the petitioner is composed primarily of
individuals whose names have appeared on rolls of, or who have been otherwise
associated with, an Indian tribe, if the petitioner establishes that—
(i)
the petitioner has functioned
throughout the historical period as a separate and autonomous Indian
group;
(ii)
the members of the petitioner
do not maintain a bilateral political relationship with any Indian tribe;
and
(iii)
the members of the petitioner
have provided written confirmation of their membership in the
petitioner.
(7)
Legislation terminating or prohibiting acknowledgment
A petitioner shall
demonstrate that neither the petitioner, nor any members of the petitioner, are
the subject of any Act of Congress expressly terminating or prohibiting
acknowledgment of the petitioner.
10.
Notice of receipt of a letter of intent or documented
petition
(a)
Notice of receipt of a petition
(1)
Not later than 30 days after
the date on which the Secretary receives a letter of intent under section 6(a)
(or a documented petition, if the Secretary has not received a letter of
intent), the Secretary shall provide to the petitioner submitting the letter or
documented petition a written notice of the receipt.
(2)
(A)
Not later than 60 days after
the date on which the Secretary receives a letter (or documented petition)
under section 6(a), the Secretary shall publish, in 1 or more major newspapers
of general circulation in the town or city nearest to the petitioner and in the
Federal Register, a notice of receipt of the letter (or documented
petition).
(B)
The notice under subparagraph
(A) shall include—
(i)
the name, location, and
mailing address of the petitioner;
(ii)
such other information as the
Secretary determines will identify the petitioner;
(iii)
the date of receipt of the
letter (or documented petition);
(iv)
information describing 1 or
more locations at which a copy of the letter (or documented petition) and
related submissions may be examined by the public; and
(v)
a description of the
procedure by which an interested party may submit—
(I)
arguments or evidence in
support of or in opposition to the request of the petitioner for
acknowledgment; or
(II)
a request to be kept informed
of all actions affecting the letter or documented petition.
(b)
Notification of other persons
The Secretary shall submit a
copy of the notice published under subsection (a)(2) to—
(1)
the Governor of, members of
Congress representing, and attorney general of—
(A)
each State in which the
petitioner is located; and
(B)
each State that, as
determined by the Secretary, has a significant interest in the petition;
(2)
each Indian tribe, and each
other petitioner, that, as determined by the Secretary—
(A)
has a relationship with the
petitioner (including any relationship at any time during the historical
period); or
(B)
that may otherwise be
considered to have a potential interest in a determination of acknowledgment of
the petitioner; and
(3)
the chief executive officer
of each county and municipality located in the geographic area occupied by the
petitioner.
11.
Processing of documented petitions
Section 83.10 of title 25,
Code of Federal Regulations (as in effect on the date of enactment of this Act)
shall apply with respect to the processing of a documented petition under this
Act.
12.
Testimony and the opportunity to be heard
(a)
In determining whether to
acknowledge a petitioner under this Act, the Secretary shall consider all
relevant evidence from any interested party, including evidence from a
municipality located in the same area in which the petitioner is
located.
(b)
On request by an interested
party, for good cause, the Secretary may conduct a formal hearing with respect
to a documented petition at which all interested parties may—
(1)
present evidence;
(2)
call witnesses;
(3)
cross-examine witnesses;
or
(4)
rebut evidence in the record
or presented by other parties during the hearing.
(c)
A transcript of any hearing
under this section shall be included in the administrative record on which the
Secretary relies in determining whether to acknowledge a petitioner under this
Act.
13.
Written submissions by interested parties
In determining whether to
acknowledge a petitioner under this Act, the Secretary shall consider any
written materials submitted to the Bureau from any interested party that
possesses relevant information relating to the petitioner, including evidence
from a municipality located in the same area in which the petitioner is
located.
14.
Publication of final determination
On making a determination
whether to acknowledge a petitioner under this Act, the Secretary shall publish
in the Federal Register a detailed explanation of the final determination of
the Secretary regarding the acknowledgment and the documented petition of the
petitioner, including an express finding of facts and of law with respect to
each of the mandatory criteria for acknowledgment described in section
9(b).
15.
Independent review, reconsideration, and final action
Section 83.11 of title 25,
Code of Federal Regulations (as in effect on the date of enactment of this
Act), shall apply with respect to the independent review, reconsideration, and
final determination of the Secretary with respect to a documented petition
under this Act.
16.
Implementation of determination of acknowledgment
Section 83.12 of title 25,
Code of Federal Regulations (as in effect on the date of enactment of this
Act), shall apply with respect to the implementation of a determination of
acknowledgment by the Secretary under this Act.
17.
Authorization of appropriations
There is authorized to be
appropriated to carry out this Act $10,000,000 for fiscal year 2006 and each
fiscal year thereafter.