[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3744 Reported in House (RH)]

<DOC>





                                                 Union Calendar No. 741
115th CONGRESS
  2d Session
                                H. R. 3744

                          [Report No. 115-953]

 To provide that an Indian group may receive Federal acknowledgment as 
              an Indian tribe only by an Act of Congress.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 12, 2017

Mr. Bishop of Utah introduced the following bill; which was referred to 
                   the Committee on Natural Resources

                           September 20, 2018

                     Additional sponsor: Mr. Gosar

                           September 20, 2018

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
    [For text of introduced bill, see copy of bill as introduced on 
                          September 12, 2017]


_______________________________________________________________________

                                 A BILL


 
 To provide that an Indian group may receive Federal acknowledgment as 
              an Indian tribe only by an Act of Congress.


 


    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Tribal Recognition Act of 2018''.

SEC. 2. FINDINGS.

    Congress finds as follows:
            (1) Article I, section 8, clause 3 of the Constitution 
        (commonly known as the Indian Commerce Clause) gives Congress 
        authority over Indian affairs.
            (2) Such authority is plenary and exclusive.
            (3) Such authority may not be exercised by the judicial 
        branch or by the executive branch (except to the extent that 
        such authority has been expressly delegated to the executive 
        branch by an Act of Congress).

SEC. 3. DEFINITIONS.

    As used in this Act:
            (1) Assistant secretary.--The term ``Assistant Secretary'' 
        means the Assistant Secretary of Indian Affairs, or that 
        officer's authorized representative.
            (2) Autonomous.--The term ``autonomous'' means the exercise 
        of political influence or authority independent of the control 
        of any other Indian governing entity. Autonomous must be 
        understood in the context of the history, geography, culture, 
        and social organization of the petitioning group.
            (3) Community.--The term ``Community'' means any group of 
        people who can demonstrate that consistent interactions and 
        significant social relationships exist within its membership 
        and that its members are differentiated from and identified as 
        distinct from nonmembers. Community must be understood in the 
        context of the history, geography, culture, and social 
        organization of the group.
            (4) Continental united states.--The term ``continental 
        United States'' means the contiguous 48 States and Alaska.
            (5) Continuously or continuous.--The term ``continuously or 
        continuous'' means extending from first sustained contact with 
        non-Indians throughout the group's history to the present 
        substantially without interruption.
            (6) Documented petition.--The term ``documented petition'' 
        means the detailed arguments made by a petitioner to 
        substantiate its claim to continuous existence as an Indian 
        tribe, together with the factual exposition and all documentary 
        evidence necessary to demonstrate that these arguments address 
        the mandatory criteria.
            (7) Historically, historical, or history.--The term 
        ``historically, historical, or history'' means dating from 
        first sustained contact with non-Indians.
            (8) Indian group or group.--The term ``Indian group or 
        group'' means any Indian or Alaska Native aggregation within 
        the continental United States that the Secretary of the 
        Interior does not acknowledge to be an Indian tribe. Indian 
        tribe, also referred to herein as tribe, means any Indian or 
        Alaska Native tribe, band, pueblo, village, or community within 
        the continental United States that the Secretary of the 
        Interior has lawfully acknowledged as an Indian tribe.
            (9) Indigenous.--The term ``indigenous'' means native to 
        the continental United States in that at least part of the 
        petitioner's territory at the time of sustained contact 
        extended into what is now the continental United States.
            (10) Informed party.--The term ``informed party'' means any 
        person or organization, other than an interested party, who 
        requests an opportunity to submit comments or evidence or to be 
        kept informed of general actions regarding a specific 
        petitioner.
            (11) Interested party.--The term ``interested party'' means 
        any person, organization, or other entity who can establish a 
        legal, factual, or property interest in an acknowledgment 
        determination and who requests an opportunity to submit 
        comments or evidence or to be kept informed of general actions 
        regarding a specific petitioner. ``Interested party'' includes 
        the Governor and attorney general of the State in which a 
        petitioner is located, and may include, but is not limited to, 
        local governmental units, and any recognized Indian tribes and 
        unrecognized Indian groups that might be affected by an 
        acknowledgment determination.
            (12) Letter of intent.--The term ``letter of intent'' means 
        an undocumented letter or resolution by which an Indian group 
        requests Federal acknowledgment as an Indian tribe and 
        expresses its intent to submit a documented petition.
            (13) Petitioner.--The term ``petitioner'' means any entity 
        that has submitted a letter of intent to the Secretary 
        requesting acknowledgment that it is an Indian tribe.
            (14) Political influence or authority.--The term 
        ``political influence or authority'' means a tribal council, 
        leadership, internal process, or other mechanism which the 
        group has used as a means of influencing or controlling the 
        behavior of its members in significant respects, and making 
        decisions for the group which substantially affect its members, 
        and representing the group in dealing with outsiders in matters 
        of consequence. This process is to be understood in the context 
        of the history, culture, and social organization of the group.
            (15) Previous federal acknowledgment.--The term ``previous 
        Federal acknowledgment'' means action by the Federal Government 
        clearly premised on identification of a tribal political entity 
        and indicating clearly the recognition of a relationship 
        between that entity and the United States.
            (16) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior or that officer's authorized representative.
            (17) Sustained contact.--The term ``sustained contact'' 
        means the period of earliest sustained non-Indian settlement or 
        governmental presence in the local area in which the historical 
        tribe or tribes from which the petitioner descends was located 
        historically.

SEC. 4. GROUPS ELIGIBLE TO SUBMIT PETITIONS.

    (a) Eligible Groups.--Indian groups indigenous to the continental 
United States that are not federally recognized Indian tribes on the 
date of the enactment of this Act may submit a petition under this Act.
    (b) Ineligible Groups.--The following may not submit a petition 
under this Act:
            (1) Splinter groups, political factions, communities, or 
        groups of any character that separate from the main body of a 
        federally recognized Indian tribe, unless they can establish 
        clearly that they have functioned throughout history until the 
        present as an autonomous tribal entity, even if they have been 
        regarded by some as part of or have been associated in some 
        manner with a federally recognized Indian tribe.
            (2) Indian tribes, organized bands, pueblos, Alaska native 
        villages, or communities that have been lawfully acknowledged 
        to be federally recognized Indian tribes and are receiving 
        services from the Bureau of Indian Affairs.
            (3) Groups that petitioned and were denied Federal 
        acknowledgment under part 83 of title 25, Code of Federal 
        Regulations, including reorganized or reconstituted petitioners 
        previously denied, or splinter groups, spin-offs, or component 
        groups of any type that were once part of petitioners 
        previously denied.
            (4) Groups for which a documented petition has not been 
        filed pursuant to section 9 by the date that is 5 years after 
        the date of the enactment of this Act.
    (c) Groups With Petitions in Progress.--This Act, including the 
criteria in section 7, shall apply to any Indian group whose documented 
petition was submitted and not denied on the date of the enactment of 
this Act.

SEC. 5. FILING A LETTER OF INTENT.

    Any eligible Indian group in the continental United States that 
believes it should be acknowledged as an Indian tribe and that it can 
satisfy the criteria in this Act may submit a letter of intent 
requesting acknowledgment that an Indian group exists as an Indian 
tribe. The letter of intent submitted under this section--
            (1) shall be filed with the Assistant Secretary;
            (2) may be filed in advance of, or at the same time as, a 
        group's documented petition; and
            (3) shall be produced, dated, and signed by the governing 
        body of an Indian group.

SEC. 6. DUTIES OF THE ASSISTANT SECRETARY.

    (a) Guidelines.--The Assistant Secretary shall make available 
guidelines for the preparation of documented petitions. These 
guidelines--
            (1) shall include an explanation of the criteria, a 
        discussion of the types of evidence which may be used to 
        demonstrate particular criteria, and general suggestions and 
        guidelines on how and where to conduct research;
            (2) shall include an example of a documented petition 
        format which shall provide guidance, but not preclude the use 
        of any other format; and
            (3) may be supplemented or updated as necessary.
    (b) Research and Preparation of Petition.--The Assistant 
Secretary--
            (1) shall provide petitioners with suggestions and advice 
        regarding preparation of the documented petition; and
            (2) shall not be responsible for the actual research on 
        behalf of the petitioner.

SEC. 7. CRITERIA FOR FEDERAL ACKNOWLEDGMENT.

    The criteria for consideration for Federal acknowledgment are, at a 
minimum, the following:
            (1) The petitioner has been identified as an American 
        Indian entity on a substantially continuous basis since 1900. 
        Evidence that the group's character as an Indian entity has 
        from time to time been denied shall not be considered to be 
        conclusive evidence that this criterion has not been met. 
        Evidence to be relied upon in determining a group's Indian 
        identity may include one or a combination of the following, as 
        well as other evidence of identification by other than the 
        petitioner itself or its members:
                    (A) Identification as an Indian entity by Federal 
                authorities.
                    (B) Relationships with State governments based on 
                identification of the group as Indian.
                    (C) Dealings with a county, parish, or other local 
                government in a relationship based on the group's 
                Indian identity.
                    (D) Identification as an Indian entity by 
                anthropologists, historians, or other scholars.
                    (E) Identification as an Indian entity in 
                newspapers and books.
                    (F) Identification as an Indian entity in 
                relationships with Indian tribes or with national, 
                regional, or State Indian organizations.
            (2) A predominant portion of the petitioning group 
        comprises a distinct community and has existed as a community 
        from historical times until the present.
                    (A) This criterion may be demonstrated by some 
                combination of the following evidence and other 
                evidence that the petitioner meets the definition of 
                community:
                            (i) Significant rates of marriage within 
                        the group, or, as may be culturally required, 
                        patterned out-marriages with other Indian 
                        populations.
                            (ii) Significant social relationships 
                        connecting individual members.
                            (iii) Significant rates of informal social 
                        interaction which exist broadly among the 
                        members of a group.
                            (iv) A significant degree of shared or 
                        cooperative labor or other economic activity 
                        among the membership.
                            (v) Evidence of strong patterns of 
                        discrimination or other social distinctions by 
                        nonmembers.
                            (vi) Shared sacred or secular ritual 
                        activity encompassing most of the group.
                            (vii) Cultural patterns shared among a 
                        significant portion of the group that are 
                        different from those of the non-Indian 
                        populations with whom it interacts. These 
                        patterns must function as more than a symbolic 
                        identification of the group as Indian. They may 
                        include, but are not limited to, language, 
                        kinship organization, or religious beliefs and 
                        practices.
                            (viii) The persistence of a named, 
                        collective Indian identity continuously over a 
                        period of more than 50 years, notwithstanding 
                        changes in name.
                            (ix) A demonstration of historical 
                        political influence under the criterion in 
                        paragraph (3) shall be evidence for 
                        demonstrating historical community.
                    (B) A petitioner shall be considered to have 
                provided sufficient evidence of community at a given 
                point in time if evidence is provided to demonstrate 
                any one of the following:
                            (i) More than 50 percent of the members 
                        reside in a geographical area exclusively or 
                        almost exclusively composed of members of the 
                        group, and the balance of the group maintains 
                        consistent interaction with some members of the 
                        community.
                            (ii) At least 50 percent of the marriages 
                        in the group are between members of the group.
                            (iii) At least 50 percent of the group 
                        members maintain distinct cultural patterns 
                        such as, but not limited to, language, kinship 
                        organization, or religious beliefs and 
                        practices.
                            (iv) There are distinct community social 
                        institutions encompassing most of the members, 
                        such as kinship organizations, formal or 
                        informal economic cooperation, or religious 
                        organizations.
                            (v) The group has met the criterion in 
                        paragraph (3) using evidence described in 
                        paragraph (3)(B).
            (3) The petitioner has maintained political influence or 
        authority over its members as an autonomous entity from 
        historical times until the present.
                    (A) This criterion may be demonstrated by some 
                combination of the evidence listed below and by other 
                evidence that the petitioner meets the definition of 
                political influence or authority:
                            (i) The group is able to mobilize 
                        significant numbers of members and significant 
                        resources from its members for group purposes.
                            (ii) Most of the membership considers 
                        issues acted upon or actions taken by group 
                        leaders or governing bodies to be of 
                        importance.
                            (iii) There is widespread knowledge, 
                        communication, and involvement in political 
                        processes by most of the group's members.
                            (iv) The group meets the criterion in 
                        paragraph (2) at more than a minimal level.
                            (v) There are internal conflicts which show 
                        controversy over valued group goals, 
                        properties, policies, processes, and decisions.
                    (B) A petitioning group shall be considered to have 
                provided sufficient evidence to demonstrate the 
                exercise of political influence or authority at a given 
                point in time by demonstrating that group leaders and 
                other mechanisms exist or existed which--
                            (i) allocate group resources such as land, 
                        residence rights, and the like on a consistent 
                        basis;
                            (ii) settle disputes between members or 
                        subgroups by mediation or other means on a 
                        regular basis;
                            (iii) exert strong influence on the 
                        behavior of individual members, such as the 
                        establishment or maintenance of norms and the 
                        enforcement of sanctions to direct or control 
                        behavior; and
                            (iv) organize or influence economic 
                        subsistence activities among the members, 
                        including shared or cooperative labor.
                    (C) A group that has met the requirements in 
                paragraph (2)(B) at a given point in time shall be 
                considered to have provided sufficient evidence to meet 
                this criterion at that point in time.
            (4) A copy of the group's present governing document 
        including its membership criteria. In the absence of a written 
        document, the petitioner must provide a statement describing in 
        full its membership criteria and current governing procedures.
            (5) The petitioner's membership consists of individuals who 
        descend from a historical Indian tribe or from historical 
        Indian tribes which combined and functioned as a single 
        autonomous political entity.
                    (A) Some types of evidence that can be used for 
                this purpose include the following:
                            (i) Rolls prepared by the Secretary on a 
                        descendancy basis for purposes of distributing 
                        claims money, providing allotments, or other 
                        purposes.
                            (ii) State, Federal, or other official 
                        records or evidence identifying present members 
                        or ancestors of present members as being 
                        descendants of a historical tribe or tribes 
                        that combined and functioned as a single 
                        autonomous political entity.
                            (iii) Church, school, and other similar 
                        enrollment records identifying present members 
                        or ancestors of present members as being 
                        descendants of a historical tribe or tribes 
                        that combined and functioned as a single 
                        autonomous political entity.
                            (iv) Affidavits of recognition by tribal 
                        elders, leaders, or the tribal governing body 
                        identifying present members or ancestors of 
                        present members as being descendants of a 
                        historical tribe or tribes that combined and 
                        functioned as a single autonomous political 
                        entity.
                            (v) Other records or evidence identifying 
                        present members or ancestors of present members 
                        as being descendants of a historical tribe or 
                        tribes that combined and functioned as a single 
                        autonomous political entity.
                    (B) The petitioner must provide an official 
                membership list, separately certified by the group's 
                governing body, of all known current members of the 
                group. This list must include each member's full name 
                (including maiden name), date of birth, and current 
                residential address. The petitioner must also provide a 
                copy of each available former list of members based on 
                the group's own defined criteria, as well as a 
                statement describing the circumstances surrounding the 
                preparation of the current list and, insofar as 
                possible, the circumstances surrounding the preparation 
                of former lists.
            (6) The membership of the petitioning group is composed 
        principally of persons who are not members of any acknowledged 
        North American Indian tribe. However, under certain conditions 
        a petitioning group may be acknowledged even if its membership 
        is composed principally of persons whose names have appeared on 
        rolls of, or who have been otherwise associated with, an 
        acknowledged Indian tribe. The conditions are that the group 
        must establish that it has functioned throughout history until 
        the present as a separate and autonomous Indian tribal entity, 
        that its members do not maintain a bilateral political 
        relationship with the acknowledged tribe, and that its members 
        have provided written confirmation of their membership in the 
        petitioning group.
            (7) Neither the petitioner nor its members are the subject 
        of an Act of Congress that has expressly terminated or 
        forbidden the Federal relationship.

SEC. 8. PREVIOUS FEDERAL ACKNOWLEDGMENT.

    (a) In General.--Unambiguous previous Federal acknowledgment shall 
be acceptable evidence of the tribal character of a petitioner to the 
date of the last such previous acknowledgment. If a petitioner provides 
substantial evidence of unambiguous Federal acknowledgment, the 
petitioner shall only be required to demonstrate that it meets the 
requirements of section 7 to the extent required by this section. A 
determination of the adequacy of the evidence of previous Federal 
action acknowledging tribal status shall be made during the technical 
assistance review of the documented petition conducted pursuant to 
section 10(b).
    (b) Evidence.--Evidence to demonstrate previous Federal 
acknowledgment includes evidence that the group--
            (1) has had treaty relations with the United States;
            (2) has been denominated a tribe by an Act of Congress or 
        Executive order; and
            (3) has been treated by the Federal Government as having 
        collective rights in tribal lands or funds.

SEC. 9. NOTICE OF RECEIPT OF A PETITION.

    (a) In General.--Not later than 30 days after receiving a letter of 
intent, or a documented petition if a letter of intent has not 
previously been received and noticed, the Assistant Secretary shall 
acknowledge to the sender such receipt in writing. Notice under this 
subsection shall--
            (1) include the name, location, and mailing address of the 
        petitioner and such other information to identify the entity 
        submitting the letter of intent or documented petition and the 
        date it was received;
            (2) serve to announce the opportunity for interested 
        parties and informed parties to submit factual or legal 
        arguments in support of or in opposition to the petitioner's 
        request for acknowledgment or to request to be kept informed of 
        all general actions affecting the petition; and
            (3) indicate where a copy of the letter of intent and the 
        documented petition may be examined.
    (b) Notice to State Governments.--The Assistant Secretary shall 
notify, in writing--
            (1) the Governor and attorney general of the State or 
        States in which a petitioner is located; and
            (2) any recognized tribe and any other petitioner that--
                    (A) appears to have a historical or present 
                relationship with the petitioner; or
                    (B) may otherwise be considered to have a potential 
                interest in the acknowledgment determination.
    (c) Publication.--Not later than 60 days after receiving a letter 
of intent, or a documented petition if a letter of intent has not 
previously been received and noticed, the Assistant Secretary shall 
have the notice required under this section published--
            (1) in the Federal Register; and
            (2) in a major newspaper or newspapers of general 
        circulation in the town or city nearest to the petitioner.

SEC. 10. PROCESSING OF THE DOCUMENTED PETITION.

    (a) Review.--Upon receipt of a documented petition, the Assistant 
Secretary--
            (1) shall cause a review to be conducted to determine the 
        extent to which the petitioner has met the criteria set forth 
        in section 7;
            (2) shall include consideration of the documented petition 
        and the factual statements contained therein;
            (3) may initiate other research for any purpose relative to 
        analyzing the documented petition and obtaining additional 
        information about the petitioner's status; and
            (4) may consider any evidence which may be submitted by 
        interested parties or informed parties.
    (b) Technical Assistance.--
            (1) Prior to review of the documented petition under 
        subsection (a), the Assistant Secretary shall conduct a 
        preliminary review of the petition in order to provide 
        technical assistance to the petitioner.
            (2) The review under paragraph (1) shall be a preliminary 
        review for the purpose of providing the petitioner an 
        opportunity to supplement or revise the documented petition 
        prior to the review under subsection (a). Insofar as possible, 
        technical assistance reviews under this paragraph will be 
        conducted in the order of receipt of documented petitions. 
        However, technical assistance reviews will not have priority 
        over active consideration of documented petitions.
            (3) After the technical assistance review, the Assistant 
        Secretary shall notify the petitioner by letter of any obvious 
        deficiencies or significant omissions apparent in the 
        documented petition and provide the petitioner with an 
        opportunity to withdraw the documented petition for further 
        work or to submit additional information.
            (4) If a petitioner's documented petition claims previous 
        Federal acknowledgment or includes evidence of previous Federal 
        acknowledgment, the technical assistance review shall also 
        include a review to determine whether that evidence is 
        sufficient to meet the requirements of previous Federal 
        acknowledgment.
    (c) Response to Technical Assistance Review.--
            (1) Petitioners may respond in part or in full to the 
        technical assistance review letter or request, in writing, that 
        the Assistant Secretary proceed with the active consideration 
        of the documented petition using the materials already 
        submitted.
            (2) If the petitioner requests that the materials submitted 
        in response to the technical assistance review letter be again 
        reviewed for adequacy, the Assistant Secretary shall provide 
        the additional review.
            (3) If the assertion of previous Federal acknowledgment 
        under section 8 cannot be substantiated during the technical 
        assistance review, the petitioner may respond by providing 
        additional evidence. A petitioner that claims previous Federal 
        acknowledgment and fails to respond to a technical assistance 
        review letter under this subsection, or whose response fails to 
        establish the claim, shall have its documented petition 
        considered on the same basis as documented petitions submitted 
        by groups not claiming previous Federal acknowledgment. 
        Petitioners that fail to demonstrate previous Federal 
        acknowledgment after a review of materials submitted in 
        response to the technical assistance review shall be so 
        notified. Such petitioners may submit additional materials 
        concerning previous acknowledgment during the course of active 
        consideration.
    (d) Consideration of Documented Petitions.--The Assistant Secretary 
shall--
            (1) review documented petitions in the order that they are 
        determined ready for review;
            (2) establish and maintain a numbered register of 
        documented petitions which have been determined ready for 
        active consideration;
            (3) maintain a numbered register of letters of intent or 
        incomplete petitions based on the original date the item was 
        received by the Department of the Interior; and
            (4) use the register of letters of intent or incomplete 
        petitions to determine the order of review by the Assistant 
        Secretary if two or more documented petitions are determined 
        ready for review on the same date.
    (e) Report.--Not later than 1 year after notifying the petitioner 
that review of the documented petition has begun, the Assistant 
Secretary shall--
            (1) submit a report including a summary of the evidence, 
        findings, petition, and supporting documentation, to the 
        Committee on Natural Resources of the House of Representatives 
        and the Committee on Indian Affairs of the Senate;
            (2) notify the petitioner and interested parties that the 
        review is complete and the report required under paragraph (1) 
        has been submitted;
            (3) provide copies of the report to the petitioner and 
        interested parties; and
            (4) provide copies of the report to informed parties and 
        others upon written request.

SEC. 11. CLARIFICATION OF FEDERAL RECOGNITION AUTHORITY.

    (a) Act of Congress Required.--An Indian group may receive Federal 
acknowledgment (or reacknowledgment) as an Indian tribe only by an Act 
of Congress. The Secretary may not grant Federal acknowledgment (or 
reacknowledgment) to any Indian group.
    (b) Previous Acknowledgment.--This Act shall not affect the status 
of any Indian tribe that was federally acknowledged before the date of 
the enactment of this Act.

SEC. 12. FORCE AND EFFECT OF REGULATIONS.

    Part 83 of title 25, Code of Federal Regulations, shall have no 
force or effect, and section 1.2 of title 25, Code of Federal 
Regulations, with respect to any regulation promulgated by the 
Secretary pursuant to this Act, shall have no force or effect.

SEC. 13. TRUST LAND REAFFIRMATION.

    All land taken into trust by the United States under or pursuant to 
the Act of June 18, 1934 (25 U.S.C. 5101 et seq.), before February 24, 
2009, for the benefit of an Indian tribe that was federally recognized 
on the date that the land was taken into trust is hereby reaffirmed as 
trust land.
                                                 Union Calendar No. 741

115th CONGRESS

  2d Session

                               H. R. 3744

                          [Report No. 115-953]

_______________________________________________________________________

                                 A BILL

 To provide that an Indian group may receive Federal acknowledgment as 
              an Indian tribe only by an Act of Congress.

_______________________________________________________________________

                           September 20, 2018

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed