[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



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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.

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