    [House Hearing, 107 Congress]
    [From the U.S. Government Publishing Office]

                       H.R. 992, H.R. 2345 and H.R. 5155

    =======================================================================

                              LEGISLATIVE HEARING

                                   before the

                             COMMITTEE ON RESOURCES
                         U.S. HOUSE OF REPRESENTATIVES

                          ONE HUNDRED SEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               September 25, 2002

                                   __________

                               Serial No. 107-153

                                   __________

               Printed for the use of the Committee on Resources

     Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                     house
                                       or
             Committee address: http://resourcescommittee.house.gov

                                     ______

    81-889              U.S. GOVERNMENT PRINTING OFFICE
                                WASHINGTON : 2003
    ____________________________________________________________________________
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                             COMMITTEE ON RESOURCES

                        JAMES V. HANSEN, Utah, Chairman
           NICK J. RAHALL II, West Virginia, Ranking Democrat Member

    Don Young, Alaska,                   George Miller, California
      Vice Chairman                      Edward J. Markey, Massachusetts
    W.J. ``Billy'' Tauzin, Louisiana     Dale E. Kildee, Michigan
    Jim Saxton, New Jersey               Peter A. DeFazio, Oregon
    Elton Gallegly, California           Eni F.H. Faleomavaega, American
    John J. Duncan, Jr., Tennessee           Samoa
    Joel Hefley, Colorado                Neil Abercrombie, Hawaii
    Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
    Ken Calvert, California              Frank Pallone, Jr., New Jersey
    Scott McInnis, Colorado              Calvin M. Dooley, California
    Richard W. Pombo, California         Robert A. Underwood, Guam
    Barbara Cubin, Wyoming               Adam Smith, Washington
    George Radanovich, California        Donna M. Christensen, Virgin
    Walter B. Jones, Jr., North              Islands
        Carolina                         Ron Kind, Wisconsin
    Mac Thornberry, Texas                Jay Inslee, Washington
    Chris Cannon, Utah                   Grace F. Napolitano, California
    John E. Peterson, Pennsylvania       Tom Udall, New Mexico
    Bob Schaffer, Colorado               Mark Udall, Colorado
    Jim Gibbons, Nevada                  Rush D. Holt, New Jersey
    Mark E. Souder, Indiana              Anibal Acevedo-Vila, Puerto Rico
    Greg Walden, Oregon                  Hilda L. Solis, California
    Michael K. Simpson, Idaho            Brad Carson, Oklahoma
    Thomas G. Tancredo, Colorado         Betty McCollum, Minnesota
    J.D. Hayworth, Arizona               Tim Holden, Pennsylvania
    C.L. ``Butch'' Otter, Idaho
    Tom Osborne, Nebraska
    Jeff Flake, Arizona
    Dennis R. Rehberg, Montana

                          Tim Stewart, Chief of Staff
               Lisa Pittman, Chief Counsel/Deputy Chief of Staff
                    Steven T. Petersen, Deputy Chief Counsel
                        Michael S. Twinchek, Chief Clerk
                     James H. Zoia, Democrat Staff Director
                   Jeffrey P. Petrich, Democrat Chief Counsel
                                     ------

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on September 25, 2002...............................     1

    Statement of Members:
        Davis, Hon. Jo Ann, a Representative in Congress from the
          State of Virginia..........................................     3
            Prepared statement on H.R. 2345..........................     5
        Hansen, Hon. James V., a Representative in Congress from the
          State of Utah, Prepared statement of.......................     2
        Hayworth, Hon. J.D., a Representative in Congress from the
          State of Arizona...........................................     1
        Johnson, Hon. Nancy L., a Representative in Congress from the
          State of Connecticut.......................................    10
            Prepared statement on H.R. 992...........................    12
        Maloney, Hon. James H., a Representative in Congress from the
          State of Connecticut.......................................    23
            Prepared statement on H.R. 992, H.R. 2345 and H.R. 5155..    24
        Moran, Hon. James P., a Representative in Congress from the
          State of Virginia..........................................     6
            Prepared statement on H.R. 2345..........................     9
        Rahall, Hon. Nick J. II, a Representative in Congress from
          the State of West Virginia.................................     2
            Prepared statement on H.R. 2345 and H.R. 5155............     2
        Simmons, Hon. Rob, a Representative in Congress from the
          State of Connecticut.......................................    13
            Prepared statement on H.R. 992...........................    19

    Statement of Witnesses:
        Adams, Kenneth F., Chief, Upper Mattaponi Indian Tribe.......    88
            Prepared statement on H.R. 2345..........................    89
            Response to questions submitted for the record...........   127
        Barton, Reverend Jonathan M., General Minister, Virginia
          Council of Churches........................................    96
            Prepared statement on H.R. 2345..........................    99
            Response to questions submitted for the record...........   128
        Boughton, Hon. Mark D., Mayor, Danbury, Connecticut..........    69
            Prepared statement on H.R. 992...........................    70
        Hardiman, Michael, American Land Rights Association..........    63
            Prepared statement on H.R. 5155..........................    65
        Jackson, Mike, Sr., President, Quechan Indian Nation.........    43
            Prepared statement on H.R. 5155..........................    45
            Response to questions submitted for the record...........   128
        Kearney, Christopher, Deputy Assistant Secretary for Policy
          and International Affairs, U.S. Department of the Interior.    26
            Prepared statement on H.R. 5155..........................    28
        Keel, Jefferson, Vice President, National Congress of
          American Indians...........................................    47
            Prepared statement on H.R. 5155..........................    48
            Resolution submitted for the record......................    53
        Locklear, Arlinda F., Attorney at Law, Patton Boggs, LLP.....    80
            Prepared statement on H.R. 992...........................    81
        McCrum, R. Timothy, Crowell and Moring LLP...................    55
            Prepared statement on H.R. 5155..........................    56
            Response to questions submitted for the record...........   129
        Mitchell, Michele, Native American Rights Fund...............    76
            Prepared statement on H.R. 992...........................    78
            Response to questions submitted for the record...........   130
        Moretti-Langholtz, Danielle, Ph.D., Coordinator, American
          Indian Resource Center.....................................    90
            Prepared statement on H.R. 2345..........................    92
            Response to questions submitted for the record...........   130
        Schiesel, Dolores R., First Selectman, Town of Kent,
          Connecticut................................................    71
            Prepared statement on H.R. 992...........................    73
            Response to questions submitted for the record...........   132
        Smith, Michael R., Director, Office of Tribal Services,
          Bureau of Indian Affairs on H.R. 992.......................    34
            Oral statement on H.R. 2345..............................    29
            Prepared statement on H.R. 992...........................    35
            Prepared statement on H.R. 2345..........................    31

    Additional materials supplied:
        Adkins, Chief Stephen R., Chickahominy Indian Tribe,
          Statement submitted for the record.........................   104
        Bass, Chief Barry, Nansemond Indian Tribe, Statement
          submitted for the record...................................   106
        Bradby, Chief Marvin, Chickahominy Indian, Eastern Division,
          Inc., Statement submitted for the record...................   107
        Branham, Chief Kenneth, Monacan Indian Nation, Statement
          submitted for the record...................................   109
        Chicks, Robert, President, Stockbridge-Munsee Community,
          Statement submitted for the record.........................    20
        Golden Hill Paugusset Tribe, Statement submitted for the
          record by Chief Quiet Hawk.................................   110
        Inter Tribal Council of Arizona, Resolution submitted for the
          record.....................................................    40
        Kelly, Robert L., President, Society for American
          Archaeology, Letter submitted for the record...............   112
        Mullane, Nicholas H. II, First Selectman, Town of North
          Stonington, Statement submitted for the record.............    15
        Murray, J.R., General Manager, Arizona Snowbowl, Letter
          submitted for the record...................................    67
        Ragan, Edward, Department of History, Maxwell School of
          Citizenship and Public Affairs, Statement submitted for the
          record.....................................................   114
        Richardson, Chief G. Anne, Rappahannock Tribe, Statement
          submitted for the record...................................   115
        Rountree, Helen C., Ph.D., Statement submitted for the record   117
        Rowland, Hon. John G., Governor, State of Connecticut, Letter
          submitted for the record...................................    14
        Shulman, Allison, Director, Government Affairs, NACS, Letter
          submitted for the record...................................   121
        Trope, Jack F., Executive Director, Association of American
          Indian Affairs, Statement submitted for the record.........   122

    LEGISLATIVE HEARING ON H.R. 992, TO PROVIDE GRANTS TO LOCAL GOVERNMENTS
    TO ASSIST SUCH LOCAL GOVERNMENTS IN PARTICIPATING IN CERTAIN DECISIONS
       RELATED TO CERTAIN INDIAN GROUPS AND INDIAN TRIBES; H.R. 2345, TO
    EXTEND FEDERAL RECOGNITION TO THE CHICKAHOMINY TRIBE, THE CHICKAHOMINY
        INDIAN TRIBE--EASTERN DIVISION, THE UPPER MATTAPONI TRIBE, THE
    RAPPAHANNOCK TRIBE, INC., THE MONACAN TRIBE, AND THE NANASEMOND TRIBE;
      AND H.R. 5155, TO PROTECT SACRED NATIVE AMERICAN FEDERAL LANDS FROM
                              SIGNIFICANT DAMAGE.

                                  ----------

                         Wednesday, September 25, 2002

                         U.S. House of Representatives

                             Committee on Resources

                                 Washington, DC

                                  ----------

        The committee met, pursuant to notice, at 10:06 a.m., in
    room 1334, Longworth House Office Building, Hon. J.D. Hayworth
    presiding.

       STATEMENT OF THE HON. J.D. HAYWORTH, A REPRESENTATIVE IN
                   CONGRESS FROM THE STATE OF ARIZONA

        Mr. Hayworth. [presiding] The Committee will come to order.
    The Chair would apologize for some erroneous information that
    we received, some information from the floor that obviously was
    in error, so we can go ahead and get started today. We thank
    all of you for joining us here.
        Today, the Committee will receive testimony on three bills
    of importance to Native Americans. The first is H.R. 5155, a
    bill to protect sacred Native American Federal lands from
    significant damage. This legislation was introduced by our
    ranking member, my friend from West Virginia, Congressman Nick
    Rahall.
        The second bill we will hear is H.R. 992, introduced by
    Congresswoman Nancy Johnson of Connecticut. H.R. 992 provides
    grants to local governments to assist them in participating in
    certain decisions related to Indian groups and Indian tribes.
        The final bill before the Committee this morning is H.R.
    2345, introduced by Congressman James Moran of Virginia. Mr.
    Moran's bill extends Federal recognition to six tribes in the
    Old Dominion.
        We appreciate the effort each of our witnesses has made in
    being here today and look forward to your testimony.
        [The prepared statement of Mr. Hansen follows:]

      Statement of the Hon. James V. Hansen, a Representative in Congress
                             from the State of Utah

        Today the Committee will receive testimony on three Indian bills.
        The first is H.R. 5155, a bill to protect sacred Native American
    federal lands from significant damage. This legislation was introduced
    by our Ranking Member, Congressman Nick Rahall. The second bill we will
    hear is H.R. 992, introduced by Congresswoman Nancy Johnson of
    Connecticut. H.R. 992 provides grants to local governments to assist
    them in participating in certain decisions related to Indian groups and
    Indian tribes. The last bill before the Committee this morning is H.R.
    2345, introduced by Congressman James Moran. Mr. Moran's bill extends
    federal recognition to six Virginia tribes.
        We appreciate the effort each of our witnesses has made in being
    here today and look forward to hearing your testimony.
                                     ______

        Mr. Hayworth. I turn to the ranking member for comments,
    mindful of the fact that we will be scriptural this morning in
    terms of the legislation. The last shall be first. We see our
    friends from Virginia at the dais. We turn first to the ranking
    member from West Virginia.

     STATEMENT OF THE HON. NICK J. RAHALL II, A REPRESENTATIVE IN
                CONGRESS FROM THE STATE OF WEST VIRGINIA

        Mr. Rahall. Mr. Chairman, why don't we just allow the two
    colleagues there with us to give their testimony and I ask
    unanimous consent my testimony be made part of the record at
    this point.
        Mr. Hayworth. Without objection, we will do so.
        [The prepared statement of Mr. Rahall follows:]

    Statement of Hon. Nick J. Rahall, a Representative in Congress from the
                             State of West Virginia

        The Chairman. This morning we will hear testimony on HR 5155 which
    I introduced to protect Native American sacred lands located on federal
    property. I believe it is imperative that Congress act to put in place
    a comprehensive process to protect these lands from desecration.
        My legislation would permit Indian tribes to petition the
    Department of Interior to prohibit certain kinds of activities from
    occurring on federal lands if it is shown that the activity would cause
    significant damage to the sacred site.
        Long before my ancestors arrived on these shores, American Indians
    were the first stewards of this great land. They respected the earth,
    water, and air. They understood that you take only what you need and
    leave the rest. They demonstrated you do not desecrate that which is
    sacred.
        Most Americans understand a reverence for the great Sistine Chapel
    or a white-washed building with a steeple and a bell. Even if these
    ``sacred sites'' do not house our particular religion, we feel respect
    for these buildings and what they represent.
        Many of us, however, seem to have difficulty giving that same
    reverence to a mountain, valley, stream, or rock formation. Yet that is
    exactly where we are likely to find Native American sacred sites.
    Across the country many of these sacred lands are in danger of being
    destroyed by oil rigs and mining pits.
        My own beloved West Virginia Appalachian home has deep cultural
    roots, is rich with natural resources, and beautiful landscapes. We are
    true to our belief in our traditions, our distinct culture, our food,
    our music, our medicine, and our spirituality.
        Like Indian country, Appalachia has a bloody history of battling
    powerful forces coming in promising jobs and a better life, only to
    strip us of our most profitable minerals and leave behind even more
    poverty and broken promises.
        Coal may be a blessing - we need this energy source and it provides
    jobs- but it has left a cruel legacy and often a tortured landscape.
        In response to public indignation over desecrated lands throughout
    coal country, Congress enacted the Surface Mining Act of 1977. Today
    the cry of generations of American Indians implores us to put the full
    legal weight and strength of the federal government behind protecting
    Native American sacred lands.
        I also want to take this opportunity to welcome all our witnesses
    here today and in particular my friends and colleagues - Jim Moran and
    Jim Maloney.
        Mr. Moran is here today to bring our attention to the plight of six
    Indian tribes from Virginia. His bill, HR 2345 would extend federal
    recognition to these tribes and I support him in his efforts.
        Jim Moran has been a tireless advocate for the Virginia tribes to
    right the wrongs committed against them. The history of abuse, targeted
    racism, and coordinated efforts to disband the tribes make it all the
    more amazing that they remain intact today.
        The telling of this story is long overdue and I welcome the tribal
    leaders and members with us here today.
        I look forward also to hearing from Mr. Maloney who has come to
    testify in support of his constituents' effort to gain more input into
    the tribal recognition process. Let me say that we are in complete
    agreement that the federal acknowledgment process within the Bureau of
    Indian Affairs is broken.
        While we may not agree on exactly how to fix the problem, I commend
    you for your work on this difficult issue and appreciate your counsel
    on the matter. I look forward to working with you as this process
    unfolds.
        Mr. Chairman, we do indeed have a diverse set of issues before us
    today and look forward to hearing from each of the witnesses.
                                     ______

        Mr. Hayworth. Now to testify on H.R. 2345, our friends and
    colleagues Jim Moran and Jo Ann Davis of Virginia. Gentleman
    and gentlelady, you may open your testimony.
        Mr. Moran. Thank you, Mr. Chairman. We are known for our
    chivalry in Virginia, so I think I should defer to Ms. Davis to
    speak first and then I can speak after her.H.R. 2345

        STATEMENT OF THE HON. JO ANN DAVIS, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF VIRGINIA

        Ms. Davis. Thank you, Jim. Thank you, Mr. Chairman. Mr.
    Chairman, I appreciate the opportunity to testify on behalf of
    H.R. 2345, legislation that would grant Federal recognition to
    Virginia Indian tribes, many of whom are located in my
    district. As a former member of the Virginia Council on
    Indians, this is an issue close to my heart and I commend Mr.
    Moran for taking the initiative to help the Commonwealth's
    Native American population achieve their long overdue
    recognition as tribes.
        As we approach the 400th anniversary of the founding of
    Jamestown in 2007, it is only appropriate that Congress also
    honor those Native Americans that resided in Virginia when the
    settlers came, and we can most effectively accomplish this by
    passing H.R. 2345 into law.
        All of the six tribes seeking Federal recognition have
    obtained State recognition, and I am proud to say that two of
    them are located within my Congressional district. They are the
    Rappahannock and the Upper Mattaponi, and many of the
    Chickahominy live in my district, as well. They seek this
    designation in order to gain the same rights and recognition
    that have already been obtained by 558 tribes in 35 States.
        Some may question why, if the Virginia Indians are indeed
    historical tribes, that they have only recently attempted to
    seek Federal recognition. The answer lies in the turmoil of the
    early 20th century that found Virginia Indians working to
    merely preserve their identity. In what will forever be a black
    mark on Virginia's history, the Registrar of the Bureau of
    Vital Statistics, Dr. Walter Plecker, despite the overwhelming
    evidence and the historical accounts, believed that there were
    no real native-born Indians and worked to remove the
    designation from birth records and other vital records.
        Plecker was a white supremacist, and one of his tools of
    racial purity was to label all non-whites as colored and to
    block any interracial marriages with Caucasians, enforcing a
    1924 State law. Indian midwives were threatened with
    imprisonment for putting the term ``Indian'' on birth records,
    and many Indians suppressed their heritage rather than risk
    retaliation or controversy with State government. Generations
    of Virginia Indians suffered through this State-sponsored
    discrimination.
        But Plecker did not destroy the heritage or the spirit of
    these Native Americans, and in fact, the adversity that they
    faced gave them a stronger bond and increased their resolve to
    preserve their identity as a people. In spite of this effort to
    deny their existence as a distinct race of people, substantial,
    indeed, overwhelming proof of their lineage endures. The
    Virginia Indians have the support of anthropologists and
    historians that have studied and documented their history in
    Virginia.
        In the 1980's, Virginia Indians succeeded in gaining State
    recognition, and in 1999, the Virginia General Assembly passed
    a resolution in support of Federal recognition, passing
    unanimously in the Senate and by a vote of 89 to two in the
    House.
        I think that it is important that I broach the issue of
    Indian gaming in the course of my testimony. Personally, I
    believe that gambling has reached epidemic levels in our
    country and continues to exact a heavy toll of economic
    destruction and despair in thousands of American homes. And if
    I believed that this Federal recognition bill was about gaming,
    rest assured that I would not be cosponsoring the legislation
    or testifying on behalf of it. It is indeed regrettable that
    the gaming issue has tainted this effort.
        According to State law, the Virginia Indians currently
    could operate bingo games, but they do not. I have also been
    told casino gambling interests have offered to finance their
    Federal recognition efforts, but they have rightly refused such
    assistance. Several of the Virginia tribal leaders are personal
    friends of mine, and I know they do not seek recognition in
    order to begin gambling enterprises. In fact, many of the
    Indians are devout Christians and have strong moral objections
    against gambling. If future generations of Virginia Indians
    would seek Class III gaming operations, they would, of course,
    be subject to the constraints of IGRA, which would require
    approval by the Governor and a negotiated compact.
        Virginia Indians seek Federal recognition to obtain the
    rights and statutory benefits that accompany the designation,
    but most of all, to validate what is true, that these tribes
    are indigenous to the Commonwealth of Virginia and have resided
    here for hundreds of years and should be afforded the respect
    and honor that has been granted to hundreds of other similarly
    situated tribes.
        Mr. Chairman, the administrative route for obtaining tribal
    recognition is broken and it needs to be fixed. Recognition
    obtained through the Bureau of Indian Affairs can take 20 years
    or longer to achieve. I hope Congress acts to reform this
    system, but in the interim, it is unfair to deny Virginia
    Native Americans the Federal recognition that they are due. And
    again, I believe it is symbolically important that we get this
    accomplished before the quadricentennial celebration of
    Jamestown in 2007.
        I appreciate you holding this hearing today and I urge you
    to take the next step by scheduling consideration of H.R. 2345
    by the House Resources Committee in the immediate future. I
    thank you, Mr. Chairman, and I thank my colleague for allowing
    me to go first.
        Mr. Hayworth. I thank the gentlelady for her testimony.
        [The prepared statement of Ms. Davis follows:]

     Statement of Hon. Jo Ann Davis, a Representative in Congress from the
                               State of Virginia

        Mr. Chairman, I appreciate the opportunity to testify on behalf of
    H.R 2345, legislation that would grant federal recognition to Virginia
    Indian tribes, many of whom are located in my district. As a former
    member of the Virginia Council on the Indians, this is an issue close
    to my heart, and I commend Mr. Moran for taking the initiative to help
    the Commonwealth's Native American population achieve their long
    overdue recognition as tribes. As we approach the four hundredth
    anniversary of the founding of Jamestown in 2007, it is only
    appropriate that Congress also honor those Native Americans that
    resided in Virginia when the settlers came, and we can most effectively
    accomplish this by passing H.R. 2345 into law.
        All of the six tribes seeking federal recognition have obtained
    state recognition, and I am proud to say that three of them are located
    within my congressional district. They are the Rappahannock, the
    Mattaponi, and the Upper Mattaponi. They seek this designation in order
    to gain the same rights and recognition that have already been obtained
    by 558 tribes in 35 states.
        Some may question why, if the Virginia Indians are indeed
    historical tribes, they have only recently attempted to seek federal
    recognition. The answer lies in the turmoil of the early twentieth
    century that found Virginia Indians working to merely preserve their
    identity. In what will forever be a black mark on Virginia's history,
    the registrar of the Bureau of Vital Statistics, Dr. Walter Plecker,
    despite the overwhelming evidence and the historical accounts, believed
    there were no real native-born Indians and worked to remove the
    designation from birth records and other vital records.
        Plecker was a white supremacist, and one of his tools of racial
    purity was to label all non-whites as ``colored'' and to block any
    interracial marriages with Caucasians, enforcing a 1924 state law.
    Indian midwives were threatened with imprisonment for putting the term
    ``Indian'' on birth records, and many Indians suppressed their heritage
    rather than risk retaliation or controversy with state government.
    Generations of Virginia Indians suffered through this state-sponsored
    discrimination.
        But Plecker did not destroy the heritage or spirit of these native
    Virginians, and in fact the adversity they faced gave them a stronger
    bond and increased their resolve to preserve their identity as a
    people. In spite of this effort to deny their existence as a distinct
    race of people, substantial, indeed, overwhelming proof of their
    lineage endures. The Virginia Indians have the support of
    anthropologists and historians testifying today that have studied and
    documented their history in Virginia.
        In the 1980s, Virginia Indians succeeded in gaining state
    recognition, and in 1999 the Virginia General Assembly passed a
    resolution in support of federal recognition, passing unanimously in
    the Senate and by a vote of 89-2 in the House.
        I think it is important that I broach the issue of Indian gaming in
    the course of my testimony. Personally, I believe that gambling has
    reached epidemic levels in our country, and continues to exact a heavy
    toll of economic destruction and despair in thousands of American
    homes. And if I believed that this federal recognition bill was about
    gaming, rest assured I would not be cosponsoring the legislation or
    testifying on behalf of it. It is indeed regrettable that the gaming
    issue has tainted this effort.
        According to state law, the Virginia Indians currently could
    operate bingo games, but they do not. I have also been told casino
    gambling interests have offered to finance their federal recognition
    efforts, but they have rightly refused such assistance. Several of the
    Virginia tribal leaders are personal friends of mine, and I know they
    do not seek recognition in order to begin gambling enterprises. In
    fact, many of the Indians are devout Christians, and have strong moral
    objections against gambling.
        If future generations of Virginia Indians would seek class III
    gaming operations, they would of course be subject to the constraints
    of IGRA, which would require approval by the Governor, and a negotiated
    compact. Moreover, H.R. 2345 includes a provision closing any possible
    loophole that would allow the Virginia tribes to engage in class III
    gaming without the consent of the Governor.
        Virginia Indians seek federal recognition to obtain the rights and
    statutory benefits that accompany the designation, but most of all to
    validate what is true'' that these tribes are indigenous to the
    Commonwealth of Virginia and have resided here for hundreds of years,
    and should be afforded the respect and honor that has been granted to
    hundreds of other similarly situated tribes.
        Mr. Chairman, the administrative route for obtaining tribal
    recognition is broken, and needs to be fixed. Recognition obtained
    through the Bureau of Indian Affairs can take 20 years or longer to
    achieve. I hope Congress acts to reform this system, but in the
    interim, it is unfair to deny Virginia Native Americans the federal
    recognition they are due. And, again, I believe it is symbolically
    important that we get this accomplished before the quadricentennial
    celebration of Jamestown in 2007.
        I appreciate you holding this hearing today and urge you to take
    the next step by scheduling consideration of H.R. 2345 by the House
    Resources Committee in the immediate future.
                                     ______

        Mr. Hayworth. I thank the gentleman from Virginia for his
    chivalry and now we are prepared to hear from you, Mr.
    Moran.H.R. 2345

       STATEMENT OF THE HON. JAMES P. MORAN, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF VIRGINIA

        Mr. Moran. Thank you very much, Chairman Hayworth and
    Ranking Member Rahall, Mr. Kildee, Mr. Otter, Mr. Flake. We
    very much appreciate your willingness to hold this hearing and
    provide us with an opportunity to tell the story of six of
    Virginia's Native American tribes. I thank Ms. Davis for all of
    her hard work on this.
        Both of us have a story which we know is compelling, but we
    want more than your sympathetic ear on this. We need for you to
    grant these tribes Federal recognition. So we ask that the
    Federal Government, starting with this distinguished Resources
    Committee, recognize the Chickahominy, the Eastern
    Chickahominy, the Monacan, the Nansemond, the Rappahannock, and
    the Upper Mattaponi Tribes. These tribes exist. They have
    existed on a substantially continuous basis since before the
    first Western European settlers stepped foot in America, and
    they are here with us today.
        We know there is a great deal of resistance from Congress
    to grant any Native American tribe Federal recognition, and we
    can appreciate how the issue of gambling and its economic and
    moral dimensions have influenced many members' perspectives on
    tribal recognition issues. But we know that the circumstances
    and the situation that these tribes have endured and the legacy
    that they still confront today outweigh these concerns.
    Congress has the power to recognize these tribes. It has
    exercised this power in the past, and it should exercise this
    power again with respect to these six tribes.
        Like much of our early history as a nation, the Virginia
    tribes were subdued. They were pushed off their land, and up
    through much of the 20th century, they were denied full rights
    as U.S. citizens. But despite their devastating loss of land
    and population, the Virginia Indians successfully overcame
    years of racial discrimination that denied them equal
    opportunities to pursue their education and preserve their
    cultural identity. That story of survival does not encompass
    decades, it spans centuries of racial hostility and coercive
    State and State-sanctioned actions.
        Unlike most tribes that resisted encroachment and obtained
    Federal recognition when they signed peace treaties with the
    Federal Government, Virginia's six tribes signed their peace
    treaties with the kings of England. Most notable among these
    was the Treaty of 1677 between these tribes and Charles II,
    which is still valid and which the Supreme Court recognized for
    its validity.
        In more recent times, this racial hostility culminated with
    the enactment and brutal enforcement of Virginia's Racial
    Integrity Act of 1924. That was the title of the Act, Racial
    Integrity Act of 1924, that Ms. Davis has alluded to. This Act
    empowered zealots like Walter Plecker, who was a State
    official, to destroy records and reclassify in Orwellian
    fashion all non-whites as colored. To call yourself a Native
    American in Virginia was to risk a jail sentence of up to 1
    year. They did not use the term Native American, they used the
    term Indian then, but if you used the term Indian, you would be
    put in jail for a year.
        Imagine a married couple, unable to obtain the release of
    their newborn child from the hospital until they changed their
    child's ethnicity on the medical record to read colored, not
    Indian. Or imagine being told that you have no right to reclaim
    and bury your ancestors once you learn they were being stored
    in a museum vault; or, imagine the Indian mission school that
    your grandparents and your parents attended receiving Federal
    recognition as a historic landmark, but yet you and your
    daughters and sons are not recognized by the Federal Government
    as Native Americans. Or imagine your frustration upon finding
    your legal efforts to appeal a local water issue in Federal
    Court are frustrated because you are told your suit has no
    standing since your tribe does not exist.
        Mr. Chairman, these are just a few of the examples of the
    indignities visited upon the members of the six tribes that are
    present here today. I mention these because they are a part of
    a shameful legacy experienced in our lifetime. Some of them are
    still visited upon the members of the tribe today.
        More to the point, this legacy has also complicated their
    tribe's quest for Federal recognition, making it difficult to
    furnish corroborating State and official documents. It was not
    until 1997 when then-Governor George Allen, now Senator Allen,
    signed legislation directing State agencies to correct State
    records that had been deliberately altered to list Virginia
    Indians on official State documents as colored. And as you
    know, they were then denied employment and denied any
    educational opportunities as a result.
        In recent years, the Virginia tribes have filed their
    petitions with the Bureau of Indian Affairs. They have no deep
    pockets and they lack the financial means to rigorously pursue
    the lengthy and resource-intensive petition process. I know you
    are all very much aware of that process. Even more
    discouraging, they have been told by Bureau of Indian Affairs
    officials not to expect any action on their petitions within
    their lifetime. The GAO study this Committee reviewed earlier
    this year confirms this backlog.
        Asking them to wait another 10 years or more is not what
    these tribes deserve. Many of the members are elderly and they
    are very much in need of medical care and assistance. They lack
    health insurance. They have no pensions because past
    discrimination denied them opportunities for education and
    employment. Federal recognition would entitle them to receive
    some health and housing assistance.
        It would be one of the greatest of ironies and a further
    injustice to these tribes if in our efforts to recognize the
    400th anniversary, which we are doing this year, we are
    recognizing the 400th anniversary of the first permanent
    European settlement in North America at Jamestown, if we fail
    to recognize the very direct descendants of those Native
    Americans who met those settlers. That is the irony that we are
    confronted with this year.
        Before closing, let me touch upon one issue, the issue of
    gambling that may be at the forefront of many members' minds.
    In response to such concerns, we have worked, Jo Ann and I have
    worked with Frank Wolf and others to close any potential
    loopholes in this legislation so that we can ensure that the
    Commonwealth of Virginia can prevent casino-type gaming by the
    tribes. Having maintained a close relationship with many of the
    members of these tribes, I can tell you, I absolutely know
    without a doubt they are absolutely sincere in their claims
    that gaming is wholly inconsistent with their values.
        The only people that would educate them were Christian
    missionaries. They became very devout Christians as a result.
    They denounced gambling as a sin. They will not participate in
    it. They live in rural areas with very conservative family and
    religious beliefs. All six tribes have established nonprofit
    organizations, so they are permitted under Virginia law to
    operate bingo games today.
        They can go out today and make money that would
    substantially improve their lives, and they have tremendous
    financial needs. But they believe that bingo revenues are wrong
    and they refuse to engage in bingo gambling. Even though a
    number of other organizations in the area are taking in bingo
    revenue and they are eligible to, they refuse to do it because
    they believe that it is wrong, and that is one of the ironies
    of their being denied on that basis, because I know that they
    have no interest in engaging in gambling. They want recognition
    and their case is so compelling that they have been denied that
    rightful recognition for too long.
        Mr. Chairman, the real issue for the tribes is one of
    acknowledgment and the long-overdue need for the Federal
    Government to affirm their identity as Native Americans, and
    that is why we so strongly urge you to proceed on this
    proposal.
        We thank you for arranging the hearing and for your
    indulgence on this issue and for your attention to this matter.
    Thank you, Mr. Chairman.
        Mr. Hayworth. I thank our colleagues from Virginia for
    their testimony and we look forward to hearing more on H.R.
    2345 later in our hearing this morning.
        [The prepared statement of Mr. Moran follows:]

    Statement of Hon. James P. Moran, a Representative in Congress form the
                               State of Virginia

        Good morning and thank you, Mr. Chairman.
        I appreciate your willingness to hold this hearing and providing us
    with an opportunity to help tell the story of six of Virginia's Native
    American tribes. The story of these tribes is compelling, but I ask for
    more than your sympathetic ear. I also ask for action on legislation
    that I, along with my colleague Jo Ann Davis, have introduced to grant
    these tribes federal recognition.
        I ask that the federal government, starting with this distinguished
    Resources Committee, recognize the Chickahominy, the Eastern
    Chickahominy, the Monacan, the Nansemod, the Rappahannock and the Upper
    Mattaponi tribes. These tribes exist, they have existed on a
    substantially continuous basis since before the first western European
    settlers stepped foot in America; and, they are here with us today.
        I know there is great resistance from Congress to grant any Native
    American tribe federal recognition. And, I can appreciate how the issue
    of gambling and its economic and moral dimensions have influenced many
    Members' perspectives on tribal recognition issues.
        I think the circumstances and situation these tribes have endured
    and the legacy they still confront today, however, outweigh these
    concerns. Congress has the power to recognize these tribes. It has
    exercised this power in the past, and it should exercise this power
    again with respect to these six tribes.
        Like much of our early history as a nation, the Virginia tribes
    were subdued, pushed off their land, and, up through much of the 20th
    Century, denied full rights as U.S. citizens. Despite their devastating
    loss of land and population, the Virginia Indians successfully overcame
    years of racial discrimination that denied them equal opportunities to
    pursue their education and preserve their cultural identity. That story
    of survival doesn't encompass decades, it spans centuries of racial
    hostility and coercive state and state-sanctioned actions. Unlike most
    tribes that resisted encroachment and obtained federal recognition when
    they signed peace treaties with the federal government, Virginia's six
    tribes signed their peace treaties with the Kings of England. Most
    notable among these was the Treaty of 1677 between these tribes and
    Charles the II.
        In more recent times, this racial hostility culminated with the
    enactment and brutal enforcement of Virginia's Racial Integrity Act of
    1924. This act empowered zealots, like Walter Plecker, a state
    official, to destroy records and reclassify in Orwellian fashion all
    non-whites as ``colored.'' To call yourself a ``Native American'' in
    Virginia was to risk a jail sentence of up to one year.
        Imagine a married couple unable to obtain the release of their
    newborn child from the hospital until they change their child's
    ethnicity on the medical record to read ``colored,'' not ``Native
    American.
        Or, imagine being told that you have no right to reclaim and bury
    your ancestors once you learn they were being stored in a museum vault.
        Or, imagine the Indian mission school that your grandparents and
    your parents attended receiving federal recognition as a historic
    landmark, but yet you and your daughters and sons not recognized by the
    federal government as Native Americans.
        Or, imagine your frustration upon finding your legal efforts to
    appeal a local water issue in federal court because you're told your
    suit has no standing since your tribe doesn't exist.
        Mr. Chairman, these are just a few of the examples of the
    indignities visited upon the members of the six tribes present here
    today.
        I mention these indignities because the are part of a shameful
    legacy experienced in our lifetime. Some are indignities that are still
    visited upon members of the tribes today.
        More to the point, this legacy has also complicated these tribes'
    quest for federal recognition, making it difficult to furnish
    corroborating state and official documents. It wasn't until 1997 when
    then Governor George Allen signed legislation directing state agencies
    to correct state records that had deliberately been altered to list
    Virginia Indians on official state documents as ``colored.''
        In recent years, the Virginia tribes have filed their petitions
    with the Bureau of Indian Affairs. They have no deep pockets and lack
    the financial means to rigorously pursue the lengthy and resource
    intensive petition process. Even more discouraging, they have been told
    by bureau officials not to expect to see any action on their petitions
    within their lifetime. The GAO study this committee reviewed earlier
    this year confirms this backlog.
        Asking them to wait another 10 years or more is not what these
    tribes deserve. Many of the members are elderly and in need of medical
    care and assistance. They lack health insurance and pensions because
    past discrimination denied them opportunities for an advanced education
    and a steady job. Federal recognition would entitle them to receive
    health and housing assistance.
        It would be one of the greatest of ironies and a further injustice
    to these tribes if in our efforts to recognize the 400th anniversary of
    the first permanent European settlement in North America, we had failed
    to recognize the direct descendants of the Native Americans who met
    these settlers.
        Before closing, let me touch upon one issue, the issue of gambling,
    that may be at the forefront of some Members' concerns. In response to
    such concerns, I have worked with Rep. Jo Ann Davis, Frank Wolf and
    others to close any potential legal loopholes in this legislation to
    ensure that the Commonwealth of Virginia could prevent casino-type
    gaming by the tribes. Having maintained a close relationship with many
    of the members of these tribes, I believe they are sincere in their
    claims that gambling is inconsistent with their values. Many of the
    tribes live in rural areas with conservative family and religious
    beliefs. All six tribes have established non-profit organizations and
    are permitted under Virginia law to operate bingo games. Despite
    compelling financial needs that bingo revenues could help address, none
    of the tribes are engaged in bingo gambling.
        Mr. Chairman, the real issue for the tribes is one of
    acknowledgment and the long overdue need for the federal government to
    affirm their identity as Native Americans. I urge you to proceed with
    action on this proposal.
        Thank you again for arranging this hearing and for your indulgence
    on this issue.
                                     ______

        Mr. Hayworth. If there are no questions for our colleagues,
    again, we thank you and you are dismissed.
        Mr. Moran. Thank you, Mr. Chairman.
        Mr. Hayworth. Returning to H.R. 992, we have a trio from
    Connecticut who join us. Our colleagues Nancy Johnson, Rob
    Simmons, and Jim Maloney are here to speak on H.R. 992. To our
    colleagues from Connecticut, we extend the same courtesies as
    we have with our friends from Virginia. We welcome you to the
    Resources Committee and welcome your testimony, and we will
    begin with Mrs. Johnson.

       STATEMENT OF THE HON. NANCY JOHNSON, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF CONNECTICUT

        Mrs. Johnson. Thank you very much, Mr. Chairman. I thank
    the Committee for holding a hearing on this bill and hope that
    we will be able to move it forward in these waning days of this
    session.
        I would also like to thank my colleague, Rob Simmons, for
    testifying in support of my bill and for incorporating my
    legislation in his broader bill of reforming the tribal
    recognition process, a bill that is badly needed, and to my
    colleague, Jim Maloney, for supporting us today.
        Also here to testify are Mark Boughton, the Mayor of
    Danbury, Connecticut, who faces the possibility of having a
    casino built in his city, and Dolores Schiesel, the First
    Selectwoman of Kent, Connecticut, who faces losing a large
    portion of her town's tax base should the Schaghticoke Tribe,
    which is based in Kent, receive Federal recognition. I thank
    them for their leadership on this issue and for joining me
    before the Committee today.
        Across Connecticut and the nation, tribal recognition and
    land claims cases are undermining the social and economic
    fabric of our towns and particularly of our small towns. With
    every tribe that petitions the Federal Government, questions
    arise regarding the tribe's lineage and land claims. Towns, who
    face a possible loss of their tax base and a multitude of
    environmental and congestion issues due to casinos, inevitably
    are concerned with whether a tribe's claims are legitimate. In
    order to properly analyze a tribe's claims, towns are having to
    spend hundreds of thousands of dollars, stretching their
    resources to the limit. On the other hand, those seeking
    recognition are often being bankrolled by casino interests.
        The town of Kent in my district is a perfect example of a
    small town embroiled in tribal recognition and land claims
    issues. The Schaghticoke Tribe, which currently has a 400-acre
    reservation in Kent, filed a 15,000-page lawsuit claiming
    nearly 2,000 acres in Kent and seeking to bypass the tribal
    acknowledgment process by having a judge decide the recognition
    question. In response to the legal claim, the small rural town
    of 2,858 people voted in October to spend $200,000 to finance
    their defense.
        This is an extreme financial commitment for such a small
    town, and I firmly believe that Kent and other cities and towns
    should be spending their money on infrastructure and education
    for their children, not lawyers and genealogists. That is why I
    have introduced my legislation, H.R. 992, to help offset just
    some of the costs incurred by towns as part of the tribal
    recognition and land claims cases. Towns should be able to
    investigate and respond to tribal claims without undermining
    their financial stability.
        Often, the impact of tribal acknowledgment and land claims
    cases goes beyond the town's legal costs. When a tribe receives
    official recognition, it becomes, in effect, a sovereign
    nation. As sovereign nations, tribes are not required to pay
    property taxes on land they hold, and this means that if a
    tribe adds land to its reservation that was previously
    privately held within the town, the town loses that portion of
    its tax base. Depending on the size of the land claims, the
    cost to towns can be enormous.
        With my legislation, towns will be able to cover their
    expenses incurred in land claims and tribal acknowledgment
    cases. With $8 million allocated annually under the bill, towns
    eligible could receive up to $500,000. It would have a
    significant impact on residents of Connecticut and the rest of
    the nation. It would ensure that towns have at least the
    initial resources needed to deal with tribal issues.
        When it comes to tribal recognition and land claims, towns
    need to be able to fully participate in the process. These
    grants would allow full participation and ensure that the
    Bureau of Indian Affairs or the courts see all sides of the
    case before them. It is crucial to ensure that we get it right
    the first time, because when it comes to land and recognition,
    there is no going back.
        My legislation is not designed to stop tribes from
    receiving fair treatment under the tribal recognition process,
    although I strongly support the reform of that process embodied
    in Congressman Simmons' bill. But it is designed to assure that
    small towns with very limited resources can hire genealogists,
    can get the legal help that they must compete with in the
    information world as this process moves forward in Washington
    or in the courts. When you are up against sort of unlimited
    open pockets for these resources, as some of these small towns
    are, indeed, the burden is very great and the truth will not
    drive the process if we do not provide some resources to the
    small towns for their assistance.
        I thank the Committee for allowing me to testify.
        Mr. Hayworth. And we thank you, Mrs. Johnson.
        [The prepared statement of Mrs. Johnson follows:]

     Statement of Hon. Nancy L. Johnson, a Representative in Congress from
                            the State of Connecticut

        Mr. Chairman, members of the Committee, thank you for holding this
    hearing today, and for your interest in this issue.
        I would also like to thank my colleague Congressman Rob Simmons for
    testifying in support of my bill and for incorporating my legislation
    into his broader bill reforming the tribal recognition process. Also
    here to testify today are Mark Boughton, the mayor of Danbury,
    Connecticut, who faces the possibility of having a casino built in his
    city, and Dolores Schiesel, the first selectwoman of Kent, Connecticut,
    who faces losing a large portion of her town's tax base should the
    Schaghticoke tribe, which is based in Kent, receive federal
    recognition. I thank them for their leadership on this issue and for
    joining me before the committee today.
        Across Connecticut, and the nation, tribal recognition and land
    claims cases are undermining the economic stability of our towns. With
    every tribe that petitions the federal government, questions arise
    regarding the tribe's lineage and land claims. Towns, who face a
    possible loss of their tax base and a multitude of environmental and
    congestion issues due to casinos, inevitably are concerned with whether
    a tribe's claims are legitimate. In order to properly analyze a tribe's
    claims, towns are having to spend hundreds of thousands of dollars,
    stretching their resources to the limit. On the other hand, those
    seeking recognition are often being bankrolled by casino interests.
        The town of Kent in my district is the perfect example of a small
    town embroiled in tribal recognition and land claim issues. The
    Schaghticoke tribe, which currently has a 400-acre reservation in Kent,
    filed a lawsuit claiming nearly 2000 acres in Kent and seeking to
    bypass the tribal acknowledgment process by having a judge decide the
    recognition question. In response to
        the legal claim, the small, rural town of 2,858 people voted in
    October to spend $200,000 to finance their defense.
        This is an extreme financial commitment for such a small town. I
    firmly believe Kent, and any other city or town, should be spending
    their money on infrastructure, and the education of their children, not
    lawyers and genealogists. That is why I have introduced my legislation,
    H.R. 992, to help offset just some of the costs incurred by towns as
    part of tribal recognition and land claims cases. Towns should be able
    to investigate and respond to tribal claims without undermining their
    financial stability.
        Often the impact of tribal acknowledgment and land claims cases
    goes beyond the town's legal costs. When a tribe receives official
    recognition, it becomes, in effect, a sovereign nation. As sovereign
    nations, tribes are not required to pay property taxes on land they
    hold. This means that if a tribe adds land to its reservation that was
    previously privately held within the town, the town loses that portion
    of its tax base. Depending on the size of the land claims, the cost to
    towns could be enormous.
        With my legislation towns will be able to cover their expenses
    incurred in land claims or the tribal acknowledgment cases. With $8
    million allocated annually under the bill, and towns eligible to
    receive up to $500,000, it would have a significant impact on residents
    of Connecticut and the rest of the nation. It would ensure that towns
    have at least the initial resources needed for dealing with these
    tribal issues.
        When it comes to tribal recognition and land claims, towns need to
    be able to fully participate in the process. These grants would allow
    full participation and ensure that the Bureau of Indian Affairs or the
    courts see all sides of the cases before them. It is crucial to ensure
    that we get it right the first time because, when it comes to land and
    recognition, there is no going back.
        My legislation is not designed to stop tribes from receiving fair
    treatment under the tribal recognition process. Tribes with proper
    ancestry or legitimate land claims would not be affected, but towns
    would have the resources to fully participate in the process. I believe
    that towns and tribes need to be on equal footing.
        Thank you for your consideration of this important legislation.
                                     ______

        Mr. Hayworth. Now, Mr. Simmons, your testimony, please,
    sir.

       STATEMENT OF THE HON. ROBERT SIMMONS, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF CONNECTICUT

        Mr. Simmons. Thank you, Mr. Chairman. I think that that
    vote that you were talking about may have just appeared on the
    board, and that being the case, I would ask that my complete
    statement be inserted into the record, but I would like to
    summarize that statement.
        Mr. Hayworth. Without objection, it is so ordered. Please
    proceed.
        Mr. Simmons. Thank you, Mr. Chairman. Congresswoman Johnson
    has been a great leader on this issue and has explained in some
    detail why this is important, and I just will simply bring to
    the attention of the members of the Subcommittee that
    Connecticut is a State with 169 small towns, 169 little
    municipalities, and no county government. There is no county
    government in Connecticut, which makes it very different from
    other States around the country. If a tribe seeking recognition
    originates from one of these 169 small towns, it is incumbent
    upon that municipality, that town, to respond and participate
    in the process.
        You have heard about Kent, which has a couple of thousand
    people. Throughout Eastern Connecticut, where nine different
    groups are petitioning, two have already been recognized and a
    third recognized with administrative appeals pending. These
    little towns do not have the resources to participate in this
    process, and that is what her bill does and that is why her
    bill is so important.
        This is an issue that is narrowly drawn. All this bill does
    is provide grants to those local governments to assist them in
    participating in this very expensive and very complicated
    Federal process, essentially funding an unfunded Federal
    mandate. It is an issue that is supported by the Governor of
    the State of Connecticut, and I ask that his letter be inserted
    into the record.
        [The letter follows:]

        [GRAPHIC] [TIFF OMITTED] T1889.009

        Mr. Simmons. It is supported by many local municipal
    leaders, one of of which is Nick Mullane, who is the First
    Selectman in North Stonington. He has been working on these
    issues since the early 1990's with no assistance from the
    Federal Government, and I would ask that his statement also be
    inserted into the record.
        [The prepared statement of Mr. Mullane follows:]

     Statement of Nicholas H. Mullane, II, First Selectman, Town of North
                            Stonington, Connecticut

    Introduction
        Mr. Chairman and Members of the Committee, I am pleased to submit
    this testimony on S.1392 & S.1393, bills to reform the Federal tribal
    acknowledgment process. I am Nicholas Mullane, First Selectman of North
    Stonington, Connecticut. I testify today also on behalf of Wesley
    Johnson, Mayor of Ledyard, and Robert Congdon, First Selectman of
    Preston. These gentlemen are with me today.
        As the First Selectman of North Stonington, a small town in
    Connecticut with a population of less than 5,000, I have experienced
    first-hand the problems (See Attachment 1) presented by Federal Indian
    policy for local governments and communities. Although these problems
    arise under various issues, including trust land acquisition and Indian
    gaming, this testimony addresses only the tribal acknowledgment
    process.
        Reform of the federal acknowledgment process (See Attachment 2)
    must occur if valid decisions are to be made. Acknowledgment decisions
    that are not the result of an objective and respected process will not
    have the credibility required for tribal and community interests to
    interact without conflict. The legislation that is being reviewed today
    is a start, and I want to commend Senators Dodd and Lieberman for
    calling for these reforms. I also want to thank other elected officials
    in Connecticut who have fought for reforms to this process, including
    Congressman Simmons, Congressman Shays, Congresswoman Johnson, and our
    Attorney General, Richard Blumenthal. In particular, we want to commend
    Attorney General Blumenthal for his longstanding defense of the
    interests of the State in these matters. Recently, Governor Rowland has
    joined in expressing strong concern over tribal acknowledgment and the
    spread of Indian gaming, and we commend him for this action. As the
    bipartisan nature of this political response demonstrates, the problems
    inherent in tribal acknowledgment and Indian gaming are serious and
    transcend political interests. Problems of this magnitude need to be
    addressed by Congress, and I ask for your Committee to support the
    efforts of our elected leaders to bring fairness, objectivity, and
    balance to the acknowledgment process.
    Acknowledgment and Indian Gaming
        Federal tribal acknowledgment, in too many cases, has become merely
    a front for wealthy financial backers (See Attachment 3) motivated by
    the desire to build massive casino resorts or undertake other
    development in a way that would not be possible under State and local
    law. Our Town is dealing with precisely this problem. Both of the
    petitioning groups in North Stonington--the Eastern Pequots and the
    Paucatuck Eastern Pequots--have backers who are interested in resort
    gaming. One of the backers is Donald Trump (See Attachment 4). These
    financiers have invested millions, actually tens of millions, of
    dollars in the effort to get these groups acknowledged so casinos can
    be opened, and they will stop at nothing to succeed (See Attachment 5).
        The State of Connecticut has become fair game for Indian casinos,
    and the acknowledgment process has become the vehicle to advance this
    goal. For example, three other tribal groups (Golden Hill Paugussett,
    Nipmuc, Schaghticoke) with big financial backers have their eyes on
    Connecticut. Their petitions are under active acknowledgment review. As
    many as ten other groups are in line. While it is unfortunate that the
    acknowledgment process and the understandable desire of these groups to
    achieve acknowledgment for personal and cultural reasons has been
    distorted by the pursuit of gaming wealth by non-Indian financiers, the
    reality remains that tribal recognition now, in many cases, equates
    with casino development. This development, in turn, has devastating
    impacts on states and local communities. Thus, the stakes are raised
    for every one.
        North Stonington has first-hand experience with the problems that
    result. In 1983, the Mashantucket Pequot Tribe achieved recognition
    through an Act of Congress. This law, combined with the 1988 Indian
    Gaming Regulatory Act, ultimately produced the largest casino in the
    world. That casino has, in turn, caused serious negative impacts on our
    Towns, and the Tribe has not come forward to cooperate with us to
    address those problems. Having experienced the many adverse casino
    impacts, and understanding the debate over the legitimacy of the
    Mashantucket Pequot Tribe under the acknowledgment criteria, our Town
    wanted to assure ourselves that the recognition requests on behalf of
    the Eastern Pequot and Paucatuck Eastern Pequot groups were legitimate.
    As a result, we decided to conduct our own independent review of the
    petitions and participate in the acknowledgment process. It is worth
    noting that at no time has either petitioner come forward to present to
    Town leaders any constructive proposal on how they will deal with our
    concerns if acknowledgment is conferred. Thus, the concerns that
    motivated our participation have been validated.
    The Eastern Pequot Acknowledgment Process
        The Towns of North Stonington, Ledyard, and Preston obtained
    interested party status in the BIA acknowledgment process. We
    participated in good faith to ensure that the Federal requirements are
    adhered to. Our involvement provides lessons that should inform federal
    reform initiatives.
        The issue of cost for local governments needs to be addressed. Our
    role cost our small rural towns over $600,000 in total over a five-year
    period. This is a small fraction of the millions of dollars invested by
    the backers of these groups, but a large sum for small local
    governments. The amount would have been much higher if Town citizens,
    and our consultants and attorneys had not generously donated much of
    their time. It has been said that the Eastern Pequot group alone has
    spent millions on their recognition, and that they spent $500,000 (See
    Attachment 6) on one consultant for one year to provide them knowledge
    on ``how Washington, D.C. operates.'' This disparity in resources
    between interested parties and petitioners with gaming backers skews
    the process and must be addressed.
        The fairness of the process is another problem. We discovered that
    achieving interested party status was only the tip of the iceberg. One
    of our biggest problems in participating was simply getting the
    documents. Our Freedom of Information Act requests to BIA for the
    information necessary to comment on the petitions were not answered for
    2 + years (See Attachment 7). Only through the filing of a federal
    lawsuit were we able to obtain the basic information from BIA. The
    other claims in that lawsuit remain pending. Thus, it was necessary for
    us to spend even more money just to get the Federal government to meet
    its clear duties. I trust you will agree with me that taxpayers should
    not have to pay money and go to court simply to participate in a
    federal process.
        We experienced many other problems with the process. A pervasive
    problem has been the failure of the process to ensure adequate public
    review of the evidence and BIA's findings.
        During the review of the Pequot petitions, the BIA experts
    initially recommended negative proposed findings on both groups. One of
    the reasons for the negative finding was that no determination could be
    made regarding the groups' existence as tribes for the critical period
    of 1973 through the present. Under past BIA decisions, this deficiency
    alone should have resulted in negative findings. Despite this lack of
    evidence, the negative findings were simply overruled (See Attachment
    8) by the then BIA Assistant Secretary, Kevin Gover. Because BIA did
    not rule on the post-1973 period, interested parties never had an
    opportunity to comment. This was part of a pattern under the last
    Administration of reversing BIA staff to approve tribal acknowledgment
    petitions and shortchanging the public and interested parties.
    Moreover, with no notice to us, or opportunity to respond, BIA
    arbitrarily set a cut-off date for evidence that excluded 60% of the
    documents we submitted from ever being considered for the critical
    proposed finding.
        This problem occurred again with the final determination. In the
    final ruling, BIA concluded, in effect, that neither petitioner
    qualified under all of the seven criteria. Our independent analysis
    confirmed this conclusion.
        Nevertheless, after combining the two petitioners (over the
    petitioners' own objections), considering new information submitted by
    the Eastern Pequot petitioning group, and improperly using State
    recognition to fill the gaps in the petitioners' political and social
    continuity, BIA decided to acknowledge a single ``Historical Pequot
    Tribe.'' The Towns had no opportunity to comment on this ``combined
    petitioner;'' we had no opportunity to comment on the additional
    information provided by the Eastern Pequot petitioners; and we had no
    opportunity to comment on the critical post-1973 period. Thus, the key
    assumptions and findings that were the linchpin of the BIA finding
    never received critical review or comment. These types of calculated
    actions have left it virtually impossible for the Towns to be
    constructively involved in these petitions, and they have caused great
    concern and distrust over the fairness and objectivity of the process.
        Another problem is bias and political interference. Throughout the
    acknowledgment review, we have continually found that politically-
    motivated judgment was being injected into fact-based decisions, past
    precedents were being disregarded, and rules were being instituted and
    retroactively applied, all without the Towns and State being properly
    notified and without proper opportunity for comment. A perfect example
    is the so-called ``directive'' issued by Mr. Gover on February 11,
    2000, that fundamentally changed the rules of the acknowledgment
    process, including the rights of interested parties. BIA never even
    solicited public input on this important rule; it simply issued it as
    an edict. Yet another example is Mr. Gover's overruling of BIA staff to
    issue positive proposed findings. The massive political interference in
    the acknowledgment process is discussed in the recent Department of the
    Interior Inspector General's report, which I submit for the record.
    (See Attachment 9).
        With the recent actions of the BIA, it is questionable that this
    agency can be an advocate for Native Americans and also an impartial
    judge for recognition petitions. An example is the action by Secretary
    McCaleb in his recent ``private meeting'' with representatives of the
    Eastern Pequot and Paucatuck Eastern Pequot petitioners to discuss the
    tribal merger BIA forced upon them. This ex parte meeting with the
    petitioners is highly inappropriate at a time when the 90-day
    regulatory period to file a request for reconsideration is still in
    effect. There is a substantial likelihood that such a request will be
    filed, and that Mr. McCaleb will rule on the appealed issues. Yet, he
    is actively meeting with the petitioners to assist them in smoothing
    over their differences and forming a unified government. How can BIA be
    expected to rule objectively on an appeal that contests the existence
    of a single tribe when the decisionmaker is actively promoting that
    very result?
        Still another problem is the manner in which BIA addresses evidence
    and comment from interested parties. Simply put, BIA pays little
    attention to submissions from third parties. The Eastern Pequot
    findings are evidence of this. Rather than responding to comments from
    the State and the Towns, BIA just asserts that it disagrees without
    explanation.
        Another example is the BIA cut-off date for evidence. BIA set this
    date for the proposed finding arbitrarily and told the petitioners. It
    never informed the Towns or the State. As a result, we continued to
    submit evidence and analyses, only to have it ignored because of this
    unannounced deadline. BIA said it would consider all of this evidence,
    but it did not. The final determination makes clear that important
    evidence submitted by the Towns never got considered for this reason.
        Thus, rather than our Town's involvement being embraced by the
    federal government, we were rebuffed. The very fact of our involvement
    in the process, we feel, may have even prejudiced the final decision
    against us. The petitioning groups attacked us and sought to intimidate
    our researchers. The petitioning groups called us anti-Indian, racists,
    and accused us of committing genocide. The petitioners publicly accused
    me of ``Nazism'' (See Attachment 10) just because our Town was playing
    its legally defined role as an interested party. At various times
    throughout the process, the tribal groups withheld documents from us or
    encouraged BIA to do so. Obviously, part of this strategy was that the
    petitioners just wanted to make it more expensive to participate, to
    intimidate us, and to drive the Towns out of the process. They took
    this approach, even though our only purpose for being involved was to
    ensure a fair and objective review, and to understand how a final
    decision was to be made (See Attachment 11).
        Finally, I would like to address the substance of the BIA finding
    on the Eastern Pequot petitions. Based upon an incorrect understanding
    of Connecticut history, BIA allowed the petitioners to fill huge gaps
    in evidence of tribal community and political authority, prerequisites
    for acknowledgment, by relying on the fact that Connecticut had set
    aside land for the Pequots and provided welfare services. These acts by
    the State of Connecticut, according to BIA, were sufficient to
    compensate for the major lack of evidence on community and political
    authority. By this artifice, along with the forced combination of two
    petitioners, BIA transformed negative findings into positive, with no
    basis in fact or law.
        Clearly, the past actions by Connecticut toward the later residents
    of the Pequot reservation did nothing to prove the existence of
    internal tribal community or political authority. These actions simply
    demonstrated actions by the State in the form of a welfare function. If
    BIA does not reject this principle now, it will give an unfair
    advantage not only to the Pequot petitioners but possibly to other
    Connecticut petitioning groups as well.
    Principles for Reform
        Based upon years of experience with the acknowledgment process, our
    Towns now have recommendations to make to Congress.
        As an initial matter, it is clear that Congress needs to define
    BIA's role. Congress has plenary power over Indian affairs. Congress
    alone has the power to acknowledge tribes. That power has never been
    granted to BIA. The general authority BIA relies upon for this purpose
    is insufficient under our constitutional system. In addition, Congress
    has never articulated standards under which BIA can exercise
    acknowledgment power. Thus, BIA lacks the power to acknowledge tribes
    until Congress acts to delegate such authority properly and fully. Up
    until now, no party has had the need to challenge the constitutional
    underpinnings of BIA's acknowledgment process, but we may be forced to
    do so because of the Eastern Pequot decisions.
        Second, the acknowledgment procedures are defective. They do not
    allow for an adequate role for interested parties, nor do they do
    ensure objective results. The process is inherently biased in favor of
    petitioners, especially those with financial backers.
        Third, the acknowledgment criteria are not rigorous enough. If the
    Eastern Pequot petitioner groups qualify for acknowledgment, then the
    criteria need to be strengthened. The bar has been set too low.
        Fourth, acknowledgment decisions cannot be entrusted to BIA. The
    agency's actions are subject to political manipulation, as demonstrated
    by the report of the Department's Inspector General detailing the
    abuses of the last Administration. Also, BAR itself will, in close
    cases, lean to favor the petitioner. The result-oriented Eastern Pequot
    final determination is proof of this fact. For years we supported BAR
    and had faith in its integrity. Now that we have studied the Eastern
    Pequot decision, we have come to see the bias inherent in having an
    agency charged with advancing the interests of Indian tribes make
    acknowledgment decisions. Similar problems are likely to arise under an
    independent commission created for this purpose unless checks and
    balances are imposed that ensure objectivity, fairness, full
    participation by interested parties, and the absence of political
    manipulation.
        Finally, because of all of these problems, it is clear that a
    moratorium on the review of acknowledgment petitions is needed. It
    makes no sense to allow such a defective procedure to continue to
    operate while major reform is underway. This is the principle
    underlying the amendment introduced on the floor of the Senate last
    week by Senators Dodd and Lieberman. This concept of that amendment is
    sound and needs to be enacted. No petitions should be processed during
    this moratorium. Although we approve of the moratorium concept while
    other problems of the acknowledgment process are being addressed, the
    Towns do not support this specific proposal because it does not go far
    enough, and it ratifies elements of the system that need to be more
    carefully reviewed and substantially reformed.
        If a process must exist whereby legitimate Indian tribes can be
    acknowledged. S. 1392 is a good place to start with reform. It contains
    excellent ideas for public debate and Congressional review, but
    ultimately more drastic reform is called for.
        S.1393 also contains essential elements of a reformed system, by
    helping to level the playing field and providing assistance for local
    governments to participate in the acknowledgment process. We urge
    Congress to address promptly the problems that are the subject of
    S.1393.
    Conclusion
        Our Towns respectfully request that this Committee make solving the
    problems with the acknowledgment process one of its top priorities. A
    moratorium on processing petitions should be imposed while you do so.
    In taking this action, we urge you to solicit the views of interested
    parties, such as our Towns and State, and to incorporate our concerns
    into your reform efforts. Tribal acknowledgment affects all citizens of
    this country; it is not just an issue for Indian interests.
        We are confident that such a dialogue ultimately will result in a
    constitutionally valid, procedurally fair, objective, and substantively
    sound system for acknowledging the existence of Indian tribes under
    federal. With the stakes so high for petitioners, existing tribes,
    state and local governments, and non-Indian residents of surrounding
    communities, it is necessary for all parties with an interest in Indian
    policy to pursue this end result constructively. Ledyard, North
    Stonington, and Preston look forward to the opportunity to participate
    in such a process.
        Thank you for considering this testimony.
        Note: Attachments have been retained in the Committee's official
    files.]
                                     ______

        Mr. Simmons. And then finally, Mr. Chairman, just so you
    get a sense of this, on recognition issues alone in North
    Stonington, a small town in my district, since 1996,
    $463,826.73, to be precise, has been spent by this small town
    of under 5,000 people in population to participate in
    recognition procedures. Some of the folks on the other side
    include Donald Trump, who has deep pockets, and these folks do
    not have a fair shake in this process. Since 1993, on
    annexation or taking land into trust issues, the same town has
    spent $421,000. Almost $1 million has been expended on these
    issues with not one nickel of Federal assistance.
        I think that if we want this process to be fair, and we all
    do, we want it to be fair on all sides, then some accommodation
    has to be given to these small towns. That is what
    Congresswoman Johnson's bill does. That is why I support it
    enthusiastically, and I thank the Chair.
        Mr. Hayworth. And the Chair would thank our friend, Mr.
    Simmons. Of course, without objection, the statements that you
    articulated from other elected representatives and concerned
    parties will be made part of the record.
        [The prepared statement of Mr. Simmons follows:]

     Statement of Hon. Rob Simmons, a Representative on Congress from the
                              State of Connecticut

        Mr. Chairman and members of the Committee,
        Thank you for allowing me to testify in support of reforming the
    federal Indian recognition process. And I would like to thank the dean
    of the Connecticut delegation, Nancy Johnson, for being such a leader
    on the issue. She has worked tirelessly on this issue and I appreciate
    her bringing this issue to the forefront.
        Mr. Chairman, my home state of Connecticut has been and continues
    to be affected by our federal Indian recognition process. We are home
    to three federally recognized tribes. About ten more groups are
    petitioning for federal status. Once federally acknowledged, tribes in
    Connecticut can negotiate gaming compacts with the state and open
    casinos.
        Connecticut has seen both the benefits and the adverse effects of
    tribal recognition. One benefit is that Indian gaming has produced jobs
    at a time when defense contracting and manufacturing have been on the
    decline. Casinos purchase goods and services, and pay upwards of $300
    million a year into the state budget. Tribal members have also been
    personally generous with their new wealth, and support numerous
    community projects and charities.
        But there are also negative impacts. In Connecticut, recognition
    means the right to operate a casino and that places pressure on local
    municipalities who have no right to tax, zone or plan for these
    facilities. Small rural roads are overburdened with traffic, and
    volunteer fire and ambulance services are overwhelmed with emergency
    calls.
        No region has been more impacted by tribal recognition decisions
    than eastern Connecticut, and no town has fought harder to preserve the
    rights on municipalities than the town of North Stonington,
    Connecticut, where my friend, Nick Mullane, serves as First Selectman
    [or Mayor]. For more than a decade Nick and I have been working on the
    issues of tribal recognition and taking ``land into trust'' because of
    the burdens they place on Nick and the people he serves.
        North Stonington, and towns like Ledyard and Preston, has spent
    several years in the courts struggling against the expansion of
    Mashantucket Pequot trust lands. As well, they are engaged in the
    lonely and expensive process of challenging the flawed BIA decision in
    June that merged two bands of Eastern Pequots--the Paucatuck Eastern
    Pequots and the Eastern Pequots--as one tribe. This struggle has had
    profound political, economic, social and environmental impacts on these
    towns.
        Even more troublesome is the ``land into trust'' issue associated
    with recognition. The very real fear and uncertainty of reservation
    expansion has both delayed and increased municipal planning, caused
    property values to fall, increased the tax burden for uncompensated
    services and created friction within the local communities. What was
    once a relatively predictable situation in eastern Connecticut is now
    very unpredictable because of a failed federal recognition process and
    fear of taking ``land into trust.'' Add this to road construction,
    infrastructure needs, police, and fire and emergency services and you
    can see the profound affect federal tribal recognition decisions have
    on small towns and municipalities.
        This is why leaders like Nick Mullane, Connecticut's State Attorney
    General Richard Blumenthal, Bob Congdon, Wes Johnson and others have
    dedicated so much time to the federal recognition issue--they want to
    bring clarity and certainty back into the process.
        On this basis, Mr. Chairman, I respectfully request that you insert
    into the committee record materials provided by First Selectman
    Mullane. I believe you will find this information compelling.
        I fully support Congresswoman Johnson's legislation to provide $8
    million in grants to local governments to assist in participating in
    decisions related to certain Indian groups and Indian tribes. In fact,
    I have introduced a broader tribal recognition reform bill that
    includes Mrs. Johnson legislative language. And my bill goes one step
    further--it makes these grants retroactive so that any local government
    that has spent money on decisions related to certain Indian groups and/
    or tribes can be eligible for the program.
        Federal recognition policies are turning the ``Constitution State''
    into the ``casino state,'' and we are concerned about it. We want more
    control over the process. We want to close the loopholes. We want
    relief to what can be a very expensive battle on a very uneven playing
    field. This bill does that and I urge this committee to join Nancy
    Johnson and me in support of H.R. 992.
        I thank the committee for an opportunity to testify and I will be
    happy to take any questions you may have.
                                     ______

        Mr. Hayworth. At this juncture, I might also seek unanimous
    consent to have the statement of Robert Chicks, President of
    the Stockridge Muncie community of Wisconsin, included in the
    record on that same legislation.
        [The prepared statement of Mr. Chicks follows:]

      Statement of Robert Chicks, President, Stockbridge-Munsee Community

        Good morning. My name is Robert Chicks. I am the President of the
    Tribal Council for the Stockbridge-Munsee Community Band of Mohican
    Indians. The Stockbridge-Munsee Tribe is located in northeastern
    Wisconsin. I am also the Minneapolis Area Vice President of the
    National Congress of American Indians, Co-chairman of the National
    Tribal Leaders Task Force on Land Recovery and Secretary for the
    Midwest Alliance of Sovereign Tribes.
        I am here today to provide testimony on H.R. 992, a bill to provide
    grants to local governments to assist such local governments in
    participating in certain decisions related to certain Indian groups and
    Indian tribes.
        This bill should not be enacted because its intent and effect are
    irreconcilable with the federal government's historic legal and moral
    responsibilities to Indian tribes. I will briefly address three main
    points: 1) the bill's proposals would undermine the long standing trust
    relationship between the federal government and Indian tribes; 2)
    providing money to local governments for their ``participation'' would
    foster negative relationships between local governments and Indian
    tribes; and, 3) there are other alternatives available that could
    achieve positive results while preserving the integrity of the trust
    relationship.
    1. The bill's proposals would undermine the long-established Trust
            Relationship between the federal government and Indian tribes.
        H.R. 992's proposal to provide federal money to local governments
    for their participation in certain decisions relating to Indian tribes
    is completely at odds with the United States' historic legal and moral
    obligations to Indian tribes.
        Following this Nation's independence from Great Britain, control
    over Indian affairs was at first divided between the 13 states and the
    central government. This arrangement under the Articles of
    Confederation proved unworkable and with the adoption of the
    Constitution, exclusive control over Indian affairs was purposefully
    placed with the Federal Government. By the choice of the Federal
    Government, this exclusive control has in practice been intrusive and
    far-reaching, inserting the federal government into nearly aspect of
    tribal and individual Indian affairs. But, as the courts have
    consistently recognized, with this power has come the heightened duty
    of the United
        States to protect tribal governments and resources from the
    pressures of local and state governments. Federal policy toward Indian
    tribes thus continues to this day to be one of protection and
    guardianship. This relationship has been characterized as a trust, or
    fiduciary relationship which, in many cases, is legally enforceable in
    the courts. Certainly one of the cornerstones of any trust relationship
    is the trustee's duty of loyalty to his beneficiary, and therein lies
    the major problem with H.R. 992.
        It is well documented that the centuries since the Federal
    Government seized control of Indian lives and property have witnessed
    many attempts by state and local interests to undermine the federal
    obligations to preserve and protect Indian resources and assist Indian
    people to become economically and culturally self-sufficient. Many of
    these attempts have been successful. Time and again, Congress has
    succumbed to political pressure applied by aggressive elements of the
    dominant society. As a result, significant Indian resources have been
    transferred to non-Indians and important powers of tribal self-
    government have been lost or diminished.
        H.R. 992 seeks to turn back the clock to an earlier era, one where
    politicians were willing to abandon this great nation's solemn duties
    of protection and loyalty to Indians to further the interests of non-
    Indian commercial and governmental interests. This Congress should not
    add H.R. 992 to the litany of shameful actions that, in the final
    analysis, have served only to bring dishonor to our country.
        I will address each of the federal decision-making processes
    targeted by H.R. 992.
        Acknowledgment and recognition. The Federal acknowledgment and
    recognition process carefully examines an applicant Indian group's
    history and other attributes in order to determine whether, under
    applicable federal guidelines, the group can be considered a recognized
    Indian tribe by the federal government. This process is conducted by
    experienced staff, including historians and anthropologists, and its
    outcome is largely based on historical and scientific criteria. Indian
    groups seeking federal acknowledgment generally must fund their own
    federal acknowledgment applications. H.R. 992 would not fund tribal
    applications, but would permit the Secretary to divert funds from
    other- established Indian programs to fund non-Indian opposition to
    small, unrecognized tribes which may have few resources. Undoubtedly,
    this process has recently become more politicized because of Indian
    Gaming; but enactment of H.R. 992 would only further politicize the
    process.
        The politicization of the acknowledgment and recognition process
    has undermined its effectiveness and integrity. It should not be
    further- politicized by providing federal money to local governments to
    challenge the process. Rather, responsible congressional leaders, who
    have a general trust responsibility to Indian people and a need at the
    same time to be responsive to their electorate, should be considering
    ways to increase the integrity of the process by insulating it from
    political influences. Certainly local governments have no expertise in
    questions of tribal existence, an area long recognized to lies within
    the exclusive province of federal law and policy. Congress should
    retain the current recognition process as is, a process based on
    criteria rooted in history and science, and refrain from funding an
    attack on the system that the federal government has a trust obligation
    to protect. Instead, there should be focus on ensuring that the current
    process is implemented with professionalism and integrity, free from
    the influences of local and state politicians.
        Trust land. 1 Similar to the recognition process, the
    land-to-trust process is another key aspect of the solemn trust
    relationship between the federal government and Indian tribes. The
    well-settled federal policy of restoring tribal land lost during the
    Allotment Era remains intact. The land-to-trust process is a federal
    process which currently addresses the position of local governments and
    provides ample notice and opportunity for local governments to be heard
    prior to a land to trust decision being made. What the policy does not
    currently provide, and what the policy should not provide is federal
    funding for local governments to launch challenges to the process based
    on their own beliefs that the system should not exist in the first
    place. If lawmakers wish to debate the wisdom of the policy issues
    behind land to trust, then that debate should be named as such and must
    be out in the open. Providing money to local governments to fight
    against land going into trust is a back door method for turning back
    government policy, a method I might add that provides further incentive
    for the break-down of tribal - local government relations.
    ---------------------------------------------------------------------------
        \1\ The fee-to-trust process is provided for under section 5 of the
    Indian Reorganization Act (``IRA''). The IRA is designed to help Indian
    tribes regain the 90 million acres of land lost due to the failed
    Allotment Era policy of breaking up tribal communal lands. To date,
    less than 10% of lost lands have been recovered.
    ---------------------------------------------------------------------------
        The bill's proposals confuse two issues: 1) the fact that land is
    going into bust and 2) its consequences on local governments. Land-to-
    trust as a policy should not be up for debate. However, for those local
    governments that are concerned about the consequences of land going
    into trust, providing them with reimbursement for participation
    essentially encourages them to undermine the policy to the point that
    it becomes ineffective. The more sound approach is to provide funding
    for the consequences (if they truly exist) of the federal government's
    policy rather than funding an ongoing fight over what the policy should
    be.
        Land claims. Perhaps more than any other category within this bill,
    land claim issues are the most glaring example of H.R. 992's
    irreconcilable nature. Land claims involve making tribes whole when
    lands have been taken from them in violation of federal law. Here, the
    trust relationship is operating at its highest level: the federal
    government is working to assist tribes with settling some of the most
    egregious wrongs committed against them. The federal government has a
    legal obligation to protect tribal land and valid claims tribes have to
    land. This duty is well established in case law and cannot be shrugged
    off as a vague, philosophical responsibility.
        It is impossible to reconcile the federal government's trust
    responsibility to Indian tribes with H.R. 992's proposal to give money
    to local governments to fight the federal government and tribes who are
    trying to remedy violations of federal law. There is an untenable
    conflict of interest created in the logical results of H.R. 992, where
    the federal government is on the one hand funding opposition to land
    claims and on the other intervening on tribes' behalf to successfully
    prosecute the same claims.
        Other actions. The most troubling aspect of the catch-all (4)
    ``other actions'' is its lack of specificity. Again, the relationship
    between Indian tribes and the federal government, to the greatest
    extent possible, must rise above politics. The grants that could be
    made by the Secretary under (4) are limited only by one's imagination.
    For example, the word ``action'' does not appear to be limited to
    federal processes. The bill conceivably would allow the Secretary to
    make a grant to a local government to participate in internal tribal
    affairs such as elections. Imagine two candidates for tribal council,
    one viewed as favorable by locals and the other not. H.R. 992 would
    allow the Secretary to fund a local government's support of one
    candidate if the election of one candidate could ``significantly affect
    ``the people represented by that local government.
    2. Providing money to local governments for their ``participation''
            fosters negative relationships between local governments and
            Indian tribes.
        The bill incorrectly assumes that negative relationships exist
    between local governments and tribes. In addition, rather than seeking
    to encourage dialogue and positive solutions, H.R. 992 fosters conflict
    and the perpetuation of conflict by making $8,000,000 of federal money
    available to challenge federally established aspects of the tribal-
    federal relationship. Although the bill uses the neutral language of
    ``participation,'' the only plausible inference that can be drawn from
    the amounts of money mentioned in the bill is that participation in
    fact means participation in an adversarial setting. I might ask the
    federal government, since it seems so willing with this legislation to
    fund ``participation'' of non-Indians against Indians, where was the
    federal government funding to assist Tribes who could not afford to
    pursue their land claims? Who could not afford to put together a land-
    to-trust application? Who could not afford to put together a federal
    recognition application?
        The fact is that many tribes and local governments reach agreements
    and understandings with respect to challenging issues that they may be
    facing on the issues in the bill. H.R. 992 undermines positive dialogue
    by skewing incentives for local governments.
        Money is a powerful motivator. What message does this bill send to
    local governments? The federal government is making money available for
    those who elect to ``participate'' in a decision-making process. There
    is no definition of the term ``participation'' but as stated earlier,
    the only logical conclusion is that the participation will be in an
    adversarial manner, legal challenges leading to litigation in court.
    Local governments who work with tribes to find constructive solutions
    and are able to avoid expensive decision making processes do not
    receive any money. The message for local government officials is clear:
    there is money in opposing tribes and the federal government in Indian-
    related decision-making actions. This is not the message that the
    tribes' trustee should be sending to U.S. citizens, particularly when
    those funds might be diverted from other moneys that the federal
    trustee should use to help Indian people.
    3. Viable alternatives.
        A. Promote legislation that creates incentives for tribes and local
    governments to work through their issues related to the areas addressed
    in the proposed legislation. Do not support legislation that clearly,
    from the outset, on its face, encourages opposition.
        B. If the federal government is willing to spend the money
    envisioned by H.R. 992, perhaps it should consider spending that money
    to address the real issue: local governments' loss of jurisdiction and
    tax money through the land-to-trust process. Consider a grant to local
    governments who lose revenue associated with land through the federal
    processes set up to correct wrongs between the federal governments and
    tribes.
    CONCLUSION
        The long-standing trust relationship between the federal government
    and Indian tribes is a relationship weighted with history, law and
    morality. It is true that non-Indians and local governments on or near
    Indian reservations have legitimate concerns over a range of issues.
    The federal government must find creative solutions that address the
    concerns of all parties, while preserving its solemn duties of trust
    and loyalty to tribes. Unfortunately, H.R. 992 does not strike that
    balance. The result of the bill's proposals would be to thwart some of
    the most important aspects of federal Indian policy and the trust
    responsibility. 1 urge you not to endorse such legislation. Thank you.
                                     ______

        Mr. Hayworth. We have one of our other colleagues there
    seated at the table. Our friend, Jim Maloney, has some thoughts
    on this. Welcome, Congressman Maloney, and you are recognized
    for your testimony.

      STATEMENT OF THE HON. JAMES H. MALONEY, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF CONNECTICUT

        Mr. Maloney. Thank you, Chairman Hayworth and Ranking
    Member Rahall, members of the Committee. Thank you for the
    opportunity to come before you to testify in regard to H.R.
    992. I support H.R. 992 and I want to thank First Selectwoman
    Schiesel from Kent for being here and I want to thank my mayor,
    Mayor Mark Boughton of my hometown of Danbury, for being here
    with us today, and I know you are going to hear from him later
    on in your testimony.
        I also note, however, that H.R. 992 is very narrow in its
    effect. The legislation comprises, as Congressman Simmons
    mentioned, just Section 8 of more comprehensive legislation,
    H.R. 3548, introduced by Congressman Simmons, myself, and Mrs.
    Johnson, and cosponsored by additional Members of Congress.
    H.R. 3548 has also been referred to this Committee and I also
    support its passage.
        H.R. 992 and H.R. 3548 both provide grants to ensure the
    input of local communities affected by the impact of Federal
    recognition of Native American tribes. In addition to providing
    assistance to local communities so that they can better provide
    information to the Bureau of Indian Affairs, the more
    comprehensive H.R. 3548 would reform the Bureau of Indian
    Affairs process itself. Legislation such as this highlights the
    struggles faced by local communities in opposing well-financed
    gambling interests.
        It also highlights something else I would hope we can all
    agree on, that the Federal tribal recognition process is
    seriously broken. The most recent Bureau of Indian Affairs
    decision on tribal recognition in Connecticut, which affected
    primarily areas in Congressman Simmons' area, exemplifies the
    problem with this process and the need to aid local governments
    so they may fully participate in the decisionmaking process.
        The BIA, without notice to anyone and without input from
    the State of Connecticut or any of the local communities,
    unilaterally combined two separate petitions, from the Eastern
    Pequot and the Paucatuck Eastern Pequot petitioner groups, and
    determined the existence of a single, unified tribe. The Bureau
    of Indian Affairs took this action even though both petitioners
    sought acknowledgment separately and were, in fact, strong
    rivals of each other. The groups have been divided for many
    decades and actively opposed each others' petitions.
        The Bureau of Indian Affairs combined the petitions and
    created a new, never heard of before, tribe. This unprecedented
    Bureau of Indian Affairs decision would have clearly benefitted
    from greater input from the local communities affected by the
    decision. That is why I recently joined with my colleagues in
    asking the General Accounting Office to formally investigate
    this outrageous decision.
        Connecticut has two other petitions now pending before the
    BIA, each of which points in the direction of casino
    development. Casinos can place an unacceptable economic burden
    on the services of the local community. In addition to the
    economic dislocation of casino development, we all know that
    detrimental social implications are inextricably bound to the
    culture of gambling. Public infrastructure, emergency services,
    and social services provided by local governments are put under
    immense pressure by the demands associated with gambling. At
    the same time, local governments are not provided the resources
    to adequately offset those impacts. Most of the responsibility
    for addressing those needs is, unfortunately, borne by the
    State and local communities.
        The Bureau of Indian Affairs should not be allowed to place
    the burden of a casino, brought about by Federal recognition,
    on local communities that have been effectively shut out of the
    recognition process because they could not afford to have their
    views considered.
        In conclusion, when the Committee meets to mark up this
    legislation, it should consider a number of strengthening
    measures. First, it should make clear that the financial
    assistance provided to local communities to participate in a
    Federal recognition case would not come at the expense of
    Native American human service programs. Those programs are
    under-funded as it is.
        Second, it should adopt the comprehensive reforms of the
    Bureau of Indian Affairs recognition process as contained in
    H.R. 3548. Providing money, although a good idea, without
    fixing the broken BIA process is like offering to bail the
    ocean with a spoon. It will not do any harm, but it also will
    not solve the problem unless coupled with much more sweeping
    action.
        Today, the Connecticut delegation comes before this
    Committee on a bipartisan basis, united, in urging that this
    issue be forcefully addressed. Thank you for considering my
    testimony, and I would be pleased to answer any questions that
    the Committee may have.
        Mr. Hayworth. And we thank you, Mr. Maloney, and all three
    of our friends from Connecticut.
        [The prepared statement of Mr. Maloney follows:]

     Statement of Hon. James H. Maloney, a Representative in Congress from
                            the State of Connecticut

        Chairman Hansen, Ranking Member Rahall, and members of the
    Committee, thank you for the opportunity to testify in regard to H.R.
    992. Let me also acknowledge the participation of First Selectman
    Dolores Schiesel of Kent and the Mayor of my hometown, Danbury, Mayor
    Mark Boughton. I am delighted that these two local officials are here
    to share their special perspective on this issue.
        I support H.R. 992. I also note, however, that it is very narrow in
    its effect. The legislation comprises just section 8 of more
    comprehensive legislation, H.R. 3548. Introduced by Congressman
    Simmons, myself, Mrs. Johnson and cosponsored by additional members of
    Congress, H.R. 3548, has also been referred to this Committee and I
    also strongly support its passage.
        H.R. 992 and H.R. 3548 both provide grants to ensure the input of
    local communities affected by the impact of federal recognition of a
    Native American tribe. In addition to providing assistance to local
    communities so that they can better provide information to the Bureau
    of Indian Affairs, the more comprehensive H.R. 3548 would reform the
    Bureau of Indian Affairs process itself. Legislation such as this
    highlights the struggles faced by local communities in opposing well-
    financed gambling interests.
        It also highlights something else that I would hope we can all
    agree on, that the federal tribal recognition process is seriously
    broken. The most recent Bureau of Indian Affairs decision on tribal
    recognition in Connecticut exemplifies the problem with this process,
    and the need to aid local governments so they may fully participate in
    the decision making process. The BIA, without notice to anyone, and
    without input from the State of Connecticut or the local communities,
    unilaterally combined two separate petitions, from the Eastern Pequot
    and the Paucatuck Eastern Pequot petitioner groups, and determined the
    existence of a single, unified tribe. The Bureau of Indian Affairs took
    this action even though both petitioners sought acknowledgment
    separately and were, in fact, strong rivals of each other. The groups
    have been divided for many decades and actively opposed each other's
    petitions. This unprecedented Bureau of Indian Affairs decision would
    have clearly benefitted from greater input from the local communities
    affected by the decision. That is why I recently joined with my
    colleagues in asking the GAO to formally investigate this decision.
        Connecticut has two other petitions now pending before the BIA,
    each of which points in the direction of casino development. Casinos
    can place an unacceptable economic burden on the services of the local
    community. In addition to the economic dislocation of casino
    development, we all know that detrimental social implications are
    inextricably bound to the culture of gambling. Public infrastructure,
    emergency services and social services provided by local governments
    are put under immense pressure by the demands associated with gambling.
    At the same time, local governments are not provided the resources to
    adequately offset those impacts. Most of the responsibility for
    addressing those needs is unfortunately born by the state and local
    communities.
        The Bureau of Indian Affairs should not be allowed to place the
    burden of a casino, brought about by federal recognition, on local
    communities that have been effectively shut out of the recognition
    process because they could not afford to have their views considered.
        When the Committee meets to mark up this legislation it should
    consider a number of strengthening measures. First, it should make
    clear that the financial assistance provided to local communities to
    participate in a federal recognition case would not come at the expense
    of Native American human services programs. These programs are under-
    funded as it is. Second, it should adopt the comprehensive reforms of
    the Bureau of Indian Affairs contained in H.R. 3548. Providing money,
    without fixing the broken BIA process, is like offering to bail the
    ocean with a spoon. It won't do any harm, but it also won't solve the
    problem unless coupled with much more sweeping action.
        Today, the Connecticut delegation comes before the Committee united
    in urging that this issue be addressed. Thank you for considering my
    testimony. I would be pleased to answer any questions the Committee may
    have.
                                     ______

        Mr. Hayworth. As the vote clock clicks down on the floor,
    we will be heading out in just a second.
        At this juncture, however, I ask unanimous consent that
    following the testimony we heard, the gentlewoman from
    Connecticut, Mrs. Johnson, the gentlemen from Connecticut, Mr.
    Simmons and Mr. Maloney, the gentleman from Virginia, Mr.
    Moran, and the gentlewoman from Virginia, Ms. Davis, be allowed
    to sit on the dais and participate in the hearing. Is there
    objection?
        [No response.]
        Mr. Hayworth. Hearing none, so ordered. At this junction,
    the Committee will recess, complete our voting on the floor,
    and return as quickly as possible. The Committee stands in
    recess.
        [Recess.]
        Mr. Hayworth. The Committee come to order. We thank our
    guests for joining us and for keeping it down to a dull roar,
    and we thank members of the Committee for being here.
        We proceed now to panel three, and the Chair would welcome
    Mr. Chris Kearney, Deputy Assistant Secretary for Policy and
    International Affairs, Department of the Interior, to testify
    on H.R. 5155; and Mr. Michael Smith, Director, Office of Tribal
    Services of the Bureau of Indian Affairs, to offer remarks on
    H.R. 992 and H.R. 2345.
        Welcome, witnesses, and Mr. Kearney, we will begin with
    your testimony, please, sir.

     STATEMENT OF CHRISTOPHER KEARNEY, DEPUTY ASSISTANT SECRETARY
    FOR POLICY AND INTERNATIONAL AFFAIRS, UNITED STATES DEPARTMENT
                            OF THE INTERIOR

        Mr. Kearney. Thank you, Mr. Chairman. Good morning, members
    of the Committee. I am pleased to be here to testify on the
    important issue of sacred sites and land protection. The
    Department of Interior is working to implement a policy on
    Indian sacred sites and we believe imposing statutory
    requirements at this time would be counterproductive to that
    process. Therefore, we view that moving forward with H.R. 5155
    is premature.
        Executive Order 13007, the Indian Sacred Sites, was issued
    in 1996. It requires Federal land management agencies, to the
    extent practical and permitted by law, and not clearly
    inconsistent with the central agency functions, to accommodate
    access to and ceremonial use of Indian sacred sites by Indian
    religious practitioners and avoid adversely affecting physical
    integrity of such sites. The order required each respective
    branch agency to implement procedures, where practical and
    appropriate, to ensure reasonable notice is provided of
    proposed actions or policies that may restrict future access to
    or ceremonial use of, or adversely affect the physical
    integrity of the sites.
        The order also requires Federal agencies to consult with
    tribes on a government-to-government basis whenever plans,
    activities, decisions, or proposed actions affect the integrity
    of or access to the sites. Each relevant cabinet agency was
    required to send an implementation report to the President
    within 1 year of the order's issuance.
        The Office of American Indian Trust coordinated the
    Department's implementation plan and OAIT is responsible for
    ensuring Department-wide compliance and overall consistency of
    the sacred sites executive order. An interagency working group
    on implementation of the order was created at the Department,
    comprising representatives of each Departmental bureau,
    appropriate Departmental offices, and the Office of the
    Solicitor.
        The working group has actively sought input from tribal
    representatives on all aspects of the Department's
    implementation process. We have asked for tribal input on the
    structure, location, and content for consultations, and we have
    also hosted three formal discussion meetings between the tribe
    and Federal representatives focusing on implementation of both
    the procedural and substantive point of view.
        The Departmental manual chapter was created as a result of
    that consultation and the chapter serves as a permanent means
    to integrate protection, preservation, accommodation of access,
    and use practices and policies in Departmental processes. It
    contains specific provisions requiring bureaus and offices to
    ensure that planning and decisions document several things:
    One, a rationale for the recommended decision; two, an
    explanation of how the decision is consistent with the
    Departmental manual chapter; and three, when there is a
    determination that compliance with the general requirements
    executive order would be clearly inconsistent with agency
    function, the agency rationale must be fully explained in the
    report.
        To facilitate the development of working relationships, the
    manual chapter directed bureaus, where appropriate, to
    establish formal procedures for interaction with tribes on
    matters concerning the sacred sites, and the OAIT serves as
    coordinator for the Department, but all bureaus and offices are
    responsible for identifying senior-level members as designated
    points of contact.
        I move to the current status. In October of 2001, the
    Department attended the Sacred Lands Forum in Boulder,
    Colorado. Through considerable internal review and dialog with
    interested participants at the forum, it became clear that we
    needed to move forward on establishing policies and procedures
    for addressing protection of sacred sites. At the ``Overcoming
    the Challenges'' symposium held on March 20 of this year, which
    was held as part of the Sacred Lands Forum, we announced our
    intent to convene the Department's--reconvene, rather, the
    Sacred Sites Working Group.
        In June of this year, each Interior office and bureau
    involved with sacred sites issues was asked to assign a
    representative to the working group and the first meeting was
    held on July 2, 2002, in the office of the Assistant Secretary
    for Indian Affairs. The group has been in the process of
    identifying the status of sacred site management across the
    Bureau, and at future meetings, the working group will develop
    management guidance and tools to ensure full compliance with
    the executive order.
        On August 14, the working group and the Advisory Council on
    Historic Preservation sponsored an interagency meeting on
    sacred lands and cultural resources. This meeting was conducted
    under the auspices of the Working Group on Environmental
    Justice with the idea that broader collaboration was needed to
    bring awareness of sites to other agencies. Several important
    issues were discussed at that meeting, including the issue of
    confidentiality. The Department is exploring ways to address
    the desire of tribes to keep information about the nature and
    location of sites confidential while still ensuring that
    appropriate public processes and input are maintained.
        In summary, Mr. Chairman, the Department plans to continue
    working closely with American Indians and Alaska Natives
    through a government-to-government process, ensuring access to
    and protection of sacred sites. A substantial amount of effort
    has already gone into consultation with the tribes to establish
    a sacred sites protection policy that works for Native
    Americans and for all parties.
        The Department appreciates the efforts of Congressman
    Rahall to address this issue through legislation. However, we
    believe that the new mandates contained in the bill would
    create an unreasonable and imbalanced statutory process. The
    administration, we believe, should be afforded the opportunity
    to complete the implementation strategies for the executive
    order before pursuing any new legislative mandates.
        This concludes my statement. I would be happy to answer any
    questions you might have.
        Mr. Hayworth. And we thank you very much, Mr. Kearney.
        [The prepared statement of Mr. Kearney follows:]

    Statement of Christopher Kearney, Deputy Assistant Secretary for Policy
           and International Affairs, U.S. Department of the Interior

        I am pleased to be here today to testify before this Committee on
    the important issue of Sacred Sites and lands protection. The
    Department of the Interior is working to implement a policy on Indian
    Sacred Sites and we believe imposing statutory requirements at this
    time would be counterproductive to that process. We therefore view that
    moving forward with H.R. 5155 is premature.
    Background
        Executive Order No. 13007, 61 Fed. Reg. 26,771, Indian Sacred
    Sites, was issued in 1996. The Order requires federal land management
    agencies to the extent practicable, permitted by law, and not clearly
    inconsistent with essential agency functions, accommodate access to and
    ceremonial use of Indian sacred sties by Indian religious practitioners
    and avoid adversely affecting the physical integrity of such sacred
    sites. The order required each respective branch agency to implement
    procedures, where practicable and appropriate, to ensure reasonable
    notice is provided of proposed actions or policies that may restrict
    future access to or ceremonial use of, or adversely affect the physical
    integrity of these sites. The Order also requires federal agencies to
    consult with tribes on a government-to-government basis whenever plans,
    activities, decisions, or proposed actions affect the integrity of, or
    access to, the sites. Each relevant Cabinet agency was required to send
    an implementation report to the President within one year of the
    Order's issuance.
        The Office of American Indian Trust (OAIT) coordinated the
    Department of the Interior's implementation plan. The OAIT is
    responsible for ensuring department-wide compliance and overall
    consistency of the Sacred Sites Executive Order. An interagency Working
    Group on the Implementation of the Sacred Sites Executive Order was
    created at the Department, comprising representatives of each
    departmental bureau, appropriate departmental offices and the Office of
    the Solicitor.
        The Working Group has actively sought input from Tribal
    representatives on all aspects of the Department's implementation
    process. The Department asked for Tribal input on the structure,
    location and content for consultations and hosted three formal
    discussion meetings between tribal and federal representatives focusing
    on implementation from both a procedural and substantive perspective.
    The meetings were held in Portland, Oregon; Denver, Colorado; and
    Reston, Virginia in March and early April of 1997. Topics at the
    meetings included: how to conduct meaningful consultation; how and when
    consultation processes are triggered; how to protect the physical
    integrity of sacred sites; how to protect the confidentiality of
    culturally sensitive information; how to accommodate access and use;
    and dispute resolution.
        Departmental Manual Chapter (512 DM 3) was created as a result of
    the consultation. The Chapter serves as a permanent means to integrate
    protection, preservation, accommodation of access and use practices and
    policies into departmental processes. It contains specific provisions
    requiring bureaus and offices to ensure that planning and decision
    documents contain: 1) a rationale for the recommended decision; 2) an
    explanation of how the decision is consistent with the Departmental
    Manual Chapter; and 3) when there is a determination that compliance
    with the general requirements of the Executive Order would be clearly
    inconsistent with essential agency function, the agency's rationale
    must be fully explained in the report.
        To facilitate the development of working relationships, the
    Departmental Manual Chapter directed bureaus, where appropriate, to
    establish formal procedures for interaction with tribes on matters
    concerning Indian sacred sites. The OAIT serves as coordinator for the
    Department but all bureaus and offices are responsible for identifying
    senior level staff members as designated points of contact. Bureau
    representatives are responsible for contacting tribes to address the
    terms and conditions for interaction and to enter into formal
    arrangements as appropriate. These formal arrangements should include
    provisions: 1) to ensure the protection, accommodation, access and use
    of Indian sacred sites; 2) to ensure the confidentiality of Indian
    sacred sites; 3) to develop mutually acceptable notification process;
    and 4) to develop specific dispute resolution procedures.
    Current Status
        In October, 2001, the Department attended the Sacred Lands Forum in
    Boulder, Colorado. Through considerable internal review and dialogue
    with interested participants at the forum, it became clear that we
    needed to move forward on establishing policies and procedures for
    addressing protection of sacred sites. At the ``Overcoming the
    Challenges'' symposium held on March 20, 2002, which was held as part
    of the DC Sacred Lands Forum, we announced our intent to reconvene the
    Department's Sacred Sites Working Group.
        In June, 2002, each Interior office and bureau involved with sacred
    sites issues was asked to assign a representative to the Working Group
    and the first meeting occurred on July 2, 2002, in the office of the
    Assistant Secretary for Indian Affairs. The Group has been in the
    process of identifying the the status of sacred site management across
    the bureaus. At future meetings, the Working Group will develop
    management guidance and tools to ensure full compliance with the
    Executive Order.
        On August 14, the Interior Working Group and the Advisory Council
    on Historic Preservation sponsored an interagency meeting on sacred
    lands and cultural resources. This meeting was conducted under the
    auspices of the Interagency Working Group on Environmental Justice with
    the idea that broader collaboration was needed to bring awareness of
    sacred site issues to other agencies. Several important issues were
    discussed at that meeting including the issue of confidentiality. The
    Department is exploring ways to address the desire of tribes to keep
    information about the nature and location of Indian sacred sites
    confidential, while still ensuring that appropriate public processes
    and input are maintained.
        The next meeting of the Working Group will be held on Wednesday,
    October 23, 2002, from 10:00 - 12:00 where it is expected that the
    Department will move to finalize the Bureau policies and draft
    Departmental directives for implementing Sacred Sites policy.
    Summary
        The Department plans to continue working closely with American
    Indians and Alaska Natives, through the government-to-government
    process, in ensuring access to and protection of sacred sites. A
    substantial amount of effort has already gone into consultation with
    the Tribes to establish a sacred sites protection policy that works for
    Native Americans and for all parties. The Department appreciates the
    efforts of Congressman Rahall to address this issue through
    legislation, however, we believe the new mandates contained in H.R.
    5155 would create an unreasonable and imbalanced statutory process.
    This Administration should be afforded the opportunity to complete
    implementation strategies for the Executive Order before pursuing any
    new legislative mandates.
        That concludes my statement. I would be glad to answer any
    questions you might have.
                                     ______

        Mr. Hayworth. Now, we are happy to hear the testimony of
    Mr. Smith. Welcome.

       STATEMENT OF MICHAEL R. SMITH, DIRECTOR, OFFICE OF TRIBAL
            SERVICES, BUREAU OF INDIAN AFFAIRS ON H.R. 2345

        Mr. Smith. My name is Mike Smith, Michael R. Smith. I am
    the Director of the Office of Tribal Services within the Bureau
    of Indian Affairs. I thank you for the opportunity to testify
    today before this Committee, Mr. Chairman. I grew up in
    Winslow, Arizona, and I hope you will not hold that against me.
        Mr. Hayworth. If the gentleman would yield, no. Actually,
    that proves very favorable in the eyes of the Chair and the
    gentleman from Oklahoma, who was born in Winslow. So you have
    curried favor with the opening remarks. Please resume.
        [Laughter.]
        Mr. Hayworth. Oh, and our dear friend from New Mexico wants
    to weigh in. So we have good bipartisan consensus. We are all
    for Winslow, and that includes those folks from Winslow. You
    may continue.
        Mr. Smith. Thank you, Mr. Chairman. I am an enrolled member
    of the Laguna Pueblo Tribe in New Mexico.
        With me today is Mr. Lee Fleming, the Branch Chief of the
    Branch of Acknowledgement and Research for the Bureau of Indian
    Affairs.
        I am here today to provide the administration's position of
    opposition to H.R. 2345, a bill to extend Federal recognition
    to the Chickahominy Tribe, the Chickahominy Indian Tribe
    Eastern Division, the Upper Mattaponi Tribe, the Rappahannock
    Tribe, Inc., the Monacan Tribe, and the Nansemond Tribe.
        Under 25 Code of Federal Regulations Part 83, groups
    seeking Federal recognition or Federal acknowledgment as Indian
    tribes are reviewed in a thorough and objective manner. Each
    petitioning group must demonstrate that they meet all the seven
    mandatory criteria established in these Federal regulations.
    The seven mandatory criteria are that a petitioner, one,
    demonstrates that it has been identified as an American Indian
    entity on a substantially continuous basis since 1900; two,
    demonstrates that a predominant portion of that petitioning
    group comprises a distinct community and has existed as a
    community from historical times until the present; three,
    demonstrates that it has maintained political influence or
    authority over its members as an autonomous entity from
    historical times until the present; four, provides 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 criteria; five,
    demonstrates that its 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; six, demonstrates that the
    membership of the petitioning group is composed principally of
    persons who are not members of any acknowledged North American
    Indian tribe; and seven, demonstrates that neither the
    petitioner nor its members are the subject of Congressional
    legislation that has expressly terminated or forbidden the
    Federal relationship. A criterion shall be considered met if
    the available evidence establishes a reasonable likelihood of
    the validity of the facts relating to that criterion. A
    petitioner must satisfy all seven of the mandatory criteria in
    order for tribal existence to be acknowledged.
        All six of these groups who would benefit from enactment of
    H.R. 2345 have submitted letters of intent and partial
    documentation to petition for Federal acknowledgment. However,
    none of these petitioning groups have submitted completed,
    documented petitions demonstrating their ability to meet all
    seven mandatory criteria.
        The Federal acknowledgment regulations provide a uniform
    mechanism to review and consider groups seeking Indian tribal
    status. This legislation, however, allows these groups to
    bypass these standards, allowing them to avoid the scrutiny to
    which other groups have been subjected.
        This concludes my prepared statement. I will be happy to
    answer any questions the Committee may have.
        Mr. Hayworth. And we thank you, Mr. Smith.
        [The prepared statement of Mr. Smith on H.R. 2345 follows:]

      Statement of Michael R. Smith, Director, Office of Tribal Services,
     Bureau of Indian Affairs, U.S. Department of the Interior on H.R. 2345

        Good morning, Mr. Chairman and Members of the Committee. My name is
    Mike Smith and I am the Director for the Office of Tribal Services
    within the Bureau of Indian Affairs at the Department of the Interior.
    I am here today to provide the Administration's position of opposition
    to H.R. 2345, a bill to ``extend Federal recognition to the
    Chickahominy Tribe, the Chickahominy Indian Tribe, Eastern Division,
    the Upper Mattaponi Tribe, the Rappahannock Tribe, Inc., the Monacan
    Tribe, and the Nansemond Tribe.
        Under 25 CFR Part 83, groups seeking Federal acknowledgment as
    Indian tribes are reviewed in a thorough and objective manner. Each
    petitioning group must demonstrate that they meet all the seven
    mandatory criteria established in these Federal regulations. The seven
    mandatory criteria are that a petitioner: (1) demonstrates that it has
    been identified as an American Indian entity on a substantially
    continuous basis since 1900; (2) demonstrates that a predominant
    portion of the petitioning group comprises a distinct community and has
    existed as a community from historical times until the present; (3)
    demonstrates that it has maintained political influence or authority
    over its members as an autonomous entity from historical times until
    the present; (4) provides 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)
    demonstrates that its 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; (6)
    demonstrates that the membership of the petitioning group is composed
    principally of persons who are not members of any acknowledged North
    American Indian tribe, and (7) demonstrates that neither the petitioner
    nor its members are the subject of congressional legislation that has
    expressly terminated or forbidden the Federal relationship. A criterion
    shall be considered met if the available evidence establishes a
    reasonable likelihood of the validity of the facts relating to that
    criterion. A petitioner must satisfy all seven of the mandatory
    criteria in order for tribal existence to be acknowledged.
        All six of these groups who would benefit from enactment of H.R.
    2345, have submitted letters of intent and partial documentation to
    petition for Federal acknowledgment. However, none of these petitioning
    groups have submitted completed documented petitions demonstrating
    their ability to meet all seven mandatory criteria.
        The Federal acknowledgment regulations provide a uniform mechanism
    to review and consider groups seeking Indian tribal status. This
    legislation, however, allows these groups to bypass these standards--
    allowing them to avoid the scrutiny to which other groups have been
    subjected.
        This concludes my prepared statement. I will be happy to answer any
    questions the Committee may have.
                                     ______

        Mr. Hayworth. Let me turn first to Mr. Kearney. In your
    testimony, you mentioned the Department of Interior generated a
    working group to develop management guidance and tools for
    sacred site management across the Bureau. Does the working
    group intend to address the issue of confidentiality, and if
    so, does the group anticipate moving forward without
    establishing an administrative mind veto?
        Mr. Kearney. Yes, sir. As I mentioned in my statement, the
    issue of confidentiality is a very important one and it is one
    we are examining very carefully and taking full consultation
    and input from all parties on that. And certainly, our next
    steps in this process will, and our guidance to the bureaus,
    will reflect the issue of confidentiality.
        Mr. Hayworth. Thank you, sir.
        To Mr. Smith, is there ever a situation where a tribe
    should be able to circumvent the recognition process and obtain
    federally recognized status through legislation?
        Mr. Smith. We do not think so. We have a process in place
    and we believe that, under our regulations, this should happen,
    although we do recognize that Congress does have the ability to
    recognize tribes.
        Mr. Hayworth. Have the six Virginia tribes seeking Federal
    recognition through H.R. 2345 been able to meet any of the
    Department's seven mandatory criteria for acknowledgment?
        Mr. Smith. I do not believe we are in a position to
    evaluate those petitions because they are incomplete at this
    time.
        Mr. Hayworth. All right, sir. I thank you.
        Let me turn to other members of the Committee, beginning
    with my friend from Michigan.
        Mr. Kildee. Thank you, Mr. Chairman. I carry with me at all
    times the Constitution of the United States, which all of us
    here at the dais have taken an oath to uphold. It says, this
    Constitution, the laws of the United States, which shall be
    made in pursuance thereof and all treaties made or that shall
    be made under the authority of the United States shall be the
    supreme law of the land and the judges in every State shall be
    bound thereby, anything in the Constitution or laws of any
    State to the contrary notwithstanding.
        One of the most ancient treaties is the treaty signed by
    the Indians of Virginia with the sovereign of Great Britain,
    and that is the tribe which John Marshall refers to in his
    famous decision of Worcester v. Georgia. The Indian nations had
    always been considered a distinct, independent political
    communities retaining the original natural rights as the
    undisputed possessors of the soil from time immemorial. The
    very term ``nations'' are generally applied to them, means a
    people distinct from others. We have applied the words
    ``treaty'' and ``nation'' to Indians as we have applied them to
    the other nations of the earth. They apply to all in the same
    sense.
        Now, a treaty generally cannot be broken unilaterally. It
    would seem to me that the U.S. Government, as trustee for the
    Indians, who clearly--and certainly Indians of Virginia are one
    of the earliest Indian groups that ever signed these treaties--
    it seems to me that the U.S. Government, as trustee for Indian
    rights, should be defending their rights as signators of that
    treaty.
        To what degree do you tuck that historical fact and the
    Constitution and John Marshall's decision into your findings
    when you look at the Virginia tribes?
        Mr. Smith. I do not believe that we have the right
    perspective as far as these petitions because we are not sure
    exactly who is being recognized under this proposed bill. We
    have problems in identifying exactly who the members are of
    these petitioning groups because we have not received that
    documentation at this time, and I do not believe we have an
    objection to people who are Indians being recognized. The
    question is whether or not they are tribes under our
    regulations, and the evaluation of the documentation that would
    prove that they are tribes, not necessarily groups of Indian
    people.
        Mr. Kildee. Do you recognize that the role of trustee by
    the U.S. Government, the trust responsibility came into being
    primarily to protect Indians from State government?
        Mr. Smith. Yes.
        Mr. Kildee. This is what John Marshall's decision was all
    about, right? I am sure you are familiar with that.
        Mr. Smith. Yes, sir.
        Mr. Kildee. Yet, we find a record in Virginia that is
    deplorable, a record of trying to--you know, in some countries
    during World War II, they tried to purge people and they did
    purge people. But in Virginia, they tried to purge the
    identity. How much do you consider that in looking at their
    application for recognition?
        Mr. Smith. Again, I would remind you that there has been a
    GAO report issued last year that encouraged a fair and
    equitable and impartial process for acknowledgment, and I
    believe that is what we want and that is why we are asking that
    all of the petitioners go through the process.
        Mr. Kildee. Let me give you a little bit more recent
    history. About five, 6 years ago, my friend, and he is my
    friend, the co-chair of the Native American Caucus, at about
    three o'clock in the morning turned to the Chairman of the Ways
    and Means Committee, who had been quoting a GAO report for
    weeks and all evening long. My friend said, you know, you keep
    quoting a GAO report, but I have something that I think has a
    little more strength than the GAO report. I have the
    Constitution of the United States.
        And I think from time to time in your role you should read,
    first of all, Article I, Section 8, the Congress shall have
    power to regulate commerce with foreign nations and among the
    several States and with the Indian tribes. The writers of this
    Constitution recognized there were three types of
    sovereignties, foreign nations--France, England--the sovereign
    States that created the Federal Government, and equated their
    sovereignty with that of the Indian tribes. When my friend
    raised this, we won. We hardly ever beat the Chairman of the
    Ways and Means Committee in Committee, but we did.
        And I think that just a cursory reading of eighth grade
    history talks about the Indians helping the Europeans, and
    their continuity, to my mind, is unquestioned. Now, the fact
    that the Virginia government tried to purge their identity
    should, first of all, upset you and give you a certain zeal to
    try to undo that purging. This was a deliberate attempt of the
    State to try to eradicate any identity as Indian tribes, and I
    think that that should be--
        I really believe, certainly, you do not want to recognize
    people who are not Indians. A bunch of my cousins from Ireland
    coming in and calling themselves Indians would not be Indians.
    But when you really have in Virginia a continuing history, a
    history of identity and a history of purging that identity, I
    think that should give you a certain zeal in trying to undo
    that attempt to purge the identity.
        Mr. Smith. Yes, sir, I understand exactly what you are
    saying. I came to Washington over 2 years ago from a State that
    has a very dark history in its treatment of Indian people, and
    that is California. I spent over 20 years in California and
    watched and participated in the development of many tribes in
    that State. I know exactly what you are saying, sir.
        But I believe, also, under our trust obligation to Indian
    people and Indian tribes, that we have a responsibility to
    verify all claims of groups who are petitioning to be tribes,
    and that is under the Federal regulation that we are operating
    under.
        Mr. Kildee. Under the BAR process which is taking place
    right now, how long would you anticipate it would be before you
    would arrive at a conclusion as to their sovereignty, their
    retained sovereignty?
        Mr. Smith. Under our normal process, the general rule of
    thumb would be that upon the competition of a petition, there
    is approximately a two- to 4-year process. That is an ideal
    situation. Now, we know that that has not been followed because
    of our resources and our limitation and the number of petitions
    that we are having to deal with. Therefore, the process has
    taken quite longer.
        But I do disagree with an earlier statement today that a
    Bureau of Indian Affairs official or an employee told anyone
    that this would not take place in their lifetime, because I do
    not believe that is a true statement.
        Mr. Kildee. I think my time is expired. Thank you, Mr.
    Chairman.
        Mr. Hayworth. I thank my friend from Michigan.
        Are there other questions for the panel? The Chair would
    note and inquire of Mr. Smith, do you have further comments
    about H.R. 992 that we did not get to?
        Mr. Smith. Yes, Mr. Chairman.
        Mr. Hayworth. The Chair apologizes if he was quick on the
    gavel, and if you would like to just proceed with H.R. 992, I
    am sure that my fellow members of the Committee would be
    willing to question the panel on all those issues. So if you
    would proceed with the H.R. 992 comments, that would be great,
    and then we will resume questioning.

               STATEMENT OF MICHAEL R. SMITH ON H.R. 992

        Mr. Smith. Thank you, Mr. Chairman. I have a very brief
    statement on H.R. 992. The administration's position regarding
    H.R. 992, a bill to provide grants to local governments to
    assist such local governments in participating in certain
    decisions related to certain Indian groups and Indian tribes,
    the administration opposes H.R. 992.
        H.R. 992 would provide the Secretary of the Interior
    authority to award grants on the basis of need to eligible
    local governments on issues concerning groups seeking Federal
    acknowledgment as Indian tribes, taking land into trust, land
    claims, and any action or proposed action relating to or by
    that local government. We oppose H.R. 992 because it would
    require the Secretary to make decisions about which groups
    receive grants from a limited source of funds based on the
    Department's view of how profoundly certain decisions might
    impact the community.
        First, the Department should not be the final arbiter of
    how to divide money amongst communities based on the level of
    perceived impacts certain decisions might have. Second, the
    bill would create an inherent conflict of interest where the
    grant-making agency is disbursing money that may be used, in
    turn, to attempt to influence important decisions being made by
    that agency. In addition, H.R. 992 does not preclude the use of
    grants to litigate in court, to lobby Congress, or to
    participate in actions against the Department. This would
    further conflict with the Department's statutory requirements
    of making objective decisions relating to Federal
    acknowledgment, and land into trust.
        This concludes my prepared statement on H.R. 992.
        Mr. Hayworth. And we thank you, Mr. Smith.
        [The prepared statement of Mr. Smith on H.R. 992 follows:]

      Statement of Michael R. Smith, Director, Office of Tribal Services
     Bureau of Indian Affairs, U.S. Department of the Interior on H.R. 992

        Good morning, Mr. Chairman and Members of the Committee. My name is
    Michael Smith and I am the Director for the Office of Tribal Services
    within the Bureau of Indian Affairs at the Department of the Interior.
    I appreciate the opportunity to appear before you today on behalf of
    the Administration regarding H.R. 992, a bill to provide grants to
    local governments to assist such local governments in participating in
    certain decisions related to certain Indian groups and Indian tribes.
    The Administration opposes H.R. 992.
        H.R. 992 would provide the Secretary of the Interior authority to
    award grants, on the basis of need, to eligible local governments on
    issues concerning groups seeking Federal acknowledgment as Indian
    tribes, taking land into trust, land claims, and any action or proposed
    action relating to a Indian group or acknowledged Indian tribe that is
    likely to significantly affect the people represented by that local
    government. We oppose H.R. 992 because it would require the Secretary
    to make decisions about which groups receive grants from a limited
    source of funds based on the Department's view of how profoundly
    certain decisions might impact the community. First, the Department
    should not be the final arbiter of how to divide money amongst
    communities based on the level of perceived impacts certain decisions
    might have. Secondly, the bill would create an inherent conflict of
    interest where the grant-making agency is disbursing money that may be
    used, in turn, to attempt to influence important decisions being made
    by that agency. In addition, H.R. 992 does not preclude the use of
    grants to litigate in court, to lobby Congress, or to participate in
    actions against the Department. This would further conflict with the
    Department's statutory requirements of making objective decisions
    relating to Federal acknowledgment, and land into trust.
        This concludes my prepared statement. Thank you for the opportunity
    to testify on this issue. I will be happy to answer any questions the
    Committee may have.
                                     ______

        Mr. Hayworth. We resume the questioning and turn to the
    gentleman from New Mexico.
        Mr. Udall of New Mexico. I would like to defer to the
    gentleman. He was here first.
        Mr. Hayworth. I am happy to see my friend from Samoa, Mr.
    Faleomavaega.
        Mr. Faleomavaega. I appreciate that. Mr. Chairman, I was
    here after our good friend from the Virgin Islands, and I would
    defer to her if she has any questions. But I do have some
    questions.
        Mrs. Christensen. Mr. Chairman, I do not have any
    questions. I just returned back from an errand, so I will pass.
        Mr. Hayworth. We thank you, and we return to our friend
    from Samoa.
        Mr. Faleomavaega. Thank you very much, Mr. Chairman, and I
    want to thank the members of our panel for their testimony.
        I wanted to ask Mr. Kearney, in his opinion, do you think--
    and I am an original cosponsor of H.R. 5155, by the way--I have
    always admired the ability of the administration through
    Federal regulations to complete a process and I just wanted to
    ask you, do you think H.R. 5155, you said it is
    counterproductive. Do you think that perhaps by putting it in
    the statute, it gives more teeth to the process?
        Mr. Kearney. Not necessarily, sir, no. I think we have done
    a tremendous amount of work to get to this point. I think we
    have a number of more steps to take, and I think at the
    completion of that process, we will have a full picture of how
    we are going to approach this and if there is perhaps some
    other legislative approach that may be considered or thought,
    but that perhaps would be the time to consider it. But at this
    stage, no, sir.
        Mr. Faleomavaega. You said that this has been in
    implementation since 1996.
        Mr. Kearney. That is when the executive order was
    promulgated.
        Mr. Faleomavaega. Right, and it is--
        Mr. Kearney. The process began in 1996.
        Mr. Faleomavaega. Six years later, we are still having the
    process?
        Mr. Kearney. We are actively working to bring the process
    to a conclusion as swiftly as we can, sir. We understand the
    time that has gone by. While a lot of work has been done, it
    has, indeed, been a lengthy process.
        Mr. Faleomavaega. Give us a guideline as to when is it
    going to become effective--six years ago?
        Mr. Kearney. I apologize, sir. I understand that that is an
    issue of importance to you and to others in the Committee and
    to us, as well. I am not able--I am not in a position to give
    you a specific timeframe now, but we are actively working to
    bring the process to a conclusion as quickly as we can, but we
    also want to do it right. From our part, from the
    administration's standpoint, we have reconvened the working
    group and we are actively trying to bring it to a close, but we
    have a number of issues to work through and so we are committed
    to doing that.
        Mr. Faleomavaega. But this is taking 6 years, Mr. Kearney.
    I mean, we in the Congress can only exist for 2 years and we
    would like to do this on a statutory basis. If the
    administration is taking 6 years, what makes you to have us
    believe that it is not going to take another 6 years for the
    process?
        Mr. Kearney. I can commit to you, it will be a much faster
    process than that. There were a number of activities that were
    undertaken to get us to this point. Departmental manual
    chapters, for example, I can tell you, take many months for a
    variety of reasons in terms of consultation, public process to
    complete. That has been completed. So there are a number of
    steps that have brought us to this point that were lengthy that
    I think it is fair to say do not lay in front of us.
        Mr. Faleomavaega. Can you give us some assurance that it is
    going to be a year or 2 years?
        Mr. Kearney. I can give you an assurance that it is a
    priority for the Department and we are moving to get it
    finished as quickly as we possibly can and that it will be not
    another 6 years.
        Mr. Faleomavaega. Mr. Smith, I have been listening to your
    testimony very closely as to your opposition to H.R. 2345, the
    recognition of the tribes. I noted also that you have been now
    in place for 2 years now.
        Mr. Smith. Yes, sir.
        Mr. Faleomavaega. I believe there are about 550 Indian
    tribes that have been federally recognized?
        Mr. Smith. Five-hundred-and-sixty-two, sir.
        Mr. Faleomavaega. Five-hundred-and-sixty-two recognized,
    and there are over 100 tribes alone in California that have not
    been recognized?
        Mr. Smith. We have 61 petitions from California.
        Mr. Faleomavaega. I just wanted to share with you a little
    historical perspective before you came on board, so please do
    not take this personally. This is just my little objective
    observation.
        The recognition process as it now stands is not only a
    travesty but an absolute farce, and I say this with all
    sincerity. For the 10 years that I have been sitting on this
    Committee, hearings that we have conducted and in the process,
    it has been almost 10 years now, Mr. Chairman, that we have
    been trying to do a recognition bill to give a little sense of
    equity and fairness in the process.
        You have indicated, Mr. Smith, and again, you are just
    simply saying this is because the policy is, is there any
    Federal law that prohibits the Congress from giving Federal
    recognition to any tribe like the process that Congressman
    Moran and Congressman Davis now suggest, that we just do it
    directly without going through the recognition process? I mean,
    is there anywhere that prevents the Congress from enacting
    legislation to recognize a tribe in any given period?
        Mr. Smith. No, sir.
        Mr. Faleomavaega. OK.
        Mr. Smith. We have had many tribes recognized in that
    fashion.
        Mr. Faleomavaega. I do not know if you are aware, but of
    the hearings that I have been involved personally in the
    recognition process, the gentleman who drafted the regulation
    giving rise to these seven criteria, right before this
    Committee, even not only recognized but confessed that even he
    could have never been able to go through the process in really
    giving Federal recognition to any tribe that makes application.
        We have got a tribe that over 100 years, and I am making
    specific reference to the Lumbee Nation in North Carolina, over
    100 years and this tribe has still not been recognized. There
    are about 50,000 Lumbee Indians in North Carolina, duly
    recognized by the State of North Carolina, and they are just as
    Indian as I could ever perceive them to be, and the fact that
    the bureaucratic maze that they have had to go through and the
    expenditure, the money that--some of these tribes have no
    monetary means whatsoever even to make an application.
        I just wanted to share with you my concern that we are
    still trying to pursue through statutory means. The recognition
    process is an absolute farce as far as I am concerned. It has
    not given any credence and service of what has happened to the
    Indian people. I wanted to share this concern with you.
        You mentioned about the GAO report that my good friend from
    Michigan has noted on this thing, and the fact is that even the
    GAO report says we have to do a better job. We are not doing a
    very good job. These seven criteria that you have indicated, I
    mean, it just--I do not know. It is just a crying shame that
    this is how we have been treating the Native Indians, first to
    say, well, you are not Indians. We are going to annihilate
    them, then assimilate them, terminate them, and now we are
    trying to recognize them. I just really am saddened at the fact
    that I just wish that perhaps the administration could be
    helpful in a better way.
        And again, I am not knocking you, Mr. Smith. You are just
    following the administrative rule as far as the regulations are
    concerned. But would the administration not be willing to work
    with us to set up a statutory provision, because right now, the
    recognition process is not by statute. It is by regulation. And
    as I said earlier, the person who wrote the regulation right
    there before us in this Committee said even he would not have
    been able--never been able to meet those criteria because of
    the way that this process has been going on.
        And always the excuse, Mr. Chairman, limited resources, and
    that is the reason why some of these tribes are taking years
    and years for recognition. By the time they have expended all
    their funds in paying the attorneys, getting the
    anthropologists and whatever it is it takes for them to be
    recognized, they are out of money, and that is the sad
    situation that we find ourselves in.
        Again, Mr. Smith, there is nothing personal against you. I
    just want to let you know that this member is very, very upset
    and I just wish that there could be a better way that we could
    do this process.
        Thank you, Mr. Chairman.
        Mr. Hayworth. I thank the gentleman.
        The Chair recognizes the gentleman from New Mexico.
        Mr. Udall of New Mexico. Thank you, Mr. Chairman, and I
    appreciate the administration witnesses being here.
        On H.R. 2345, you all are aware that the State of Virginia
    took very specific actions to destroy records and to deprive
    these tribes of their identity. I mean, I assume that the
    Department's position on that kind of action is that you oppose
    that and you think that is deplorable, is that correct?
        Mr. Smith. I would say yes, sir.
        Mr. Udall of New Mexico. And so with that action having
    taken place, I mean, how does this, in your mind, how do you
    take into consideration this effort by State government to
    destroy the identity of the tribes in an application process
    for recognition?
        Mr. Smith. Again, as I said before, within the bill, it is
    difficult for us to understand exactly who we are recognizing
    because we do not have the proper information to evaluate and
    analyze. Once a petition is complete, then we would have that
    opportunity.
        Mr. Udall of New Mexico. But as you know, the petition
    process requires extensive paperwork, which much of it is going
    to be missing because of the destruction of the records. You
    are always going to be able to say the petition is not
    complete.
        Mr. Smith. I do not necessarily agree. I think what we are
    most interested in finding out is who the people are and, under
    their membership criteria, how they have maintained their
    relationship over time.
        Mr. Udall of New Mexico. And are you going to give
    consideration to the fact that the State made efforts to
    destroy the identity of these tribes?
        Mr. Smith. Yes. I would say yes.
        Mr. Udall of New Mexico. I hope so. I hope so.
        Shifting to H.R. 5155, you testified that because the
    Department established an interagency working group to develop
    policy for complying with Executive Order 13007, it would be
    premature for Congress to enact H.R. 5155. Does this mean that
    thus far, the Department has not been able to comply with
    Executive Order 13007?
        Mr. Kearney. No, sir. We are in the process of complying
    with it through a variety of actions that we are engaged in,
    the departmental manual chapter, as I indicated, and other
    activities. So we are moving forward in that regard. There are
    just a variety of issues that we are working through as the
    working group completes its work and we think we have done good
    work, we have gone that road, and at this stage, it is
    premature to try to address it legislatively.
        Mr. Udall of New Mexico. What standards have you used to go
    through this process?
        Mr. Kearney. What standards have we used?
        Mr. Udall of New Mexico. Yes.
        Mr. Kearney. I am not sure I understand. What do you mean?
        Mr. Udall of New Mexico. Well, you say you are in the
    process of complying with this executive order, correct?
        Mr. Kearney. Yes.
        Mr. Udall of New Mexico. What standards have you used in
    that process in order to make judgments as to whether or not
    you are in compliance or not?
        Mr. Kearney. Well, for example, if various actions and
    requirements of the order, such as what the Federal--that
    consultation must occur with respect to the tribes and
    communication with them is one example of where we have done
    that.
        Mr. Udall of New Mexico. While H.R. 5155 is meant to
    protect Native American sacred lands across the U.S., the
    limited witness list we are permitted has caused us to focus on
    the protection of the sacred lands of the Quechan Tribe and the
    plans of the Glamis Gold, Limited, to mine the area. Of
    interest to me is Secretary Norton's decision to rescind
    Secretary Babbitt's decision to not permit mining in this area.
    Please explain to the Committee the consultation process the
    Department entered into with the tribe or other Colorado River
    tribes prior to the rescission.
        Mr. Kearney. Mr. Udall, while I did not come today prepared
    to discuss any specific project or issue with regard to this, I
    would be delighted to provide a response to you in writing to
    that question.
        Mr. Udall of New Mexico. Did the Department meet with any
    representatives of the gold company prior to the rescission?
        Mr. Kearney. As I said, I would be delighted to provide a
    written response to that.
        Mr. Udall of New Mexico. OK. Well, I would be happy to have
    that. Are you able to say today whether the Department met with
    tribes prior to this decision to issue the rescission?
        Mr. Kearney. Well, we have a--as I said, with respect to a
    specific project, I certainly will get you an answer in
    writing. But we certainly have a consultation process that is
    in place, an executive order that guides the consultation
    process. We certainly have consultation with respect to our
    activities and projects. We have a commitment to protecting and
    addressing issues associated with sacred sites that is
    certainly reflected in the Secretary's, the administration's
    decision to reconvene the working group.
        So certainly this is an issue, and the potential
    ramifications of matters related to sacred sites are of
    importance to the Department and we are taking--we are taking
    the steps under our procedures, regulations, guidelines, and
    other actions to ensure that we take those issues into account.
        Mr. Udall of New Mexico. OK. I hope that you will provide
    us with the information on the consultations you made prior to
    the rescission on the Quechan Tribe and the other Colorado
    River tribes. Thank you very much. I appreciate you being here.
        Mr. Hayworth. I thank the gentleman from New Mexico.
        Are there other questions for the panel?
        [No response.]
        Mr. Hayworth. Hearing none, the Chair would simply request,
    not mindful of your schedules today, and typically, we have had
    a good relationship where people have stayed around to listen
    to the other testimony, if it might be possible to accommodate
    your schedule, my friend from Michigan asked me to inquire,
    would it be possible for you gentlemen to stay and listen to
    testimony this afternoon as it continues?
        Mr. Kearney. I can certainly stay for a portion of the
    time, yes, sir, perhaps not the entire time, but I certainly
    can for a portion of it.
        Mr. Smith. I could also stay, Mr. Chairman.
        Mr. Hayworth. We thank you very much for your cooperation
    in that regard, and also as questions develop, as you said, on
    various other questions there might be an opportunity to
    communicate in writing later on, and certainly if you can stay
    for the duration, we would contact you in writing on some of
    the concerns that may arise.
        With that, we thank you for your testimony on panel three
    and we would excuse you. We thank you again for amending your
    schedules to stay with us as long as possible.
        Mr. Hayworth. The Chair would now call forth panel four to
    talk about H.R. 5155. Included there as panelists, the
    President of the Quechan Indian Nation, Mr. Mike Jackson,
    Senior; Mr. Jefferson Keel, Vice President, the National
    Congress of American Indians; Mr. Tim McCrum of Crowell and
    Moring; and Mr. Mike Hardiman of the American Land Rights
    Association.
        We welcome you to the table, gentlemen. As we are taking
    care of our housekeeping to put you front and center at the
    table and in front of the microphones, the Chair would advise
    my friend from the Quechan Indian Nation, Mr. Mike Jackson,
    Senior, that he will lead off the testimony.
        The Chair would also take this opportunity to request
    unanimous consent that my friends from the Inter-Tribal Council
    of Arizona, their resolution to protect sacred lands within
    Quechan Indian Pass area, that this resolution be included in
    the record. Hearing no objection, it is so ordered.
        [The information referred to follows:]

        [GRAPHIC] [TIFF OMITTED] T1889.001

        [GRAPHIC] [TIFF OMITTED] T1889.002

        Mr. Hayworth. Now, we turn to Mr. Jackson, President of the
    Quechan Indian Nation, for his testimony. Good morning, Mr.
    Jackson. We thank you for coming. I would instruct all of the
    witnesses, we will, of course, put your complete testimony in
    the record, but we appreciate a summation in the 5 minutes we
    allot for each of you.
        Thank you, President Jackson. You may begin.H.R. 5155

       STATEMENT OF MIKE JACKSON, SR., PRESIDENT, QUECHAN INDIAN
                                 NATION

        Mr. Jackson. Thank you, Chairman Hayworth, members of the
    Committee. As Mr. Hayworth stated, my name is Mike Jackson,
    Senior. I am President of the Quechan Nation, located at Fort
    Yuma, California.
        Thank you for asking Mr. Kearney to stick around so he
    could listen to my testimony because I have a lot to say to
    what he just said. I have opposing views to what he just
    mentioned. I appreciate it.
        It is an honor and my privilege to testify today on behalf
    of our tribal nation. I bring word from the hearts of my people
    to tell the story of Indian Pass.
        The religious and sacred area known as Indian Pass is an
    integral part to practice our religious beliefs, the well-being
    of our tribal culture, our tradition, and the well-being of
    Mother Earth. Today, the Quechan people, as did our ancestors,
    still hold spiritual reverence and a strong connection to the
    spiritual area known as Indian Pass.
        The Quechan Indian Pass has 55 recorded historic
    properties, including the Running Man site, prayer circles,
    ceremonial places, shrines, ceramic artifacts, petroglyphs, and
    spirit breaks linked by ancient running trails. All these
    historic properties are eligible for listing on the National
    Register of Historic Places and the Graves Protection and
    Repatriation Act. More importantly, the National Trust for
    Historic Preservation has included the Quechan Indian Pass on
    their exclusive ``Eleven Most Endangered Historic Sites in
    America for 2002.''
        Our tribal nation has fought and struggled for six long
    years to protect our religious and sacred sites at Indian Pass
    against the Glamis Gold Mining outfit that today still insists
    on destroying our history. But we are resolved as a people. We
    simply will not lose this fight. We cannot. We will fight
    forever to see that our sacred area is left the way our creator
    made it.
        During our struggle, the Quechan Nation has followed the
    correct legislative process, including government-to-government
    consultation with the U.S. Government, held numerous public
    hearings. Finally, with tremendous Congressional support across
    the nation, the Clinton administration denied the gold mine.
        The Glamis Imperial Mine is a massive open pit cyanide
    leach gold mining operation that will destroy Indian Pass. It
    will destroy our link to our ancestors. It will destroy our way
    of life and the history of our people. Our traditional singers
    will no longer be able to sing about Indian Pass because it
    will no longer be there. Our younger generation will no longer
    go there to learn. Our elders, who are our teachers, will no
    longer teach and conduct ceremonies at Indian Pass because it
    will be destroyed. It will be gone forever.
        Our nation was grateful to the Clinton administration to
    listen, to hear, to learn from our people, and finally making
    the right decision in denying the Glamis gold mining project.
    Our tribe was preparing to assist the Department of Interior in
    defense of their decision.
        But we enjoyed a very short victory. Secretary Gale Norton
    stripped away the hard-fought victory and tore the hearts out
    of our people by reversing the denial of the gold mine. What it
    amounted to was still another broken process to a Native
    American tribe. Secretary Norton reversed the decision without
    consultation with our tribe, without public comment. She
    declined to follow the correct legislative process that was
    expected of us.
        But yet, through the tribe's Freedom of Information Act, we
    learned the Department of Interior found time to meet with the
    Glamis representatives. Shortly thereafter, the Interior
    released a new solicitor decision to rescind the denial of the
    gold mine.
        The acts of Secretary Norton not even to formally notify
    us, our tribe of her decision, throws the government process
    back to the dark ages. As you know, there are many statutes and
    policies requiring government-to-government consultation before
    making decisions on enacting policies that will impact Indian
    nations. She disrespected our people, our tribal government, by
    not officially notifying us of her decision. It was just merely
    a matter-of-fact way of letting us know.
        As of today, she still refuses to meet with us to discuss
    why the Quechan Nation and our people must save our history.
    When Indian Pass is mentioned, it is at the forefront of sacred
    sites.
        In Mr. Kearney's testimony this morning, when he was asked,
    he said they had brought about new policy. They had worked hard
    with the executive order on sacred sites. They had done a lot
    of work. They had done good work, I had written here. But we
    have not been notified of any such work. They have not
    contacted our tribe. We have not even gotten a call from them
    to meet with us.
        Like I said, our sacred sites, Indian Pass is in the
    forefront when it comes to sacred sites. Tribes across the
    Nation are supporting us. We are fighting not only for our
    tribe, but for other Indian tribes across the Nation to save
    their history.
        Senator Burton has sponsored a California State bill, S.B.
    1828, to help protect Indian Pass. This State bill passed both
    houses of the legislature by wide margins and bipartisan
    support. It is now awaiting the Governor's signature.
        But the State bill is not a substitute for needed Federal
    action to protect sacred places. Many sacred and religious
    sites on Federal lands have been destroyed, picked off one by
    one, tribe by tribe, project by project. This must stop.
        If Mr. Kearney and staff are working diligently and hard
    and doing good work, the tribes would not be suffering today.
    The Federal Government must take on--the Department of Interior
    must taken on the responsibility that they were created for and
    protect these sites and our history.
        Today, we are here to support H.R. 5155, introduced by
    Representative Rahall. H.R. 5155 will codify and improve
    Executive Order 13007.
        The Quechan people look to this Committee and the House to
    take actions to protect sacred places. Another mine on our
    ancestral land is not essential, but the preservation of our
    culture is.
        The Glamis mining officials will say and have always said
    that our site is not sacred. This breaks the heart of our
    people, especially our elders. But proving to the mining
    officials that our area is sacred is not important because they
    bring deaf ears to the table. What is important to us is saving
    Indian Pass.
        The fundamental principle that the United States has a
    legal relationship with tribes, with our tribal government as
    set forth in the Constitution of the United States, the Quechan
    people are asking you to let us enjoy our religious freedom
    like any other people in the United States.
        Mr. Hayworth, Chairman, members of the Committee, I bring
    word, like I said, from the hearts of our people. My people,
    especially our elders, eagerly await my return to the
    reservation to give them word about this meeting today. I know
    I had only 5 minutes, but I ask you and the Committee to look
    into your hearts. We are asking you to save our history. I
    appreciate it and thank you.
        Mr. Hayworth. And we thank you, President Jackson.
        [The prepared statement of Mr. Jackson follows:]

     Statement of Mike Jackson Sr., President, Quechan Indian Nation, Fort
                          Yuma, California and Arizona

        Chairman J.D. Hayworth, members of the Committee, my name is Mike
    Jackson Sr., and I am the President of the Quechan Indian Nation of Ft.
    Yuma California and Arizona. It is my honor and my privilege to testify
    today on behalf of our Tribal Nation and especially our people. I will
    speak from the heart.
        Our remote but strong Tribe has been pulled into local, state and
    national discussions about the destruction of Indian sacred places and
    the destruction of our identity as Indian people, because of a project
    proposed on the Tribe's off reservation, aboriginal lands. Our people
    are united against this mine and will fight forever to see that our
    sacred area is left the way the Creator made it.
        The proposed Glamis Imperial Project is a massive, open pit,
    cyanide heap leach gold mine. It would have three pits, with the
    deepest pit at 85 stories deep, never being backfilled. It would leave
    waste rock piles 30 stories high within our sacred area. It would
    require 422 tons of waste rock to get at one ounce of gold.
        The Glamis mine would destroy 5 recorded sites eligible for listing
    on the National Register of Historic Places, including the Trail of
    Dreams. The National Trust for Historic Preservation named the Indian
    Pass area as one of the 11 Most Endangered Historic Places in 2002. It
    is a place that is not suitable for a massive open pit mine.
        In 1998, the Los Angeles Times wrote that this dispute marked the
    first significant test of Executive order 13007. The struggle has been
    long and hard, with many sacrifices along the way. But we are resolved.
        Our Tribe worked for six years within the established process to
    see that our culture be protected and the mine be denied. The federal
    Advisory Council on Historic Preservation found that the mine would
    directly destroy our way of life and history and recommended that BLM
    take all legal means to deny the mine. Interior did just that and
    denied the mine in early 2001.
        But, Secretary Norton stripped that hard fought victory away, with
    a single stroke of her pen, and reversed the denial of the mine in a
    one paragraph statement, with no public comment and consultation with
    us.
        A bill like NASLA, may have prevented the train wreck that is the
    proposed Glamis Imperial Mine. The ability for tribes to initiate a
    suitability determination means that we would not have to rely upon
    under funded and understaffed agencies to protect and preserve our
    irreplaceable cultural patrimony. Without taking away the agencies''
    responsibilities in that area, the bill would create a mechanism for us
    to initiate protection for our sacred areas.
        Our struggle at the Indian Pass area has also resulted in
    California state legislation to protect our sacred places. SB 1828
    would help in two ways. First, it would require that when a project is
    proposed, that the established state environmental review process
    include consideration impacts to sacred places and early meaningful
    government to government consultation with any affected tribes. If
    mitigation cannot be attained, then the lead agency can only approve
    the project, when overriding environmental, public health or safety
    needs require it.
        Second, the state bill would also require that new open pit mines,
    in protected areas of the California desert, at or near sacred sites,
    be completely backfilled. Complete backfill, while not eliminating
    impacts to spiritual values, would reduce environmental impacts and
    allow for future public use of the area, versus, exclusive mining use
    in perpetuity.
        This state bill passed both Houses of the Legislature by wide
    margins and has strong bipartisan support. It is now on the Governor's
    desk awaiting his signature. Tribal runners in California are making a
    statement , even today, for him to sign the bill.
        But, the state bill is not a substitute for needed federal action
    to protect sacred places. So many of our sacred places on federal lands
    have already been destroyed. Many more are posed for destruction.
    Picked off one-by-one. Tribe-by-Tribe. Project-by-Project. This must
    stop.
        When a site is lost, our hearts break. Our link to our ancestors,
    and our future is broken. Our traditional singers cannot sing about a
    place that is lost. Our youth cannot learn about what happens at a
    location when that location is permanently converted to an industrial
    use. Our practitioners cannot conduct ceremonies at sites when access
    to them has been blocked.
        The bulldozer or backhoe ripping into the earth, rips into our
    hearts. Our inability to stop this destruction makes us feel as though
    we are failing our ancestors and our children. If you destroy the land,
    you destroy what we believe in, who we are. This too must stop.
        HR 5155 will codify and improve upon Executive Order 13007. It
    requires 1) accommodating access to and ceremonial use of our sacred
    places, 2) protecting our sacred places from significant damage, 3)
    and, would add a requirement for meaningful government-to-government
    consultation prior to federal agencies taking irreversible actions that
    impact our sacred places.
        The bill moves these common-sense protections from an Executive
    Order that can be revoked by a succeeding administration, into law, and
    allows us to protect our rights. It also contains a much-needed
    confidentiality provision to respect all tribes and protect sites.
        If there are ways to strengthen the bill to help Indian people, we
    respectfully encourage the Committee to do so. Specific changes might
    include:
         Strengthening the attorney's fee provision so that all
    tribes can participate in protecting their sacred places;
         Eliminating the possibility of an Indian Claims
    Commission for sacred place destruction because our Tribe, and others,
    will not accept one penny to allow the destruction of our history and
    traditions;
         And revisiting the standards of proof to better reflect
    the nature of the resources at stake.
        Also, we cannot forget that the other federal actions, apart from
    this bill, are still needed in Indian country to protect our history
    and sacred places. These include:
         Adequate funding for the land management agencies to do
    the jobs they are already required to do through various statutes,
    plans and policies such as: timely surveying lands, increasing patrols
    and improving enforcement;1
    ---------------------------------------------------------------------------
        \1\ See, for example, BLM's Strategic Paper on Cultural Resources
    at Risk, June 2000, which finds that our ``Great Outdoor Museum'' may
    soon lack sufficient integrity and representativeness to relate
    anything more than anecdotal account of western land use, and, BLM's
    Our Vanishing Past: The Crisis of Cultural and Paleontological
    Resources on BLM Lands, January 2002, which gives a state-by-state
    overview of the resource crisis. We are informed that the latter report
    is now being withheld by Interior. Both of these BLM-produced documents
    indicate that the Indian resources on our public federal lands are
    increasingly, and seriously, at risk and at a critical stage. Cited
    reasons for this crisis include vandalism, sprawl development, illegal
    off-highway vehicle activity, utility infrastructure, neglect, and
    certain mining operations. As a general matter, BLM itself states that
    Indian cultural heritage, including sacred areas, are presently
    inadequately protected by BLM.
    ---------------------------------------------------------------------------
         Filling in gaps in existing laws so that they function as
    envisioned, to protect the on-the-ground resources and traditional
    uses.2
    ---------------------------------------------------------------------------
        \2\ See, for example, the National Research Council's Hardrock
    Mining on Federal Lands, commissioned by the U.S. Congress in 1999
    (National Academy Press, Washington D.C. 1999). As you may be aware,
    Glamis continuously miscites to this report for the alleged proposition
    that current laws and authorities adequately protect Indian sacred
    places. To the contrary, the Report states that there is a need for
    filling gaps and inadequacies in regulations, for improving
    implementation of such regulations and for increasing the availability
    and quality of information to protect historic and cultural resources,
    including sacred places, It is to the Council's credit that it came to
    these conclusions despite the fact that tribes were not invited to the
    hearings or to consult, but entities like Glamis and its attorneys were
    invited to participate. (Report, Appendix G). The Research Council
    found that additional work is needed, in many cases, to adequately
    protect sacred places on federal public lands from destruction.
    ---------------------------------------------------------------------------
        In closing, my Tribe and I thank you, Chair J.D. Hayworth for
    holding this hearing, and for the opportunity to tell our story. We
    thank Mr. Rahall for introducing this bill, and look to this Committee
    and the House to take actions to protect our irreplaceable places and
    the unique cultures they support.
        Another mine on our ancestral lands is not essential. The
    preservation of our culture is.
                                     ______

        Mr. Hayworth. The Chair would now recognize Mr. Jefferson
    Keel, Vice President of the National Congress of American
    Indians.

    STATEMENT OF JEFFERSON KEEL, VICE PRESIDENT, NATIONAL CONGRESS
                          OF AMERICAN INDIANS

        Mr. Keel. Good morning, Mr. Chairman. Thank you for
    allowing me this day. I am honored to be here to provide
    testimony to this Committee.
        My name is Jefferson Keel. I am the Lieutenant Governor of
    the Chickasaw Nation. I am also the Muskogee Area Vice
    President, which is the Eastern Region of Oklahoma, for the
    National Congress of American Indians. I am honored to provide
    testimony.
        As you have heard already, we have submitted testimony,
    written testimony that we request be entered into the official
    record. I will summarize both of those documents, if I could. I
    will attempt to be brief.
        Imagine holding a worship service in a church that is
    designated by law to be open at all times to the public,
    hikers, picnickers, and tourists. Imagine rock climbers scaling
    the walls of the National Cathedral during religious services.
    Imagine a place of worship in your hometown being replaced by
    an open pit mine against the will of the congregation. These
    are just examples of what Indian people endure today, in spite
    of Federal laws and mandates and regulations that require
    consultation on all of these intended actions.
        There is not one comprehensive consultation law that
    requires or compels State governments or local governments to
    consult with Indian tribes. There are a number of Federal
    regulations and executive orders that require Federal agencies
    to consult with Indian tribes, but they are largely ignored by
    State governments and by construction companies who are
    concerned with economic development, and while economic
    development is important to this country and to the economy, it
    is not in the best interests of any people to ignore the rights
    and legal aspects that people should enjoy in a country that we
    fight to defend daily.
        The souls of our ancestors cry out to us today for
    protection and respect. Just as young patriotic Americans
    answer the call to duty to protect this great land, Indian
    people have always been the first to step forward to answer
    that call. We are not only obligated to answer that call, as
    tribal leaders, we are honored to answer that call to protect
    our ancestors.
        The religious sites, the sacred sites--the term ``sacred
    sites'' is often confused among those non-Indians or people who
    do not understand the cultural value. A sacred site may not be
    a particular point on the ground. It may be a hilltop, a
    valley, a pass, or another area or a place where Indian people
    conduct ceremonies and other sacred actions, places of worship,
    and that is often foreign and often difficult to grasp and
    often ignored in the interest of time and in the interest of
    self-serving State and local governments. So Indian tribes
    struggle with that concept today.
        As you know, many Indian tribes do not now occupy their
    aboriginal grounds, their aboriginal lands. During the Indian
    Removal Act, many tribes were forcibly removed from their
    lands. They left behind sacred ceremonial sites. They left
    behind the graves of their ancestors. Those graves were robbed
    and the artifacts and burial goods are stolen and are sold on
    the black market. There is an increasing amount of that
    thievery that goes on today.
        Today, while we speak right now, there are probably people
    picking the graves of our ancestors, and while that sounds
    foreign to some people, imagine that if it was your grandmother
    or grandfather or aunt or uncle or brother or sister or child,
    that the grave is being opened and the goods that are contained
    within that grave being stolen so that they can be sold on the
    black market.
        The Chickasaw Nation considers all of the graves of our
    ancestors and the burial goods that were associated with that
    as sacred sites, and so we intend to protect those as much as
    possible.
        As I said before, there is not one comprehensive law that
    requires all agencies to consult with Indian tribes on any
    given action that affects the lands or sites of Indian people.
    I would request that the law include a negotiated rulemaking
    element that would require all agencies to participate along
    with practitioners and tribal government officials and tribal
    leaders to accommodate this bill and to enact legislation that
    would require and be enforceable to all those involved.
        Right now, when an agency chooses to ignore the Federal
    law, there is no recourse for Indian tribes. Indian tribes, or
    many Indian tribes, do not have the resources to enter into
    lengthy and costly litigation with State and Federal
    Governments or Federal agencies, and so the time goes on and we
    continue to struggle with these important issues.
        As I said, the written comments have been submitted for the
    record. I appreciate your time, and thank you for allowing me
    to testify.
        Mr. Hayworth. Thank you very much, Lieutenant Keel. We are
    grateful for your testimony here today.
        [The prepared statement of Mr. Keel follows:]

      Statement of Jefferson Keel, Muskogee Area Vice President, National
                          Congress of American Indians

        Good morning Chairman Hansen, Representative Rahall, and
    distinguished Committee Members. My name is Jefferson Keel, and I serve
    as the Muskogee Area Vice President of the National Congress of
    American Indians (NCAI) and the First Lieutenant Governor of the
    Chickasaw Nation. On behalf of the National Congress of American
    Indians (NCAI) and its more than 250 member tribal nations, I am
    pleased for this opportunity to present testimony on sacred lands
    protection. This is perhaps one of the most significant challenges our
    people face in maintaining our religious and cultural roots to share
    with future generations.
        Imagine holding worship service in a church that is designated by
    law to be open at all times to the public hikers, picnickers, and
    tourists. Imagine rock climbers scaling the walls of the National
    Cathedral during religious services. Imagine a place of worship in your
    hometown being replaced by an open pit mine against the will of the
    congregation. Imagine plans moving forward to level the Wailing Wall to
    build a highway through Jerusalem. Most people in the U.S. take for
    granted the sanctity of worship sites. For many Native Americans,
    however, protection for their sacred areas is uncertain at best.
        As the oldest and largest national organization of American Indian
    and Alaska Native tribal governments, NCAI is deeply concerned with the
    respectful treatment and protection of sacred lands. Historically
    subjected to the devastating, systemic destruction of their religious
    practices and sites, tribes continue to suffer the heartbreaking loss
    and destruction of their precious few remaining sacred lands today.
        There are many places across America that are holy to native
    people. These sacred places are critical to the revitalization and
    continuity of hundreds of living cultures. Individuals and
    organizations that have been active in the movement to protect sacred
    lands are as diverse as the sites and the communities who tend them.
        Every year sacred sites, integral to the practice of Indian
    religions, are being destroyed. There is no comprehensive, effective
    policy to preserve and protect sacred lands and resources. Legal
    remedies, such as the American Indian Religious Freedom Act, Executive
    order 13007, and the National Historic Preservation Act (NHPA) are
    often ineffectively implemented and provide limited legal redress to
    aggrieved traditional religious practitioners and tribes.
        Through NCAI meetings and conferences, it has become apparent that
    sacred places continue to be endangered throughout the nation, and
    comprehensive legislation is still very much needed to protect all
    Native American sacred places. Tribal leaders have reached a consensus
    that it is necessary to begin an organized effort to halt private and
    governmentally-sponsored development that will threaten or destroy
    sacred places and have passed several resolutions to this effect.
        At NCAI's 2002 June Midyear Conference held in Bismarck, North
    Dakota, tribal representatives from throughout the nation passed a
    resolution, BIS-02-043, supporting HR 5155, the Native American Sacred
    Lands Act, legislation that furthers the protection of sacred lands and
    sacred places and translates into positive law Executive Order 13007.
        This resolution specifically calls for strengthening administrative
    policies and regulations to better protect sacred sites and accommodate
    the ceremonial use of such sites, and for the federal government to
    ensure adequate government-to-government consultation with tribes
    regarding sacred places.
        HR 5155 meets those needs outlined in the resolution by requiring
    departments and agencies that manage Federal lands to accommodate
    access and use by Indian religious practitioners and consult with
    Indian tribes prior to taking significant actions or developing
    policies affecting Native American sacred lands.
        HR 5155 also recognizes the importance of prohibiting undertakings
    likely to cause significant damage to Indian sacred lands by allowing
    tribes to petition to withdraw sensitive and invaluable lands for
    sacred and ceremonial use. The ability to petition for withdrawal of
    lands is most certainly part of the solution to protecting sacred
    places.
        HR 5155 also helps protect our sacred landscapes by seeking to
    maintain the confidentiality of sensitive information related to
    traditional cultural practice, religion, or the significance and
    location of sacred land.
        NCAI has passed several resolutions relating to sacred sites
    protection, and is working to protect specific sacred places that are
    currently threatened. These places include Zuni Salt lake in New
    Mexico, the Quechan Indian Pass in California 1, the Black
    Creek Native American Site in New Jersey 2, the Dzil Nchaa
    Si'' An (Mount Graham) in Arizona 3, and Snoqualmie Falls In
    Washington State.
    ---------------------------------------------------------------------------
        \1\ RESOLUTION #SPO-01-162, Sacred Lands Protection, including Zuni
    Salt Lake and Quechan Pass.
        \2\ RESOLUTION #SPO-01-111,To Support the Protection of the Black
    Creek Native American Site.
        \3\ RESOLUTION #SPO-01-063, Resolution in Support of the
    Determination of Eligibility of Dzil Nchaa Si'' An (Mount Graham, AZ)
    for Listing in the National Register of Historic Places in the United
    States as a Western Apache Traditional Cultural Property and Sacred
    Site, and Request That No University or Other Entity, Foreign or
    Domestic, Join the Mt. Graham Observatory Due to the Harms Caused to
    Western Apache People, Their Culture, and Their Religion.
    ---------------------------------------------------------------------------
                                 Zuni Salt Lake

        The Zuni Salt Lake is an important deity revered by many tribes in
    the Southwest, including the Zuni, Acoma, Hopi, Navajo, and Apache
    Nations. A proposed coal strip mine may shortly be approved through a
    Life of Mine Permit by the Department of the Interior, Office of
    Surface mining and Bureau of Land Management. This 18,000-acre mine
    will irrevocably impact the Zuni Salt Lake, surrounding traditional
    cultural properties, burial sites, and the Sanctuary Zone deemed
    eligible for inclusion in the National Register of Historic Places. The
    New Mexico mine and Minerals Division has already approved the mine,
    despite numerous hydrological studies demonstrating that the mine could
    have a serious effect on the survival of the lake itself.

                              Quechan Indian Pass

        In the wake of a decision-making process that took many years, and
    in which the Quechan Tribe and other concerned tribes participated in
    the environmental impact statement and review process under section 106
    of the NHPA, the Bureau of Land Management denied permission to operate
    a heap leach, open pit gold mine that would have destroyed many sacred
    places at Quechan Indian Pass but distressingly, the Secretary of the
    Interior has reversed this decision, paving the way to allow the
    proposed destruction of Quechan Indian Pass.

                                Black Creek Site

        The Black Creek Site is an historically and culturally significant
    Lenape village site, as documented both by previous archaeological
    studies in the Vernon Township in the State of New Jersey as well as by
    the studies of current archaeologists and anthropologists working in
    collaboration with the Nanticoke Lenni-Lenape Indians of New Jersey
    based on ten years of surface sampling. The Nanticoke Lenni-Lenape
    Indian have determined that the Black Creek Site is a significant
    Lenape cultural site and seek site protection through registration as
    an historic site with the State of New Jersey and the National Register
    of Historic Places. However, the municipal government of the Vernon
    Township of New Jersey has initiated activities to destroy or otherwise
    significantly disturb and damage the Black Creek Site.

                         Dzil Nchaa Si'an (Mt. Graham)

        Dzil Nchaa Si'An ( Mt. Graham) is a prime example of a needlessly
    threatened site, where both science and religious freedom would be best
    served by selecting an alternative observatory site. The mountain
    landform Dzil Nchaa Si'An is a traditional cultural property of the
    Western Apache people, a central source of sacred spiritual guidance,
    and a unique place on earth through which Apache people's prayers
    travel to the Creator. Dzil Nchaa Si'An is being desecrated and
    irreversibly harmed by the cutting of ancient forest, construction
    digging, road building, electrification, and the installation of
    telescopes and metal buildings sponsored by the University of Arizona
    and its astronomers.

                                Snoqualmie Falls

        Snoqualmie Falls, Washington, in the Pacific Northwest of the
    United States, deemed eligible for listing on the Register of Historic
    Places as a Traditional Cultural Property, has a rich pre-contact
    history as a meeting place for the great Indian councils from the east
    and the west. The Snoqualmie Falls is the centerpiece of the Snoqualmie
    Creation Story, and retains its spiritual connection and significance
    to tribes in the area to this day. Yet, for the last 100 years, the
    sacred cycle has been disturbed. Today the Falls are strangled to a
    trickle. A private corporation with a license from a federal agency
    diverts much of the Snoqualmie River a public resource, into
    electricity producing turbines, interrupting its journey over the vast
    rock face of the Falls. The corporation currently has plans to divert
    more water under its application for a new license. Other federal
    agencies have plans that would further desecrate this site.
        While economic development is important, so is the integrity of our
    constitutional commitment to protecting religious freedom including the
    traditional religions that are the oldest and longest-standing
    religions of this land. Tribal governments know firsthand what it is
    like to live and govern economically depressed areas with few
    opportunities for creating a sustainable economy. As tribal leaders, we
    know and understand the need to create economic opportunities for our
    people, but not at the unthinkable price of sacrificing our religious
    beliefs.
        I believe many of my colleagues in the business community or in
    state and local government feel similarly--that their religious beliefs
    and cultural values are the compass that guides them through their
    lives, and the choices they make are informed by and not at odds with
    those values. Just because these traditional religions may be different
    from more mainstream experience of the Holy does not make them less
    valuable, less irreplaceable, or less subject to protection under the
    constitution. We are a creative, innovative nation in each of these
    cases and in others not mentioned here, I believe that alternative
    means of economic development, energy generation, and scientific
    exploration are readily available if we work together and agree on
    bottom line principles of mutual respect for the religious and cultural
    freedom of our neighbors.
        Recognizing the inadequate solutions available to tribes and
    traditional practitioners for the protection of sacred lands or places,
    NCAI has identified several goals that we believe are critical to
    slowing the devastating tide of destruction and ensuring access to
    these deeply significant areas. These include the following:

    1. Strengthened Administrative Policies
        Strengthening administrative policies and regulations that will
    protect sacred sites and accommodate the ceremonial use of such sites
    is a priority for tribes and traditional practitioners. Currently,
    agencies are encouraged to provide accommodations for the use of sacred
    places by ``Native American religious practitioners.'' For most tribes
    this would limit protections for and access to only those locations
    used or approved by a tribe's recognized religious leader. However,
    many other locations where traditional sacred activities were
    practiced, but not by the religious leaders who were in most cases men,
    also should be recognized as sacred, and similar protections offered
    (e.g., women's places, young adult 'proving grounds', and healing
    locations used by all tribal people). The users of such sacred places
    may not have the status of ``practitioners'' and so wouldn't be
    represented.

    2. Tribal Consultation
        NCAI is deeply concerned with the federal government's failure to
    ensure adequate government-to-government consultation with tribes
    regarding sacred places. The concerns of tribes must be sought and
    considered when facilitating the process of protecting sacred places.
    The United States must adhere to its trust responsibility to tribal
    governments and Indian people, and work as an ally in efforts to
    protect and preserve Native culture and tradition. True consultation on
    a national level must be achieved.

    3. Compliance with and Enforcement of Existing Federal Law
        NCAI has identified numerous situations in which existing law
    simply needs to be enforced to secure the protections intended,
    underscoring the need for enforcement provisions in existing law and
    future laws that will protect sacred places. Compliance with existing
    law by federal agencies is one of the many struggles our tribes are
    dealing with on a daily basis. Our sacred places seem not to be held in
    high regard by the federal government, an attitude evidenced by the
    blatant lack of compliance demonstrated by some federal agencies. NCAI
    requests an inventory of the federal agency sacred lands protection
    policies, including consultation policies, and an assessment of how the
    policies and regulations are applied. NCAI, as a member of the Sacred
    Lands Protection Coalition, recommends implementation of one sacred
    lands protection policy for all federal agencies to follow, and with
    the efforts of the Coalition we are willing to help develop this
    policy.

    4. Increased Protection
        Increased protection for all sacred places and lands is essential
    to traditional practitioners and can be achieved through comprehensive
    and well-thought legislation that provides a cause of action for tribes
    who are consistently battling with federal agencies who do not take
    steps to avoid damage to sacred lands.

    5. Funding
        Tribes need funds to protect and possibly purchase sacred places
    wherever possible. There are many sacred lands that are owned by
    private entities
        Access to sacred places located on private lands can prove to be
    difficult and funding for the purposes of protection and access to
    sacred places should be made available to tribes to ensure that the
    needs of all parties are met in these situations.

                                   Conclusion

        HR 5155 represents an important step toward reversing what may be
    the greatest failure of our nation's historic promise of respect for
    religious freedoms. In the recent past, this committee has honorably
    ``walked the talk'' of religious tolerance and showed compassion for
    the Church of Latter Day Saints and their need for protecting land
    sacred and significant to the practice of their religion. As tribal
    nations who have practiced traditional religions related to sacred
    places and sacred lands, we ask for the same protection given to
    religions that are now practiced on our traditional homelands.
        NCAI commends the House Resources Committee and Representative
    Rahall for introducing HR 5155, and for providing the opportunity for
    tribes to convey their concerns, suggestions, and recommendations aimed
    at protecting the traditions, cultural, and sacred places of native
    peoples. We look forward to working with all of you to ensure that the
    promise of religious freedom and protection is fulfilled for ALL
    Americans, including the First Americans.
        Thank you for your time, and I welcome any questions or concerns
    you may have.
                                     ______

        [An attachment to Mr. Keel's statement follows:]

        [GRAPHIC] [TIFF OMITTED] T1889.007

        [GRAPHIC] [TIFF OMITTED] T1889.008

        Mr. Hayworth. Now, we call on Mr. McCrum. Welcome, sir.

        STATEMENT OF R. TIMOTHY McCRUM, CROWELL AND MORING, LLP

        Mr. McCrum. Thank you, Mr. Chairman. Good afternoon,
    members of the Committee. My name is Tim McCrum. I am with the
    law firm of Crowell and Moring here in Washington, D.C. I am
    counsel to the Glamis Imperial Corporation, a subsidiary of
    Glamis Gold, which is an intermediate-sized gold producing
    company headquartered in Reno, Nevada, with operations in the
    United States and Central America.
        I have substantial prepared testimony submitted. I am going
    to depart from the order on that and go right to the Glamis
    situation and hopefully come back to broader concerns about the
    bill, H.R. 5155.
        Glamis has no animosity toward the Quechan Tribe. We are
    not seeking to run roughshod over their values and culture.
    Glamis is interested in gold mining. That is their business.
    Gold mining has been recognized as a lawful activity on Federal
    lands in the West.
        In the California desert area, substantial attention has
    been placed by the Interior Department and the Congress on
    allocating and designating lands for Native American cultural
    preservation purposes and recognizing that some lands would be
    available for multiple use mineral development. I believe that
    Native American traditional values should be considered and
    protected in Federal land management and I believe that they
    have been. And I think, ironically, that the California desert
    area is an area where intensive efforts have been made by the
    Interior Department and the Congress over the course of the
    past two decades to give great attention to Native American
    cultural values and balance those interests against multiple
    use interests, such as mineral development.
        The Glamis Imperial project is a proposed gold mine on
    lands near Indian Pass in Imperial County, California. As I
    understand it, this controversy is a major part of the impetus
    for this current bill. I believe a careful examination of the
    Glamis facts reveals that this bill is not warranted and is not
    appropriate and that, in fact, a substantial amount of
    attention has been shown to balancing the competing interests
    here.
        In the late 1980's, Glamis discovered the valuable gold
    deposit now known as the Imperial Project in Imperial County,
    California. Since that time, the company has invested $15
    million in exploration and development of the project. The site
    is located in a historic gold producing district, and I have a
    Figure 1 attached to my prepared testimony that shows the
    proximity of the Glamis mine, lying approximately six miles
    from Glamis's own Picacho mine, which it operated over the past
    20 years, and in the distance, seven miles to the north, is the
    Mesquite mine, operated by another mining company.
        Cultural resource studies were undertaken from the outset
    of the Glamis project in coordination with the Quechan Tribe.
    Two cultural resources studies were undertaken, the first in
    1991 and then in 1995 with the tribal historian Mr. Lorey
    Cachora participating in those studies.
        Yet, it was not until 1997 that claims were made that this
    area was sacred. Glamis would not have--Glamis has no interest
    in destroying areas that would be sacred to any Native American
    tribe.
        The concern that we have as we have dealt with this issue
    is that the tribe's--we do not question the tribe's sincerity
    as to their personal views, but the claims that have been made
    are of a regional nature. The testimony that has been submitted
    to the Advisory Council on Historic Preservation referred to
    Indian Pass as being part of a region running from the Indian
    Pass area east to Los Angeles, on into Mexico, and into Western
    Arizona, covering a broad region of hundreds of square miles. I
    believe that the testimony of the tribal historian to the
    Advisory Council on Historic Preservation in 1999 reflects
    that, as well as statements by the tribe's legal counsel to the
    Interior Department. I have quotes of those statements in my
    prepared testimony.
        Those regional claims were considered by Congress, and
    particularly in the 1994 California Desert Protection Act,
    where 7.7 million acres were put off-limits to all development,
    including substantial designated areas for Native American
    cultural values. In the area of the Imperial Project, two
    wilderness areas were designated by Congress, one entitled the
    Indian Pass Wilderness Area, the other the Picacho Peak
    Wilderness Area, in part for Native American cultural values.
        Seven-point-seven million areas is an area roughly the size
    of the State of Maryland put off-limits to development
    activities. But when Congress took that landmark Act in 1994,
    with substantial attention to Native American concerns, it also
    said that areas outside those boundaries were to be open and
    available for multiple use, including mineral development, and
    that is where Glamis's mine is located, outside of the areas
    designated by Congress in 1994.
        Glamis has invested money based upon the rules of the
    United States and the laws of the United States and opposes a
    retroactive effort to block its project with new legislation.
    We believe that the Interior Department's rescission of their
    prior legal opinion was legally sound and correct and is
    consistent with past Interior Department administration, and
    that if this bill is adopted, it will be a mechanism available
    to block multiple use activities of all types, ranging from oil
    and gas activities, coal mining, timber harvesting, wireless
    telecommunication sites, and a broad range of other activities.
        Mr. Hayworth. Mr. McCrum, we thank you for your testimony.
        [The prepared statement of Mr. McCrum follows:]

      Statement of R. Timothy McCrum, Crowell & Moring LLP, on behalf of
         Glamis Imperial Corporation, a subsidiary of Glamis Gold Ltd.

                          I. Introduction and Overview

        My name is Tim McCrum, and I am a partner with the law firm of
    Crowell & Moring LLP here in Washington, D.C., and counsel to Glamis
    Imperial Corporation, a subsidiary of Glamis Gold Ltd. Glamis Gold Ltd.
    is an intermediate-sized gold producer, traded on the New York Stock
    Exchange, with operating mines in Nevada, California, and Central
    America. For convenience, I'll refer to these affiliated companies
    simply as Glamis.
        I'll begin my testimony today by stating that Native American
    traditional cultural values should be considered and protected in the
    management of federal lands. Moreover, Native American traditional
    cultural values have been considered and protected in federal land
    management decisions by the Executive Branch and the Congress for many
    years. However, the present bill, H.R. 5155, would radically change the
    manner in which Native American values are addressed, and it would do
    so in a manner which would thwart the principles of sound multiple use
    which have governed federal land management policy for decades.
        First, the bill would create new administrative and legal
    mechanisms for Native American groups and their allies to impede
    virtually all development activities on federal lands, including
    mining, oil and gas production, geothermal energy projects, wind farms,
    and wireless telecommunications, to name just a few. Permitting these
    activities on federal lands is already a protracted and burdensome
    process. This bill would add major new obstacles to a wide range of
    activities which are authorized and encouraged by other federal laws
    and policies. I note that the judicial review provisions (in Sec. 3(e))
    authorizing relief including money damages against federal agencies and
    potentially federal officers are highly unusual.
        Second, the bill would allow Native American groups to declare that
    any geographical area or feature is ``sacred'' by virtue of its alleged
    cultural or religious significance based on evidence which can include
    nothing more than oral history. Such claims would be highly subjective
    and virtually unverifiable. Indeed, the Interior Department under
    Secretary Bruce Babbitt in 2000 recognized the subjective and
    unverifiable nature of these allegations in the ``3809'' hardrock
    mining rulemaking which sought to establish an administrative ``mine
    veto'' power. In the final EIS on that rulemaking, dated October 2000,
    the Bureau of Land Management stated, in part, as follows: ``religious
    significance, substantial irreparable harm, and effective mitigation
    are determined by those that hold those beliefs, not BLM. Analyzing the
    . . . impact . . . is further complicated by the fact that most Native
    American religions are based on . . . the concept that each individual
    determines what is significant for herself/himself.'' BLM, FEIS, v.1 at
    126-27 (2000). Fortunately, that ``mine veto'' power was determined to
    be beyond Interior's legal authority in an Interior Solicitor's Opinion
    issued by William Myers on October 23, 2001, and in subsequently
    amended rules, but H.R. 5155 would reopen this divisive issue for
    potentially all undertakings on federal lands.
        As Chief Justice Marshall stated long ago in Marbury v. Madison, 5
    U.S. (1 Cranch) 137, 163 (1803), the ``government of the United States
    has been emphatically termed a government of laws not of men.'' Yet, if
    H.R. 5155 is enacted, groups of individual Native Americans would have
    the authority to allege that vast portions of federal lands are sacred
    to their religious beliefs, and federal officials would be hard-pressed
    to find such subjective allegations without merit, especially where the
    bill provides that ``[o]ral history shall be given no less weight than
    other evidence'' and actions for money damages may be brought for
    alleged violations.
        Third, if this bill is adopted and a new Native American ``sacred
    site'' veto power is created, the legislation and the resulting
    processes would be unconstitutional as an establishment of religion by
    the United States Government and, alternatively, as a taking of private
    property. The Government should avoid creating sanctuaries and
    monuments to particular religions and practices. And, it should avoid
    destroying private property and investments.
        Several laws already in place provide for and reflect careful
    consideration of Native American values in federal land management.
    These include the National Historic Preservation Act, 16 U.S.C.
    Sec. 470, the Native American Graves Repatriation Act, 25 U.S.C.
    Sec. 300 et seq., the American Indian Religious Freedom Act, 42 U.S.C.
    Sec. 1996, the Archaeological Resources Protection Act, 16 U.S.C.
    Sec. 470aa, as well as many other site-specific laws establishing parks
    and wilderness areas, such as the 1994 California Desert Protection Act
    (discussed further below), and the land use planning and withdrawal
    authorities of the Federal Land Policy and Management Act of 1976, 43
    U.S.C. Sec. 1701 et seq.

                           II. The Glamis Controversy

        The controversy over the ``Glamis Imperial Project,'' a proposed
    gold mine on federal lands near Indian Pass in Imperial County,
    California, was apparently the impetus for H.R. 5155, at least in part.
    Yet, a careful examination of the Glamis Imperial Project facts reveals
    the ill-advised nature of this legislation. The alleged ``sacred site''
    around the Glamis Imperial Project is a prime example of how this
    proposed legislation could be used by Native American groups to thwart
    a wide range of development projects across the western United States.

                              A. BACKGROUND FACTS

        In the late 1980's, Glamis discovered the valuable gold deposit
    that is now the Imperial Project in rural southeastern California, and
    has since spent nearly $15 million in exploration, feasibility analysis
    and permitting efforts to develop an open-pit gold mine that would
    produce an average of 130,000 ounces of gold per year employing over
    100 individuals in high-wage jobs. This site is located in an historic
    gold-producing district, only seven miles from another operating gold
    mine and six miles from Glamis' own Picacho gold mine that was operated
    for over 20 years and successfully closed and reclaimed in 2002. See
    Figure 1.
        After further mineral exploration in 1991, Glamis filed its
    original mining proposal with the Interior Department in 1994, and
    Native American consultations were conducted as required. Two cultural
    resource studies were undertaken to determine the nature, if any, of
    cultural resources at the site, the first in 1991 and the second in
    1995. Not until a third cultural resource study was conducted in 1997
    did assertions arise that the Imperial Project area was considered
    ``sacred'' to the Quechan tribe which has a reservation over 10 miles
    to the south. Yet, the same Quechan tribal historian participated in
    all three studies.
        In 1999, the tribal historian testified before the Advisory Council
    on Historic Preservation that the site is part of a broad regional
    trail system running from Arizona to Los Angeles and south to Mexico,
    encompassing hundreds of square miles. There is no claim that tribal
    members ever occupied the project site for any substantial length of
    time, nor is it a burial site. The alleged sacred site is part of an
    asserted ``Trail of Dreams'' encompassing a broad region and many
    hundreds of square miles in southern California. See Figure 2. Both the
    Tribe's attorney and tribal members reiterated the broad scale of
    concern in testimony and in letters that are part of the record in this
    matter. For example, Mr. Lorey Cachora, the Quechan tribal historian,
    testified on March 11, 1999, as follows:
            It is a region we are discussing. It just so happens that this
            area, Indian Pass, is right in the path of one of those regions
            . . . .[T]his trail follows west to the present town of Los
            Angeles, then down to San Juan Capistrano, then it goes into
            Catalina Island and trails into Mexico. To this point we don't
            know how deep into Mexico we went but . . . in this creation
            history it tells of the Amazon Parrot. So you can imagine how
            far they went.
    Advisory Council on Historic Preservation, Hearing Transcript, pages
    179-180 (March 11, 1999). Similarly, the Quechan Tribe's legal counsel,
    Courtney Coyle, stated in a letter to the BLM on January 29, 1999, that
    ``Quechan sacred lands include the Indian Pass area and clearly
    encompass the proposed Imperial Project site, but also extend towards
    the north up to Blythe, towards the south connecting with Pilot Knob,
    towards the west and the Cargo Muchachos Mountains and east to the
    Colorado River and along portions of what is now western Arizona.'' The
    area described thus spanned hundreds of square miles comprising a major
    part of southern California.
        It is significant that when BLM prepared its Indian Pass Management
    Plan in 1987, it noted that ``there is no evidence that the area is
    used today by contemporary Native Americans.'' BLM, Indian Pass ACEC
    Management Plan Sec. V (1987). Glamis has modified its mining plan and
    otherwise attempted to accommodate the Quechan concerns with
    mitigation, but has been told that no level of disturbance at the site
    is acceptable.
        The Imperial Project is located on federal land that was open to
    mineral entry at the time Glamis acquired its mining claims. The area
    is within the California Desert Conservation Area and has been the
    subject of intense land use planning processes, the establishment of
    7.7 million acres of park and wilderness areas pursuant to the
    California Desert Protection Act in 1994, and the creation of large
    protected areas outside the Imperial Project site to protect Native
    American cultural values. Following all of these land designations, the
    Imperial Project area remained open to mineral development and Glamis
    proceeded with its substantial investment in development.
        On January 17, 2001, during his final week in office, former
    Interior Secretary Bruce Babbitt held a press conference and announced
    that he had denied the Imperial Project based on a novel legal opinion
    rendered by his Solicitor. On November 23, 2001, Interior Secretary
    Gail Norton rescinded the Babbitt denial based on the legal opinion of
    her Solicitor, rendered October 23, 2001, which held that Interior had
    no discretionary power to veto the mine proposal.
        Glamis Gold has a duty to its shareholders to recover its
    investment in the Imperial Project and its expected return on that
    investment. That duty can be fulfilled by developing the mine or by an
    alternative arrangement of equal economic value, and the company is
    prepared to consider all reasonable alternatives. Glamis will not
    abandon its substantial investment and property interests.
        Legislation that would further delay or prohibit the Imperial
    Project without compensation to Glamis would be grossly unfair to
    Glamis and its thousands of shareholders.

                  B. THE 1994 CALIFORNIA DESERT PROTECTION ACT

        Ironically, the Glamis Imperial Project controversy arose in an
    area where a major effort was made by the U.S. Government to address
    Native American cultural concerns. The California Desert Protection Act
    of 1994 provided permanent protections to vast lands of cultural
    significance to Native Americans. 108 Stat. 4471 (1994). This Act was
    the most significant federal public land legislation in the past two
    decades.
        The Act established major new National Park lands and wilderness
    areas, and the congressional findings reveal that the purposes for
    which these lands were protected are quite similar to the general
    concerns being raised in connection with the landscapes affected by the
    Glamis Imperial Project. For example, the Congress found that the
    designated ``desert wildlands display unique scenic, historical,
    archeological, environmental, ecological, wildlife, cultural,
    scientific, educational and recreational values . . . .'' 108 Stat. at
    4471 (emphasis added). Accordingly, Congress declared that
    ``appropriate public lands in the California desert shall be included
    within the National Park System and the National Wilderness
    Preservation System in order to
        (A) Lpreserve unrivaled scenic, geologic, and wildlife values
    associated with these unique natural landscapes;
        (B) Lperpetuate in their natural state significant and diverse
    ecosystems of the California desert;
        (C) Lprotect and preserve historical and cultural values of the
    California desert associated with ancient Indian cultures . . . .
        108 Stat. 4472 (emphasis added).
        The lands set aside for preservation by the California Desert
    Protection Act included over 7.7 million acres, the largest wilderness
    area ever designated by Congress in the lower 48 states encompassing an
    area larger than the State of Maryland. See Washington Post, p.A-1
    (Apr. 14, 1994). Notably, the Imperial Project is not within the newly
    designated park lands and wilderness areas. Two wilderness areas were
    designated near the Imperial Project specifically for Native American
    cultural purposes. They were the Indian Pass Wilderness, which
    encompasses over 34,000 acres, and the Picacho Peak Wilderness Area,
    which encompasses 7,700 acres. The House Natural Resources Committee
    Report (No. 103-498), dated May 10, 1994, specifically discussed the
    Native American cultural preservation purposes supporting these two
    wilderness areas, and it notes that the Picacho Peak Wilderness
    ``represents the former territory of the Quechan Coyote Clan and . . .
    [is] associated with a ritual collection area for hawk, eagle and owl
    feathers.'' House Report at 46.
        The wilderness areas in the California Desert Protection Act were
    studied extensively by the BLM pursuant to the wilderness study review
    provisions of FLPMA, 43 U.S.C. Sec. 1782. In addition, those studies
    were conducted by the BLM in coordination with land-use plans developed
    by BLM pursuant to the provisions of FLPMA dealing with the California
    Desert Conservation Area. 43 U.S.C. Sec. 1781. In the 1980 California
    Desert Conservation Area Plan, prepared pursuant to FLPMA, the BLM
    heavily focused on Native American cultural values and stated that
    ``these values will be considered in all CDCA land-use and management
    decisions.'' Id. at 26. BLM's stated goals were to ``[a]chieve full
    consideration of Native American values in all land-use and management
    decisions.'' Id.
        In the California Desert Protection Act, Congress acted on BLM's
    wilderness recommendations and took special steps to ensure that the
    designated wilderness areas of importance to Native Americans did not
    prevent traditional cultural and religious use of those lands.
    Accordingly, Congress provided the following special access provisions
    for Native Americans:
            In recognition of the past use of the National Park System
            units and wilderness areas designed [sic] under this Act by
            Indian people for traditional cultural and religious purposes,
            the Secretary shall ensure access to such Park System units and
            wilderness areas by Indian people for such traditional cultural
            and religious purposes. In implementing this section, the
            Secretary upon the request of an Indian tribe or Indian
            religious community, shall temporarily close to the general
            public use of one or more specific portions of the Park System
            unit or wilderness area in order to protect the privacy of
            traditional cultural and religious activities in such areas by
            Indian people.
    108 Stat. 4498.
        The California Desert Protection Act contained another significant
    provision which reveals the unfairness of using sacred site allegations
    to block the Glamis Imperial Project. Section 103 of the Act stated:
    ``Congress does not intend for the designation of wilderness areas in
    Section 102 of this title to lead to the creation of protective
    perimeters or buffer zones around any such wilderness area. The fact
    that non-wilderness activities or uses can be seen or heard from areas
    within a wilderness area shall not, of itself, preclude such activities
    or uses up to the boundary of the wilderness area.'' 108 Stat. 4481.
        Through the California Desert Protection Act, the Congress settled
    in a significant and meaningful manner longstanding disputes between
    competing public land users and interests. Many millions of acres of
    public lands were permanently set aside for preservation purposes,
    including Native American cultural purposes. Other areas, including the
    Glamis Imperial Project lands, remained classified as multiple use
    public lands open to the federal mining laws and other management
    standards which permitted continued development. Glamis recognizes the
    legitimate interest of Native Americans in the California Desert Area,
    and we believe that those interests have been recognized and protected
    by Congress through the California Desert Protection Act of 1994.
    Glamis is willing to carry out additional mitigation measures at the
    Imperial Project site in further accommodation to Native American
    interests, but appropriate mitigation measures should be designed
    considering the enormous protections already provided by the Interior
    Department and the Congress in the California Desert Protection Act.

                             C. MITIGATION MEASURES

        Glamis did not conduct itself in a manner that was insensitive to
    Native American concerns once they arose in 1997. As Glamis became
    aware of the Native American cultural features that would be affected
    due to its mining plan, immediate steps were taken by Glamis to avoid
    potential disturbance of cultural features whenever possible. A wide
    variety of mitigation measures are available to address the cultural
    aspects of the Imperial Project site.

    1. Avoidance by Project Redesign
        As the BLM's second Draft EIS/EIR (1997) on the Imperial Project
    stated, ``[s]ince November, 1996, substantial revisions have been made
    in the Proposed Action by the Applicant'' (p.S-1). These revisions were
    made primarily to respond to cultural resource concerns. As explained
    in the December 1997 report by KEA Environmental, ``Glamis Imperial has
    already modified the Project to reduce impacts.'' See KEA
    Environmental, ``Where Trails Cross: Cultural Resources Inventory and
    Evaluation for the Imperial Project, Imperial County, California'' at
    307 (December 1997). Specifically, mine facilities were redesigned,
    moved or eliminated to avoid and preserve Quechan cultural features.
    Glamis reduced the heights of overburden stockpiles, eliminated an
    overburden stockpile, moved topsoil stockpiles, redirected haulage
    routes and altered the footprint of the processing leach pad to avoid
    cultural features. Glamis was and is committed to these measures
    notwithstanding that the alterations would substantially increase
    Glamis operating costs over the life of the project.
        Notably, the most distinct and identifiable Native American
    cultural feature in the vicinity is the ``Running Man'' which is a rock
    formation approximately four feet by four feet. See Figure 3. Quechan
    tribal members have stated that this feature was built in the 1940s.
    See KEA at 286 (1997). It would not be disturbed as it lies
    approximately two miles outside the project area.

    2. Wilderness Areas/Indian Pass ACEC Enhancement
        Glamis also offered to relinquish its property interests in the
    Gavilan Wash mining claims that abut the Indian Pass Area of Critical
    Environmental Concern (``ACEC''), as designated by BLM in 1987, in
    immediate proximity of the Indian Pass and Picacho Peak Wilderness
    areas--where the ``Running Man'' feature is located. Drilling results
    have revealed the presence of notable mineralized values. To keep
    Gavilan wash open for mineral entry, Glamis actively participated in
    the congressional process leading to the 1994 California Desert
    Protection Act (discussed above) when the wilderness areas were
    created. This area contained 58 mining claims and totaled nearly 1,200
    acres. Relinquishing these claims would increase protection of the
    Indian Pass ACEC and the congressionally-designated wilderness areas.

    3.Cultural Feature Treatment Plans
        Glamis also proposed that unavoidable cultural features would be
    mitigated through an Onsite Treatment Plan. This type of mitigation,
    consistent with accepted mitigation measures adopted throughout the
    federal public lands in the West, would procure, document, report and
    curate significant cultural features that would be affected by
    operations. The participation by a Quechan representative and the
    results obtained through this action could further preserve, display,
    make available for use and increase knowledge of their traditional
    cultural past. The details of the Onsite Treatment Plan and Data
    Recovery Recommendations were set forth in Chapters 8 and 9 of the 1997
    KEA report.
        The Indian Pass ACEC, as described in the 1987 BLM designation, is
    one of the focal points of the traditional Quechan presence in the
    area. An Offsite Treatment Plan of the Indian Pass ACEC, as designated
    by BLM in 1987, is a possible mitigation measure which would further
    promote Quechan knowledge of their traditional past. This plan would
    involve funding a concentrated study of the ACEC to provide a better
    understanding of its significance. Glamis also offered funding to
    insure the Quechan have the means to be an active participant in the
    cultural mitigation plan. This proposal would fund a Quechan
    representative in the treatment plans previously mentioned.

    4.Cultural Land Bank
        Glamis has proposed a plan to the Quechan Tribe that would mitigate
    impacts to cultural features at the Imperial Project site by protecting
    traditional cultural tribal lands off the site. This suggestion could
    include establishing a ``Cultural Land Bank'', away from the Imperial
    Project site, but within acres formerly occupied by the Quechan. Glamis
    has identified some riparian lands along the Colorado River which are
    today in private ownership, but which may be of historical and cultural
    importance to the Tribe. Potentially, such lands could be acquired and
    conveyed to the Tribe for cultural resource enhancement purposes.
    Unfortunately, the Quechan Tribe has rejected all of these proposed
    mitigation measures.

     III. The Bill Would Constitute An Unlawful Establishment Of Religion.

        H.R. 5155 would create a new and unprecedented power in Native
    American groups to impede and potentially prohibit a wide range of
    development projects on federal lands such as the Glamis Imperial
    Project. Moreover, it would afford Native American groups virtually
    unfettered discretion to extract demands of all types as conditions for
    consent to projects, regardless of whether such conditions are in the
    public interest.
        In addition to the adverse public policy implications of this
    legislation and the chaos that it would create over development
    projects across the western U.S. If this legislation were to be
    enacted, it would violate the U.S. Constitution, which prohibits the
    establishment of a religion by the Government. The express purpose of
    the legislation is to protect alleged Native American religious
    practices and sites.
        Adoption of H.R. 5155 would violate the U.S. Constitution, which
    prohibits the establishment of a religion by the Government. The
    express and exclusive purpose of this legislation is to protect alleged
    Native American religious practices and sites, and this would
    constitute an unconstitutional establishment of religion as prohibited
    by the First Amendment of the U.S. Constitution. U.S. Const. amd . 1
    (``Congress shall make no law respecting an establishment of religion .
    . .''). Consequently, H.R. 5155 should not be adopted.
        The Government is prohibited under the U.S. Constitution from
    taking action based on such a clear motivation to promote and protect,
    and thereby endorse, religion. As the Ninth Circuit has explained,
    ``[t]he Supreme Court has focused Establishment Clause analysis on
    whether governmental practice has the effect of endorsing religion.''
    Separation of Church and State Committee v. City of Eugene, 93 F.3d
    617, 619 (9th Cir. 1996) (holding that a cross in a city park
    represented an impermissible governmental endorsement even though the
    city contended it was a memorial in honor of veterans rather than a
    religious symbol). By determining that certain religious concerns
    should supercede mining and other development rights, H.R. 5155 would
    clearly have the effect of endorsing Native American religious beliefs
    and ``demonstrate[s] a preference for one particular sect or creed''
    Id. Irrespective of whether the Government could claim additional
    purposes for H.R. 5155, ``the practice . . . in fact conveys a message
    of endorsement . . .'' Id.
        The Supreme Court has repeatedly held that the Establishment Clause
    requires that ``government may not promote or affiliate itself with any
    religious doctrine or organizations . . . .'' County of Allegheny v.
    ACLU, 492 U.S. 573, 590 (1989). This line of reasoning extends back to
    the Court's decision in Everson v. Board of Education of Ewing, where
    the Court stated that ``[t]he establishment of religion clause of the
    First Amendment means that . . . [n]either a state [n]or the Federal
    Government . . . can pass laws which aid one religion, aid all
    religions, or prefer one religion over another.'' 330 U.S. 1, 15-16
    (1947). The prohibition contained in the Establishment Clause
    ``precludes government from conveying or attempting to convey a message
    that religion or a particular religious belief is favored or
    preferred.'' Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O Connor, J.,
    concurring). See Larson v. Valente, 456 U.S. 228, 224 (1982) (``The
    clearest command of the Establishment Clause is that one religious
    denomination cannot be officially preferred over another.''). ``Whether
    the key word is ``endorsement,'' ``favoritism,'' or ``promotion,'' the
    essential principle remains the same. The Establishment Clause, at the
    very least, prohibits government from appearing to take a position on
    questions of religious belief . . . .'' County of Allegheny, 492 U.S.
    at 594 (emphasis added).
        Actions similar to H.R. 5155 have been found by courts to
    constitute unconstitutional establishments of religion. For example, in
    Lyng v. Northwest Indian Cemetery Protective Ass n, 485 U.S. 439
    (1988), the U.S. Supreme Court held that Indian tribes could not
    require the government to prohibit timber harvesting in National
    Forests in order to protect areas used for religious purposes:
            [n]o disrespect for these [Indian religious] practices is
            implied when one notes that such beliefs could easily require
            de facto ownership of some rather spacious tracts of public
            property. Even without anticipating future cases, the
            diminution of the Government's property rights, and the
            concomitant subsidy of the Indian religion, would in this case
            be far from trivial: the District Court's order permanently
            forbade commercial timber harvesting, or the construction of a
            two-lane road, anywhere within an area covering a full 27
            sections (i.e., more than 17,000 acres) of public land.
    485 U.S. at 453 (emphasis added). See also Inupiat Community of Arctic
    Slope v. United States, 548 F.Supp. 182 (D. Alaska 1982) (rejecting
    tribe's claim because ``carried to its ultimate, their contention would
    result in the creation of a vast religious sanctuary''). The same would
    be true if H.R. 5155 is enacted and implemented.
        Similarly, the U.S. Court of Appeals for the Tenth Circuit, in
    Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980), explained that
    administrative action taken to aid religious conduct on public lands
    would violate the establishment clause. Id. at 179 (``[I]ssuance of
    regulations to exclude tourists completely from the Monument for the
    avowed purpose of aiding plaintiffs' conduct of religious ceremonies
    would seem a clear violation of the Establishment Clause.''). In
    Badoni, the court held that if either the purpose or primary effect of
    government action is ``the advancement or inhibition of religion then
    the enactment exceeds the scope of the legislative power as
    circumscribed by the Constitution. Id. The text of H.R. 5155 makes
    clear that here there is not ``a secular . . . purpose and a primary
    effect that neither advances nor inhibits religion.'' Id. Indeed, the
    bill's exclusive or primary purpose is to have a positive influence on
    the religious practices it seeks to protect and effects the purpose and
    priority given to the Native American religious beliefs at the expense
    of property interests of others.

          IV. The Bill Would Effect A ``Taking'' Of Private Property.

        Under the U.S. Constitution's Fifth Amendment, property owners have
    the right to use their property without unreasonable interference with
    or damage to the value of their property, and to be free from the
    taking of or damage to reasonable investment backed expectations in
    their property. For example, federal mining claims are constitutionally
    protected property interests (see United States v. Locke, 471 U.S. 84
    (1985)), as are federal mineral leases. Yet, this legislation takes and
    damages individuals' property rights--to use their property according
    to existing investment backed expectations--without compensation.
        H.R. 5155 would unconstitutionally infringe on property rights
    without compensation. Accordingly, it would expose the U.S. Treasury to
    substantial liabilities to compensate property owners for this
    interference. These conclusions are supported by many judicial cases
    over the past decade. See, e.g., Lucas v. South Carolina, Coastal
    Council, 505 U.S. 1003 (1992) (holding that denial of home development
    in coastal area was a takings subjecting state to over $1.2 million
    liability); Whitney Benefits v. United States, 926 F.2d 1169, 1178
    (Fed. Cir. 1991) (holding a taking due to the prohibition in the
    Surface Mining Control and Reclamation Act on mining in alluvial valley
    floors and affirming the Claims Court's determination that the coal
    owner was entitled to over $60 million for the loss of its mineral
    reserves, plus prejudgment interest); United Nuclear Corp. v. United
    States, 912 F.2d 1432 (Fed. Cir. 1990) (holding a taking occurred when
    the Secretary of the Interior required approval from tribal council to
    approve a mining plan for Navajo reservation land when such approval
    had never been required; the government eventually settled with United
    Nuclear for $67.5 million for the taking of these uranium leases;
    Stearns Co. v. United States,--- Fed. Cl.---, 2002 WL 2001280 (Fed. Cl.
    Aug. 5, 2002) (holding that a taking occurred through the operation of
    the federal Surface Mining Control and Reclamation Act, which
    ``eliminated traditional property rights'' of the plaintiff mineral
    estate owners); see UNC Unit Gets Payment, Wall St. J., Jan. 16, 1992,
    at A2); Yuba Natural Resources v. United States, 821 F.2d 638 (Fed.
    Cir. 1987) (holding government prohibition of mining based on erroneous
    interpretation of property rights was a temporary taking for which
    mineral owner was entitled to compensation for period in which
    government action blocked mining); Del-Rio Drilling Programs v. United
    States, 46 Fed. Cl. 683 (Fed. Cl. 2000) (holding that government's
    allowance of tribe to control physical access necessary to develop the
    oil and gas mineral leases which were located on Indian reservation
    amounted to a veto to access to property rights that was compensable as
    taking); NRG Co. v. United States, 24 Cl. Ct. 51 (Ct. Cl. 1991)
    (holding on summary judgment that government's cancellation of mineral
    prospecting permits would be deemed a taking).
        H.R. 5155 would cause a substantial diminution in the value of
    mining property and the minerals which lie therein, and substantially
    interfere with reasonable investment backed expectations. Moreover, the
    takings liabilities would extend far beyond mining properties and
    include takings claims based on a wide variety of blocked development
    projects.

                                 V. Conclusion

        H.R. 5155 would introduce chaos across the western United States
    into the project review process, a process which is already cumbersome
    and expensive. The legislation would grant unprecedented power to
    Native American groups over virtually all major development projects on
    federal lands. Further, the proposed legislation would be
    unconstitutional and spawn extensive litigation, exposing the U.S.
    Treasury to significant liabilities.
                                     ______

        Mr. Hayworth. You may have heard the bells ringing. We are
    mindful of the fact we have a floor vote. We would turn now to
    Mr. Hardiman to offer his testimony.

    STATEMENT OF MICHAEL HARDIMAN, AMERICAN LAND RIGHTS ASSOCIATION

        Mr. Hardiman. Thank you, Mr. Chairman. My testimony will
    not run over 5 minutes.
        Good morning, Mr. Chairman. Thank you for inviting me to
    testify today. My name is Michael Hardiman, representing the
    American Land Rights Association. ALRA is a 25-year-old
    organization with members in all 50 States. Our membership
    generally includes land owners located within or nearby Federal
    property, as well as lease and permit holders on Federal lands.
    I am an inholder of a small parcel in the Southern California
    desert surrounded by Bureau of Land Management property.
        H.R. 5155, the Native American Sacred Lands Act, contains
    at least three parts which, especially in combination, pose a
    severe threat to private property rights and the wise use of
    Federal lands.
        First is Section 1, Part B(4), the definition of what can
    be designated as a sacred land. This reads in part, ``any
    geophysical or geographical area or feature which is sacred by
    virtue of its traditional cultural or religious significance.''
    The term ``geophysical'' is defined in the Merriam-Webster
    dictionary as, ``physical processes and phenomena occurring in
    the earth and in its vicinity.'' It would be difficult to come
    up with a broader definition than that.
        Second is Section 3, Parts C and D, the hearing and appeal
    process. From the time a petition is filed, the agency in
    question has only 7 months to hold a public hearing and produce
    a written decision and rule on any appeals. This is an
    incredibly rapid designation process. It is greased lightning
    compared to getting a species delisted under the Endangered
    Species Act, for example.
        However, due to the multi-billion-dollar maintenance
    backlog of the National Park Service and other land management
    agencies, this section may actually aggravate the degradation
    of sacred lands. For example, the burial grounds of Chumash
    Indians on the Channel Islands off the coast of Santa Barbara
    have exposed remains. The Park Service claims it is unable to
    address the problem due to lack of funds. If H.R. 5155 became
    law, even more resources would be drawn away from current
    protection efforts in order to deal with this bill's mandated
    deadlines, making the situation even worse.
        Third is Section 4, Part A, exemptions from the Freedom of
    Information Act. This states, in part, that no petitioner's
    information which, ``contains a reference pertaining to a
    specific detail of cultural practice or religion, or the
    significance of sacred land, or the location of that sacred
    land, shall be released.'' Now, it is understandable that there
    may be a desire to keep certain traditions and practices
    confidential. However, this should be balanced by the general
    public's and the directly affected landowners' right to know.
    This section, as currently written, keeps too many people in
    the dark.
        H.R. 5155 effectively assigns sweeping new land use powers
    to Indian tribes, combined with a fast-track designation
    process not available in many other statutes. It then provides
    for broad exemptions from public disclosure laws, allowing much
    of the land lock-up process in this bill to be hidden away
    behind closed doors.
        Here is an example. My property is located a few miles away
    from the Chocolate Mountain Gunnery Range, a bombing and
    training area used by United States Navy aviation units flying
    out of Yuma, Arizona, as well as El Centro, California.
    Portions are used for Navy SEAL special forces training, also.
    The Navy's Blue Angels also train in the area. I have been
    treated to many magnificent shows overhead without the long
    lines and crowds below.
        The Chocolate Mountains contained within the Gunnery Range
    boundaries are a dark, foreboding spine of rock rising out of
    the desert floor, a dramatic and unusual site. Under this bill,
    they may be subject to the whims of Native American geophysical
    phenomena, and within only 7 months, largely in secret, be
    locked away from any further use by the American military. Now,
    I do not stand a chance if they come for my land with this
    proposal for a nearly open-ended ability to eliminate use of
    property.
        Mr. Chairman, I have heard it said that if the only tool
    you have is a hammer, then everything begins to look like a
    nail. If this proposal becomes law, as it stands, sacred
    geophysical phenomena in this country, there may be more of
    that than we ever could have imagined.
        Thank you for the opportunity to testify today, Mr.
    Chairman.
        Mr. Hayworth. And we thank you for your testimony, as we
    thank all of the panelists.
        [The prepared statement of Mr. Hardiman follows:]

     Statement of Michael Hardiman, representing the American Land Rights
                                  Association,

        Good morning Mr. Chairman, thank you for inviting me to testify
    today.
        My name is Michael Hardiman, representing the American Land Rights
    Association. ALRA is a twenty-five year old organization with members
    in all fifty states. Our membership generally includes landowners
    located within or nearby federal property, as well as lease and permit
    holders on federal lands.
        I am an inholder of a small parcel in the Southern California
    desert surrounded by Bureau of Land Management property.
        HR 5155, the Native American Sacred Lands Act, contains at least
    three parts which, especially in combination, pose a severe threat to
    private property rights and the Wise Use of federal lands.
        FIRST is Section One, part (b) (4), the definition of what can be
    designated as ``sacred land.'' This reads in part, ``any geophysical or
    geographical area or feature which is sacred by virtue of its
    traditional cultural or religious significance . . . .'' The term
    ``geophysical'' is defined in the Merriam-Webster dictionary as
    ``physical processes and phenomena occurring in the earth and in its
    vicinity.''
        It would be difficult to come up with a broader definition.
        SECOND is Section Three, parts (c) and (d), the hearing and appeal
    process. From the time a petition is filed, the agency in question has
    only seven months to hold a public hearing, and produce a written
    decision, and rule on any appeals.
        This is an incredibly rapid designation process. It is greased
    lightning compared to getting a species delisted under the Endangered
    Species Act, for example.
        However, due to the multibillion dollar maintenance backlog of the
    National Park Service and other land management agencies, this section
    may actually aggravate the degradation of sacred lands.
        For example, the burial grounds of Chumash Indians on the Channel
    Islands off the coast of Santa Barbara have exposed remains. The Park
    Service claims it is unable to address the problem due to lack of
    funds. If HR 5155 became law, even more resources would be drawn away
    from current protection efforts in order to deal with this bill's
    mandated deadlines, making the situation even worse.
        THIRD is Section Four, part (a), exemptions from the Freedom of
    Information Act. This states in part that no petitioner's information
    which ``contains a reference pertaining to a specific detail . . . of
    cultural practice or religion, or the significance of . . . sacred
    land, or the location of that sacred land, shall be released.''
        Now, it is understandable that there may be a desire to keep
    certain traditions and practices confidential. However, this should be
    balanced by the general public's and the directly effected land owners
    right to know. This section as currently written keeps too many people
    in the dark.
        HR 5155 effectively assigns sweeping new land use powers to Indian
    tribes, combined with a fast track designation process not available in
    many other statutes. It then provides for broad exemptions from public
    disclosure laws, allowing much of the land lockup process in this bill
    to be hidden away, behind closed doors.
        Here is an example. My property is located a few miles away from
    the Chocolate Mountain Gunnery Range, a bombing and training area used
    by United States Navy aviation units. Portions are used for Navy SEAL
    special forces training. The Navy's Blue Angels also train in the area;
    I have been treated to many magnificent shows overhead without the long
    lines and crowds below.
        The Chocolate Mountains, contained within the Gunnery Range
    boundaries, are a dark, foreboding spine of rock rising out of the
    desert floor, a dramatic and unusual sight. Under this bill, they may
    be subject to the whims of Native American geophysical phenomena, and
    within only seven months, largely in secret, be locked away from any
    further use by the American military.
        I don't stand a chance if they come for my land, with this proposal
    for a nearly open-ended ability to eliminate use of property.
        I have heard it said that if the only tool you have is a hammer,
    then everything begins to look like a nail. If this proposal becomes
    law, there may suddenly appear across the American landscape more
    sacred geophysical phenomena in this country than we could ever have
    imagined.
        Thank you for the opportunity to testify today, Mr. Chairman.
                                     ______

        Mr. Hayworth. In consultation with my friend from Michigan
    from the minority, we have decided to let you know that we have
    several questions for each of you that we will ask you to
    answer individually in writing. Given the strictures of time
    and the vote on the floor and other panels to get to, that will
    be our approach. We thank you for your cooperation not only
    today with oral testimony here, but we look forward to getting
    responses to our questions in writing, and thank you for your
    testimony.
        Before adjourning to run over to vote, I would ask
    unanimous consent to insert into the record a letter from
    Arizona Snow Bowl, some of my constituents in Arizona,
    concerning H.R. 5155. With nobody here to object, guess what,
    that is going in the record.
        [The letter follows:]

        [GRAPHIC] [TIFF OMITTED] T1889.005

        [GRAPHIC] [TIFF OMITTED] T1889.006

        Mr. Hayworth. The Committee stands adjourned, subject to
    returning from the vote.
        [Recess.]
        Mr. Hayworth. We are glad to resume the hearing and we
    welcome panel five. One note for our panelists as we introduce
    them this morning, or this afternoon, if it would be possible
    as clearly as possible to adhere to the 5-minute rule. Of
    course, we will take your full testimony and include it as part
    of the record.
        Mindful of that, we would begin the testimony from panel
    five with Mr. Mark Boughton, the Mayor of Danbury, Connecticut.
    Mr. Mayor, welcome. We look forward to your 5-minute statement.

        STATEMENT OF MARK D. BOUGHTON, MAYOR, CITY OF DANBURY,
                              CONNECTICUT

        Mr. Boughton. Thank you very much, Mr. Chairman. I
    appreciate the opportunity to be here. For the record, my name
    is Mark Boughton. I am Mayor of the city of Danbury. And on a
    personal note, I want to tell you how much I appreciate your
    performances on the Imus in the Mornings show.
        Mr. Hayworth. If the gentleman would yield, that is just
    the perfect thing to say to the Chair. Thank you very much.
        [Laughter.]
        Mr. Boughton. I think you do a great job.
        Mr. Hayworth. Thanks, Mark. You may continue.
        Mr. Boughton. Mr. Chairman, I am Mayor of the city of
    Danbury. The city of Danbury is located on the Western side of
    the State of Connecticut. We are a city of 75,000 residents
    with a varied economy, multiple cultures and ethnicities, and
    we enjoy a very high quality of life. We have an unemployment
    rate of 2.3 percent and we have one of the lowest crime rates
    in New England.
        First of all, I want to thank you for your interest in an
    issue that can have a profound effect on the quality of life
    not only for my great city, but the entire Eastern Seaboard of
    the United States.
        I would also like to thank Congresswoman Nancy Johnson for
    her vision in introducing H.R. 992, and certainly the support
    of Congressman Maloney and Congressman Simmons.
        Ladies and gentlemen, the tribal recognition system process
    in the United States is broken. It is broken because the system
    is no longer seeking to right a wrong, the exploitation of
    Native Americans on this continent by the early settlers. It is
    now about a multi-billion-dollar industry called gambling. I
    believe that Congress must act to strike a new balance in the
    recognition process by separating the act of recognition of
    Native American tribes from the establishment of casinos. A new
    balance will allow Native Americans to receive the
    acknowledgment that they so richly deserve while protecting and
    preserving the quality of life in Connecticut and throughout
    the country.
        While the Bureau of Indian Affairs and Congress decide how
    to restore the balance to the recognition process, it is up to
    the cities and towns to wrestle with the fall-out of proposed
    casinos and proposed land claims. In short, as mayor of a city
    of 75,000 people, we must foot the bill for escalating legal
    costs to protect the quality of life that my predecessors and I
    have worked to establish in our community.
        Recently, if recognized, the Schaghticoke Tribal Nation has
    expressed interest in purchasing a large tract of land in
    Danbury, which was home to the world headquarters of Union
    Carbide. This property is approximately 600 acres of pristine
    woodland that is zoned for industrial use. Danbury receives
    approximately $4.5 million per year in property taxes from this
    parcel. It is my vision that this property be developed to meet
    the needs of our dynamic economy and provide an economic engine
    well into the next century. I envision housing, major
    corporations, and a minor league baseball stadium on this land.
    I do not envision a casino.
        A casino on this site does not enhance our quality of life
    or our economic vitality. Traffic, public safety costs,
    emergency services, and the loss of tax revenue are just some
    of the negative impacts that Danbury faces if a casino is
    located at the Union Carbide site. At this point, the city,
    along with our regional organization, the Housatonic Valley
    Council of Elected Officials, has entered into the recognition
    process as an interested party. We have convinced our local
    business leaders to pay for a traffic study. However, because
    of financial constraints, we are participating at a very low
    level.
        H.R. 992 will provide a city like Danbury with the
    necessary resources to oppose recognition when a casino
    threatens a community. In addition, it will also help protect
    communities who are faced with land claims. In Connecticut,
    several tribes have threatened to place land claims on hundreds
    of acres of property before they receive recognition, an effort
    to force negotiations on the location of a proposed casino once
    recognition has been secured.
        Mr. Chairman and members of the Committee, I only seek the
    ability to participate fully in the recognition and land claim
    process. As a lifelong resident of Danbury, I never dreamed
    that we would be facing the reality of a casino. It is my
    intention that this never happens. Allocation of dollars will
    give my city a jump-start in being an active participant in the
    recognition process.
        As I stated at the outset of my remarks, the process is
    broken. However, until there is time to reform and review the
    process, H.R. 992 will go a long way in helping cities like
    Danbury face this critical challenge. I certainly thank you for
    your time and consideration.
        Mr. Hayworth. And Mr. Mayor, we thank you for your
    testimony.
        [The prepared statement of Mr. Boughton follows:]

      Statement of the Hon. Mark D. Boughton, Mayor, Danbury, Connecticut

        Mr. Chairman, members of the Committee, thank you for inviting me
    to testify before your Committee today. I also want to thank you for
    your interest in an issue that can have a profound effect on the
    quality of life of not only my great city, but the entire eastern
    seaboard of the United States. I would like to thank Congresswoman
    Nancy Johnson for her vision in introducing this legislation.
        I would also like to thank my friend Congressman Rob Simmons, for
    his tireless work on behalf of a critical issue that faces not just his
    district, but also all of Connecticut.
        Ladies and Gentleman, the Tribal recognition system in the United
    States is broken. It is broken because the system is no longer seeking
    to right a wrong, the exploitation of Native Americans on this
    continent by the early settlers; it is now about a multi billion-dollar
    industry called gambling.
        While the Bureau of Indian affairs and Congress decide how to
    restore balance to the recognition process, it is up to the cities and
    towns to wrestle with the fallout of proposed casinos and land claims.
    In short, as a mayor of a city of 75,000 residents, we must foot the
    bill for escalating legal costs to protect the quality of life that
    myself and my predecessors have worked to establish in our community.
        Recently, if recognized, the Schaghticoke Tribal Nation has
    expressed interest in purchasing a large tract of land in Danbury,
    which was home to the world headquarters of Union Carbide. This
    property is approximately 600 acres of pristine woodland that is zoned
    for industrial use. Danbury receives approximately 4.5 million dollars
    per year in property taxes from this parcel. It is my vision that this
    property be developed to meet the needs of our dynamic economy and
    provide an economic engine well into the next century. I envision,
    housing, major corporations, and a minor league baseball stadium on
    this land. I did not envision a casino. A Casino on this site does not
    enhance our quality of life or our economic vitality. Traffic, public
    safety costs, emergency services, and the loss of tax revenue are just
    some of the negative impacts that Danbury faces if a casino is located
    at the Union Carbide site. At this point, the city along with our
    regional organization the Housatonic Valley Council of Elected
    Officials has entered into the recognition process as an interested
    party. We have convinced our local business leaders pay for a traffic
    study. However, because of financial constraints, we are participating
    at a very low level.
        H.R. 992 will provide a city like Danbury with the necessary
    resources to oppose recognition when a community is threatened by a
    casino. In addition, it will also help protect communities who are
    faced with land claims. In Connecticut, several tribes have placed land
    claims on hundreds of acres of property before they received
    recognition in an effort force negotiations on the location of a
    proposed casino.
        I only seek the ability to participate fully in the recognition and
    the land claim process. Allocation of dollars will give my city a jump-
    start in being an active participant. As I stated at the outset of my
    remarks, the process is broken. However, until there is time to review
    the process, H.R. 992 will go along way in helping cities like Danbury
    face this critical challenge. Thank you for your time and
    consideration.
                                     ______

        Mr. Hayworth. The Chair would note that our friend, Nancy
    Johnson, has returned, and true to her modesty, she could sit
    on the dais, but she is sitting there in the gallery. It is
    always good to see your smiling face, Nancy, and we thank you
    very much for coming back to visit.
        Now the Chair would call on the First Selectman of the Town
    of Kent, Connecticut, Ms. Dolores Schiesel, for her testimony.
    Welcome.

      STATEMENT OF DOLORES R. SCHIESEL, FIRST SELECTMAN, TOWN OF
                           KENT, CONNECTICUT

        Ms. Schiesel. Thank you. I am pleased to have the
    opportunity to speak before you today on H.R. 992. These are
    serious issues that come before us. I spent some time on a
    written document. I hope you will read it, but I will just
    summarize it for your purposes.
        We cannot be too cautious in the determination of a
    government-to-government relationship that affects small towns
    throughout our country. I would like to focus on the history
    and experience that we have in our town in Kent and then talk
    about why I think the Federal Government should assist in the
    financial burdens on these issues.
        Kent is in the Northwest corner. As Representative Johnson
    said, we have 2,858 people by the 2000 census. We were settled
    in the 1730's. We were incorporated in 1739, and in 1752, the
    State of Connecticut reserved land for Indian use at
    Schaghticoke, which generally means, in language, where the two
    rivers meet.
        We have a thriving local economy. We are in many ways a
    rural community that also lives in an urban area in the sense
    that we are outside of New York City. We are very careful to
    keep the growth and values that we consider important in our
    community, and all of us, including the residents of the
    reservation, have done that over the years.
        In 1981, the Schaghticoke Indians filed a letter of intent
    before the Bureau of Indian Affairs for recognition or
    acknowledgment. That sat dormant until about 1994, when a group
    called the Schaghticoke Tribal Nation more or less took over
    the petition and it became very clear that they had substantial
    amounts of funds behind them. It was a completely different
    story, and they filed about 15,000 pages worth of documents in
    their submittal that went in in 1996.
        In 1998, the town and five or six other defendants were
    sued for land claims that amounted to about 2,000 acres and a
    town road. It was very clear to us that what those land claims
    were about were accelerating the petition process. That was
    successful, and the Schaghticoke Tribal Nation petition is now
    under review. It would have been probably 5 years from now
    before it was reviewed.
        Financially, the Town of Kent, when we first got involved
    in the land claims and the petition, we appropriated $200,000
    for that cause from our town budget. At that time, when we
    started this, we had an $8,000 legal account, if you will. Last
    year, in the spring, we put another $100,000 toward this
    litigation and this recognition process. We have spent about
    $129,000 of that, but keep in mind that amongst that, we are
    working with a team of defendants, all of us involved in the
    land claims, and we have each spent about $70,000. So the cost
    that we as a group have spent is closer to $300,000.
        The reason that the Town of Kent thinks it is important to
    be involved in this, and I would think any town needs to be,
    but especially in Connecticut with the casino gaming, is the
    impacts that a tribe recognized on a government-to-government
    basis will have with a community. We will not have zoning
    control. We will not have local environmental control. We will
    not have any say in the kind of growth that happens on the
    reservation, and our community people think that that is worth
    making sure, and I think this is the most important thing,
    making sure that the truth is in the petition and in the
    documentation that the Bureau has to look at.
        When the process first started, I think there was a sense
    that the Bureau people would be able to do research, that they
    could use their own resources and find out and go check facts
    and go into communities and check on stories and meet with
    people. That has not been the case. They are absolutely
    overwhelmed. We heard this morning about some of the sheer
    numbers of this.
        We, as municipalities, now have to be part of that process
    and do our own research so that the Bureau has an even-handed
    approach to this, so that they have both sides of the story. In
    my testimony, I talk about an example of the Schaghticokes
    submitting half-truths, some information, but not the whole
    document, so the story is warped, and that is where the Federal
    Government comes into this.
        When this kind of decisionmaking by the Federal Government
    is going to have impact on the towns throughout this country, I
    think the Federal Government can help the towns do the
    research, both in the acknowledgment and in the trust claims,
    that it is going to be an economic benefit to a community and
    acknowledge that casino money has changed the entire story--at
    least in our State, it has changed everything about what
    happens--and the Federal Government can help the process by
    helping the towns do the research and come to this on some kind
    of a level playing field, and that is what I would ask you to
    consider with the bill that Representative Johnson submitted.
    Thank you.
        Mr. Hayworth. And we thank you for your statement.
        [The prepared statement of Ms. Schiesel follows:]

       Statement of Dolores R. Schiesel, First Selectman, Town of Kent,
                                  Connecticut

    INTRODUCTION

        I am Dolores R. Schiesel, First Selectman of the Town of Kent,
    Connecticut. I am pleased to submit this written testimony to accompany
    my remarks in support of H.R. 992, a bill ``To provide grants to local
    governments to assist such local governments in participating in
    certain decisions related to certain Indian groups and Indian tribes.''
        The seriousness of determining a particular group of tribal people
    so socially, culturally and politically distinct that it should be on a
    government to government relationship with the United States of America
    can not be taken too seriously. In these remarks I am addressing my
    support of this bill, while not addressing the issues concerning the
    process itself.
    HISTORY
        Kent is a rural town, with a population of about 2800, in the
    northwestern corner of Connecticut. It has 49 square miles of landmass
    and 66 miles of town roads. Within our boundaries are three private
    preparatory schools, two traffic lights, a small downtown, fourteen
    miles of dirt roads, one historic covered bridge, a section of the
    Appalachian Trail, three state parks, and a State Indian reservation.
        The presence of the 400 acre Schaghticoke Reservation brings me
    before you to share with you the issues local governments face with
    Federal creation of sovereign nations within the boundaries of towns
    and why Federal support for the towns is necessary.
        Kent was first populated by Europeans expanding from the Hartford
    area in the 1730's. It was incorporated as a Connecticut municipality
    on October 1739. In 1752, the State of Connecticut legislature reserved
    for Indian use land at Schaghticoke in Kent. The remains of that
    original set aside are about 400 acres of primarily wooded mountainside
    in the southwestern corner of Kent along the Housatonic River. It is
    currently home to a few families. In recent decades, the population on
    the reservation has varied from about 6 to 15 people. The town and
    residents of Schaghticoke live with each other and Schaghticoke has
    been little more than another neighborhood in town.

    PETITION PROCESS IN KENT

        When I took office in 1995, I was aware of the Federal recognition
    process and that the Schaghticokes had filed a petition for
    acknowledgment that was dormant for many years. I knew that the Indian
    Regulatory Gaming Act (IGRA) had changed the stakes for Indian groups
    around the country, and particularly in Connecticut. I quickly moved
    that the town be granted intervernor status in the petition review at
    the Bureau of Indian Affairs (BIA) so we could track the petition. At
    the time it was scheduled for consideration in eight to ten years.
        Not long after taking office, I was told by a group calling
    themselves the Schaghticoke Tribal Nation (``STN'') that it had
    resubmitted petition documents to the tune of 15,000 pages and was
    ready to make land claims in Kent. This group must be distinguished
    from the people that live on the reservation in Kent. The leadership of
    STN is not residents of Kent and has little to do with the residents of
    the reservation.
        By 1998, the Town and other parties were sued in land claims
    brought in Federal Court under the Non-Intercourse Act of 1790. The
    land claims involved a town dirt road and 2000 acres, including about
    one-half of the Kent School campus. The primary defendants are the
    Town, by virtue of the road claim, Kent School, a private preparatory
    school, Connecticut Light & Power Company and Preston Mountain Club, a
    private hunting club. The goal of the land claims was clearly to put on
    enough pressure that it would accelerate the petition of the STN ahead
    of other groups.
        Even more apparent and of much more concern, was my growing
    awareness of the financial backing the STN had. I knew the town was
    seriously undermatched when I learned the STN had retained as
    genealogist a former member of the Bureau of Indian Affairs staff, one
    Danbury law firm, two Hartford law firms, one Washington, DC law firm,
    one New York public relations firm and untold number of lobbyists. In
    1998, the town's legal budget was $8,000 per year. A Kent resident
    informed me that the PR firm would not even sit down to discuss
    representation for $8,000. The STN will not confirm the source of the
    group's funding, but its leader has confirmed his interest in
    developing a gaming facility. It is fair to say that the backer(s) are
    casino developers.
        Ultimately, the initiation of land claims was a successful legal
    maneuver and accelerated the petition review for the STN. From time to
    time during the legal back and forth, the financial backer did not seem
    happy with the slow timetable. Each time, more motions were filed and
    the town incurred more and more legal fees.
        The defendants have now joined together to pool resources and
    retained a single team to do our research into the validity of the
    claim for recognition. The bureau staff is in the process of reviewing
    all submittals. The reservation residents, calling themselves the
    Schaghticoke Indian tribe (``SIT''), have tried to join in as much as
    possible. They do not seem to have financial backing from casino
    interests. In addition, members of a family long associated with the
    reservation have formally broken ties with the STN. They are proud of
    their heritage and say they wish to remain so.

    FINANCIAL SUPPORT TO MUNICIPALITIES

        The federal recognition process and particularly IGRA added stakes
    to Native American acknowledgment that can not be denied. When casino
    investors became the high stakes players, the local governments could
    not match the ante.
        The introduction of gambling money took a review process that I
    believe was well intended and structured with western groups in mind--
    groups that had lived in one area, stayed indigenous and could not
    break out of a cycle of poverty, and allowed eastern peoples, with none
    of those characteristics to take advantage of it. In the name of
    ``economic investment opportunities'' the true beneficiaries in the
    east are gambling investors, not the individuals who were raised, lived
    and worked in the towns, even states, far from their families' origins.
    The true impacts are on the communities which are now declared to have
    sovereign nations within their borders.
        In Kent we talk a lot about ``rural character''. It is that
    indefinable quality that makes living, working and visiting Kent so
    special. It is in part, the Southern gateway of green hills, including
    the one of the reservation, the leaves floating on the river, the shops
    on Main Street, owned and operated by local residents, the narrow roads
    and finally the independent spirit of our New Englanders.
        I wish that I could claim Kent had enough sophistication and
    funding to meet the STN head on. I can not say so. There is no public
    relations firm. There is just a town attorney and a shared defense
    team. I sit before you, no attorney at my side, as the town's leader
    who seeks only the best for our town. We want only to be able to meet
    at the playing field fair and square so that a full review of the
    claims of the STN and SIT is done without political pressure and based
    on both sides' presentation of facts. Federal funds will help Kent and
    other towns in our situation bring out the facts.
        Our town believes that if we can speak to the petition with
    resources such as STN has, then we will have been given a fair chance.
    Meanwhile, if we are to have a sovereign nation within our town, we
    want to be sure that we have done all we can to prove this nation
    belongs here. We however, come up hopelessly short in financing this
    endeavor against interests that are looking at millions of dollars of
    profit each year. I constantly have the sense that gambling millions
    will wear us down.
        Our town budget is now $6,000,000. In 1999, the town appropriated
    at a town meeting $200,000 to support the STN litigation and related
    tribal issues. In 2002, it added $100,000 to the amount to be spent. To
    date, the town has spent $127,500 on attorneys and historians. The town
    has talked about the financial burden of continuing in the litigation
    and petition process at town meetings and is in full support. But for
    the other defendants and the Connecticut Attorney General, our
    community feels very much like it is going it alone in a process
    instituted by the Federal government.

    ACKNOWLEDGMENT AND H.R. 922

        The bill before you would allow some federal support to towns for
    participation in the acknowledgment process. The recognition process is
    the first step. As I explained in Kent, we are involved because we know
    what it could be like to have a sovereign nation in our borders. We
    have seen what happened to our neighbors in Southeastern Connecticut. I
    first thought that intervenor status would put the town fully in the
    mix. I was wrong. With the high stakes, the sheer numbers of groups
    seeking recognition, the funding and rules under which the BIA staff
    operates, more is needed.
        To fully analyze the validity of a claim under the seven criteria,
    both sides of the story should be presented. The hard working staff at
    BIA should have a full record. They are not expected to generate that
    record, nor can they be expected to make this kind of momentous
    decision on what is presented by one side only. Through our full
    reading of the 15,000 pages of the STN petition documents and the
    historical record, we have learned that often times the STN omitted
    important details that refuted a premise. Thus they left the impression
    of one fact, when the other half of a given document disproved the
    fact. One example is a report of its own expert researcher that
    indicated the group failed to meet key criteria (Starna Report,
    available on request). The filling in of those omissions, by the
    intervenors and defendants, so the Bureau staff can base its decision
    on all the history, has been a major undertaking. Records and data must
    be accumulated, organized for content and meaning and presented in a
    coherent manner. The burden of the presentation, under current
    operations falls on the States and more so, on the municipalities. In
    the end, local communities are most affected by a positive finding. If
    they can not afford to participate in the process, a group not
    deserving could receive recognition.
        Congress establishes the federal process of acknowledgment. Setting
    aside the question of its inherent fairness, I focus on its impact.
    Success in the process creates a government-to-government relationship
    between the United States of America and a tribe. The local government
    is not included once that relationship exists; not for zoning, not for
    environmental review, not for any of the levels of government oversight
    we take for granted. A town should be in the review process from the
    start with full resources. It could actually facilitate the process.
    The acts of Congress and its agent the BIA, will change our town
    forever if a group is acknowledged to be a tribe. When first conceived,
    perhaps there was no clear understanding of how much gambling money
    would enter into the formula of acknowledgment. It can not be denied
    that money is in the game now. You can help the municipalities'
    research so those truly worthy groups are acknowledged not just those
    who have financial backing.

    TRUST LAND AND H.R. 922

        Recently, both before and after formal acknowledgment, groups and
    tribes have become involved in land claims to expand the borders of
    reservations. After acknowledgment, this taking into ``trust'' of
    adjacent or even distant land requires Federal government involvement.
    There is a review process requiring a showing of facts to support the
    need to annex the land. This too can be fact intensive and therefore
    costly for municipalities to join in the review.
        It is related to the need for assistance in the recognition process
    in that it is costly and can be detrimental to towns. We well know, if
    it is key to a casino operation, the infusion of gambling money will
    outlast the municipality every time. The inclusion of this provision in
    the bill allows municipalities to also address the loss of land for
    gaming facilities. The addition of so-called trust land is a situation
    we in Kent have not had to address. But, in our town, if a tribe was to
    build a casino and then add more land to the reservation, it will mean
    lost taxes and development in a direction we would not choose to go. It
    also adds to the land not under local zoning and environment laws. The
    decision to allow trust land acquisition is done by the BIA, as agent
    for the Federal government. Local participation in that process, on a
    level playing field is a must. This bill could help provide that
    opportunity.

    CONCLUSION

        I respectfully request this committee's support of H.R. 922.
    Representative Nancy Johnson has proposed a bill designed to assist
    communities likely to be affected by tribal acknowledgment. Tribal
    Acknowledgment is not just an issue for Indian interests. The acts of
    the United States government will affect all citizens of this country.
    I am confident that support of this bill will only bring fairness and
    create a better process for Indian groups and municipalities.
                                     ______

        Mr. Hayworth. Now the Chair would recognize Michele
    Mitchell from the Native American Rights Fund. Welcome, Ms.
    Mitchell, and we look forward to your testimony.

       STATEMENT OF MICHELE MITCHELL, NATIVE AMERICAN RIGHTS FUND

        Ms. Mitchell. Good afternoon. I thank the Committee for
    inviting me here today. My name is Michele Mitchell. I am a
    staff attorney with the Native American Rights Fund. The Native
    American Rights Fund is a nonprofit organization that has been
    providing legal representation and technical assistance to
    Indian tribes, organizations, and individuals nationwide since
    1970.
        I am here today to provide testimony on H.R. 992. NARF
    strenuously opposes this bill. The principal defect which
    pervades every aspect of this bill is that it ignores more than
    two centuries of history and law that govern the relationship
    between the Federal Government and Indian tribes.
        While recognizing Indian tribes as distinctive political
    entities or sovereign governments, the U.S. Government has
    guaranteed to protect the rights, property, and existence of
    Indian tribes. Indeed, the trust relationship or trust
    responsibility has been described as one of the primary
    cornerstones of Indian law.
        As stated in the Indian Policy Review Commission Final
    Report, the Federal trust responsibility emanates from the
    unique relationship between the United States and Indians in
    which the Federal Government undertook the obligation to ensure
    the survival of Indian tribes. It has its genesis in
    international law, colonial and United States treaties,
    agreements, Federal statutes, and Federal judicial decisions,
    and, of course, the Constitution.
        This bill directly contravenes that trust relationship. It
    would provide funding to local governments in order to finance
    their opposition to acknowledgment and recognition of tribes,
    land into trust on behalf of tribes, and land claims to recover
    land lost in violation of Federal law, and ``any other action
    or proposed action likely to significantly affect the people
    represented by that local government.'' The bill appears not to
    include tribes among the local governments to which grants may
    be provided.
        If this is the case, it is our interpretation that the
    purpose and effect of the bill will be nothing more than to
    provide funding to non-Indian governments to oppose tribal
    governments. However, even if the bill were adjusted to address
    this inequity, it would still be at odds with the government's
    trust relationship with Indian tribes. A trustee simply does
    not fund opposition to its beneficiary.
        To make matters even worse, this money is likely to come
    from money that would otherwise go to fund Indian programs. In
    short, such actions would be at odds with the government's
    trust relationship with the Indian tribes and the bill should
    be rejected on that basis alone.
        However, NARF has additional concerns with respect to the
    bill's effects. Numerous Indian tribes have survived intact as
    identifiable tribes but are not federally recognized. Lack of
    Federal recognition deprives the tribes of their rightful
    government-to-government relationship with the Federal
    Government and the benefits and services which accompany that
    relationship. Federal recognition does not create new tribes.
    It acknowledges that tribes that have always existed as tribes
    are entitled to the same government-to-government relationship
    with the United States as other similarly situated tribes.
    Providing Federal funding to further politicize the process of
    Federal recognition is not in anyone's best interest.
        This bill would also fund opposition to the process of
    taking land into trust. The process of taking land into trust
    is a remedy to attempt to overcome at least some of the effects
    of Federal policies which resulted in the loss of 90 million
    acres of reservation land prior to 1934. While we recognize
    that the taking of land into trust could impact local
    governments by removing lands from the tax rolls, the Federal
    Government, rather than supporting opposition to the action,
    should address the problem directly by providing funding to
    lessen the impact of its actions on local governments. In fact,
    the Federal Government already provides funding in the area of
    education for States that are impacted by the existence of
    Federal trust land within the State. The imposition by the
    Federal Government of even more obstacles to already inadequate
    remedy for past Federal actions resulting in the loss of land
    violates the Federal trust responsibility to tribes.
        The same is true as to funding the fighting of land claims.
    Land claims are brought to recover land lost because of the
    failure of the Federal trustee to perform its obligations in
    the first place. Land claims are a right of action created by
    the disposition of Indian lands in violation of Federal law. It
    is a legal remedy for a legal wrong. The Federal Government, as
    the trustee of Indian tribes, is obligated to support a tribe's
    valid land claim. Providing resources to support opposition to
    a valid land claim clearly violates that trust responsibility.
        The bill also provides grants for opposing other undefined
    actions if the Secretary determines that an action would
    significantly affect the people represented by a local
    government. This catch-all covers virtually all of the cases
    involving Indian tribes' interests. Tribes in the West fight
    for water rights. Tribes fight to exercise their sovereign
    right to jurisdiction. Not only would the funding of such
    opposition violate the trust relationship, but because these
    decisions regarding tribal trust resources are often decisions
    made jointly with the Federal Government and tribal
    governments, it would contravene the principles of tribal self-
    government.
        Finally, the bill is fraught with ambiguity. It does not
    define terms such as participation, action, or local
    government. Does participation mean lobbying the Department of
    Interior? Does it mean challenging Federal Government decisions
    through litigation? What is a local government? Is it a county,
    a municipality, a State? And what does it mean in the context
    of a land claim? Is a local government any local government
    that would be affected by the boundaries of a land claim?
        In conclusion, the Native American Rights Fund strongly
    opposes H.R. 992 as a violation of the trust responsibility of
    the Federal Government toward Indian tribes and as an attempt
    by special interest groups to use the guise of participating in
    processes intended for the benefit of tribes to instead fund
    opposition to tribes' exercise of their legal rights. Thank
    you.
        Mr. Hayworth. Thank you, Ms. Mitchell.
        [The prepared statement of Ms. Mitchell follows:]

       Statement of Michele Mitchell, Attorney, on behalf of the Native
                              American Rights Fund

        Good morning, I thank the Committee for inviting me here today. My
    name is Michele Mitchell. I am a staff attorney with the Native
    American Rights Fund. The Native American Rights Fund (NARF) is a non-
    profit organization that has been providing legal representation and
    technical assistance to Indian Tribes, organizations and individuals
    nationwide since 1970. I am here today to provide testimony on HR 992,
    a bill that would authorize the Secretary of Interior to provide grants
    to local governments to assist them in participating in certain
    decisions related to Indian groups and Indian Tribes.
        NARF strenuously opposes this bill. The principle defect, which
    pervades every aspect of the bill, is that it ignores more than two
    centuries of history and law that govern the relationship between the
    federal government and Indian Tribes.
        Since the beginning of the Republic the federal government has had
    a government-to-government, trust relationship with the Indian Tribes.
    While at once recognizing the Indian Tribes as ``distinctive
    political'' entities, or sovereign governments, the United States
    government has guaranteed to protect the rights, property and existence
    of Indian Tribes. Indeed, the trust relationship or trust
    responsibility, has been described as ``one of the primary cornerstones
    of Indian law.'' Felix S. Cohen, Handbook on Federal Indian Law, 122
    (1982 ed.).
        As stated in the Indian Policy Review Commission Final Report
    submitted to Congress in 1977:
            ``The Federal trust responsibility emanates from the unique
            relationship between the United States and Indians in which the
            Federal government undertook the obligation to insure the
            survival of Indian Tribes. It has its genesis in International
            Law, colonial and United States treaties, agreements, federal
            statutes and federal judicial decisions.
        This bill directly contravenes that trust relationship.
        This bill would provide funding to ``local governments'' in order
    to finance their opposition to acknowledgment and recognition of
    Tribes, applications to put land into trust on behalf of Tribes, land
    claims to recover land lost in violation of federal law, and any other
    ``action or proposed action . . . likely to significantly affect the
    people represented by that local government.'' The bill does not appear
    to include Tribes among the ``local governments'' to which grants may
    be provided. If this is the case, it is our interpretation that the
    purpose and effect of the bill will be nothing more than to provide
    funding to non-Indian governments to oppose tribal governments. Even if
    the bill were adjusted to address this inequity, it would still be at
    odds with the government's trust relationship with Indian Tribes. A
    trustee simply does not fund opposition to its beneficiary. To make
    matters even worse, this money would likely come from money that would
    otherwise go to fund Indian programs. In short, such actions would be
    at odds with the government's trust relationship with the Indian Tribes
    and the bill should be rejected on that basis alone.
        However, NARF has additional concerns with respect to the bill's
    effects as set forth below.

    Concerns Regarding Acknowledgment and Recognition Decisions
        Numerous Indian tribes have survived intact as identifiable Indian
    Tribes, but are not federally recognized. Lack of federal recognition
    deprives the Tribes of their rightful government-to-government
    relationship with the federal government and the benefits and services
    which accompany that relationship. Federal recognition does not create
    new Tribes. It acknowledges that Tribes that have always existed as
    Tribes are entitled to the same government-to-government relationship
    with the United States as other, similarly-situated Tribes. It is a
    rigorous process, designed to eliminate political pressures on the
    process and to eliminate unfounded claims. The process is designed to
    allow federal recognition decisions to be made by experts based upon
    objective criteria. To provide funding for the politicization of the
    process is not in anyone's best interest.

    Concerns Regarding Land Issues
        The bill would also fund opposition to the process of taking land
    into trust. The process of taking land into trust is a remedy to
    attempt to overcome at least some of the effects of long discredited
    federal policies which resulted in the loss of 90 million acres of
    reservation land prior to 1934. While we recognize that the taking of
    land into trust would impact local governments by removing lands from
    the tax rolls, the federal government, rather than supporting
    opposition to the action, should address the problem directly by
    providing funding to lessen the impact of its actions. In fact, the
    federal government already provides funding in the area of education
    for states that are impacted by the existence of federal trust land
    within the state. For the federal government to impose obstacles to an
    already inadequate remedy for past federal actions resulting in the
    loss of land violates the federal trust responsibility to Tribes.
        The same is true as to funding the fighting of land claims. These
    claims are brought to recover land lost because of the failure of the
    federal trustee to perform its obligation to protect Indian lands. Land
    claims are a right of action created by the dispossession of Indian
    lands in violation of federal law. It is a legal remedy for a legal
    wrong. The federal government, as the trustee of Indian Tribes, is
    obligated to support a tribe's valid land claim. Providing resources to
    support opposition to a valid land claim clearly violates that trust
    responsibility.

    Concerns Regarding the Potential Breadth of the Legislation
        The bill also provides grants for opposing other actions if the
    ``Secretary determines that the action or proposed action is likely to
    significantly affect the people represented by that local government.''
    This catchall covers virtually all of the cases involving tribe's
    interests. Tribes in the West fight for the water rights upon which
    their prospects for economic self-sufficiency depend. Tribes fight to
    exercise their sovereign right to jurisdiction and constantly must
    fight with local governments over such exercise. In Section (4),
    ``other actions,'' is defined in terms that are so broad as to
    potentially encompass the funding of non-Indians to oppose and
    interfere with decisions relating to these tribal trust resources. Not
    only would the funding of such opposition violate the trust
    relationship, but as decisions regarding tribal trust resources are
    decisions made jointly by the federal government and tribal
    governments, it would also contravene principles of tribal self-
    government. This bill is an effort to provide funds to fight Indian
    rights on all fronts - actions unworthy of any trustee.

    General Concerns
        The bill is fraught with ambiguity. It does not define
    ``participation,'' ``action,'' or ``local government.'' Does
    participation mean lobbying the Department of Interior for a negative
    acknowledgment decision? Does it mean challenging federal government
    decisions through litigation? Is a local government a county, a
    municipality, a state? What does it mean in the context of a land
    claim? Can each local government affected by a particular action
    participate in receiving grants under the proposed bill? What happens
    if one ``local government'' supports a Tribe's recognition bid and
    another ``local government'' opposes it; are both sides funded equally
    in order to ensure fair ``participation ?
        In addition, the proposed bill would add to an already existing
    atmosphere of animosity between some Indian Tribes and the communities
    near which they are located or of which they may be actual members. In
    the latter case, it finances local governments to fight on behalf of
    some of its citizens against the rights of others-an approach of
    doubtful validity in law. Further, we are unaware of, and the
    proponents of this bill have not indicated, any other circumstance
    where the federal government provides funding to support opposition to
    federal agency action of this kind.

    Conclusion
        H.R. 992 would essentially be funding non-Indian interests to fight
    against Indian rights of every nature. Providing such funding to local
    governments violates the federal government's trust responsibility to
    Indian Tribes. In many instances, the federal government's actions in
    violation of its trust responsibilities or failures to fulfill its
    trust obligations are the cause of the loss of valuable rights. Now, in
    addition to causing the harm to the Tribes, the trustee is proposing to
    fund those who would oppose attempts by Tribes to rectify the
    situation. That hardly seems like appropriate action for a trustee.
    Adding injury to insult, the money will likely come out of monies that
    would otherwise go to fund Indian programs.
        The Native American Rights fund strongly opposes HR 992, as a
    violation of the trust responsibility of the federal government toward
    Indian Tribes and as an attempt by special interest groups to use the
    guise of participating in processes intended for the benefit of Tribes,
    to instead, fund opposition to Tribe's exercise of their legal rights.
                                     ______

        Mr. Hayworth. Now the Chair calls on Arlinda Locklear,
    attorney at law. Welcome, Ms. Locklear, and you can begin your
    statement.

          STATEMENT OF ARLINDA F. LOCKLEAR, PATTON BOGGS, LLP

        Ms. Locklear. Thank you, Mr. Chairman. I appreciate the
    opportunity to testify this afternoon in opposition to H.R.
    992. In my last 25 years of practice of Federal Indian law, I
    have represented numerous tribes on a number of issues that
    could be impacted by this bill.
        Just by way of illustration, for example, I represent the
    Lumbee Tribe of North Carolina in its quest for Federal
    recognition. In the interest of full disclosure, I should also
    advise I am a member of the Lumbee Tribe, as well. I have also
    represented tribes in New York State on land claim cases,
    including the Oneida Tribe of Wisconsin and the Seneca Nation,
    on claims that are pending in Upstate and Western New York. In
    addition, I have represented the Fort McDowell Yavapai Nation
    on its water rights settlement, which happily was enacted by
    Congress in 1990 and is now resolved.
        The fundamental premise that I would like to assert today
    in opposition to this bill is that it proceeds on a factual
    error, and that is that there is somehow an unlevel playing
    field in terms of resources available to local governments now
    in opposition to tribes on these various issues. If I may speak
    briefly about some of those.
        First of all, with regard to Federal acknowledgment of
    tribes, if I may digress here for just a moment, I would like
    to put on the record our appreciation, the Lumbee Tribe's, for
    the comments made earlier today by Delegate Faleomavaega. He is
    a great friend of the Lumbee people and we appreciate his
    support.
        It should be noted, as Ms. Mitchell observed, the American
    Indian Policy Review Commission published in 1977, well before
    the advent of Indian gaming, that there were at that time at
    least 100 documented non-federally recognized tribes. This
    issue has been with us for generations. The injustice that
    results from this issue has been with Indian people for
    generations. In the case of the Lumbee Tribe, for example, the
    tribe has sought, as Delegate Faleomavaega mentioned,
    recognition from the United States since 1888, literally 100
    years before the enactment of the Indian Gaming Regulatory Act.
    These issues have not been generated by the advent of Indian
    gaming. They long predate Indian gaming.
        Neither is it true the suggestion that, by and large, these
    petitioners are supported or funded by Indian gaming. There are
    notorious examples where that does take place, and you have
    heard testimony this afternoon about some of those. But in the
    majority of cases, that does not take place. These petitioners
    fund this effort, which can range in cost from $500,000 to $1
    million or more, out of their own very limited resources, and
    typically, they do it on their own without the support of the
    Federal Government. I should note the Department of the
    Interior does not, emphatically does not fund these petitions
    themselves. They provide no funding or research or other
    assistance to tribes for that purpose. There are some limited
    ANA grants available for that purpose, but again, they are
    limited and generally small in amount.
        Further, on the land claim issue, it is a misrepresentation
    to suggest that somehow the defendants, including local
    governments, in the land claim issues need the assistance of
    this particular bill to provide a defense to that. In the case
    of New York State, for example, where most of those claims are
    now pending, the State of New York, by State law, has
    voluntarily assumed the cost of defense of all of those cases,
    including the cost of defense by the local governments. Outside
    the State of New York, typically, title insurance companies
    bear the cost of expense of those claims, including the cost of
    defense by local governments. Generally, there is not expected
    to be any out-of-pocket expenditure by local governments or
    private defendants in the defense of land claim cases.
        As a result, many resources have been brought to bear by
    the defendants in those cases. White and Case, for example, one
    of the largest firms in Manhattan, has been retained by the
    State of New York to defend all defendants, including local
    governments, in the land claims cases there. The largest firms
    in Boston, Massachusetts, first and second, Hale and Dorr,
    Goodwin, Proctor and Hoar, have been retained by title
    insurance companies to defend these cases outside the State of
    New York--Massachusetts, Connecticut, South Carolina, and
    elsewhere.
        Resources are available. There need not be a raid on the
    limited Federal Indian programs to make resources available to
    local governments to defend these actions. There is now, if
    anything, an unlevel playing field in the sense that tribes are
    obliged on their own, in most cases, to mount their own offense
    against this array of defense resources.
        Finally, with regard to the assistance of the United States
    in the land claim cases, oftentimes, we hear complaints about
    the presence of the Department of Justice as a co-plaintiff in
    those cases, and it is true that in a number of cases, the
    United States has appeared, in New York State and elsewhere.
    However, the Department of Justice as a matter of policy
    pursues those claims only against States themselves. They do
    not file such claims against local governments or private
    property owners.
        That being the case, this body need not concern itself
    about funding the defense of local governments or private
    property owners in the land claim cases as against the United
    States. We think H.R. 992 is unnecessary and we urge the
    Committee to reject it. Thank you.
        Mr. Hayworth. And we thank you for your testimony, Ms.
    Locklear.
        [The prepared statement of Ms. Locklear follows:]

         Staement of Arlinda F. Locklear, of Counsel, Patton Boggs, LLP

        Mr. Chairman and committee members, I appreciate the opportunity to
    testify this morning on H.R.992, a bill to provide grants to assist
    local governments in participating in certain decisions relating to
    Indian groups and tribes. The bill authorizes the expenditure of $8
    million dollars in the form of grants to local governments for the
    purposes of participating in actions relating to Indian affairs. The
    bill identifies three federal actions specifically--federal
    acknowledgment of Indian groups, trust acquisition of land for an
    Indian tribe, and assertion of land claims under federal law--as
    appropriate for such grants. In addition, the bill provides that such
    grants can be made available regarding any other action if the
    Secretary determines that the proposed action is likely to
    significantly affect the people represented by that local government.
    In other words, the bill appears to authorize grants for local
    governments as to any action, whether by the federal government or
    otherwise, so long as the action significantly impacts a local
    government. The bill is premised on a grossly inaccurate view of the
    relative resources of Indian tribes and local governments and, if
    enacted, would constitute a breach of faith by the United States with
    its supposed beneficiaries, i.e., Indian tribes.

    Relative resources of Indian tribes and local governments
        The proponents of this bill have argued, both in this body and the
    Senate, that there is an imbalance in resources that this bill would
    set right, an imbalance that arises largely from tribal gaming revenues
    or gaming backers of tribes. My twenty-five years' experience in
    representing Indian tribes convinces me that this imbalance is a myth.
    The reality is very different.
        Gaming revenues are so recent in time as to be an insignificant
    factor on the issues for which local governments would be eligible for
    grants. Many of these issues have been matters of controversy for
    generations. In 1977, the American Indian Policy Review Commission
    documented the extent and long-standing nature of the discrimination
    suffered by the more than one hundred non-federally recognized Indian
    tribes. These tribes' quests for federal recognition long preceded the
    advent of Indian gaming and most go forward today without benefit of
    any gaming revenue or backer. The experience of my own tribe, the
    Lumbee Tribe of North Carolina, is typical in these regards. The Lumbee
    Tribe, which is the largest non-federally recognized tribe in the
    country, has sought federal recognition consistently since 1888, or one
    hundred years before the enactment of the Indian Gaming Regulatory Act.
    It took the Tribe nearly ten years to prepare its documented petition
    for acknowledgment at a cost of more than $500,000, none of which was
    fronted by gaming interests. The Tribe was told after it submitted its
    fully documented petition that it was not eligible for the
    acknowledgment process. Patton Boggs LLP now represents the Tribe pro
    bono in its on-going effort to obtain special federal recognition
    legislation. As with the Lumbee Tribe, gaming revenue is simply not a
    factor for most tribes seeking federal acknowledgment.
        Further, gaming revenues are limited in reach in Indian country.
    The Government Accounting Office has documented that of the 561
    recognized tribes, only 193 actually conduct gaming enterprises and
    only 27 of those (or about 5% of all tribes) generate more than $100
    million a year. These 27 tribes produce about two-thirds of all Indian
    gaming revenues. Improvements Needed in Tribal Recognition Process
    (GAO-02-49), November 2001, pp. 5-6. To be sure, these gaming revenues
    have dramatically affected the quality of life for these tribes, but
    these numbers demonstrate that gaming revenues do not support the
    majority of tribal claims for acknowledgment, trust land, land, or
    otherwise. This being so, the majority of local governments are not at
    a relative disadvantage because of the advent of gaming.
        In fact, the reality is directly contrary to that suggested in
    H.R.992. There is no shortage of resources available to local
    governments and others to defend against tribal claims. The land claim
    cases, singled out for funding in H.R.992, are typical in this regard.
    Most land claims currently in litigation are located in New York State.
    By state statute, New York State is required to and does, indeed, pay
    the cost of defense for all defendants in those cases, whether or not
    the state is a party. This state funded defense is available to all
    defendants--local counties, other local governments, and all private
    property owners. When the state is a defendant, the New York State
    Attorney General's office provides for the defense of the state and all
    other defendants. When the state is not a defendant, New York State
    makes available the services of White & Case, one of the largest law
    firms in Manhattan, at no cost to the defendants. Under no circumstance
    is a local government or private property owner required to pay for the
    defense of a land claim in New York State.
        There is no shortage of deep pockets outside New York State to pay
    for the defense of local governments or private parties against Indian
    claims. In land claim cases elsewhere, title insurance companies
    typically underwrite the costs of defense. As has New York State, the
    title insurance companies hire large firms with substantial resources.
    Hale and Dorr and Goodwin, Proctor & Hoar, the first and second largest
    firms in Boston, Massachusetts, respectively, have developed an
    expertise in defending tribal land claims, having been hired by several
    title insurance companies to do so. These tribal claims defense firms
    are highly effective and their representation comes at no cost to the
    local governments or private defendants.
        Finally, the Department of the Interior itself does not typically
    play an active role in support of tribes on the issues identified in
    H.R.992. More often than not, the United States is a neutral fact
    arbiter on those issues. In the acknowledgment process, the United
    States certainly does not advocate for the petitioning tribe. The
    petitioning tribe bears the burden of proof (itself a moving target)
    and gets no assistance from the Department of the Interior in the
    preparation of its petition. In the trust land acquisition process, the
    tribe again bears the burden of making out a satisfactory trust
    application, a particularly heavy burden in the case of trust
    acquisitions for gaming purposes. Even in the land claim cases, where
    the United States has appeared as co-plaintiff for the tribe in certain
    instances, the United States eschews all claims against local
    governments or private parties and only asserts claims against the
    state involved.
        In the end, no factual case can be made that H.R.992 is necessary.
    In every manner of action contemplated by H.R.992, local governments
    are not at a relative disadvantage to Indian tribes. Local governments'
    litigation expenses against such claims are most often paid by others,
    the tribes are obliged to bear the burden of proof and their own
    expenses (with little impact from gaming revenues), and the United
    States is typically the decision-maker only providing little, if any,
    assistance to the tribes.

    Breach of faith by the United States
        The Bureau of Indian Affairs of the Department of the Interior has
    primary responsibility for providing the bulk of federal services and
    carrying out the federal trust responsibilities to Indian tribes. The
    earliest of these federal services was based on treaties as
    compensation, in part, for land cessions and other benefits granted by
    the tribes to the United States. Other services were authorized
    initially by statute. Now, these services and responsibilities are
    consolidated in a variety of Bureau of Indian Affairs' programs. See
    generally F. Cohen's Federal Indian Law (1982 ed.), pp. 673-677.
        Because of the ``distinctive obligation of trust incumbent upon the
    Government in its dealings'' with Indian tribes, the actions of federal
    administrative officials denying or limiting services receive close
    judicial scrutiny to insure that the trust responsibility has been
    fulfilled. Morton v. Ruiz, 415 U.S. 199, 236 (1973). Thus, the trust
    relationship includes an obligation to perform vigorously and
    effectively those services that Congress chooses to provide. See Eric
    v. Secretary of U.S. Department of Housing & Urban Development, 464 F.
    Supp. 44 (D. Alaska 1978).
        Of course, Congress itself holds wide ranging authority in Indian
    affairs, so that it can authorize or direct the Secretary of the
    Interior to provide funds for purposes that the Secretary could not
    herself fund. However, even Congress' authority regarding Indian
    programs has limits. The Supreme Court has held federal Indian
    legislation must be tied rationally to the fulfillment of Congress'
    unique obligation toward the Indians. Morton v. Mancari, 417 U.S. 535,
    555 (1974). Where the circumstances of Indian legislation demonstrate
    such a rational connection, the courts will not disturb Congress'
    judgment. Id.; Delaware Tribal Business Committee v. Weeks, 450 U.S.
    73, 86 (1977).
        H.R.992 is clearly Indian legislation. It targets certain
    administrative decisions relating to Indian tribes and directs that the
    Secretary of the Interior, chief administrator for the trust
    responsibility to tribes, make grants available to local governments
    relating to those decisions. In addition, the expenditures authorized
    by H.R.992 are certain to come from Indian program funds. Given the
    lateness in the appropriations process and the absence of a declared
    emergency or other circumstance justifying departure from rules
    governing federal appropriations, the Interior expenditures directed by
    the bill must fit within the current caps on Indian program
    expenditures approved for the Department of the Interior. Simply
    stated, H.R.992 proposes a raid on Indian programs, which as always are
    funded well below the level of demonstrated need of Indian tribes, to
    fund grants to local governments for the purpose of opposing tribal
    claims.
        Judged even by the rational basis standard applicable to federal
    Indian legislation, it is uncertain that H.R.992 would pass legal
    muster. There is no rational argument that the bill is intended to
    benefit Indian tribes or to fulfill the United States' trust
    responsibilities to Indian tribes. It is the precise opposite--a
    redirection of federal appropriations for Indian programs to local
    governments for the purpose of opposing tribal claims. If enacted, this
    could be the first Indian statute struck down by a court as beyond
    Congress' admittedly broad authority over Indian affairs.
        Even were there some federal Indian policy to be served by leveling
    the federal playing field or some other such justification to enhance
    the ability of local governments to oppose tribal claims, H.R.992 again
    falls short. By its terms, H.R.992 applies not to just the three types
    of federal actions identified in the bill, but also to ``any other
    action or proposed action relating to an Indian group of acknowledged
    Indian tribe if the Secretary determines that the action or proposed
    action is likely to significantly affect the people represented by that
    local government.'' sec.(b)(4). In other words, whether or not tribes
    benefit from representation by the United States or any other federal
    involvement in a particular action, an action could trigger the local
    government's right to apply for funding to oppose the tribe. For
    example, if a tribal referendum might affect a local government, could
    it apply for federal funding to attempt to influence the referendum? It
    appears so from the face of the literal language of H.R.992. Surely
    this is a mischief the drafters did not intend and the Congress must
    avoid.

    Conclusion
        At the end of the day, Congress' responsibility to Indian tribes is
    a moral one, one informed more by a sense of justice than a sense of
    legal obligation. Judged by that higher standard, H.R.992 is not worthy
    of serious consideration by this Committee. It proposes to divert some
    portion of the limited and precious resources still available to Indian
    tribes, resources first promised in federal Indian treaties to Indian
    tribes, and make them available to local governments to oppose Indian
    tribes on claims that typically arise out of the same Indian treaties.
    We and our tribal clients urge members of this Committee to vote
    against H.R.992.
                                     ______

        Mr. Hayworth. Thanks to all the panelists. It is question
    time and we turn to the gentleman from Michigan.
        Mr. Kildee. Thank you, Mr. Chairman. Thank you very much.
        I certainly am not unaware of the concern municipalities
    have when there is going to be a possible change in the plans
    and the planning in their community. I have seen the same thing
    in Michigan. We have 12 tribes in Michigan. But we do have to
    recognize the fact that the Constitution does recognize the
    Indian tribes as sovereign, and when we do finally recognize or
    reaffirm their sovereignty--we are not granting it to them
    because it is a retained sovereignty, and that is a very, very
    important concept. John Marshall made that very, very clear. It
    is a retained sovereignty, and I have helped five tribes in
    Michigan get their sovereignty--reaffirmation of the
    recognition of their sovereignty, not the granting of the
    sovereignty. So it is a retained sovereignty.
        So the BIA or the Congress determines whether we will
    recognize that sovereign government, just as we recognize the
    government of France or the government of Germany. We recognize
    that. So that is the reality that we have to deal with as
    Members of Congress who have sworn to uphold the Constitution.
    We recognize that the Constitution recognizes three types of
    sovereignties and it is very clear.
        I do recognize, too, that very often, towns, cities are
    probably less concerned about sovereignty than they are about
    gaming, because they may have a variety of reasons for being
    concerned about gaming. But the fact of the matter is that if a
    State outlaws a certain form of gaming or if a State outlaws
    all gaming, then it can outlaw it on all land, including Indian
    sovereign land, and that is the Cabazon decision. That is the
    decision of the Supreme Court that we have to follow here.
        So in Utah, we have Indian tribes in Utah and they cannot
    game, because Utah outlaws all gaming. If Connecticut wanted to
    outlaw all gaming, then it could outlaw all gaming. Hawaii
    outlaws all gaming. There are two States. Michigan in 1972
    outlawed all gaming. It was in our 1837 constitution and it was
    changed in 1972, and if Michigan had not changed that
    constitution, there would be no gaming tribes in Michigan now.
        So the Cabazon decision basically said, if you outlaw a
    form of gaming or you outlaw all gaming, you can outlaw it even
    on Indian sovereign land.
        Then Congress passed IGRA, the Indian Gaming Regulatory
    Act. I was sitting a little further down here back in those
    days. I have been serving on this Committee--I have been in
    Congress 26 years, serving on this Committee for 22. And we
    passed IGRA and IGRA was really a limitation on the Cabazon
    decision and I was a little reluctant, because I followed the
    Supreme Court decision, but the Indian tribes finally said, OK,
    we can live with these limitations. It is a limitation forcing
    them to compact with the State, and that is what has happened
    in Michigan. They have compacted with the State.
        So I do think that those who are concerned about gaming, if
    they really want to stop gaming, if they have some moral
    concerns or other concerns, then they could have their State do
    what Utah and Hawaii have done and outlaw all gaming.
        So I am not insensitive to the concerns of cities and
    towns, but I do recognize that the court has spoken and we
    should not say, we are not going to recognize your sovereignty,
    not grant it, we are not going to recognize your sovereignty
    because you might game, because that would be unfair. You are
    either sovereign or you are not sovereign. So I think we have
    to separate the question of recognition of sovereignty, not the
    granting of sovereignty, from gaming, and that is my only point
    I want to make.
        By the way, I work with Charlie Rose on the Lumbee Tribe
    and I buy my gasoline on the way to Florida at the Lumbee gas
    station down there.
        [Laughter.]
        Ms. Locklear. We appreciate that business, as well.
        Mr. Kildee. I yield back the balance of my time, Mr.
    Chairman.
        Mr. Hayworth. I thank the gentleman from Michigan.
        The gentleman from New Jersey.
        Mr. Pallone. Thank you, Mr. Chairman. I recognize that the
    gentlewoman from Connecticut is well intentioned with this
    legislation, but I have to say that I am very much opposed to
    it because--and I think Ms. Locklear basically summed it up--
    because it sort of assumes, the legislation sort of assumes
    that there is sort of an unlevel playing field and that the
    towns need to be empowered with grants or Federal dollars in
    order to make their case. I think in many cases, their case
    would be to try to oppose Federal recognition of a tribe or
    something similar with regard to the land trust.
        I just think that it is totally--first of all, I do not
    agree that there is an unlevel playing field except perhaps in
    the other direction. You know, just for example, the next panel
    is representing legislation that would federally recognize
    certain Virginia tribes, I think, and it is very clear that the
    reason that they need the legislation is because of the fact
    that, historically, the State of Virginia did whatever it could
    to try to make it impossible for them to gain recognition.
        We are going to have testimony, I understand--I am looking
    at the written record about a Dr. Walter Plecker, who served as
    the Registrar of the Virginia Bureau of Vital Statistics for
    about 50 years and he was a white supremacist who did whatever
    he could to try to make it clear that no Indians ever lived in
    the State of Virginia, which I know is absurd, but he tried to
    basically forge the records to accomplish that.
        Those are the kinds of things that tribes have. They have
    had a series of, I would call it discrimination, racism by
    State and sometimes local governments and certainly the Federal
    Government that has made it very difficult for them to achieve
    Federal recognition. That is why Mr. Moran has to introduce
    this bill.
        So to suggest that somehow local governments need added
    resources to fight a battle against the big bad Indian tribes
    that have all this money to achieve recognition, it is just not
    true. I think of an analogy. We have a similar type thing with
    the Superfund program, where the local group can get funds from
    the State government to make their case with regard to
    Superfund. But in that case, you usually have a huge
    corporation, corporate polluters that are trying to say that
    the site should not be recognized as a Superfund and a group of
    local citizens who have no money or resources who need a little
    money to make the case. But that is simply not true here.
        The thing that is really bothering me is that the
    suggestion that somehow this is the right thing to do, and I
    think the right thing is on the other side. In other words, as
    Mr. Kildee said, historically, our goal, or our role as a
    Federal Government is to just reaffirm sovereignty that is
    already there. So I do not think that we should be stepping in
    to try to encourage towns or give them resources so they can
    make the opposite case. It almost goes against the role of the
    Federal Government.
        The only thing I would ask is if Ms. Locklear or Ms.
    Mitchell wanted to explain a little more how it is often the
    case that some tribes do not have the resources to make their
    case, because I think that it is often the case that they do
    not. If either of you wanted to comment on that, I do not know
    if you have those statistics, but just from my experience, that
    has definitely been the case.
        Ms. Locklear. That is certainly the typical case,
    Congressman. To my knowledge, no statistics have been compiled
    on that regard with respect to non-acknowledged tribes and that
    is a function of the fact that those tribes basically do not
    appear in the records. By virtue of historical circumstances
    and forces of history, those tribes are largely invisible in
    the public record, including public funding. Typically, their
    petitions are prepared by volunteer graduate students who are
    professors. They employ their own people in the preparation of
    those petitions. And they look for nonprofit organizations,
    such as the Native American Rights Fund and others, to provide
    that assistance to them.
        I am proud to say that Patton, Boggs has agreed to
    represent my tribe, the Lumbee Tribe, pro bono in its effort to
    obtain Federal recognition. But absent access to those kinds of
    sources, tribes simply cannot do it. There are tribes whose
    material takes years to compile because of the expense
    involved. and you are absolutely correct in your observation
    that to the extent an imbalance exists, it is in favor of those
    who would oppose the petition rather than those who prepare
    them.
        Mr. Pallone. I do not know if Ms. Mitchell wanted to add to
    that.
        Ms. Mitchell. No.
        Mr. Pallone. My concern is that the history is that the
    State, whether that is the State government, the Federal
    Government, the local government, in most cases has played
    historically a discriminatory role against Indian tribes and
    that is why they have the difficulty. So for us to step in and
    empower the State or the local government to do more in that
    regard, it is really in some ways a very improper, immoral
    thing to do.
        I do not mean that--I understand the reason for the bill. I
    am not suggesting that the sponsor or any of the people here
    are looking at it that way. I understand where they are coming
    from and I am not suggesting that they are badly intentioned.
    But I think you have got to look at the history, not of the
    existing local or State governments but what we faced 50, 100
    years ago, and the history of this type of discrimination.
    Thank you.
        Mr. Hayworth. I thank the gentleman from New Jersey.
        To the panelists, we have some additional questions we will
    submit in writing to you individually. I just want to thank you
    all very much for your testimony and making it part of the
    record.
        Mr. Mayor, do you have a comment you would like to make in
    response?
        Mr. Boughton. I would just like to spend just a quick
    second, Mr. Chairman, responding to Mr. Pallone's comments, if
    I may.
        Mr. Hayworth. Yes, you may.
        Mr. Boughton. Thank you. I think that if you operate in a
    vacuum, Mr. Pallone's explanation is correct. Certainly, myself
    and Selectwoman Schiesel are not arguing that Indian nations do
    not have the right to sovereignty. We understand that concept
    within the Constitution. But this issue is much, much deeper in
    terms of recognizing somebody's sovereign right versus
    recognizing the forces that are flowing behind many of these
    applications.
        The Bombay doors are open to casino gaming in Connecticut
    because of the State law, you are absolutely right, Mr. Kildee,
    but I think the issue really is now, as you know, laws are
    never retroactive. So if we were to go back to the legislature
    and try to close that door with all the applications that are
    pending, then we end up into a problem where we cannot stop on
    the issue of gaming license and the issue of casinos, and there
    are no zoning laws, there are no environmental laws, there are
    no planning laws that come into play at all. Because of the
    sovereignty, that very precise problem that you have mentioned,
    we have to fight a battle to protect and preserve the quality
    of life in our community that many of us have fought very hard
    to have.
        So this is not an issue in terms of looking at the
    sovereignty of a nation. It is more of what is a tribe going to
    do once they receive recognition, and that is something that
    all of us have to deal with in terms of how we lead our
    communities and how we have that.
        In terms of Mr. Pallone's comments regarding the level
    playing field, I would argue that battling Mr. Trump or perhaps
    the Wilmot family, who have built malls all over the country,
    is not a level playing field for my city, with a $150 million
    budget with about $2 million worth of discretionary spending in
    it. I cannot compete with those types of forces that are in
    play and that is why we are here today. We are looking for help
    to compete with that, to level the playing field in a way that
    can recognize those tribes that clearly have established their
    identity versus tribes where you can question whether or not
    their identity even existed 100 years ago, and that is really
    the battle that we are facing in the Northeast. You, Mr.
    Pallone, should know that more than anybody, being a very close
    resident to Connecticut and knowing the battles in which we
    have gone through.
        Thank you, Mr. Chairman.
        Mr. Hayworth. Thank you, Mr. Mayor, and thanks to all the
    panelists. You are excused and we appreciated, of course, your
    willingness to come and testify before us today on H.R.
    992.H.R. 2345
        Mr. Hayworth. Panel six will discuss H.R. 2345, and the
    Chair and Committee welcomes to the witness table the Chief of
    the Upper Mattaponi Indian Tribe, Ken Adams; Ms. Danielle
    Moretti-Langholtz from the College of William and Mary, if
    America serves, America's second-oldest institution of higher
    learning--I think that is correct from my days being recruited
    there for football, but we could check with the gentleman from
    Ohio, Mr. Chabot, who played linebacker there for Lou Holtz;
    and the Reverend Jonathan M. Barton, the General Minister of
    the Virginia Council of Churches.
        Lady and gentlemen, we welcome you, and Chief Adams, if you
    would like to begin with your testimony.

     STATEMENT OF KENNETH F. ADAMS, CHIEF, UPPER MATTAPONI INDIAN
                                 TRIBE

        Chief Adams. Good morning, Mr. Chairman, Committee members,
    and guests. I am Kenneth Adams, Chief of the Upper Mattaponi
    Indian Tribe. With me today are Chief Adkins, Chickahominy;
    Chief Bradby, Eastern Chickahominy; Chief Branham, Monacan;
    Chief Bass, Nansemond; and Chief Richardson, Rappahannock.
        In all due respect to Mr. Fleming and Mr. Smith, who were
    here earlier, concerning the statement that was made that we
    will not be alive to see Federal recognition through the
    administrative process, I would like to ask these folks to
    raise their hands if they were in the room when that statement
    was made.
        [Show of hands.]
        Chief Adams. Thank you. We are the proud descendants of the
    keepers of this great land when the English colonists arrived
    in 1607. The Peace Treaty of 1677 established the governing
    authority of the Pamunkey queen and the Monacan chief over our
    ancestors, which were over 200 villages and towns. We are the
    direct descendants of those colonial tribes. Today, these
    nations have come together to ask the Congress of these United
    States to acknowledge our one-on-one relationship with the
    government of this nation. Bill H.R. 2345 clearly identifies
    who we are and the tribes that we are associated with.
        Chief Justice John Marshall in 1832 stated, ``The
    Constitution, by declaring those treaties already made, as well
    as those to be made, the supreme law of the land, has adopted
    and sanctioned the previous treaties made with the Indian
    nations.''
        Each of these great chiefs carry in their hearts many
    burdens of our people. I cannot express for them the sorrows
    they have endured, but I can express to you a sample of what we
    have all endured.
        When I was a child growing up in King William County,
    Virginia, high school education for Indians in the State was
    almost nil. Even before I entered grade school, my older
    brothers and sisters were being sent off to Oklahoma and
    Michigan to complete high school. I was the first Indian to
    graduate from King William High School in 1965. Myself in 1967
    and my older brother in 1968 served in Vietnam. Shortly
    afterwards, I went to visit my brother. It was almost like
    walking into the house of a stranger, not because of any
    experiences in Vietnam, it was because of the policies of the
    State of Virginia. It was the policy that had forced him from
    home in order to seek a high school education. And what was his
    response to that policy? His response was to put his life on
    the line for the United States of America.
        I can surely tell you today, in these individual tribes,
    there are many more stories like this one. I can say with 100
    percent certainty, when it comes to defending this homeland,
    Virginia Indians have spilled their blood.
        You might ask us, why do you come now? We have an answer.
    For almost 400 years, Virginia attempted to diminish our
    presence. After 1700, we were pushed onto increasingly smaller
    pieces of land, and by the mid-1900's, Virginia was attempting
    to document us out of existence. The fight to maintain our
    identity was a struggle our mothers and fathers fought well,
    but they lacked education and resources. They had been told on
    several occasions no help from the Federal Government was
    available.
        In 1946, one of the chiefs attempted to obtain high school
    educational resources through the Office of Indian Affairs. The
    only help offered was in the form of education at a Federal
    boarding school. Nothing was available in Virginia. That same
    chief 2 years earlier had lost a grandson in the Philippines.
        If the State government was attempting to deny our
    existence and the Federal Government provided little
    assistance, where could these people possibly go? Who could
    they possibly turn to? That is the main reason it has taken us
    so long to get here.
        Virginia has recognized its errors. Along with bill H.R.
    2345 sponsored by Representatives Moran and Davis, who were
    here earlier this morning, Senator Allen, with the support of
    Senator Warner, has introduced S. 2964, granting Federal
    acknowledgment to these six tribes. In 1999, the Virginia
    General Assembly passed a resolution with overwhelming support
    asking for Congressional recognition of these tribes. King
    William County, home of the Upper Mattaponi, also passed a
    resolution in favor of Federal acknowledgment. They also asked
    for Congressional recognition. The local community is in total
    support of this. We have support of the majority of the
    Virginia Congressmen and women. As you can see, we have
    overwhelming support from the Commonwealth of Virginia.
        Now the U.S. Congress has the opportunity to make a
    historical change, a change that would honor you as well as
    honor us. We ask you to make the right decision and support
    this bill for Federal acknowledgment of Virginia Indians.
        [Applause.]
        Mr. Hayworth. Chief, we thank you for your testimony.
        [The prepared statement of Chief Adams follows:]

        Statement of Kenneth Adams, Chief, Upper Mattaponi Indian Tribe

        Good morning, Mr. Chairman. I am Kenneth Adams, Chief of the Upper
    Mattaponi Indian Tribe. With me today are Chief Adkins, Chief Bradby,
    Chief Branham, Chief Bass, and Chief Richardson. We are the proud
    descendants of the Keepers of this Great Land when the English
    Colonists arrived in 1607. The Peace Treaty of 1677 established the
    Governing authority of the Pamunkey Queen and the Monacan Chief over
    our ancestors. We are the direct descendants of those colonial tribes.
    Today these nations have come together to ask the Congress of these
    United States to acknowledge our one on one relationship with the
    government of this nation.
        Chief Justice John Marshall in 1832 stated, ``The Constitution, by
    declaring those treaties already made, as well as those to be made, the
    Supreme Law of the land, has adopted and sanctioned the previous
    treaties made with the Indian Nations.
        Each of these great Chiefs carry in their hearts many burdens of
    our people.
        I cannot express for them the sorrows they have endured.
        But I can express to you a sample of what we have all endured.
        When I was a child growing up in King William County, Virginia,
    high school education for Indians in the state was almost nil. Even
    before I entered grade school, my older brothers and sisters were being
    sent off to Oklahoma and Michigan to complete high school. I was the
    first Indian to graduate from King William High School in 1965. Myself
    in 1967 and my brother in 1968 served in Vietnam. Shortly afterwards, I
    went to visit my brother. It was almost like walking in the house of a
    stranger. Not because of our experiences in Viet Nam. It was because of
    the policies of the State of Virginia. It was the policy that forced
    him from home in order to seek a high school education. And what was
    his response to that policy? His response was to put his life on the
    line for the United States of America. I can surely tell you today, in
    these individual tribes, there are many more stories like this on. I
    can say with 100 per-cent certainty, when it comes to defending this
    homeland, Virginia Indians have spilt their blood.
        You might ask us, why do you come now? We have an answer. For
    almost 400 years, Virginia attempted to diminish our presence. After
    1700 we were pushed onto increasingly smaller pieces of land and by the
    mid 1900s Virginia was attempting to document us out of existence. The
    fight to maintain our identity was a struggle our Mothers and Fathers
    fought well, but they lacked education and resources. They had been
    told on several occasions no help from the Federal Government was
    available. In 1946 one of Chiefs attempted to obtain high school
    educational resources through the Office of Indian Affairs. The only
    help offered was in the form of education at a federal boarding school.
    No help was available in Virginia.
        If the state government was attempting to deny our existence and
    the federal government provided little assistance, where could these
    people possibly go? That is why it has taken us so long to get here.
        Virginia has recognized its errors. Along with Bill HR 2345
    sponsored by Congresspersons Moran and Davis, Senator Allen, with the
    support of Senator Warner, has introduced Senate Bill 2964 granting
    Federal Acknowledgement to these six tribes. In 1999, the Virginia
    General Assembly passed a Resolution with over whelming support asking
    for Congressional Recognition of these tribes. King William County,
    Virginia, home of the Upper Mattaponi, also passed a resolution in
    favor of Federal Acknowledgement. We have the support of the majority
    of the Virginia Congressmen and Women. As you can see, we have
    overwhelming support from the Commonwealth of Virginia.
        Now, the United States Congress has the opportunity to make a
    historical change. A positive change that would bring honor to you as
    well as honor to us.
        We ask you to make the right decision and support this bill for
    Federal Acknowledgement of Virginia Indians.
                                     ______

        Mr. Hayworth. Now we turn to Ms. Moretti-Langholtz from the
    College of William and Mary. Welcome.

     STATEMENT OF DANIELLE MORETTI-LANGHOLTZ, PH.D., COORDINATOR,
      AMERICAN INDIAN RESOURCE CENTER, COLLEGE OF WILLIAM AND MARY

        Ms. Moretti-Langholtz. Thank you, and you are right about
    us being the second-oldest educational institution.
        Mr. Chairman, members of the Committee and guests, I am Dr.
    Danielle Moretti-Langholtz, Coordinator of the American Indian
    Resource Center at the College of William and Mary. Thank you
    for the opportunity to address you today in support of H.R.
    2345. Additional statements have been submitted by Dr. Helen
    Rountree and Mr. Edward Ragan, and they are in the room today.
    At this time, I would like to summarize my longer statement to
    you.
        The history of Virginia's indigenous population is uniquely
    intertwined with the history and founding of the United States
    of America. Widely known is the story of Chief Powhatan and his
    daughter Pocahontas and the role they played assisting the
    first English-speaking settlers at Jamestown during the early
    17th century. Less widely known is what became of Virginia's
    indigenous population and their struggle for the survival of
    their culture, communities, and identity during the intervening
    four centuries.
        At the time of the English colonization, Virginia's coastal
    plain was occupied by a paramount chiefdom of Algonquian-
    speaking tribes and its Piedmont by alliances of Siouan-
    speaking tribes. Both archaeological evidence, early maps, such
    as that of John Smith's, which indicates the names of the
    tribes at the time of contact, and other historical documents
    indicate that these native peoples were horticulturalists with
    highly organized political structures that included male and
    female chiefs, and I would like to note that today we have
    Chief G. Anne Richardson with us, who is Chief of the
    Rappahannocks, and this is an example of that continuing
    tradition.
        The rapid English settlement of Virginia resulted in a
    demographic change in favor of the colonists as the early
    economic life of the colony shifted toward the growing of
    tobacco. These tribes were signatories to 17th century colonial
    treaties which established reservations for some of them. All
    but two lost control of their reservation lands by the 1800's,
    and Virginia Indians came under increasing pressure to conform
    to non-Indian society. Many Virginia Indians converted to
    Christianity during the period known as the Great Awakening.
        Over time, Virginia enacted increasingly strict codes
    pertaining to slavery and racial identity. Virginia Indians
    developed strategies to survive in this hostile climate by
    withdrawing into close-knit communities and maintaining
    separate tribal identities. Historical documents from this
    period highlight the pressures on Virginia Indians as the State
    regularly manipulated the definitions of Negro, mullato,
    Indian, and free persons of color to maintain white control
    over non-white persons.
        The emergence of the Eugenics Movement in the 20th century
    was arguably the most trying time of all for Virginia Indians.
    Virginia's Racial Integrity Law of 1924 instituted a system of
    birth registration, placing the population into one of two
    categories, white or colored. The latter category was mandated
    for all non-white persons, regardless of race or ethnicity.
    This legislation was engineered by Dr. Walter Plecker, head of
    the Bureau of Vital Statistics in Richmond, and made it a
    felony for individuals to file a false registration of race.
    The racial designations on the birth records of many native
    persons were changed from Indian to the generic non-white
    category of colored without their consent. This experience is
    unique to the Virginia Indian community and its negative
    effects were far reaching.
        The Racial Integrity Law remained in effect until its
    repeal by the U.S. Supreme Court in 1968. Nevertheless,
    scholars have documented that during these years, Virginia
    Indians maintained their tribal structures, church-sponsored
    schools, and refused to give up their Indian identity.
        Between 1983 and 1989, the Commonwealth of Virginia granted
    State recognition to the six tribes whose leaders are here
    today, thereby acknowledging the tribes' historical importance,
    contributions, and continued presence in the State since the
    colonial encounter.
        In 1999, the Virginia legislature passed a joint resolution
    asking the Congress of the United States to extend
    acknowledgment to these tribes. The scholarly community
    represented here supports this request based upon the criteria
    for Federal recognition.
        This is a compelling case that the Virginia Indians have.
    These tribes have maintained a separate, identifiable Indian
    identity in their ancestral homelands since the time of
    European colonization, and their shared experience has forged
    in them a sense of solidarity.
        Mr. Chairman, in 2007, this nation will celebrate the 400th
    anniversary of the settlement of Jamestown. These tribes have
    waited long enough for Federal acknowledgment. Please set the
    record straight and support the extension of Federal
    recognition to these six tribes. Thank you.
        Mr. Hayworth. We thank you for your testimony, Dr. Moretti-
    Langholtz.
        [The prepared statement of Ms. Moretti-Langholtz follows:]

     Statement of Danielle Moretti-Langholtz, Ph.D., Coordinator, American
                             Indian Resource Center

        Mr. Chairman, members of the committee and guests, I am Dr.
    Danielle Moretti-Langholtz, coordinator of the American Indian Resource
    Center at the College of William & Mary and Visiting Assistant
    Professor in the Department of Anthropology. I am pleased to have the
    opportunity to address you today on this important issue. For the
    record, more extensive treatments of Virginia Indian history have been
    submitted by me, Dr. Helen Rountree, professor emeritus of Old Dominion
    University and Dr. Jeffrey Hantman, of the University of Virginia and
    Mr. Edward Ragan of Syracuse University.
        The history of Virginia's indigenous population is uniquely
    intertwined with the history and founding of the country we know today
    as the United States of America. Widely known is the story of the great
    Chief Powhatan and his daughter Pocahontas and their interactions with
    some of the earliest English-speaking settlers at Jamestown during the
    early 17th century. Less widely known is the story of what became of
    Virginia's indigenous population and their struggle for the survival of
    their culture, communities, and identity during the intervening four
    centuries. Today, representatives of six of these native tribes are
    before you seeking support for the passage of legislation to extend
    federal recognition to them.
        At the time of colonization by the English in 1607, Virginia's
    coastal plain was occupied by a large paramount chiefdom of Algonquian-
    speaking tribes. According to early English documents the chiefdom was
    lead by Wahunsenacawh also known to us as Chief Powhatan, the father of
    Pocahontas. While the Virginia Piedmont was occupied by alliances of
    Siouan-speaking tribes. Anthropologists, archaeologists and historians
    still consult John Smith's early map of Virginia for its usefulness in
    identifying the names and locations of the native settlements during
    the early part of the colonial encounter. The six tribes seeking
    Congressional federal acknowledgment, descendant communities of some of
    the tribes encountered by the earliest settlers, have maintained their
    tribal governments and the center of their cultural events within the
    boundaries of their traditional homelands. Both archaeological evidence
    and early historical documents indicate these native peoples were
    sedentary horticulturalists, growing corn, beans and squash. Early
    English documents indicate the Powhatan tribes lived in ranked
    societies exhibiting differential dress, especially the wearing of
    copper by individuals of high status and differential burial practices
    for chiefs. Additionally, Virginia Indians society displayed highly
    organized political structures that included female chiefs. Today, the
    Rappahannock Tribe has a female chief, Chief G. Anne Richardson, and
    she is an example of that continuing tradition. Powhatan society was
    complex and included subchiefs that acted as intermediaries between the
    paramount or primary chief and the tributary tribes. The latter paid
    tribute or taxes to the central polity or paramount chief. Such taxes
    were paid in the form of food, skins, shells, miliary service or labor.
        It is difficult to reconstruct the size of the indigenous
    population at the time of colonial settlement but serious estimates of
    at least fifteen thousand for the Powhatans and thus tens of thousands
    for the Commonwealth of Virginia are acceptable. However, the rapid
    settlement of the colony of Virginia after 1607 resulted in a
    demographic shift, with settlers gaining control of the majority of the
    land originally controlled by Virginia Indians, as the economic life of
    the colony focused on the growth of tobacco. Moreover, the indigenous
    population was greatly reduced due to conflicts and disease and as time
    passed Virginia Indian identity was sometimes subsumed under other
    racial categories, as will be discussed in more detail below.
        In the early colonial records Indians and tribes are mentioned by
    using distinct terms to represent the communities. An examination of
    the Acts of Assembly for October 1649 suggests some of the pressure
    that the community was under and indicates that Indian slavery was
    practiced in Virginia. The Assembly made the ``kidnapping'' of or
    ``purchase'' of Indian children illegal. The second act of 1649 made
    the killing of Indians while they were within the limits of colonial
    (English) settlements illegal. In order to identify specific Indians as
    friendly the English instituted the use of metal badges which granted
    permission to certain Indians to enter lands controlled by the English.
    Thus Indian access to their former lands and their freedom of movement
    was restricted by the colonial government. Given the pressures on
    Virginia Indians, particularly in the Tidewater area, the survival of
    the tribal entities from the time of colonial contact to the present is
    remarkable.
        The Virginia tribes were signatories to colonial treaties. One in
    particular, the 1677 Treaty of Middle Plantation guaranteed Indians
    civil rights, and rights to gather food, and property rights. For some
    of the tribes reservations were established. The 1677 treaty indicated
    that ``Indian Kings and Queens,'' the Colonial title for tribal
    leaders, could not be imprisoned without a warrant, thus implying the
    treaty was an attempt to reinforce tribal authority in the face of
    overwhelming pressures by settlers to weaken the paramount chiefdom.
    Despite the treaties, by 1700 all of Virginia's tribes were forced onto
    increasingly smaller pieces of their traditional homelands and nearly
    all tribes lost control over their reservation lands by the early
    1800s. Details of Indian land loss have been enumerated by Helen
    Rountree in her book Pocahontas's People: The Powhatans of Virginia
    Through Four Centuries (1990).
        From the beginning of the colonial encounter, Virginia Indians came
    under increasing pressure to conform outwardly to non-Indian society.
    This may be seen in the switch to speaking English in place of native
    languages and in the demise of traditional religious practices. In the
    eighteenth century many Virginia Indians converted to Christianity
    during the historical period during the mid-eighteenth century known as
    the ``Great Awakening.'' One of the main thrusts of the ``Great
    Awakening'' was a move from the standard practice of having clergy
    ordained in England, as required by the Anglican Church, to having the
    leadership of individual congregations selected from among the
    membership of the church. This form of leadership or pastoral authority
    became the practice of the New Light Baptist Churches. Formal education
    was not a criteria for holding a position of leadership within the
    churches. My current research (The Rise of Christianity Among Virginia
    Indians, Paper Presented at the Annual Conference of the Middle
    Atlantic Archaeological Conference, 2001) suggests this conversion
    permitted the traditional leadership of the tribes to maintain
    positions of power within the community by transferring Indian hegemony
    into the church arena at a time when the practice of traditional
    religion became too dangerous for the leadership of the Virginia Indian
    community. Additionally, the New Light Movement was strongly committed
    to education and supported Sunday school programs to teach children,
    male and female, to read scripture. For more than a century this was
    the only educational opportunity open to Virginia Indian communities.
    Churches have continued, to the present-day, to be a haven and source
    of support for the Virginia Indian community.
        From 1705 onwards the General Assembly of Commonwealth of Virginia
    enacted increasingly strict codes pertaining to slavery and racial
    identity. These are known in the academic literature as ``slave codes''
    or ``black codes.'' Elsewhere, I have argued that between 1607 and 1983
    extant Powhatan tribes and the Monacan Indian Nation maintained an
    internal and Indian identity even as the Commonwealth of Virginia
    implemented a bipolar model or two-category system of race that
    subsumed Indian identity into the category of ``free persons of
    color.'' Virginia Indians developed strategies to survive in this
    racially hostile climate by withdrawing into close-knit communities
    separate enough to maintain their tribal identities. An examination of
    birth, death and property records from this time period highlights the
    difficult position in which Virginia Indians found themselves as the
    state regularly manipulated the definitions of ``Negro,'' ``mullato,''
    ``Indian,'' and ``free persons of color,'' to maintain white control
    over non-white persons (Winthrop Jordan 1968, Jack Forbes 1993).
    Confusion and chaos over the application of categories such as
    ``colored'' and ``Indian'' are clear in the throughout the historical
    record up through the 1970s. This is due to the tension between the
    state's attempt to imposed a bipolar model of race onto a population of
    persons of Indian descent who resisted the state-sponsored racial
    designations by asserting their Indianness.
        As trying as the seventeenth and eighteenth centuries were an even
    more difficult time for the maintenance of Virginia Indian identity
    occurred with the emergence of the Eugenics Movement in the twentieth
    century. This pseudo-scientific movement was linked in England to the
    standard bearers of Darwin's concept of natural selection and in fact
    the founders of the movement were blood relatives of the eighteenth-
    century thinker. These men argued that heredity was the primary force
    in individual character and in the history of civilization. The nascent
    ideas of the Eugenics Movement may been seen in Herbert Spencer's
    philosophy of Social Darwinism. Proponents of the movement opposed the
    ``mixing of races'' through intermarriage as this was viewed as
    weakening the superior races by introducing the negative
    characteristics of one group into the other. According to their views
    of science, drawn from observations with animal husbandry, the
    maintenance of racial purity would lead to the betterment of humankind.
    In more practical terms the adherents to the movement opposed free
    public education, and such things as public aid to the unfit of
    society.
        The Eugenics Movement gained support into the early twentieth
    century and had its fullest expression under the Nazi regime of the
    Third Reich. Sadly, adherents to the so-called scientific aspects of
    the movement guided legislation through Virginia's General Assembly
    consistent with their beliefs that the maintenance of racial purity was
    essential for the betterment of mankind. In 1924 the Commonwealth of
    Virginia passed the Racial Integrity Law, thereby requiring all
    segments of the population to be registered at birth in one of two
    categories; ``white'' or ``colored,'' the latter category was mandated
    for all non-white persons regardless of race or ethnicity. This
    legislation was supported by Dr. Walter Plecker, head of the Bureau of
    Vital Statistics in Richmond, and made it illegal for individuals to
    correctly identify themselves as Virginia ``Indians.'' Walter Plecker
    personally changed the birth records of many native persons from
    ``Indian'' to the generic non-white category of ``colored'' as required
    under the law. Birth certificates with ``proper'' racial designations
    were necessary in order to obtain marriage licenses. The legislation
    made it illegal for persons of different races to be married within the
    state of Virginia and mandated fines and prison terms for persons
    attempting to circumvent the law or file what the state deemed to be
    ``false'' papers with regard to race. It must be noted that the primary
    target of the Racial Integrity Law was the African American community
    and that all person's of mixed-blood heritage were impacted by the law
    in negative ways. However, the pressures and restrictions that this
    legislation placed upon Virginia's native population were significant.
    Proponents of the agenda heralded by the Eugenics Movement saw the
    Virginia Indian community as the threat; one that would make it
    possible for persons of mixed heritage of African American and Native
    American ancestry to move eventually out of the category of ``colored''
    and into the category of ``white.'' The law permitted persons of white
    and Virginia Indian ancestry, as long as it was not more than 1/16 of
    Indian blood quantum to be classified as ``white.'' Thus the bipolar
    categorization of Virginia's racial categories made ``Virginia Indian''
    a very problematic category. Officials from the state's Bureau of Vital
    Statistics actively sought to denigrate and deny person of Virginia
    Indian descent the right to identify themselves as ``Indians'' forcing
    them whenever possible to be declared by the state as ``colored.'' The
    historical, political and cultural characteristics of the Virginia
    Indian communities were ignored by state officials during the years
    prior to the repeal of the 1924 legislation. The experience of
    subsuming the identity of ``Indians'' under a state-generated alternate
    category is unique to the Virginia Indian community and its effects
    were wide-reaching. It is the primary reason that our citizens are
    unfamiliar with Virginia's Indian tribes. Many Virginia Indians left
    the state to escape this oppressive legislation and for better jobs,
    and educational opportunities during these years. Those who remained
    withdrew into the communities and in general Virginia Indians sought to
    draw little or no attention to themselves. Scholars have documented
    that Virginia Indians refused to give up their Indian identity even
    during the difficult years of the legislation. In two instances Monacan
    tribal members challenged the restrictions on marriage laws based upon
    racial categories generated by the state. In each instance the Monacans
    prevailed in court. These court challenges are significant given the
    circumstances of the Monacans at the time, living in poor rural
    communities without benefit of quality education or financial means.
    Indian communities resisted the legislation in less public ways. They
    refused to put their children in segregated ``colored'' schools,
    relying instead on church-sponsored elementary schools, and by
    maintaining their tribal structures even as the state declared they
    were colored persons and not Indians. Obtaining a high school education
    for Virginia Indians was practically impossible during this time and
    those who managed to do so resorted to attending Indian boarding
    schools in other states. Nevertheless, during World Wars I and II
    Virginia Indians served their country despite the hardships which the
    Racial Integrity legislation placed upon the. Historical documents and
    tribal records indicate the tribes had functioning separate tribal
    governments during the time was making it nearly impossible to declare
    oneself a ``Virginia Indian.'' It must also be noted that some
    anthropologists, using the rhetoric of the Eugenics Movement described
    Virginia Indians in very negative terms as ``obscure'' populations,
    ``half-breeds'', and ``tri-racial isolates'' (Calvin Beale 1957,
    Brewton Berry 1963). Such work was used against the Virginia Indian
    community by proponents of the Eugenics Movement. However, more
    prominent anthropologists such as James Mooney and Frank Speck did
    fieldwork among these tribes and detailing their history, material
    culture, and genealogy. Frank Speck photographed many of the Powhatan
    tribal leaders and members and these photographs are housed in the
    Smithsonian's Archives. The body of work produced by Mooney and Speck
    constitutes the largest and most anthropologically accurate material on
    Virginia Indians collected during the early twentieth century. This
    work clearly establishes the distinct and enduring nature of Virginia's
    Indian tribes more than three hundred years after the settlement of
    Jamestown. The Racial Integrity Law remained in effect until its repeal
    by the U.S. Supreme Court in 1968 in the famous Loving v. Loving
    decision. The more recent work of cultural anthropologists such as
    Helen Rountree and Danielle Moretti-Langholtz (We're Still Here:
    Contemporary Virginia Indians Tell Their Stories, coauthored with
    Sandra Waugaman, 2000) has documented the continued presence of
    Virginia's Indian tribes into the present day. There has been culture
    change in these communities but there has also been a remarkable degree
    of cultural continuity as well.
        With the repeal of the Racial Integrity legislation and the growing
    national Civil Rights Movement in the United States a period of more
    openness on matters of identity and history led to greater public
    visibility for Virginia Indians. Educational opportunities improved for
    Virginia Indians and a period of construction of tribal centers and
    museums began, and continues to the present time. In 1982 a
    subcommittee was established by the Virginia General Assembly to
    explore the granting of state recognition to some of Virginia's Indian
    tribes. The findings of the subcommittee were favorable to the
    extension of state-recognition to a number of tribes based upon the
    history, contributions and authenticity of the tribes. Between 1983 and
    1989 the Commonwealth of Virginia granted state recognition to the six
    indigenous tribes present here today. In 1983 the Commonwealth of
    Virginia established the Virginia Council on Indians, a state-
    sanctioned advisory board to deal with educational issues and other
    matters pertaining to Virginia's state recognized tribes and issues for
    members of other tribes residing within the Commonwealth. As part of my
    fieldwork among Virginia Indians, my regular observations of the
    workings of the Virginia Council on Indians, since 1995, show the
    Council and an active and effective body dealing with issues of
    importance to the community on the state level. In 1997 former Virginia
    Governor George Allen signed legislation allowing Virginia Indians to
    correct their birth records. This important piece of legislation
    energized the Virginia Indian communities in positive ways. Tribal
    elders, many of whom lived during the 44 years the Racial Integrity
    legislation was in force, have become more comfortable speaking about
    their heritage to non-Indians and in public settings, thereby enriching
    the lives and cultural diversity of all our citizens. [I have just
    completed (2002), with the help of my students, a two-year project, the
    Virginia Indian Oral History Project, which resulted in the making of a
    video documentary, ``In Our Own Words: Voices of Virginia Indians.''
    This video will help the students and general public of Virginia to
    learn about the history of the state-recognized tribes and the work and
    responsibilities of tribal leadership. The years of racially
    restrictive legislation has made the Virginia Indian community
    understudied and too little known outside of a handful of
    anthropologists and historians.]
        In February 1999 the Virginia Legislature agreed to House Joint
    Resolution No. 754. This bill, named for the late Thomasina E. Jordan,
    the first American Indian chairwoman of the Virginia Council on
    Indians, requested the Congress of the United States to grant historic
    Congressional federal recognition to these tribes based upon their
    demonstrated historical documentation as the descendants of Virginia's
    original tribes, the contemporary location of the tribes within their
    traditional homelands as documented at the time of contact with
    European settlers and their contributions to the history of this
    country. The anthropological and scholarly community represented here
    today acknowledges the authenticity of these tribes and supports their
    request for federal recognition based upon the criteria for federal
    recognition. These six tribes; the Chickahominy, Chickahominy---Eastern
    Division, Monacan, Nansemond, Rappahannock, and Upper Mattaponi, have
    maintained a separate Indian identity within the Commonwealth of
    Virginia since the time of European colonization. The functioning of
    tribal governments, church-sponsored schools and tribal centers can be
    documented from the early 1900s. Broadly speaking, these tribes have a
    shared common experience of history which has forged in them a sense of
    solidarity and identity.
        In 2007 the Commonwealth of Virginia and the country as a whole
    will mark the four-hundredth anniversary of the founding of Jamestown.
    Before marking such an occasion it would be fitting, honorable and
    historically accurate to extend federal recognition to these tribes
    thereby acknowledging their continued existence and their contributions
    to the founding of our nation. After four centuries Congress has the
    opportunity to enable these tribes to join the community of other
    federally recognized tribes thereby setting the historical record
    straight for all Americans. Mr. Chairman, four centuries is long enough
    to wait. Please support the extension of Congressional Federal
    Recognition to these six Virginia tribes.
                                     ______

        Mr. Hayworth. Now we turn to Reverend Barton. Welcome,
    Reverend.

        STATEMENT OF REV. JONATHAN M. BARTON, GENERAL MINISTER,
                      VIRGINIA COUNCIL OF CHURCHES

        Rev. Barton. Good afternoon. Mr. Chairman, members of the
    House Committee on Resources, I am the Reverend Jonathan Barton
    and I am the General Minister for the Virginia Council of
    Churches. I would like to thank you for enabling me, giving me
    this opportunity to speak today. I would also like to express
    my appreciation to Representatives Moran and Davis and the
    other members of the Virginia Congressional delegation for all
    of their efforts on behalf of these tribes.
        And to the members of the six tribes gathered here today,
    you honor the Virginia Council of Churches greatly by your
    invitation to stand with you as you seek Federal
    acknowledgment, and we stand with you today in support of the
    Thomasina E. Jordan Indian Tribes of Virginia Federal
    Recognition Act of 2001. On behalf of the Council of Churches,
    I would like to apologize to each one of you for any acts of
    injustice that our churches may have been complicit or
    complacent in during the past and ask your forgiveness.
        The Virginia Council of Churches is the combined effort of
    16 different denominations, 34 governing bodies of those
    denominations, and the Commonwealth of Virginia. A list of our
    member denominations has been appended with my comments. I have
    also added various letters from various religious leaders
    across the State urging support for this bill, including one
    from General Secretary Bob Edgar, head of the National Council
    of Churches and former member of this body. I would ask that
    they be included into the record.
        Mr. Hayworth. Without objection.
        [The letters have been retained in the Committee's official
    files.]
        Rev. Barton. During our 58-year history, we have stood for
    fairness, justice, and dignity of all peoples. We were one of
    the first integrated bodies in the Commonwealth of Virginia and
    have been for our entire history. We stand here today in our
    faith, rounded in our faith and our history and our values. The
    churches have had and have been in relationship to these tribes
    ever since our first European ancestors arrived and were
    welcomed by the ancestors of these men and women here today.
    These tribes have developed very close ties with the Episcopal
    Church, the Baptist Church, the United Methodist Church, and
    the Assembly of God. Three of our leading religious executives
    are Native Americans, the Rev. Dr. Wasena Wright, the Rt. Rev.
    Carol Joy Gallagher, and the Rev. Dr. Cessar Scott.
        Alexander Hamilton stated in 1775 that the sacred rights of
    mankind are not to be rummaged about among old parchments or
    must records, but they are written as with a sunbeam in the
    whole volume of human nature, by the hand of the divinity
    itself, and can never be erased or obscured by mortal power.
    What we are addressing here today are the sacred rights of
    these six tribes.
        Our history has not always been marked by peace or
    understanding. Treaties, indeed, have been broken and land has
    been taken. There has been suspicion and mistrust on both
    sides. But there is, perhaps, no deeper wound that you can
    inflict on a person than to rob them of their identity, to
    relegate them to the box marked ``other,'' to proclaim, as we
    have done in Virginia during the time of Mr. Plecker, that you
    do not exist.
        Those who bear the legacy of their forefathers, the first
    inhabitants of this great land, have suffered much
    discrimination, bigotry, and injustice. In the past, they have
    been prevented from employment and attendance in public
    schools. Churches often sought to provide educational
    opportunities during that period of time, but it often meant
    having to go out of State to attend Indian schools in other
    parts of the country. Even as we prevented their attendance in
    our classrooms, we proudly placed their names on our school
    buildings. We took their names and we placed them on our roads
    and our towns and on our rivers. The discrimination that they
    suffered not only erased their identity, it also robbed them of
    their voice. These tribes have proudly served this nation even
    as this nation has turned its back on them.
        These tribes are here today humbly to ask nothing more than
    to have their identity acknowledged, to be recognized for who
    they are and the contributions they have made. You can make
    this possible. You can make it possible that the healing of
    these deep wounds might finally begin to be realized.
        In 1983, the State of Virginia acknowledged the
    Chickahominy, the Eastern Division; the Upper Mattaponi, and
    the Rappahannock. The Nansemond Tribe was recognized in 1985,
    and in 1999, both houses of our General Assembly agreed, urging
    Congress to grant Federal recognition to the Virginia tribes.
    Our legislature asked the State delegation in Congress to take
    all necessary steps forthwith to advance it. Senator George
    Allen, in introducing his companion bill in the Senate stated
    that it is important that we give Federal recognition to these
    proud Virginians so that they can now be honored in the manner
    that they deserve. There is absolutely no reason why American
    Indian tribes in Virginia should not share the same benefits
    that so many Indian tribes around the country enjoy.
        God has called these people by name and has blessed them.
    God has recognized them as long as the sky is blue and will
    even if it should turn gray. God will be there as long as the
    grass is green and when it turns brown. For as long as the
    water shall flow and even on cold winter days when it freezes
    over, God will be there and will continue to recognize these
    people. It is now time for the U.S. Congress to do the same.
    Thank you.
        Mr. Hayworth. Thank you, Reverend Barton.
        [The prepared statement of Rev. Barton follows:]
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        Mr. Hayworth. Thanks to all three witnesses. Are there
    questions? The gentleman from Michigan.
        Mr. Kildee. Thank you, Mr. Chairman, and thank you for
    having this hearing, also.
        First of all, to Reverend Barton, yourself and the Virginia
    Council of Churches represent the very, very best in the
    church. The church has a divine element and a human element and
    you represent the best in that. I am personally edified by your
    testimony.
        Rev. Barton. Thank you.
        Mr. Kildee. For the Virginia tribes, you have the
    Constitution, you have the laws, you have the facts clearly on
    your side. I really feel that I have been given a task to make
    sure that the injustices of the past, as bad as they were, will
    not continue into the future.
        Dr. Moretti-Langholtz, it is very good to hear a historian
    pull together so much as you have done here and talk about
    those Plecker years, which must have been miserable years where
    a person could not put down the real identity of their child
    when that child was born. But you have motivated me. I have
    always supported the tribes. I have talked to some of you
    before. I read John Marshall's decision to every Indian tribe I
    could think of, and you quoted it perfectly, exactly there. It
    is such an important document, and just thank you very much for
    your testimony.
        Thank you, Mr. Chairman.
        Mr. Hayworth. And we thank the gentleman from Michigan.
        Again, we would offer our thank you not only to the
    witnesses on this panel, with reference to H.R. 2345, but all
    who have joined us today to talk about these important issues.
        Just one reminder to our final panel. There may be some
    questions that we will have individually for you that we will
    submit to you in writing and would appreciate your response in
    kind.
        Again, the purpose of the hearing is to have a chance to
    talk about these different pieces of legislation. We are
    pleased to make these different perspectives on these different
    pieces of legislation part of our Congressional record. We
    thank all for their participation and this hearing stands
    adjourned.
        [Whereupon, at 1:45 p.m., the Committee was adjourned.]
        [Additional statements and response to questions submitted
    for the record follow:]

        Statement of Chief Stephen R. Adkins, Chickahominy Indian Tribe

        Virginia history shows a government-to-government relationship
    between the Commonwealth of Virginia and the Chickahominy Indian Tribe
    beginning in the early 1600's. In 1614, the Chickahominy and the
    English signed a mutual aid treaty. The tribe was also party to the
    1677 Treaty and a number of subsequent Treaties and negotiations
    between the Commonwealth and Powhatan Tribes.
        From the mid 1700's to the mid 1800's, the Chickahominy lived in
    what is present day King William County. In the mid- to late nineteenth
    century the Chickahominy began moving southward to the banks of the
    Chickahominy River and the central ridge zone of Charles City County.
    They still reside in these areas.
        In 1901, the Chickahominy Indian Tribe formalized its leadership
    structure and soon thereafter began operating its Indian School. This
    leadership structure consisted of an elected Chief, Assistant Chief,
    Clerk, Treasurer and Councilmen. It evolved into our present day form
    of an eleven member Board of Directors with the Chief as presiding
    officer. Regularly scheduled meetings have been held since 1901. The
    Chickahominy Indians formed Samaria Indian Baptist Church about 1900
    and tribal membership in the Church continues today. The tribe enjoyed
    de facto Virginia state recognition throughout its modern history with
    formal state recognition occurring in 1983. The fact that the
    Chickahominy Tribe served, for several years, as an operating agency
    for the Native American component of the Governor's Comprehensive
    Employment Training Act provides an example of de facto state
    recognition.
        In 1922, Assistant Chief 0.W. Adkins met with the Charles City
    School Board requesting financial help in defraying the expense of
    teachers' salaries. The board agreed to help pay the salaries of the
    teachers of Samaria Indian School. The State agreed to pay two-thirds
    of the salary of the Samaria Indian School teachers, with the Board
    assuming the obligation of paying one-sixth of this salary and the
    Tribe providing a like amount. This payment continued until a
    sovereignty dispute arose between the Tribe and the School Board in
    1925 over the operation of Samaria Indian School, but the payment
    resumed in 1930.
        In 1950, the state discontinued its contribution to the tribe of
    $200 per pupil for tuition and transportation costs, to attend high
    school beyond the ninth grade at Bacone, Oklahoma. The Charles City
    School Board would assume those costs.
        Discussions occurred between the Charles City School Board and
    Chickahominy tribal members regarding the School Board's purchase of
    land and erection of a new school building for the tribe. Land was
    purchased by the Tribe from M.A. Holmes and donated to the school
    board. The Indian School was completed in 1951.
        It was assumed that this school would provide elementary and
    secondary education for the Chickahominy Tribe and Eastern Chickahominy
    Tribe. Additionally, the school would provide secondary education for
    Mattaponi and Pamunkey students. The Eastern Chickahominy students were
    transported from New Kent County to Charles City County and several
    Mattaponi students came from King William County to attend Samaria High
    School. This multi-tribal education continued until full Virginian
    desegregation closed the Samaria Indian School in the late 196O's.
        Research establishes a longstanding Tribal relationship with
    Virginia through letters of introduction to State and Federal officials
    from several state officials, which include Governor Westmoreland
    Davis, Governor E. Lee Trinkle, Governor Harry F. Byrd, Governor
    Garland Pollard and Governor James H. Price. Governor Baliles hosted a
    Thanksgiving Dinner at the governor's mansion in honor of the Indian
    Tribes native to Virginia. The next year the Virginia Indian Tribes
    held a Thanksgiving Dinner at the Chickahominy Tribal center and hosted
    Governor Baliles.
        With formal state recognition, the Chickahominy Indian tribe gained
    two seats on the Virginia Commission on Indians. The Commission hosted
    several state functions for all of the Virginia Indians and provided a
    viable conduit through which the Chickahominy Tribe is able to bring
    issues and concerns to the Governor and the state legislature.
        The Charles City County School Board is the recipient of grants
    under the Title IV Indian Education Act to provide education for the
    Chickahominy Indian students.
        The research compiled as a result of the Chickahominy Tribe's quest
    for formal state recognition was both painful and rewarding. It was
    painful because it revealed a deliberate effort by appointed officials
    within the Bureau of Vital Statistics to eradicate the existence of the
    indigenous people of Virginia. It was rewarding because it showed the
    ability of Virginia Indians to persevere and maintain their heritage
    against seemingly insurmountable odds. Under former Governor Allen's
    administration the Chickahominy Tribe, along with the other Virginia
    Tribes, was afforded the opportunity to correct the records within the
    Bureau of Vital Statistics.
        In September 2001 the Chickahominy Indian Tribe held its 50th
    annual Fall Festival and Powwow. The event was attended by eight
    thousand people over a two day period. The tribe has held Fall
    Festivals for many years but the consecutive string was broken during
    World War II. Over the years state, federal, and local officials have
    attended the Fall Festivals.
        Today the Chickahominy Tribe enjoys a lifestyle in which we proudly
    live and own our heritage. This lifestyle starkly contrasts the one
    lived by our ancestors only one generation ago and even to some extent
    the one that many of our elder's lived in their youth. One generation
    ago, our people feared the loss of property and rights if they made too
    much ``noise''. However, despite that threat they still persevered and
    maintained both their heritage and dignity.
        The present day lifestyle of the Chickahominy shows a group of
    people who have worked to secure a place in mainstream America. You
    will find our people at the polls every November on Election Day. You
    will see their names on the ballot and hear them deliver their victory
    speeches. We serve on school boards, commissions, Board of Directors at
    financial institutions and civic organizations, church boards and
    offices and community college boards. Our people work as court clerks,
    Commissioners of Accounts, serve in the military and in many other
    organizations.
        On the fourth of July, you will see Chickahominy Indians waving
    flags and participating in Independence Day celebrations, even though
    formal U.S. citizenship was not attained until the second decade of the
    twentieth century. In the spring of the year, you will see Chickahominy
    Indians as they march proudly to center stage to receive their high
    school, college, and post-graduate degrees. Many times, in Charles City
    County, you will see Chickahominy students delivering speeches as
    valedictorian or salutatorian of their class. You will see these people
    go on to become productive citizens within their communities as skilled
    craftspeople, factory workers, nurses, doctors, lawyers, engineers,
    entrepreneurs, teachers and other professions.
        In addition, you will see our people go on to serve in the Armed
    Forces of the United States of America, where they serve with honor and
    distinction. Over the decades, we have seen many casualties of war
    within our tribe. These casualties include injury in World Wars I and
    II, the Vietnam War, and the Korean Conflict. Our people were also
    present in Desert Storm and Kosovo and currently serve in Afghanistan.
    On Veterans Day and Memorial Day, our people gather to honor those who
    gave so much to the ``Free World''. This gathering is bittersweet for
    some of our people who feel both pride and pain as they remember loved
    ones who lost their lives while serving this country.
        Today you have seen a snapshot of who we were and, more
    importantly, who we are. We approach you without fanfare or hype.
    Rather, we stand before you to simply state our case and express our
    fervent desire that you grant Federal Recognition to the Chickahominy
    Tribe and the other five Virginia Indian Tribes appearing before you.
    We believe Federal Recognition will provide avenues to help our people
    gain access to better health care, education and economic opportunity.
        In 1983, the Commonwealth of Virginia demonstrated its value and
    respect for its Native People by granting them State Recognition and
    forming the Virginia Commission on Indians. Recently, the Commonwealth
    asked its Native People to participate in Jamestown 2007.
        As the nation and the world watch this historic event unfold, it
    would be very appropriate for the descendants of the original greeters
    of the English colonists to be officially recognized by the Congress of
    the United States of America.
                                     ______

             Statement of Chief Barry Bass, Nansemond Indian Tribe

        The Nansemond Indian Tribe is currently comprised of what is
    historically known as the christianized Nansemonds. The split in the
    Nansemond Tribe in the mid 1600's when they were being pushed from
    their villages along the banks of the Nansemond near the present day
    village of Chuckatuck. The traditional Nansemonds moved to the
    Courtland area along the Nottaway river, while the christianized
    Nansemonds settled along the edge of the Dismal Swamp. The membership
    of the current tribe must prove their Nansemond heritage through
    genealogy. At present all the membership descend from the documented
    marriage of Elizabeth, her christianized name to John Bass in 1638.
        Elizabeth was the daughter of Robin the Elder, King of the
    Nansemond Nation. The christianized Nansemonds who settled along the
    edge of the Dismal Swamp were farmers for the most part and continued
    to hunt the swamp. They remained a close knit community despite having
    to keep a low profile in the out lying areas. They did managed to stay
    in contact with the traditional Nansemond tribe traveling back and
    forth. The christianized Nansemond's worked hard at adapting to the
    English way of life to ensure a life for future generations. They
    remained a close community relationship despite struggling with harsh
    discrimination from the larger English community. It was extremely
    difficult to raise their families and teach them to survive in the
    English way of life while trying to hold on to their Nansemond
    heritage, but they did, they maintained their Nansemond heritage at the
    price of being discriminated upon, to the point of having to have to be
    certified as being of Nansemond descent, not being allowed to attend
    the regular English schools. They were shunned by most of the English
    community and even found it increasingly hard to find work outside the
    farm to be able to support their families. The leadership of the
    christianized Nansemonds was passed from generation to generation in
    the Bass family, who were looked to as their root to their Nansemond
    heritage. In certain ways that still continues today, although the
    process is now formalized by bylaws and elections of tribal officers.
    Leadership of the tribe has passed from my great great grandfather,
    James Michael Bass to my great grandfather Jesse Linsey Bass, to my
    grandfather Earl Lawerence Bass, and now to me, Barry W. Bass. And
    rather than being passed from father to son we now elect officers every
    4 years since receiving State Recognition in 1985. My grandfather was
    elected Chief at that time formally and served as Chief until his death
    in 1996. The christianized Nansemonds, the current Nansemonds being one
    and the same are but one big family, which has remained very close and
    determined to keep their Nansemond heritage alive and strong for future
    generations.
        Today however it has become as important to achieve the Federal
    Recognition that our forefather and mothers so deserve for keeping our
    heritage alive for us the current Nansemond tribe as well as the future
    Nansemond tribe. By adapting to the English way of life has cost us a
    lot of our heritage which has been lost along the way it has also
    allowed us to gain in our sense of pride in our heritage and what our
    forefathers and mothers had to sacrifice for our survival. The
    Nansemonds of today work at all types of professions, white and blue
    collar jobs, some still hunt and farm, but the one most important thing
    that remains is the pride in our heritage and family ties. The
    discrimination that our ancestors had to endure was extremely painful,
    and even today this is still evident at times in the eyes of some of
    our elders, but they have endured and we will continue to carry our
    heritage forward. Because they weren't allowed to attend the English
    schools the Nansemond Indian Public School was established in 1850 by
    the Methodist. The Basses have always been known as avid hunters, and
    they knew the Dismal Swamp like the back of their hand. My great
    grandfather Jesse was known as the Daniel Boone of the Great Dismal
    Swamp and would take hunting parties of doctors and lawyers into the
    swamp on hunts, my grandfather Earl was a great hunter of the swamp as
    well, he was often called on to go into the swamp and find hunters who
    had gone into the swamp and gotten lost, because he knew it so well. As
    descendants of the Nansemonds we have had many generations of change
    and made many concessions to ensure a place for future generations of
    Nansemonds. We have really been focused on making sure that we will be
    able to preserve and build on our heritage. We are currently working to
    obtain some land in the area of one of the original village of our
    Nansemond ancestors at Mattanock. Here we plan to establish an
    authentic village to honor our ancestors and share our heritage with
    the general public. This we hope to accomplish in--time to coincide
    with Jamestown 2007, which for all that the history of Jamestown
    teaches may not have survived if not for the corn obtained from our
    ancestors. We have also established a museum which has done much for
    relationships in the community of Chucatuck as well as strengthened our
    pride in our heritage. The current Nansemond nation is governed by
    bylaws, and an elected Chief, Assistant Chief, five Council persons, a
    Secretary, and Treasurer. We hold monthly tribal and council meetings
    to discuss the business of the tribe. We are seeking Historical Federal
    Recognition as a Tribe because we believe it is long overdue and
    necessary to continue to build on our tribal heritage, and better care
    for elderly as well as provide better opportunities for our future
    generations.
                                     ______

        Statement of Chief Marvin Bradby, Chickahominy Indian, Eastern
                                 Division, Inc.

        We, the Chickahominy Indians, Eastern Division, Inc., give this
    written testimony as a factual account of our history and our reasons
    for petitioning the United States government for recognition of our
    people.
        For the sake of brevity, we will not repeat the history of our
    ancestors shared with the Chickahominy Indians. Instead, we refer you
    to the testimony of the Chickahominy Indians prior to 1910 and we will
    limit our history to the historical events of the Chickahominy Indians,
    Eastern Division, Inc. since that time.
        Our tribe is located on Pocahontas Trail about four miles east of
    Providence Forge, in New Kent County, Virginia. Our people have been
    established in this area longer than we have written records, due to
    two fires that consumed all New Kent County records prior to 1870.
    However the earliest surviving record, the Virginian Census of 1870,
    shows an enclave of Indians in New Kent County, which forms the basis
    for proof of our existence. Further evidence of our existence is an
    acknowledgment by the Commonwealth of Virginia on a historical marker
    which reads: ``Chickahominy Indians-One mile south is the home of
    descendants of the Chickahominy Indians, a powerful tribe at the time
    of the settlement of Jamestown. Chickahominies were among the Indians
    who took Captain John Smith prisoner in December 1607. Currently two
    state-recognized Chickahominy tribes reside in the area.''
        In the beginning of our tribal history our livings were made
    primarily on the Chickahominy River through fishing, trapping, and
    selling of animal furs and game. This mode of life continued until a
    dam on the Chickahominy River in New Kent, now known as Walker's Dam,
    was constructed by the City of Newport News. Some of our tribal members
    then began working for the Chesapeake & Ohio Railroad Company, now
    known as CSX, which passed directly through the area. Other tribal
    members found it necessary to leave the state of Virginia to find
    gainful employment. Our members have moved as far north as Michigan and
    as far west as Arizona.
        The Chickahominy Tribe consisting of both the Charles City County
    and New Kent County Indians formed Samaria Indian Baptist Church in
    1901. During this time, all Chickahominy men were assessed a tribal tax
    so their children could receive an education at Samaria Indian School.
    This money was used to build and maintain the school, buy supplies, and
    pay a teacher's salary. However, in 1910, due to the distance involved
    geographically between our people, we realized our needs as groups
    would be served better by becoming two independent tribes and the
    Chickahominy Indians, Eastern Division was formed. One of our first
    actions as a tribal entity was to start a one-room schoolhouse in New
    Kent County called the Boulevard Indian School. The building was built
    by our people on land donated by two of our tribal members. One teacher
    taught grades one through eight.
        Our official tribal government was formed in 1920. Edward Pemberton
    Bradby was the first elected Chief. Our church, Tsena Commocko Baptist
    Church, was organized on September 24, 1922 in the Windsor Shades area.
    Church services were held in the school building until a separate
    building was built on the same parcel of land. In 1923, the church was
    accepted into the Dover Baptist Association and it remains affiliated
    with this organization today. In 1925, the tribe was incorporated for
    the purpose of non-taxable status to better serve our needs. All tribal
    males sixteen years and older began contributing dues toward the
    financial operation of the tribe. This policy was later changed to
    reflect that all tribal members 16 years or older must pay annual dues
    as well as attend tribal meetings.
        In 1950, the tribal school was closed and our tribal children were
    sent to Samaria Indian School in Charles City County, which offered an
    education through the twelfth grade level. Transportation for our
    children was provided by New Kent County. The loss of this tribal
    school came in 1967 when Virginia integrated its school systems. Around
    this time, an Educational Assistance Program was established, which
    served all Virginia tribal students. This fund was established by
    Doctor Custalow of Newport News and Tsena Commocko Baptist Church.
        In the late 1970's, our tribe was awarded a grant from the U.S.
    Department of Housing and Urban Development, which gave the tribe two
    mobile homes to be used as office and classroom space. Another grant,
    awarded by the Office of Native American Programs, was used for the
    purchase and improvement of office equipment and supplies.
        Between 1982 and 1984, the tribe helped to build a bigger sanctuary
    for Tsena Commocko Baptist Church to accommodate church growth. Since
    its formation in the early 1900's, our tribe has always had a strong
    belief in Christianity and a Southern Baptist affiliation; because of
    this, we are not interested in any aspect of gaming, and in fact,
    believe this practice to go against our spiritual beliefs.
        In 1983, after many years of petitioning for racial clarification
    of state records that were maintained through the Bureau of Vital
    Statistics under the leadership of Walter Plecker, the Commonwealth of
    Virginia recognized us, along with four other Virginian tribes. This
    was a proud and hard-earned day for our people who had to endure much
    paper genocide and racism. This is the main reason our tribe is
    petitioning the United States Government for recognition at this time.
    We are proud of our existence. We would like to be acknowledged for
    existing for so many years despite so much adversity.
        We want to simply say that we always have and still exist and that
    we have earned our place in history along with other federally
    recognized tribes. We only humbly ask to be recognized.
        The Virginia Council of Indians was formed as a state agency in
    1985 and the Chickahominy Indians, Eastern Division was appointed a
    seat on the Council. This agency was formed as a liaison between the
    Governor of Virginia and tribal people in Virginia. It attempts to
    address the concerns and needs of Virginian Indians in the State's
    policies on Indians. We continue to serve on this council.
        In 1988, the United Indians of Virginia was formed as a non-profit
    organization that would provide a unified voice on issues common to all
    state recognized tribes. It was said that strength lies in a unified
    voice. This organization was instrumental in the removal of offensive
    textbook material and continues to represent the concerns of seven of
    the eight state recognized tribes. The Chickahominy Indians, Eastern
    Division was granted a seat on the Board of Directors and continues to
    support this organization. Our Chief, Marvin D. Bradby, currently
    serves as Chairman of the organization.
        In 1996, the tribe supported the United Indians of Virginia in its
    attempt to obtain an Administrative Grant on behalf of all the
    Virginian tribes to gain federal recognition. This was a clarification
    grant and information was submitted to the BAR to address our standing
    as tribal entities. Virginia Indian Tribal Alliance for Life, VITAL,
    was formed in May 2001 as a lobbying group to further this goal.
        In 2002, the Chickahominy Indians, Eastern Division, dissolved its
    Educational Assistance Program and the remaining money was used to
    purchase land for future tribal development. Our people believed that
    this was an important step for the future of our children and our
    tribe. The Chickahominy Indians, Eastern Division is the last state
    recognized tribe to purchase tribal land and we are very proud of this
    accomplishment. The land occupies 41 acres and is located along
    Pocahontas Trail in the Windsor Shades area near Tsena Commocko Baptist
    Church.
        Employment in recent years has been diverse among our people. We
    have self-employed businessmen, technicians, teachers, supervisors,
    installers and military servicemen. We have in the past several years,
    shared in the function of the New Kent County Sheriff's Department, the
    Providence Forge Rescue Squad, New Kent Social Services Department, New
    Kent Board of Supervisors, and the New Kent County Planning Commission.
    Twenty-seven of our tribal members have served in a branch of the
    military.
        The tribe presently has 125 members with 52% of our members
    residing in Virginia. The tribe holds meetings in the Tsena Commocko
    Baptist Church fellowship hall twice a year in April and October
    according to the guidelines in our Bylaws and Constitution.
        Soon we will be implementing teleconferencing to allow our out of
    state members to participate in meetings. We are in constant
    communication with our members via, telephone and written
    correspondence. Lastly, additional events are held for tribal members
    allowing fellowship and interaction with our out-of-state members.
        We, the Chickahominy Indians, Eastern Division, ask the House of
    Representatives Committee on Resources for the same privilege shared by
    other federally recognized tribes in this great nation to be properly
    recognized.

    Respectfully Submitted,

    Marvin D. Bradby, Chief
    Gene W. Adkins, Assistant Chief
    Lesa D. Bradby, Secretary
    Matthew C. Adkins, Treasurer
                                     ______

           Statement of Chief Kenneth Branham, Monacan Indian Nation

        The Monacan Tribe is the only tribe that is recognized by the state
    of Virginia that is not part of the Powhatan Chiefdom. The Monacans
    lived along the James River above the falls at Richmond claiming the
    whole piedmont area of Virginia as their homeland. Hunting was their
    number one source of getting food. They hunted white tail deer, wild
    turkey, box turtle, elk rabbits, squirrel and other small game. The men
    also would construct fish traps to catch fish in the rivers and streams
    throughout their territory. The Monacans also had small gardens in
    which they grew corn, beans, squash, pumpkins, sunflowers, and small
    amounts of tobacco that was used in their religious ceremonies. The
    Monacans were different from the Powhatan Indians in their language.
    The Powhatan Indians spoke Algonquian while the Monacans have a Siouan
    dialect. Despite the differences between the Monacans and Powhatans,
    there was trading among the two. Copper was one source of trading
    between the two tribes.
        The first encounter of the colonist was with Captain John Smith in
    1608 when and his men made an expedition into Monacan territory.
    Smith's map of 1612 names five Monacan towns located along the James
    River which was at that time called ``The Powhatan Flue.'' Five more
    towns were located in Mannahoac territory to the north of the
    Rappahannock River.
        Before the English arrived at Jamestown, the Monacan way of life
    had already begun to change. Spanish explorers arrived in Central
    American in the 1500's bringing epidemic diseased that spread rapidly
    through America. Indian people had never been exposed to many of these
    diseases and had not developed any type of immunity to them. IN some
    cases more than half of the people in some villages died as these
    diseases swept across the land. These epidemics brought many changes as
    well. Small villages were forced to join with larger groups in order to
    survive. As a result, tribes were weakened. Therefore, it was with the
    Monacans, a tribe of 15 to 20 thousand at our peak. By the year 1800,
    it was reduced to less than 1000 members.
        In 1757, John lynch, founder of the City of Lynchburg was living at
    the Old Ferry House on the now James River. There were two villages of
    Monacan Indians located nearby. One was on property near White Rock
    Hill and one the opposite side of the river next to Madison Heights,
    which is part of Amherst County. These Indians were peaceful and did
    not cause any harm to their white neighbors. As time past, the Indian
    people began to marry into the different races in this area, but
    maintained their Indian way of life and passing their culture on to
    their young people.
        Laws of Virginia made it extremely hard to maintain our Indian way
    of live and many of the Monacans did, but paid a very heavy price for
    doing so. Lack of educations was the hardest price we had to pay. Local
    churches helped out by opening a school for the Monacan children. This
    school remained in operation until 1963. This was the only place that
    we were allowed to obtain our education because we were not accepted
    into public schools (black or white) until 1963. The first Monacan
    graduated from Amherst High School in 1971, three more Monacans
    including the Chief, would graduate the following year. Please, be
    reminded this was only 30 years ago, not ancient history.
        In 1989, the Monacan Indian Tribe became the eighth recognized
    tribe in Virginia. Today, many tribal members live near Bear Mountain
    in Amherst County. We have a Chief who is elected by the members of the
    Tribe every four years. We have a Tribal Council elected every four
    years as well. These are the people who conduct the day to day business
    of the Monacan Indian Nation.
        Each May we have a Pow-Wow, which brings a lot of our people home
    to the Amherst area and is a means by which we raise funds for the
    upkeep of our Tribal buildings and various other projects. In addition,
    each October St. Paul's Mission celebrates their annual Homecoming.
    Scholarship auction is conducted during the Homecoming activities to
    raise money for our scholarship fund. We give a way three $1,000.00
    scholarships to members of our tribe each year.
        We have had two reburials of ancestral remains on the Sunday
    following our Homecoming. We have plans for a reburial ceremony again
    this year, and will invite other Chiefs and their tribal people to join
    us.
        I have only touched the surface of our history, but have included a
    Brief History of the Monacan Nation written by our Project Director
    Karenne Wood.
        Today, we are seeking Federal Recognition along with five other
    Virginia Tribes. We as Indian people deserve our rightful place in the
    History of this Commonwealth and this Great Nation. We can use the
    educational grants, the health care and better housing programs already
    offered to Federally Recognized Tribes, however the most important
    issue with the Monacan Indian Nation is that the United States
    Government acknowledges our sovereign rights as a Native American
    Indian Nation.
                                     ______

           Statement of Chief Quiet Hawk, Golden Hill Paugusset Tribe

        Mr. Chairman, Vice Chairman and Members of the Committee, my name
    is Chief Quiet Hawk of the Golden Hill Paugussett Tribe of Connecticut.
    The Golden Hill Indians have and will continue to be a strong,
    determined group of people. This strength is made evident by our
    continued existence as an Indian tribe from time immemorial and the
    State of Connecticut's continuous recognition of us as an Indian tribe
    for more than 350 years. Despite this, we have been waiting for over 20
    years, as have other petitioners, for the Department of the Interior to
    recognize our existence as an Indian tribe and to establish the
    government-to-government relationship with our tribal community. I
    cannot begin to describe the amount of time and distress it has taken
    our tribe to progress through this demanding and exhaustive process.
        Over the past two weeks, legislation has been introduced in both
    chambers of Congress concerning federal recognition of Indian groups
    and the role of state and local governments in that process. This
    legislation directly and adversely affects the members of my tribe and
    other Indian tribes and petitioning Indian groups throughout the United
    States.
        I am aware of the concerns raised by some of the local communities
    in Connecticut regarding the federal recognition process. We share some
    of their
        concerns and often find ourselves struggling for similar things;
    the right to be heard and recognized. However, the legislation under
    consideration here today is not the appropriate response to such
    concerns. Funding local governments to oppose tribal recognition, land-
    into-trust, land claims, and other matters will only heighten the
    acrimony and will not bring any meaningful improvement to the processes
    associated with these important federal decisions.
        While it is important to recognize that local governments have an
    interest in the outcome of these decisions, first and foremost, we must
    remember what these decisions are all about and what they are not
    about. They are about restoring the government-to-government
    relationship with this country's first nations and the land base that
    was rightfully ours long before the creation of this great nation.
    Those decisions are made based on findings of historical fact and law,
    not on the weighing of interests of affected parties. It is unfortunate
    that the acknowledgment of our inherent sovereignty and the restoration
    of our lands may impact some of our neighboring communities, but these
    are issues we should be working out on the local level. They are not
    issues that should bear on the outcome of federal determinations about
    the existence of an Indian tribe or the legitimacy of a tribal land
    claim.
        On Monday, I had the opportunity to hear Senator Inouye, Chairman
    of the Senate Committee on Indian Affairs and Senator Campbell, Vice-
    Chairman of the Committee, speak to the Dodd amendment that would have
    imposed a moratorium on federal recognition. The floor statements made
    by these two respected Senators, provide insight on why the H.R. 992,
    the bill being discussed here today, is unacceptable to Indian country.
        The State of Connecticut and a number of local communities have
    repeatedly sought to delay the recognition of our Tribe. This has been
    accomplished through litigation, burdening the Bureau of
    Acknowledgement and Research with Freedom of Information Act requests,
    and the hiring of professionals, such as genealogists and
    anthropologists, in an effort to develop information to oppose our
    petition for federal recognition. However, this is not how the process
    is supposed to work. It is the responsibility of the petitioning group
    to provide evidence that supports their recognition efforts. The
    recognition process was not established to have individuals and local
    communities disprove, that Indians exist. Therefore, it is not the
    responsibility of the federal government to provide federal funds to
    local communities in an effort to contest the sovereignty of Indian
    people.
        Native Americans have struggled for centuries with state and local
    governments over tribal sovereignty and the possession of land that was
    originally inhabited by our people. Now, Representative Johnson has
    introduced H.R. 992, legislation that would enable local governments to
    apply for grants so they can continue to fight Indian tribes over these
    matters. For generations we have been trying to have our inherent
    sovereignty recognized by the federal government and to restore the
    land base that was taken from us, so that we can provide for the
    social, economic, and cultural needs of our people.
        Senator Inouye stated, ``that many individuals have the impression
    of American Indians as ``give me, give me, give me, all the time,''
    they have given more than any one of us can expect. They are not asking
    for a handout. They are asking for what the Constitution calls for and
    what the laws of this land call for.'' Chairman, we are only asking for
    the federal government to acknowledge what we have always been, the
    sovereign people of the Golden Hill Paugussett Tribe, and for the
    opportunity to provide for the well-being of our people.
        Senator Inouye went on to say that, ``Our Founding Fathers felt so
    strongly about the importance of Indian nations that in the
    Constitution of the United States they have set forth, in good
    language, that Indians should be recognized as sovereign countries and
    as sovereign nations. We have entered into 800 treaties with Indian
    countries, as we do with the British, the Germans, the French, the
    Japanese, and the Chinese.'' He reported that of the 800 treaties
    signed by the President of the United States only 430 were ratified by
    our predecessors. Of the 430 ratified, the United States violated
    provisions in all of them. At one time Native Americans had control
    over 550 million acres of land, today we have less than 10 percent of
    this land left.
        Certainly, we have given. Time and time again the interests of
    state and local governments have won out over the interests of Indian
    tribes and we have suffered as a result. Today, we are only asking that
    you not allow history to repeat itself yet again. We know our neighbors
    have concerns and we are willing to work with them, but do not allow
    their concerns to fundamentally change the nature of the federal
    processes that are at the foundation of federal-tribal relationship.
        In closing, we believe providing funding to local governments to
    oppose tribal recognition, land into trust applications, and Indian
    land claims runs directly counter to the federal government's trust
    responsibility to Indian tribes and would only frustrate the legal
    obligations of the federal government to act in the best interest of
    Indian tribes. We believe that the concerns raised by the local
    governments are best addressed at the local level directly between the
    tribal government and their neighboring communities. For these reasons
    we oppose H.R. 992. Thank you for the opportunity to comment and for
    your consideration of the views of the Golden Hill Paugussett Tribe on
    this important matter.
                                     ______

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      Statement of Edward Ragan, Department of History, Maxwell School of
              Citizenship and Public Affairs, Syracuse University

        Mr. Chairman, members of the committee, and guest, my name is
    Edward Ragan. I am a doctoral candidate in the Department of History at
    the Maxwell School of Citizenship and Public Affairs, Syracuse
    University, and I also represent the Rappahannock Tribe as their tribal
    historian. My testimony today is intended to reinforce what you have
    already heard: that the tribes you see represented here today are the
    rightful successors to those sovereign Indian nations who welcomed the
    English at Jamestown in 1607 and incorporated these foreign immigrant
    settlers into Indian Virginia. The previous statements have presented a
    well-documented history on the denial of Indians' civil rights and the
    effect on tribal culture. My statement builds on these and focuses on
    the ways that tribes in Virginia remained distinctly native. I am
    telling a parallel story organized around the importance of place and
    community to indigenous culture in Virginia.
        For several thousand years, the ancestors of the people you see
    before you today have made their home in what is today Virginia. Their
    oral traditions, first recorded in the seventeenth century, recall the
    formation of the Chesapeake Bay at the end of the last Ice Age just as
    they recall the emergence of well-organized political chiefdoms in the
    century before European arrival. The memory of place has had a profound
    effect on native culture in Virginia. When English settlers pressed
    their plantations over and beyond Indian communities along the Atlantic
    seaboard, tribes responded in different ways based on what they
    determined was essential to maintain their cultural integrity. In
    Virginia, as with other Algonquian tribes in New England and the
    Carolinas, cultural integrity was inextricably linked to where people
    lived and the structure of their tribal communities.
        What this meant was that tribal peoples in Virginia accommodated
    English settlement in order to remain in their ancient homelands and
    build upon generations of continuous kinship ties. Unable to engage a
    long-distance, communal hunts, Indian men became trappers and woodsmen
    for their families and local English planters. Unable to continue
    traditional trading practices in the face of expanding English
    settlements, Virginia's Indians had to rely on trade with colonial
    officials and private individuals, and so they came to depend on
    English goods like kettles and hatchets and needles at the expense of
    clay pots, stone blades, and bone points. English-style clothes and
    cabins were eagerly occupied, and in terms of language, Virginia's
    Indians learned the English of their new neighbors just as they had
    learned the unique dialects of their Indian neighbors in centuries
    past. It was nearly one hundred and fifty years before the local Indian
    tribes began to accept Christianity in significant numbers, and when
    they did, it was the Baptists whose evangelical, open services were
    most like the emotional expression and celebration of native ceremonies
    and rituals. None of these changes altered their sense of who they were
    because the tribes retained what was most important to them: they
    continued to live in places that were familiar to them, where their
    ancestors had lived and were buried. They retained traditional family
    and community structures. Certainly their access to ancestral lands was
    limited by English settlement, but that did not deter these tribes
    whose new communities were dispersed across the land exactly as their
    ancestors had responded a thousand years before to environmental
    stress. These separate settlements formed the nucleus of today's
    consolidated Indian communities. These communities reflect, in their
    structure and organization, patterns of settlement evident in the
    archaeological record of centuries past. What continued to bind these
    groups together was communion with tribal members in the Baptist Church
    and the continuation of marriage customs that predate English
    settlement. Those patterns of marriage continue today and have been an
    essential ingredient to the tribes' continuity for these last four
    centuries.
        To get to where we are today, three governments, tribal, state, and
    federal, have had to agree on a forum and procedure that provides a
    process for recognition. To begin, tribal governments collected and
    presented the documentation that they can to demonstrate continuity
    over time. We have done that to the extent possible. Where that is not
    possible, we have prepared compelling reasons as to why the separate
    tribes have difficulty addressing each point of the criteria for each
    decade since first sustained contact (see Prof. Rountree's statement
    for a list of incomplete county records and their destruction dates).
        Next, the state of Virginia has acknowledged, where appropriate,
    its culpable and wanton destruction of Indian records, communities, and
    identities, most notably during the so-called Plecker years, which
    Danielle Moretti-Langholtz has detailed in her statement. Since 1983,
    the state has steadily ameliorated its relations with Virginia's
    indigenous people in real and significant ways. In 1983, it created a
    state recognition process that formally recognized the tribes before
    you today. In 1997, the Indian birth records initiative was signed into
    law by then Virginia Governor (the now United States Senator from
    Virginia) George Allen. Governor Allen returned to native peoples the
    right to publicly claim their identity at birth and to redress historic
    denials of that identity by the state. In 1999, the Virginia petitioned
    the United States Congress to federalize what the state acknowledged in
    1983, that these groups represent the legitimate and rightful heirs to
    the indigenous groups who welcomed and incorporated English settlement
    into their world almost 400 years ago.
        Today, the Committee on Resources of the United States Congress has
    the opportunity to redress this historic denial of recognition and lay
    the foundation for a strong relationship between the tribes of
    Virginia, the state of Virginia, and the United States of America.
                                     ______

           Statement of Chief G. Anne Richardson, Rappahannock Tribe

        The first documentation on the Rappahannock Tribe occurred when
    Captain John Smith was brought as a captive of King Powhatan to the
    Rappahannock King Accapataugh at his capital town, Tappahannock, on the
    Rappahannock River. Smith was brought to the Rappahannock King so that
    the people could inspect Smith to see if he was the man whom they
    befriended three years earlier.--In return, that sea captain had killed
    the Rappahannock king and took some of the people as captives.--John
    Smith was not the person who had violated the Rappahannock's trust, and
    the Rappahannock welcomed the English and agreed to grow corn for trade
    with the English.
        At that time, Rappahannock territory included all of present day
    Richmond County and parts of several surrounding counties, including
    the ones we currently occupy, King & Queen, Caroline and Essex.--After
    1651, the Rappahannocks moved off their beloved river to inland sites
    along freshwater tributaries.--A series of peace treaties signed with
    the surrounding counties designated parcels of land that the tribe
    could occupy peaceably. In 1682, the Rappahannocks became signators, as
    tributaries of Pamunkey, of the 1677 Treaty of Middle Plantation.--The
    colony of Virginia appropriated 3,434 acres of land to the Rappahannock
    in their present day location.--In 1683, they were moved from their
    homeland by order of the Colonial Council to Portobago Bay Indian Town,
    where they lived with the Portobago tribe and the Nansattico Tribe, who
    lived on the opposite side of the river. The French Huguenot Dauphine
    de Durand documented various aspects of Rappahannock culture in 1687,
    when he recorded in his journals their trade relations, religious
    practices, government, and village life.--In 1706, the Rappahannocks
    were moved again by order of the Colonial Council after English
    settlers had patented the land at Portobago Bay.--Portobago and
    Nansattico families joined the Rappahannock who returned to their
    traditional winter hunting grounds on the ridge between the
    Rappahannock and Mattaponi rivers, present day Indian Neck in King &
    Queen County, Virginia.
        Since that time, the Rappahannocks have lived on that same land,
    where they have always enjoyed communal villages and strong traditional
    social patterns of marriage and kinship relations.--During the Civil
    War the tribe went underground, not wanting to get involved in a war
    about slavery, retreating into the marshes around Indian Neck where
    they were protected from the ever-present Confederate patrols who
    harassed Indian people.--Rappahannock families were listed on county
    indigent and poor rolls as well as church rolls in the counties during
    this period.--It was not until the early 1900's that Rappahannocks show
    up on county land records.--Of course, considering the courthouses in
    one of the three counties where we live burned during the Civil War and
    another counties records were largely lost to administrative neglect,
    we feel blessed to have whatever documentation we do for that time
    period.--The tribe was visited in the 1890's by James Mooney,
    Smithsonian ethnologist, who documented our tribal rolls in his Indian
    population study and in his 1907 ethnography of Virginia Algonquians.--
    Dr. Frank Speck, anthropologists of the University of Pennsylvania,
    studied the Rappahannocks from 1920 to 1946 (published in Speck
    1925).--Speck documented many aspects of Rappahannock history and
    traditional culture during this period.--It is amazing to me that in
    this ever increasing harsh, oppressive, and racist social environment
    that brought such radical changes to our community over time, the Tribe
    was able to adapt to those situations while preserving much of its
    traditional culture.--Rappahannock culture was so engrained in who we
    are as a people that it continued under the most oppressive
    circumstances. For instance, the Rappahannocks formalized their
    government structure in 1921 by obtaining a corporate charter with the
    state of Virginia.--This action formalized the previous structure of
    informal leadership, which had passed down through the royal family
    line in the Chiefdom since the seventeenth century.--Although, the
    formal structure was modified to accommodate contemporary situations in
    which they found themselves, the same people were elected that would
    have been selected traditionally.--I am the current Chief, G. Anne
    Richardson and my father, Chief Emeritus Captain O. Nelson, was Chief
    before me and served the tribe for 34 years.--Chief Otho S. Nelson, my
    grandfather, served as Chief for 32 years before my father and my great
    uncle, George Nelson, served before him and so on.
        From their first appearance in the late 1600's to their ultimate
    expression in the 1920's, repressive racial laws intensified.--Under
    the guidance of state registrar of vital statistics, Walter Plecker,
    Virginia continued it racist campaign to expunge all traces of Indian
    ancestry from any official Virginia record.--The Racial Integrity Act
    of 1924, virtually legislated Indians out of existence and declared
    only two legal racial classifications in Virginia, white and colored.--
    Plecker attempted to destroy or change all birth, death, and marriage
    records that had been recorded as Indian before the 1924 law.--He was
    active in an organization called the ``Anglo Saxon Club of America.''--
    This organization was the main catalyst responsible for the
    purification of the ``White'' race in America and was in the forefront
    of a mad science known as eugenics.--In today's terms, Walter Plecker
    was a ``White Supremist,'' and this fanatical racist stayed in that
    appointed position for over 40 years at the pleasure of our state
    government.--He held honorary degrees from the University of Heidelberg
    and was an associate of Adolph Hitler.--Plecker had started the
    sterilization process here.--Oral history in my Tribe, tells of how
    Plecker tested and developed the actual model that Hitler used against
    the Jews during those dark days in Germany's history, the Holocaust.--
    He sent out instructions to census takers, county officials, hospitals,
    doctors, and all agencies of the state and federal government to police
    all people claiming to be ``Indian'' that they must be documented as
    colored.--He even threatened the officials with legal action and fear
    of losing their jobs if they did not comply.--Plecker developed
    something he called his ``Hit List'' of all Indians and Indian family
    names, and he distributed this list to all public officials to be on
    the look out so as to ensure that ``no rats (meaning Indian people)
    could slide in through the cracks.''--The Chief of the U.S. Census
    Bureau is quoted in a letter to the War Department when Native men were
    being drafted that; ``Adolph Hitler has no more detailed information on
    the genealogy of the Jews than Walter Plecker has on his Virginia
    Indians.''
        The education story of Virginia tribal Indians is utterly
    unbelievable to have occurred in America just 35 years ago.--Even
    during the Civil Rights era when African Americans were gaining their
    rights, there was little reprieve for the tribal people.--Plecker's
    policies were so horribly successful in oppressing tribal people and so
    far reaching that the effects are still felt today. The Rappahannocks
    could not go to school in integrated public facilities in the state of
    Virginia until 1966.--Before that, from the 1880's until 1966, the
    Rappahannocks ran tribal schools, taught in individual homes and
    utilized other Indian schools such as the Mattaponi Indian School.--
    Until 1964, Rappahannock were bused at the expense of King & Queen
    County to attend Sharon Indian School (the Upper Mattaponi Tribal
    School) in King William County.
        In 1982, the Rappahannocks along with seven other tribes petitioned
    the General Assembly for state recognition.--The general assembly
    ordered that a study be done on the history of these tribes to
    determine the validity of their claims to Indian heritage.--Dr. Helen
    Rountree, Professor Emeritus at Old Dominion University and published
    author on many books on Powhatan history, was enlisted to conduct
    research for the tribes.--A year-long study was performed, and Rountree
    concluded that the tribes petitioning then, who are the same tribes
    before you here today, were in fact the successors to the historical
    antecedents of the seventeen-century tribes.--Therefore, in 1983, the
    Virginia General Assembly passed legislation to officially recognize
    the Virginia tribes.--That period marked the beginning of the re-
    emergence of public tribal life with the communities building tribal
    centers and various projects to support their people.--The tribes
    unified and began to share a vision to work together to accomplish
    their goals for their communities.
        Today, the Rappahannocks have approximately 200 enrolled members
    with a Chief, Assistant Chief, and six members to our Tribal Council.--
    All positions elected by the people, and tribal leaders serve five-year
    terms. We have an annual Powwow at the tribal center and run various
    cultural classes for the children without any financial support from
    the state or federal government.--The Rappahannocks erected a 6,000 sq.
    ft. Cultural Center (the Rappahannock Tribal Center), which is located
    in the core of our community, Indian Neck. The center was completed in
    1997 with assistance from the Virginia Conference of the United
    Methodist Church.
        The Rappahannocks have enjoyed a long working relationship with the
    Methodist Church even though tribal people have tended toward the
    Baptist faith. My grandfather's family who were contractors with
    financial support from a Methodist circuit rider/philanthropist built
    our first tribal church in the 1870's.--This church, along with the
    Baptist church (Rappahannock Indian Baptist Church) that was
    established in my community in 1964, became the focal points of our
    communities because we had been stripped of everything except our
    spirituality.--It was a place that tribal values and traditional
    structures could be adapted, and church was the primary public place
    for Indians to gather.--I currently serve on the board of the United
    Methodist Native American Committee established during their National
    Annual Conference only a few years ago.
        In the 1980s and 1990s, the Rappahannock became more politically
    active as a group and were successful in lobbying then Governor George
    Allen to pass a Bill to enable us to change the state records to
    reflect our correct racial classification.--However, it does not take
    into account those who have passed on or those whose birth records were
    destroyed.--In 1999, the General Assembly passed a resolution asking
    Congress to grant federal acknowledgment to the Virginia tribes.--The
    state of Virginia finally recognizes the grave injustices our people
    have suffered here and desires to rectify the damage done to us.--It
    makes me feel good to know that the sacrifice of many generations
    before me was not in vain, and today, we do have a good working
    relationship with our state government.
        I operate a scholarship program for Indian students, and I see up
    close and personal the horrible effect that a lack of recognition has
    had on our people.--The lack of confidence, low self-esteem, and fear
    of failure is a major barrier when students apply to college or for
    jobs.--Native people could not get jobs because of the gross
    discrimination and as a result, we currently have tribal elders who
    attempt to survive on a $200 to $300 monthly income.--They cannot live
    on that level of income and nursing homes will not take them because
    their monthly checks are too low, so they must depend on family members
    and community to care for them.
        I have cited only a few of the particulars of this purposeful and
    continuous racist campaign the state has maintained against its Indian
    citizens for the last 360 years.--It is a long and dark story, the
    history of the Virginia tribes, and I believe one of the most
    compelling cases of injustice you will find in America.--I do not see
    this Bill as one of recognition vs. non-recognition but rather one of
    justice vs. injustice.--The Congress of the United States has the power
    and has been asked by the state of Virginia to help bring justice to
    Virginia's Indians, a people who have so long deserved it.--I ask you
    to help Virginia bring healing to its people by passing the Bill before
    you, acknowledging the government to government relationship that
    exists between these six nations of indigenous people and the United
    States.--The state's recognition, while important, does not equate to
    complete justice for my people and that is why we they have come to
    you--because congressional action does.--You are in a unique position
    as you have the power to change history.--We want to take our rightful
    place in the history of Virginia and the United States, and you can
    make that happen. I do not want the many things that Congress thinks
    most tribes want.--All I really want is to be recognized for who I am,
    and that, my friends, is a basic human right that enables one to have
    basic human dignity.
                                     ______

                     Statement of Helen C. Rountree, Ph.D.

        When the English established their Jamestown colony in 1607, there
    were about 40 tribes in what is now Virginia. Three groups, the
    Cherokees in the far southwest corner of the state plus the Nottoways
    and Meherrins in south-central Virginia, spoke languages related to
    Iroquois. There were two major alliances of Siouan-speakers, called
    Monacans and Mannahoacs, in the Virginia piedmont. And thirty or so
    tribes lived in the Tidewater and spoke Algonquian dialects. Since they
    were dominated by Powhatan, the father of Pocahontas, the English
    called them collectively Powhatans.
        The six tribes whose bill for federal acknowledgment is being
    considered are the Siouan-speakers (Monacans) and Algonquian-speakers
    (two Chickahominies, Nansemonds, Rappahannocks, and Upper Mattaponis).
        All the Virginia tribes lived by a mixture of farming (corn, beans,
    and squash) and gathering wild plants, fishing, and hunting. All had
    fairly formalized political organizations, although they lacked
    writing. The Powhatans had a hereditary paramount chief, which is what
    Powhatan himself was. The Monacan situation in 1607 is less certain,
    given their distance from the record-making Jamestown English. However,
    either they or their not-so-distant ancestors were mound-builders,
    which argues for their having chiefs as well.
        The chiefs led their people in alternately resisting and
    accommodating the flood of English settlers that poured into Virginia's
    Tidewater in the 17th century.
        By 1670 the Powhatans were left on tribal islands of territory in a
    sea of aliens; the other native people, to the west, saw the
    handwriting on the wall. Thus in 1677, the Powhatans, Monacans and
    numerous others signed a treaty with the English crown that
    ``guaranteed'' them land to live on and also civil rights equal to
    those of ordinary English people. That treaty is still in force, since
    two reservations survive in Virginia. These six tribes appearing today
    have held their communities together in spite of not having reservated
    land.
        The Monacans lived far enough west that no reservation land was
    ever surveyed for them before English settlers flooded in, in the
    1720s-1760s. Instead of causing trouble - and thus keeping the
    attention of the Virginia colony's government - the Monacans quietly
    withdrew westward to the foot of the Blue Ridge. The Powhatans' islands
    of territory, by that time, had been nibbled down to three small
    reservations. The smallest was occupied by ancestors of the
    Chickahominies and Upper Mattaponis, among others. The Rappahannocks
    had been pushed off their reservation in 1705 and went to live a few
    miles away. The Nansemonds, assigned a poor, sandy tract far from their
    Nansemond River home in 1664, declined to live on it and sold it away
    by 1685; in the late 17th or early 18th century they migrated to the
    northern rim of the Great Dismal Swamp. Sometime in the 18th or early
    19th century, the ancestors of the Chickahominies and Upper Mattaponis
    left the Mattaponi Reservation and established separate enclaves.
        The reasons for the moves are unknown but probably involve the
    increasingly hostile scrutiny to which the Virginia reservation
    communities were being subjected because of their--overly liberal''
    treaty rights.
        After the American Revolution, the new Commonwealth of Virginia
    assumed the responsibility of the English Crown in the treaty of 1677
    that guaranteed the reservation Indians' rights. No law was passed to
    that effect, but the state's position was not (and has not been)
    challenged, a fact that would have seriously negative repercussions for
    the surviving Virginia tribes in the 20th century.
        Landless Indian communities do not show up in the colonial- and
    state-level records in 18th and early 19th century Virginia, since the
    government assumed that the 1677 treaty no longer applied to them.
    Official interpreters to Indian communities were let go in 1727, since
    most Indian people the government dealt with spoke good English. Indian
    communities' populations were small enough that after 1722 no account
    was taken of them in peace negotiations between Virginia and the
    Iroquois. Groups that lacked reservations and who were too small to
    make trouble militarily were no longer officially ``Indian,'' in the
    eyes of the colonial/state government.
        Landless Indian communities and individuals rarely show up in the
    surviving local records in Virginia, either. For one thing, many of
    those records were destroyed, especially during the Civil War.
        There are other problems in finding Indian people in the local
    records. The 18th and early 19th centuries were a time of Indian
    people's adopting Anglo-Virginian names, language, and customs in order
    to survive, which made them less visibly ``Indian'' (i.e., exotic) to
    their neighbors. Another hindrance to appearing in local records was
    the Indian people's position in Virginia society. Until late in the
    19th century they lived in a social stratum of people who tended to
    rent land, contract common-law marriages, and die in testate. People
    from that level got into the records mainly if they got into trouble
    with the law, and the Virginia Indians did not do that, either. They
    were law-abiding, stayed among their family groups, not wanting to
    cause attention to themselves. When more detailed records began either
    surviving or being made, especially from the 1850 U.S. Census onward,
    geographical clusters of Indian families show up, living where the six
    tribes do today. And the local records show them choosing spouses from
    within their own groups to a very significant degree. The Nansemond
    Indian community became visible for another reason in 1833.
        A state law was passed, at the behest of their local member of the
    House of Delegates, creating a special racial category in which they
    could (and did) get certified by the local county court. The category
    was officially called ``Persons Of Mixed Blood, Not Being Free Negroes
    or Mulattoes'' (POMBNBFNOMs). The county clerk making out the
    certificates simply called the Nansemonds ``Indians.''
        After the Civil War, it was not enough to live quietly among one's
    own people and preserve a tradition of Indian ancestry. Virginia Indian
    communities had to begin responding actively and publicly to new
    pressures from outside.
        Formal institutions such as churches and schools changed after the
    Civil War. Churches in Indian-inhabited areas had been tri-racial but
    with segregated seating; now they became segregated altogether, with
    non-white congregations budding off. Indians who attended ``colored''
    churches got labeled ``colored'' (i.e., black) themselves. Public
    schools were sketchily funded in Virginia before the Civil War, and
    they admitted only whites - in fact, it was illegal to teach non-whites
    to read between 1831 and 1865. During Reconstruction, schools became a
    serious matter for each county, and segregated schools were established
    all over the state. White schools did not admit Indians; black schools
    did, but any Indian children attending them - and their families - lost
    any credibility they had as Indians. Counties were reluctant to fund
    Indian schools if the Indian population was small or if the local white
    population was skeptical about the people's ``Indianness.
        The post-Civil War era therefore was a time of struggling to
    establish separate, ``Indian'' churches and schools.
        The Chickahominy Tribe, being relatively large as well as closely
    clustered, achieved a church, a county-funded school, and incorporation
    as a tribe in the early 20th century. For others of the six tribes, the
    church came first. The Nansemond and Monacan churches were established
    in the mid-19th and early 20th centuries, respectively, by sympathetic
    whites as missions. The other groups formed their own Baptist
    congregations and joined the predominantly white Dover Baptist
    Association. For still other tribes, the formal organization came
    first, as in the case of the Rappahannocks and Upper Mattaponis who
    were encouraged in the 1920s to formalize their tribal government by
    Dr. Frank Speck, an anthropologist from the University of Pennsylvania.
    The Rappahannocks were the last to achieve a county-funded school,
    since they were spread thinly over no fewer than three counties. Very
    few of the tribal schools ever offered any high school courses. Indian
    young people either went without or went out-of-state to earn a
    diploma.
        Tribal officials found that they were expected to ``look Indian''
    when they represented their people in an official capacity.
    Unfortunately, 17th century Indian attire was so skimpy - even when
    Chief Powhatan himself ``dressed up --that the officials would have
    gotten arrested if they tried to look authentic. So the practice became
    established of modern Virginia Indian people wearing Plains-inspired
    regalia on special occasions. Two non-Indians who understood early on
    why this was so were the anthropologists taking an interest in the
    tribes: James Mooney of the Smithsonian Institution (in 1899) and Frank
    Speck of the University of Pennsylvania (in 1919-1942): their work
    would be continued by Helen Rountree of Old Dominion University (in
    Norfolk, VA), beginning in 1969.
        When the Racial Integrity era arrived in 1924, and the ``one-drop
    rule [any trace of non-white ``blood'' making a person ``colored ]
    became law in Virginia, the Indian communities became the targets of a
    humiliating public campaign. Here were people who insisted that they
    were American Indians, not whites or blacks, and who were willing to
    put up resistance when pushed into ``colored'' facilities. The state's
    Bureau of Vital Statistics attempted to put an official racial label on
    everyone in the state. The Bureau's white-supremacist Registrar was
    especially vocal about any ``mongrels'' (as he called them) that tried
    to use the ``Indian'' label as a ``way-station to whiteness'' (his
    words). There were numerous skirmishes between the Registrar and the
    Indians, as well as the Indians' white allies who included several
    high-ranking state officials in other departments.
        Both in the 1930s and during World War II, when the racial
    classification of draftees into the segregated U.S. Armed Services
    created an especially messy situation, the Chickahominy Chief and
    several friends of the Virginia tribes wrote to John Collier,
    Commissioner of Indian Affairs in Washington, asking if his Bureau
    could not intervene on the Virginia tribes' behalf. Collier had to
    reply that the federal government had ``no responsibility'' for the
    Virginia tribes, since the tribes had no treaty with the U.S.
    government. He therefore had no power to intervene, although he did
    write a series of strong letters to the Vital Statistics Registrar as a
    private citizen. The Chickahominy Chief became one of the first members
    of the National Congress of American Indians.
        The pressure on Virginia Indian people to disappear into the
    ``colored'' category continued until well into the Civil Rights Era. It
    is proof of the genuineness of their feelings of being Indian that once
    ``whiteness'' could be legally claimed by anyone, they went right on
    saying publicly that they were Indians.
        The Civil Rights Era also brought an end to segregated schools, so
    that the Indian tribes lost theirs. They compensated for this loss of a
    major symbol of their ethnic separateness by applying for - and getting
    - ethnically-based grants to improve homes and school programs, as well
    as becoming active in several pan-Indian organizations. However, the
    new major symbol of the Indian communities became buildings used as
    tribal centers, whether these were newly built or former Indian
    schoolhouses reclaimed and renovated. The centers have become not only
    places for tribal meetings and Saturday schools, but also focal points
    for events that are open to the public, such as powwows, fish fries,
    and country music festivals.
        Thanks to the educational and job opportunities opened up in the
    Civil Rights Era, the six tribes requesting federal acknowledgment in
    the bill have nearly full employment today. The majority of them are
    working-class people, with an increasing number of white-collar
    employees. Like other Americans in their position, they often find
    themselves falling between two stools - not being poor enough or
    prosperous enough - when they face heavy educational and medical
    expenses. That is one of their major reasons for wanting federal
    recognition for their tribes: federal programs. The other major reason
    is because they have kept their Indian identity for four centuries now,
    and they are tired of all the skepticism they have met in the last two.
        The six Virginia Indian tribes asking for federal acknowledgment
    today have encountered several periods of serious adversity since the
    Jamestown colony was founded. The striking thing about their history is
    that their responses have been overwhelmingly constructive ones. They
    all but lost a foothold in their own home territory, and yet they have
    abided by treaties and in the 20th century they have shown themselves,
    by the number of their men in military service both in and out of war-
    time, to be very patriotic citizens indeed. The United States is
    indubitably ``home'' to them. The tribes were put under tremendous
    pressure to be something other than ``Indian'' in the last two
    centuries, so their leaders made themselves adept at networking and
    using the mass media to try to preserve their people's ``Indian''
    status. The Indian communities lost the tribal schools they had
    struggled so long and hard to attain, so they replaced them with tribal
    centers where they could sponsor outreach events for the general
    public.
        The early Jamestown colony wanted Virginia's native people to
    become good, functioning citizens of an English speaking community.
    That is what the Virginia tribes have done - while remaining Indian.
        [Note: attachments have been retained in the Committee's official
    files.]
                                     ______

                                     [GRAPHIC] [TIFF OMITTED] T1889.010

    Statement of Jack F. Trope, Executive Director, Association on American
                                 Indian Affairs

        The Association on American Indian Affairs appreciates this
    opportunity to submit testimony for the record of the hearing on H.R.
    5155, a bill to protect sacred Native American Federal lands from
    significant damage.
    Background
        As you may know, the Association on American Indian Affairs (AAIA)
    is the oldest American Indian advocacy organization in the United
    States, founded in 1922. AAIA is a citizens' organization governed by
    an all-Native American Board of Directors, with members in all 50
    states and offices in South Dakota, Arizona, and Maryland.
        Currently, our projects focus to a considerable extent in the areas
    of cultural preservation (protection of sacred sites, repatriation of
    Indian human remains and cultural items and language preservation),
    youth (Indian Child Welfare, scholarships and youth summer camps),
    health, particularly diabetes prevention, and federal recognition for
    unrecognized Indian tribes.
        Specifically, with regard to the protection of sacred places, AAIA
    has provided assistance in a number of specific sacred sites disputes,
    beginning in the 1960s and the effort to return the sacred Blue Lake to
    the Taos Pueblo. More recent sites for which AAIA has provided
    assistance include Mt. Graham in Arizona, and Devils Tower and Medicine
    Wheel/Medicine Mountain in Wyoming. In the case of the Bighorn Medicine
    Wheel, AAIA assisted in the formation of the Medicine Wheel Coalition,
    a coalition of Plains Tribes who have a traditional history of using
    the Medicine Wheel and Medicine Mountain for spiritual purposes. With
    the assistance of AAIA, the Coalition negotiated and signed in 1996 a
    landmark Historic Preservation Plan (HPP) with the Forest Service, as
    well as state and local government agencies, designed to ensure that
    the site would be managed in a manner that protects the integrity of
    the site as a sacred site.
        Nationally, together with Native American Rights Fund and National
    Congress of American Indians, AAIA coordinated the effort in the early
    1990s to obtain American Indian religious freedom legislation. More
    recently, AAIA has once again joined with other national organizations
    and Indian tribes to establish the Sacred Lands Protection Coalition
    (also sometimes referred to as the Coalition to Protect Native American
    Sacred Places). The Coalition's purposes are to:
         strengthen administrative procedures and regulations
    relevant to sacred sites protection,
         encourage government decisions that will protect sacred
    sites and ensure adequate tribal consultation, and
         enhance legal protection for native sacred places.
    The Need to Protect Sacred Places
        As you have heard in powerful testimony from President Jackson of
    the Quechan Indian Tribe and the Lieutenant Governor Keel of the
    Chickasaw Nation, protection of sacred places is of profound importance
    to Native Americans whose very ability to practice their cultures and
    religions can be severely affected by development at places that they
    hold sacred. Indeed, it is often difficult for non-Indians unfamiliar
    with traditional tribal culture to understand how deeply felt and
    integral these beliefs are for those who practice and believe in these
    traditional ways. The continuation of traditional native religions and
    tribal cultures over time is dependent upon the performance of
    ceremonies and rituals, many of which have been performed for time
    immemorial at specific sites and which must be performed at those sites
    in order to be effective. Thus, there is a moral imperative present
    here that we urge Congress to recognize as it considers whether to
    provide stronger legal protections to these sacred places.
        As the testimony of the National Congress of American Indians made
    clear, there are many other places in addition to Indian Pass that are
    affected by planned development. For example, permits have recently
    been issued for a coal strip mine in New Mexico that has the potential
    to drain water from an aquifer that is essential for the continued
    existence of Zuni Salt Lake, an irreplaceable site that is sacred to
    Zuni Pueblo. At Snoqualmie Falls in Washington State, hydroelectric
    development has already diminished water flow at the falls and there
    are plans to expand that development and, as part of a flood control
    project, to blast other areas around the falls that are sacred to the
    Snoqualmie Tribe. At Medicine Lake in California, a case with a
    procedural history similar to the case of the Quechan, the Telephone
    Flat Geothermal Project was at first denied in May 2000 on the basis
    that it would have an adverse cultural impact on Native Americans, but
    the BLM subsequently agreed to reconsider that Record of Decision and
    plans to issue a new decision by November 1, 2002. And for almost 15
    years, the Western Apache have fought the building of a nine telescope
    complex by the University of Arizona on the summit of their sacred
    Mount Graham.
        Unfortunately, existing law recognizes the value of accommodating
    the religious needs of Native Americans to only a limited extent. With
    respect to constitutional law, the United States Supreme Court has
    ruled that the Free Exercise clause of the First Amendment is not
    available to restrict federal agency land management decisions for the
    purpose of protecting Indian sacred places on federal lands. Lyng v.
    Northwest Indian Cemetery Protective Assn, 485 U.S. 439 (1988). Some
    statutes do provide a measure of protection through procedural
    requirements. Most notably, the National Historic Preservation Act
    (NHPA) provides that ``a Federal agency shall consult with any Indian
    tribe or Native Hawaiian organization that attaches religious and
    cultural significance'' to a historic property when a federal or
    federally assisted undertaking may affect that property. 16 U.S.C.
    470a(d)(6), 470f, implemented through regulations at 26 C.F.R. part
    800. In addition, the Native American Graves Protection and
    Repatriation Act (NAGPRA) provides for notice and consultation when
    grave sites are concerned. 25 U.S.C. 3001 et seq., implemented by
    regulations at 43 C.F.R. part 10. The American Indian Religious Freedom
    Act, 42 U.S.C. 1996, and Executive Order 13,007 declare that it is
    federal policy to protect the integrity of and access to sacred sites,
    but neither is judicially enforceable. These laws are helpful tools,
    but none of them provide the kind of enforceable, substantive legal
    protection that would ensure that these sites are protected. And
    notwithstanding these laws, the reality is that the goals and wants of
    those who seek to extract resources from (or otherwise ``develop'')
    lands are more readily incorporated into government land management
    policies and decision-making than are the religious beliefs of Native
    Americans affected by that development.
        Nonetheless, it is important to recognize that these federal laws
    have allowed for strengthened protection of sacred sites on tribal
    lands through the recognition of Tribal Historic Preservation Officers
    and the negotiation of some agreements to protect sacred places located
    on non-Indian lands--for example, the Bighorn Medicine Wheel in
    Wyoming. Thus, properly implementing and, where possible, strengthening
    these laws is one important aspect of protecting sacred places.
        Protection of Native sacred places, however, continues to be a
    case-by-case struggle to convince land managers that it is necessary
    and possible to protect these places. In general, where enough
    political pressure can be brought to bear and mitigation is possible
    without a substantial cost to powerful economic actors, existing laws
    may be utilized to develop agreements to protect specific sacred
    places. Where powerful economic interests are involved, however, and
    where protection of the site can be obtained only through prevention of
    the proposed activity, as opposed to modification, existing laws will
    generally not adequately protect sacred sites.
        The fight over Mount Graham is a good example of this. The
    political influence of the main proponent of the project, the
    University of Arizona, has been great and in spite of a consistent and
    documented record of Apache opposition to the project dating back to
    1989, two telescopes have been constructed and activities relating to
    the construction of a third are currently underway. The law itself has
    been of little help, particularly because of a legal rider specific to
    Mount Graham approved by Congress, See P.L. 100-696, 102 Stat. 4597-99
    (1988); rather the more successful approach has been to convince
    potential participants in the project--both United States universities
    and international organizations--not to become part of the project out
    of respect for the Apache's traditions and beliefs. While many have
    been convinced not to participate, the struggle continues as both the
    Universities of Minnesota and Virginia are considering involvement with
    the project. That the Apache have been able to slow down the
    development at this site is a tribute to the strength of their beliefs
    and the tenacity of the Apache and their supporters in the face of
    great obstacles.
    H.R. 5155--Constitutionality
        Before we comment on the substance of the bill, we would like to
    address the claims of the attorney for Glamis Gold that the bill is
    unconstitutional. Contrary to the assertions of the attorneys for
    Glamis Gold, the bill is clearly constitutionally permissible.
        Nowhere in the analysis of the Establishment Clause by the
    attorneys for Glamis Gold does the word ``accommodation'' appear. Yet,
    as the United States Supreme Court has said, it has been ``long
    recognized that the government may (and sometimes must) accommodate
    religious practices and that it may do so without violating the
    Establishment Clause.'' Hobbie v. Unemployment Appeals Comm n of Fla.,
    480 U.S. 136, 144 (1987). In the case of Native American sacred sites,
    there are several compelling reasons why legislative accommodation of
    Native American free exercise through the protection of sacred places
    is appropriate and constitutionally permissible.
        First, such legislation falls clearly within the special trust
    relationship of the federal government to Indian people, including the
    responsibility to protect traditional Indian cultures. At was stated in
    Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1217 (5th
    Cir. 1991), ``the unique guardian-ward relationship between the federal
    government and Native American tribes precludes the degree of
    separation of church and state ordinarily required by the First
    Amendment. The federal government cannot at once fulfill its
    constitutional role as protector of tribal Native Americans and apply
    conventional separatist understandings of the establishment clause to
    that same relationship.
        Second, the ownership of Native sacred places of worship by the
    government provides the government with greater latitude to accommodate
    Native religions. In short, the government has control of the religious
    facility and if it does not take special action, accommodation of
    religious practice cannot occur. An analogous situation would be those
    circumstances where the government has control over individuals,
    thereby leading to a situation where their right to freely worship is
    dependent upon special solicitude by the government. In such
    circumstances, the courts have consistently upheld government actions
    seeking to accommodate those individuals under their control. See,
    e.g., Katcoff v. Marsh, 755 F.2d 223 (2nd Cir. 1985) (providing
    chaplains to those in the military); Remmers v. Brewer, 494 F.2d 1277
    (8th Cir. 1974), cert. den. 419 U.S. 1012 (chaplains for prisoners);
    Carter v. Broadlawns Medical Center, 857 F.2d 448 (8th Cir. 1988),
    cert. den. 489 U.S. 1096 (1989) (chaplains for patients in a county-run
    hospital). If the government cannot provide special consideration for
    religious practitioners who need to use federal land for the exercise
    of their religion, then perhaps the government has a duty to turn such
    lands over to those who need them for religious use.
        Third, there is a long history of suppression of Indian religions
    by the federal government. For example, from the 1890s until the 1930s,
    the Bureau of Indian Affairs outlawed the ``'sun dance'' and all other
    similar dances and so called religious ceremonies as well as the
    ``usual practices of so-called ``medicine men ''. See generally Trope,
    ``Protection Native American Religious Freedom: The Legal, Historical,
    and Constitutional Basis for the Proposed Native American Free Exercise
    of Religion Act'', 20 N.Y.U. Rev. L. & Soc. Change 373, 374 (1993) and
    sources cited therein. Even after the right to free worship was
    recognized for Indian religions, many obstacles to free religious
    practice remained--for example, the denial of access to sacred sites
    located on federal lands. The degree to which government has interfered
    with Native religions is without parallel and a law to protect sacred
    sites can be seen simply as redress for two centuries of discriminatory
    treatment. See Westside Community Bd. Of Ed, 496 U.S. 226, 249 (1990)
    (to prevent discrimination against religion is ``undeniably secular'').
        Finally, there are a number of clearly secular purposes advanced by
    the legislation. Protecting Indian cultures is a secular purpose,
    indeed one that falls squarely within the government's trust
    obligations. In addition, the law on accommodation of religious free
    exercise is clear that removing government-placed obstacles to the
    ability of individuals to practice their religions or of religions
    themselves to function is also a valid secular purpose. See, e.g.,
    Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 335-336 (1987).
    Indeed, the Courts have indicated that it is not an ``endorsement'' of
    a religion if the governmental action is removing an ``identifiable
    burden'' on the exercise of religion. Id. at 348 (O Connor,
    concurring). Land management decisions that destroy or damage sites
    used for ceremonial uses would certainly be classified as ``government-
    placed obstacles'' to the free exercise of religion by Native American
    traditional religious practitioners and actions to protect those sites
    serve to ``alleviate identifiable burdens'' that such government land
    management decisions have placed upon that exercise.
        The language from Lyng v. Northwest Indian Cemetery Assn., 485 U.S.
    439 (1988) that Glamis cites to support its assertion that H.R. 5155 is
    unconstitutional is quoted entirely out of context. That language can
    be understood only in the context of the case itself--a Free Exercise
    claim seeking to compel as a matter of constitutional law a certain
    governmental action. Glamis pointedly does not mention that the Court
    in that case went on to state that notwithstanding the Court's ruling
    on the Free Exercise claim, ``[t]he Government's rights to the use of
    its own land need not and should not discourage it from accommodation
    of religious practices like those engaged in by the Indian
    respondents.'' Id. at 454.
        For all of these reasons, H.R. 5155 is constitutionally permissible
    legislation.
    H.R. 5155--General comments
        The interest of Representative Rahall in protecting sacred places,
    as evidenced by his recent editorial, fight to protect the Valley of
    the Chiefs and his introduction of H.R. 5155, is most welcome. We know
    that others on the Committee are also very supportive and we are
    greatly appreciative of this interest and support as well.
        In terms of the specific approach provided for by H.R. 5155, the
    goal of prohibiting incompatible development on federal lands that are
    sacred to Native Americans is a goal that we support and we believe
    that this bill's approach is one that has the potential to provide
    tribes with a mechanism to protect at least some of their sacred
    places. We also agree with the overall land management policies that
    the bill recognizes.
        However, we believe that the bill needs some refinement in order to
    achieve its goals and that other types of protections are also needed
    if the fullest possible protection of sacred sites is to be achieved.
    We also believe that a close look at the inadequacies of existing laws
    is necessary as the legislative process goes forward. Looking forward
    to the next Congress, AAIA hopes to work closely with Rep. Rahall and
    the Committee, as well as the Sacred Lands Protection Coalition
    (Coalition to Protect Native American Sacred Places), to develop
    legislation that will address all of the issues relevant to sacred
    sites protection
        Among the important issues that are not addressed in H.R. 5155 are
    the following: (1) protection of sacred sites of tribes that have
    religious prohibitions against revealing certain information; (2) the
    lack of a general cause of action in the case of an agency's failure to
    comply with the law; (3) the lack of legal redress when there is a
    federal undertaking that would affect sacred land that has not been
    withdrawn pursuant to the procedures in the bill; (4) federal
    undertakings that affect non-federal lands are not covered by H.R.
    5155; (5) both traditional practitioners and members of non-federally
    recognized tribes lack standing under the bill. We elaborate further on
    these issues in our section-by-section comments.
    H.R. 5155--Section-by-Section Analysis
        In terms of the specific sections of the bill, we have the
    following comments and questions:
        Section 2--The general management goals laid out in the section are
    ones that we endorse. However, if the federal agency or department does
    not follow the mandates of section 2, tribes and traditional
    practitioners do not appear to have legal recourse to force compliance.
    Moreover, it is unclear what happens where there are potentially
    conflicting statutes--for example, the mandate in this section
    conflicts with a right provided by another statute to an individual or
    entity to obtain a permit if certain requirements are met? Does this
    statute take precedence in all circumstances? If so, the clause
    ``notwithstanding any law to the contrary'' should be added to section
    2. If not, how are such conflicts to be resolved?
        In general, there is a need for a clause providing for specific
    jurisdiction in the federal district court over a cause of action to
    enforce this section, with specific standards of review, in order to
    provide for clarity and a more definite remedy.
        Also, it would be desirable to add to clause (1) language providing
    for ``temporary short-term closures where necessary to protect the
    privacy of religious or cultural activities''. See 16 U.S.C. 460uu-47
    and 16 U.S.C. 410pp-6.
        Section 3 (a)-(c)--The idea of preventing development of sacred
    lands through a withdrawal process has great potential. However, the
    actual process laid out in section 3 is unclear. Does this section
    contemplate an adjudication before an administrative law judge? Or is
    the petition made directly to an appointed policymaker (who issues a
    record of decision or the equivalent) and not a quasi-judicial
    proceeding? The provision allows for ``any person'' to file an
    allegation of facts, with supporting evidence. Does that person become
    a party to the proceeding? The requirement for a ``public hearing'' in
    section (c) is a particular source of uncertainty--does it mean an
    administrative law proceeding open to the public or a public hearing of
    the sort usually held in conjunction with consultation related to
    rulemaking or some other non-adjudicatory decision-making process?
        Also, in terms of standing, we are concerned that the right to
    petition is limited to federally-recognized Indian tribes (and Native
    Hawaiian organizations) and that traditional religious practitioners
    and non-federally recognized tribes would not have the right to file a
    petition. In some tribes, religion and the tribal government are
    inseparable. In others, however, there is a strong separation of
    ``church and state''. The tribal government does not deal with
    traditional cultural issues; rather traditional authorities deal with
    those issues. Ideally, the legislative remedy should be broad enough to
    address the varied needs and different tribal norms and practices of
    those who practice traditional tribal religions. Moreover, this is a
    human rights issue and all those who practice these religions should
    have the right to protection, whether or not they are federally
    recognized for the purpose of exercising sovereignty.
        Section 3(e)--The cause of action to challenge the administrative
    decision is important. However, the standards for judicial review are
    not specified. Moreover, since the section includes the remedy of
    damages, it is important to be clear that a damage remedy in lieu of
    injunctive relief is not acceptable. Otherwise, this provision could
    give rise to an Indian Claims Commission-type scenario where money is
    awarded, but lands are not protected.
        In addition, we think that it would be more appropriate to utilize
    the attorneys' fee provision in the National Historic Preservation Act,
    16 U.S.C. 470w-4, as opposed to the Equal Access to Justice Act
    provision, since the NHPA is the statute most frequently used today to
    address sacred sites issues.
        Section 3(f)--In subsection (f)(2), requiring the consent of the
    department or agency (if other than Interior) is consistent with the
    existing FLPMA statute, 43 U.S.C. 1714(i), but inconsistent with the
    notion of the hearing in section 3 having binding effect (unless the
    finding in that hearing is considered to be consent of the department
    as a matter of law). Moreover, and more importantly, the bill provides
    that the withdrawal occurs ``subject to valid and existing rights''.
    This limits the efficacy of the remedy and invites confusion. In short,
    the withdrawal remedy will work only if tribes are proactive in
    protecting sites before competing rights have become vested. Often,
    however, tribes do not act until an actual threat is present--they
    prefer not to draw attention to sites unless absolutely necessary. H.R.
    5155 does not appear to provide a remedy for tribes in this situation.
    For example, it appears that this bill would not have provided a tribal
    remedy in the case of the Valley of the Chiefs. Moreover, the section
    on land use planning refers only to the Departments of Interior and
    Agriculture. Thus, it is unclear if this section would provide any
    relief to those whose sites are threatened by activities of agencies
    other than Interior and Agriculture, for example, the Army Corps of
    Engineers, Department of Defense, Department of Energy and Federal
    Energy Regulatory Commission, to name a few.
        Accordingly, if adequate protection is to be ensured, it is
    necessary to provide tribes and traditional practitioners with
    additional remedies under existing laws, as well as complementary new
    statutory provisions, in addition to the approach of H.R. 5155. For
    example, Congress might consider making tribes mandatory signatories
    under the National Historic Preservation Act to any Memoranda of
    Agreement that are developed to mitigate impacts to a sacred site.
    Moreover, the bill would be stronger if it included a broader cause of
    action provision allowing aggrieved tribes and practitioners to
    challenge federal undertakings that have the potential to frustrate
    their religious free exercise. Contracting with tribes to manage sacred
    places and/or transferring specific sites to tribes are also approaches
    that are worth exploring. These and other remedies identified through
    future consultation with tribes and traditional practitioners would
    greatly enhance the likelihood that the bill will provide adequate
    legal protection for Native sacred places.
        Section 4--We agree strongly that this confidentiality provision is
    essential. We suggest adding a reference indicating that this section
    does not supersede other provisions dealing with confidentiality,
    particularly section 304 of the National Historic Preservation Act (and
    it would a good idea to take this opportunity to fix the inadvertent
    failure of section 304 to reference the Freedom of Information Act).
        Also, we have a larger concern about confidentiality, particularly
    the concern expressed by some pueblos back in the early 1990s when this
    issue was last considered by Congress. At that time, there was
    testimony indicating that there are religious prohibitions against
    revealing certain information even if there are some guarantees that it
    will not be publicly released. As a result, an alternative process was
    proposed whereby agencies and pueblos could negotiate sacred lands
    protection agreements which could be incorporated into forest plans and
    other land management planning documents. This could be done without
    specifically revealing ``inappropriate'' details about ceremonies and
    locations. This approach not only helps protect confidential
    information, but also has the advantage of encouraging agencies and
    tribes to sit down at the earliest possible point in the planning
    process. We would suggest that this be included as another
    ``administrative'' option for tribes seeking to protect sites.
    Conclusion
        We thank Rep. Rahall once again for his great interest in
    protecting sacred sites and look forward to working with him and his
    staff on this issue. We also thank the Committee for its interest and
    the opportunity to submit this testimony.
                                     ______

    Response to Questions Submitted to Chief Kenneth Adams, Upper Mattaponi
                                  Indian Tribe

        1. Why should the six tribes seeking recognition through this
    legislation not be subjected to the same scrutiny to which other tribes
    are subjected as a result of their following the administrative
    process?
        Answer to question 1:
        This question implies that the tribes are opposed to a process that
    requires standards such as what is referred to as the ``seven
    criteria.'' The fact is we were scrutinized by the State of Virginia
    when we received State Recognition that had similar standards to the
    federal criteria. Therefore, we are not opposed to such a process, and
    in fact have submitted petitions to the BIA/BAR that contain outlines,
    enrollment lists and documentation that support those criteria.
        Our historians Danielle Moretti-Langholtz and Helen Rountree will
    address in a separate answer the specific documentation and support we
    have submitted to meet the seven criteria, which authenticate our
    heritage. We believe that the evidence clearly shows that all six
    tribes meet those criteria and have been in continuous community for
    the last hundred years. The families that make up our tribal
    communities, whose surnames have long been associated with the
        Virginia Indians are the direct descendants of their historic
    tribes.
        Our tribes sought recognition through Congress for two primary
    reasons: 1) Circumstances beyond our reasonable control unjustly
    delayed our ability to overcome the state action that segregated our
    race, altered our records, and otherwise made it unsafe to assert our
    identity; and 2) only Congress, through timely action, can correct the
    wrong to the Indian people of Virginia that the delay in the
    recognition of our identity has perpetuated. This is a matter of
    fairness and justice.
        Over an extended period during the last century, state action
    discriminated against past generations of Virginia Indians by denying
    our people the right to claim their Indian heritage. Documents were
    altered and destroyed, and families and record keepers were threatened
    if they objected. The adverse effect of state laws carried over into
    the current generation, and made our communities reluctant, until very
    recently, to take the steps necessary to seek federal recognition.
        The communities did not seek state recognition until 1983-1989, and
    were not successful in passing a state law to help correct state
    altered birth records until 1997. It was not until after the tribes
    gained the support of then Governor George Allen, and increased
    awareness of their situation was brought about by the passage of the
    state legislation, that they began to organize an effort to seek
    federal acknowledgment.
        Unfortunately, the BIA/BAR cannot prioritize the Virginia tribes,
    despite the compelling reasons for our delay in participating in the
    administrative process. It is especially important to the tribes and to
    the state of Virginia that we honor our heritage through federal
    recognition as the state begins its preparations to commemorate the
    400th anniversary of the establishment of Jamestown.
        Our history that is so uniquely intertwined with the colonial
    history of this country has indeed been read and written about more
    than almost any other group of Indian people in the country. We have
    had contact with English-speaking Europeans longer than any other
    Indians in the country. But despite our priority in history, many
    tribes that had federal treaties from the late eighteenth century on
    through the nineteenth century became federally recognized tribes ahead
    of us, without our being awarded any scrutiny by a federal agency. As
    tribes with colonial treaties we were overlooked and neglected. We did
    not receive the priority we deserved.
        Only Congress has the ability to address in a timely manner the
    inequities the state laws and the social/political atmosphere of
    earlier times created. During prior centuries it was not safe in
    Virginia for Indian people to assert their identity. Congress can right
    a wrong and restore the dignity of our communities by acknowledging our
    Indian heritage, which the state and federal governments have denied
    for too long, and which for decades during our modern history the state
    tried to destroy. It is a matter of what is just and fair. It is a
    matter of honor.
        Therefore in answer to your question, we have submitted to the BAR
    and the committee evidence that supports that we are the authentic
    descendants of the historic Indian tribes of Virginia, that have lived
    in continuous communities in the State over the last 100 years. We
    believe the congressional process is the only process that can, by
    acknowledging our heritage without further delay, adequately address
    the wrong that was committed against our people. Further delay through
    an administrative process would not address that wrong and cannot fully
    address the state action that altered documentation and otherwise
    denied our identity. The wrong committed against us was far greater
    than the evidence of the destruction of documents. Therefore, we
    believe Congress is the appropriate body to affirm our identity and
    give us the priority that we deserve.

        2. In your testimony you mention a number of individuals and
    organizations in support of federal recognition for the six tribes. To
    your knowledge is there anyone opposed to this effort?
        Answer to question 2:
        The Committee may be aware of more organizations that have opposed
    the legislation. To our knowledge, only the Petroleum Marketers
    Association and the American Land Title Association have approached
    some of our sponsors and raised concerns.
                                     ______

     Response to a Question Submitted to Rev. Jonathan M. Barton, General
                     Minister, Virginia Council of Churches

        How will federal recognition remedy the discrimination that has
    taken place in the past?
        Federal recognition will not alter the past, nor will it eliminate
    all discrimination in the future. Federal recognition will affirm the
    existence and identity of these tribes. It will say to these tribes and
    to the world, Plecker was wrong in what he did. Sadly too many
    Virginians do not realize there are Native Americans in Virginia today.
    They see the Indians as something that was part of the past and not a
    presence in society today. This recognition will legitimize the
    presence of these six tribes, and their continued presence amongst us.
    This is of particular import as we approach the 400 anniversary of the
    establishment of Jamestown. One critical change recognition will bring
    are educational opportunities, needed to help improve the future of
    each tribe. Recognition will allow these tribes to take their rightful
    place among the more than 500 tribes already recognized by the U.S.
    Government. Ultimately discrimination is an action of the human heart.
    Changing the human heart is a long-term process. It requires that we
    must first recognize each other's right to exist. Failure to do so
    would be to perpetuate the discrimination of the past.
        I hope this addresses your questions. Should you have any
    additional questions please feel free to contact me directly.
                                     ______

       Response to Questions Submitted to Mike Jackson, Sr., President,
                                Quechan Nation.

        Question 1. In your testimony you voice support of California State
    Bill SB 1828, which allows for the reclamation of a surface mining
    operation near a Native American sacred site. Would you support similar
    reclamation provisions being added to H.R. 5155 to mitigate damages to
    sacred sites?
        Response 1. No, because we don't have clarification. Even though
    the Tribe opposes open pit gold mining in or near our sacred places
    within the Indian Pass area, we are not opposed to complete reclamation
    of open pit mines. Complete backfill could be a reasonable
    environmental measure to help lessen the visual, land use and other
    impacts of a proposed open pit mine. As you know, approval of a
    reclamation plan is not the sole step required in considering a plan of
    operations for a surface mining operation. Other factors to be
    considered include measuring the project against the governing land use
    plans, policies such as Executive Order 13007, statutes such as the
    National Historic Preservation Act, historic uses by the Tribe and
    Constitutional protections. Accordingly, we might support similar
    reclamation provisions being added to an appropriate federal law, such
    as the General Mining Law, or the regulations that implement that Law,
    if backfill is safe and healthful and our sacred places can be
    protected. Thank you for acknowledging in your question that we do have
    sacred places.

        Question 2. Did members of the Quechan Nation participate in
    exploratory drilling for gold in the vicinity of the Imperial Project
    within the past 15 years? If so, please explain.
        Response 2. No, to our knowledge, members of the Quechan Nation
    have not participated in exploratory drilling in the vicinity of the
    Imperial Project within the past 15 years. In the past, the mining
    company has made unsubstantiated assertions about modern gold mining by
    the Tribe. As we have previously pointed out in the project record,
    perhaps the company is confused or speculating. In the 1990's and
    1980's, the BIA conducted a compilation and summary of available
    information on mineral resources related to the Fort Yuma and Cocopah
    Indian reservations. It found that there was no modern gold mining on
    the reservations or immediately adjacent to them. It found that in the
    1700's, 1800's and early 1900's that limited historic and placer mining
    by the Spanish and later by steamboat travelers had occurred, including
    on areas that are now part of the Quechan reservation. In any case, the
    Nation is not opposed to all mining or all economic development by
    itself or others in Imperial County. Rather, the Tribe strongly
    believes that sacred places such as the Indian Pass area must be
    protected and preserved in perpetuity from destruction and desecration,
    such as that proposed by the current mining proposal.
        The Tribe hopes that these responses are useful to your Committee.
    We appreciate your Committee scheduling the hearing on HR 5155 and
    welcome your Committee's future efforts to meaningfully protect our
    bona fide Native American sacred places. Attached to this letter are
    additional comments on the testimony provided by other witnesses on HR
    5155.
        [Note: The additional comments have been retained in the
    Committee's official files.]
                                     ______

       Response to Questions Submitted to R. Timothy McCrum, Crowell and
                                   Moring LLP

        Why would Glamis have proceeded with investments in mineral
    development so near protected wilderness areas?
        In the 1976 Federal Land Policy and Management Act, the Congress
    identified the California Desert Conservation Area as a special
    management area with significant resource values including historical,
    scenic, archaeological, environmental, cultural and economic resources
    including valuable mineral resources. See 43 U.S.C. Sec. 1781. Congress
    directed the Bureau of Land Management (``BLM'') to prepare land use
    plans for the California Desert which would conserve these resources
    and allow appropriate use of the economic resources including mineral
    resources. BLM carried out this planning process and prepared its
    initial California Desert Protection Plan by 1980, which recommended
    significant areas in the California Desert for permanent wilderness
    protection.
        Two of those areas, the Indian Pass Wilderness and the Picacho Peak
    Wilderness, are in close proximity to the Imperial Project lands, but
    the Imperial Project was never located within those areas that BLM
    proposed for wilderness designation nor in the areas actually
    designated for wilderness protection by the Congress in the California
    Desert Protection Act of 1994. In that landmark 1994 legislation,
    Congress expressly stated that the designation of wilderness areas was
    not intended to create ``buffer zones'' preventing multiple use
    development including mineral development, outside the congressionally
    designated areas.
        Although Glamis had confirmed its discovery of a valuable mineral
    deposit by 1991, it made the bulk of its multimillion-dollar
    investments in this project after the passage of the 1994 legislation,
    which was intended to settle these land status issues after many years
    of study and public consideration. In sum, Glamis proceeded with its
    investments in accordance with the laws of the United States and land
    use planning decisions of the Interior Department which were all made
    with substantial public input.

        Why would Glamis be willing to proceed with a mining project in an
    area considered sacred by an Indian tribe?
        Glamis respects the cultural traditions and religious beliefs of
    the Quechan Tribe and other Native Americans whose ancestors lived or
    traveled through the western United States, including in the California
    Desert. The 1994 California Desert Protection Act, mentioned above,
    specifically designated vast areas of public lands (a total of
    approximately 7.7 million acres) as closed to all development
    activities for environmental preservation purposes and to protect
    Native American cultural values. In those designated wilderness areas
    including the Indian Pass Wilderness and the Picacho Peak Wilderness,
    near the Imperial Project, Native Americans have statutory access
    rights to those areas for Native American religious purposes.
        When Glamis proceeded with the bulk of its investments at the
    Imperial Project, it had no way of knowing that this particular area
    was considered to be sacred by some members of the Quechan Tribe. In
    fact, Glamis funded two substantial cultural resource studies at the
    Imperial Project in 1991 and 1995 under the direction and review of the
    BLM. The Quechan tribal historian participated actively in each of
    those studies, and yet during those studies no claim was made that the
    project area was a sacred site. Understandably, under the
    circumstances, Glamis proceeded with the development of its mineral
    discovery. By the time the sacred site allegations were fully
    articulated between 1997 and 1999, Glamis could not abandon its
    multimillion-dollar investment without breaching its fiduciary duties
    to its thousands of shareholders.

        Given that the term ``significant damage'' is not defined in the
    legislation, what potential ramifications could this have if the bill
    were enacted?
        As noted in my opening testimony, one of the major problems with
    this bill is the subjectivity involved in determining what is a
    ``sacred site,'' and what would constitute ``significant damage'' to
    such a site. One of the problems with this bill is that it would seek
    to legislate and protect by law matters which are the subject of
    individual personal opinion and beliefs. The problems that are inherent
    in such an objective are the very problems which the founders of our
    Nation sought to prevent through the constitutional restriction upon
    the establishment of religion by our government. Under this bill,
    individual members of an Indian tribe could allege that a particular
    site is sacred to them and then declare that a particular development
    activity must not proceed because it would cause ``significant damage''
    to it. Such allegations would be virtually unverifiable by our
    government officials and the courts, and they would lead to
    interminable divisive litigation and controversy.
        Thank you very much for the opportunity to testify on H.R. 5155.
                                     ______

     Response to a Question Submitted to Michele Mitchell, Staff Attorney,
                          Native American Rights Fund

        Q: In your testimony you reference the impacts of taking land into
    trust to local governments and suggest that the federal government
    address these impacts by providing funding to lessen the impacts of
    these actions. What type of funding do you envision?
        As stated in our testimony, the Native American Rights Fund would
    oppose any Federal funding to local governments that would result in
    the reduction of funding for services to Indians and Indian tribes.
    However, one type of funding that could be utilized to offset the
    impacts of removing land from the local government tax base would be
    Payment in Lieu of Taxes (PILT). PILT are Federal payments to local
    governments that help offset losses in property taxes due to the
    existence of nontaxable Federal lands within their boundaries. The law
    recognizes that the inability of local governments to collect property
    taxes on Federally-owned land can create an adverse financial impact on
    local governments, particularly if those governments continue to be
    responsible for government services to the property removed from the
    tax rolls.
        Public Law 94-565, as amended by Public law 97-258, authorizes PILT
    payments to local governments for certain types of Federally- owned
    land, referred to in the statute as ``entitlement land.'' Amending this
    law to allow PILT funding for lands taken into trust on behalf of
    tribes would alleviate some of the adverse financial impacts of which
    local governments have complained.
        Another option to offset these adverse impacts would be some type
    of ``impact aid'' legislation. As currently provided to local school
    districts, impact aid assists in alleviating some of the expenses of
    providing education to children living on existing Indian and military
    reservations which are not subject to property taxes. 20 U.S.C. 7701-
    7714.
        The Native American Rights Fund emphasizes, however, that any
    option pursued by the Federal government to alleviate the effects of
    removing property from local tax rolls should be directly related to
    the financial impacts of such removal and should not support local
    opposition to the exercise of the rights of Indian tribes to seek
    recognition, to pursue land claims or to seek to have land put into
    trust.
                                     ______

     Response to Questions Submitted to Danielle Moretti-Langholtz, Ph.D.,
                  Coordinator, American Indian Resource Center

        Why are only six of the eight state-recognized Virginia tribes
    seeking Federal acknowledgment?1. Six of the eight state-recognized
    tribes are seeking federal acknowledgment at this time. In truth I do
    not know why two of the tribes have not joined in this legislative
    effort. I can say that the two tribes not named in H.R. 2345, while
    sharing the history and culture of the Powhatan tribes, are the two
    tribes who maintained their reservations lands since the seventeenth
    century. Since these two tribes have state reservations lands they have
    different circumstances and different needs. Virginia's eight state-
    recognized tribes are independent from one another, both historically
    and politically. Therefore, the tribes respect and honor each other's
    decision on this matter, for whatever reasons, practical or political.
    It is also my understanding that the two tribes not part of H.R. 2345
    have indicated to the bill's house sponsors that they support federal
    recognition for the other six tribes.

        In your opinion have the six Virginia tribes seeking Federal
    recognition through H.R. 2345 met any of the Department's seven
    mandatory criteria for acknowledgment?
        2. All American Indian tribes receiving BAR acknowledgment to date
    have met the seven criteria in varying ways. This is due to differences
    in indigenous cultural traditions and particular historical encounters
    and experiences with the non-Indian majority. However, the Virginia
    tribes share a common heritage and similar historical experience. Each
    were part of or interacted with the Powhatan Chiefdom during the
    colonial encounter in the seventeenth century, their ancestral tribes
    were signatories to the same treaties, their immediate family members
    experienced the same treatment under racial integrity legislation
    (1924-1968), and a these same six tribes obtained state recognition
    under the identical scrutiny of the Commonwealth of Virginia. Due to
    their shared geographic location, the linguistic affiliation of five of
    the tribes, much of the scholarly research applies to all six of the
    tribes. Thus it makes it easy to qualify these six tribes for federal
    acknowledgment under one legislative act.
        The six tribes seeking federal acknowledgment under H.R. 2345, the
    Chickahominy, Chickahominy Eastern Division, the Nansemond,
    Rappahannock, Monacan and Upper Mattaponi Tribes, are all of Eastern
    Woodland descent. For these tribes, unlike tribes in the West,
    ``historical time'' spans four-hundred years. For three centuries, from
    the late 17th century until the Civil Rights Era, the Commonwealth of
    Virginia enacted highly discriminatory policies against non-whites,
    much of it targeted at the Virginia Indian population. These
    legislative acts and governmental policies severely affected the six
    tribes' ability to appear consistently as ``Indians'' in public records
    and hindered the tribes' ability to compile documentary research about
    their respective histories. Nevertheless, it is the opinion of Dr.
    Danielle Moretti-Langholtz, Coordinator at the American Indian Resource
    Center at the College of William & Mary, Dr. Helen Rountree, Professor
    Emerita of Old Dominion University, and Mr. Edward Ragan, Ph.D.
    candidate at Syracuse University, the six tribes seeking federal
    acknowledgment under H.R. 2345 do meet the BAR's seven criteria. An
    overview of our response to the seven criteria follows:
        1. Being identified as an American Indian entity continuously since
    1900.
        ``Yes'' Appearances as ``Indian'' in official records are irregular
    but consistent when viewed in light of the racially restrictive
    legislative history of the Commonwealth of Virginia. Anthropologists
    and historians have shown an interest in all six groups as American
    Indians since the late 19th century and several have written articles
    and book-length scholarly treatments about the people in all six
    tribes.
        2. Being a distinct community over historical time.
        ``Yes'' The earliest maps of Virginia, including Captain John
    Smith's 1612 map indicates the names and tribal locations of the
    original tribes encountered during the seventeenth century. Current
    archaeological work supports the accuracy of Smith's map. While the
    ensuing centuries led to significant culture change some of the
    original tribes managed to survive by withdrawing into close-knit
    communities in largely rural areas. Documentary evidence exists of the
    tribes practice of being largely in-marrying enclaves, closed to
    outsiders. These six tribes had separate churches and church-sponsored
    schools close to their traditional residence areas, further restricting
    their interactions with people outside of their communities.
    Discrimination against Virginia Indians was harsh and very public and
    forged a sense of solidarity and distinct identity in the community.
        3. Political influence since historical times -
        ``YES'' with qualifications. The membership of these tribes lost
    control of tribal lands by the 1800s thus they were ``citizen'' Indians
    rather than reservation Indians. Thus restricting the possibility of
    welding separate political leadership outside the tribal communities.
    However, it is possible to trace the lineage of the tribal chiefs
    during most of the last century. This research indicates that each of
    the six tribes chiefs were selected from particular families, thus
    maintaining a distinct tradition of political leadership within each of
    these tribes. It is worth noting that English settlers in the
    seventeenth century commented that Virginia Indians has the same
    political structure as the British since within each group positions of
    leadership were inherited. Currently, the position of chief and members
    of the tribal council are elected by the voting members of the
    respective tribes. It may be argued that today the tribes persist in
    this tradition by electing leaders who would have inherited the
    position of chief. It must be noted that the Commonwealth of Virginia
    enacted strict racial legislation that would have restricted the
    possibilities for tribal leaders to exercise power in a public manner.
    Thus public records would indicate a bias against the tribes exercising
    political leadership but this may be understood as a direct result of
    Virginia's racial history. Moreover, until recently, the lack of tribal
    ownership of land limited economic endeavors, by precluding the
    possibility of chiefly power and decision making regarding tribal lands
    and businesses. Lastly, there are some scholars who argue that a
    limited pattern of chiefly political influence is consistent with pre-
    contact leadership patterns as economic and legal decisions were
    traditionally left to individual families. Chiefly authority was
    exercised most strongly in military and diplomatic situations. Thus in
    this instance the current situation is consistent with pre-contact
    patterns.
        4. Bylaws - ``YES'' bylaws have been submitted by all six tribes.
        5. Showing descent from historical tribe(s) -
        ``YES'' with qualifications as follows:
        The anthropologist James Mooney did fieldwork in Virginia in the
    1890s and his work indicates that the Chickahominies, Rappahannocks and
    Nansemonds were known by those historical names.
        The Upper Mattaponi can be shown to have come from the Mattaponi
    Reservation before the Civil War. The use of this tribal name was
    indicated by anthropologist Frank Speck in 1923.
        The Monacans according to Bushnell are the descendants of this
    historical tribe, thus the tribal members assuming this name at time of
    incorporation was appropriate.
        Each of these six tribes are found today within the ancestral lands
    of the historical tribes and their contemporary communities are family-
    centered and structured in much the same way as they have been for the
    last century--the period for which they have been studied by
    anthropologists and historians. In the late nineteenth and early
    twentieth centuries anthropologists James Mooney and Frank Speck
    recorded the names of the dominant families within these tribes; for
    example the Bass family among the Nansemonds, the Adkins Family among
    the Chickahominy, the Nelson family among the Rappahannocks, the
    Branham family among the Monacans, and the Adams family among the Upper
    Mattaponi were all noted in that early fieldwork. The current
    membership of the six tribes can be linked genealogically to the
    ``core'' families noted by these anthropologists. Also, as mentioned
    above in section 3, political power and influence has generally been
    maintained within these family groups.
        6. Members not in another recognized tribe.
        ``Yes'' These six tribes meet this criterion.
        7. Tribes are not a terminated group.
        ``Yes'' These six tribes meet this criterion.
                                     ______

        Response to a Question Submitted to Dolores R. Schiesel, First
                          Selectman, Kent, Connecticut

        ``Some states, such as New York are required by state statute to
    pay the cost of defense for all defendants in land claim cases. Does
    the state of Connecticut offer similar assistance?''
        There is one statutory section that addresses this issue.
    Connecticut General Statutes Sec. 47-7b is entitled ``Representation of
    interests of state when marketability of land titles threatened by
    claim of Indian tribe.'' It states in it entirety:
            ``The General Assembly finds that the state has a significant
            interest in the stability and marketability of land titles. The
            Attorney General may, in his discretion, represent the interest
            of the state in any lawsuit where the marketability of land
            titles has been threatened by a claim alleging that the
            disputed land was originally controlled or owned by an Indian
            tribe and was unlawfully transferred from that tribe.''
        Thus, the Connecticut Attorney General has the discretion to
    represent the interests of the state in land claims by tribes. In some
    cases the state's interest may overlap with the defendants so that
    defense costs could be reduced when the Attorney General is involved in
    a suit. However, there is no provision in state law for direct state
    contribution to costs of defense for other defendants in such claims.
        I hope this has been responsive to your question. It was my
    pleasure to have the opportunity to testify before the Resources
    Committee on this issue. I was able to see first hand the diverse
    interests that you must consider in a Federal issue that affects each
    of the fifty states so differently. If I can be of further assistance,
    please feel free to contact me.