    [Senate Hearing 107-775]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 107-775

                               TRIBAL RECOGNITION

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

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                          ONE HUNDRED SEVENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                    S. 1392

        TO ESTABLISH PROCEDURES FOR THE BUREAU OF INDIAN AFFAIRS OF THE
         DEPARTMENT OF THE INTERIOR WITH RESPECT TO TRIBAL RECOGNITION

                                      AND

                                    S. 1393

      TO PROVIDE GRANTS TO ENSURE FULL AND FAIR PARTICIPATION IN CERTAIN
            DECISIONMAKING PROCESSES AT THE BUREAU OF INDIAN AFFAIRS

                                   __________

                               SEPTEMBER 17, 2002
                                 WASHINGTON, DC

    82-968              U.S. GOVERNMENT PRINTING OFFICE
                                WASHINGTON : 2003
    ____________________________________________________________________________
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                          COMMITTEE ON INDIAN AFFAIRS

                       DANIEL K. INOUYE, Hawaii, Chairman

                BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

    KENT CONRAD, North Dakota            FRANK MURKOWSKI, Alaska
    HARRY REID, Nevada                   JOHN McCAIN, Arizona,
    DANIEL K. AKAKA, Hawaii              PETE V. DOMENICI, New Mexico
    PAUL WELLSTONE, Minnesota            CRAIG THOMAS, Wyoming
    BYRON L. DORGAN, North Dakota        ORRIN G. HATCH, Utah
    TIM JOHNSON, South Dakota            JAMES M. INHOFE, Oklahoma
    MARIA CANTWELL, Washington

            Patricia M. Zell, Majority Staff Director/Chief Counsel

             Paul Moorehead, Minority Staff Director/Chief Counsel

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page
    S. 1392 and S. 1393, text of.....................................     2
    Statements:
        Blumenthal, Richard, attorney general, State of Connecticut..    57
        Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
          vice chairman, Committee on Indian Affairs.................    33
        Dauphinais, Jane, district director, Congressman Simmons,
          Norwich, CT................................................    59
        Dodd, Hon. Christopher J., U.S. Senator from Connecticut.....    34
        Flowers, Marcia, tribal chairwoman, Eastern Pequot Indians of
          Connecticut................................................    69
        Hansen, Cecile, tribal chairperson, Duwamish Tribe, Burien,
          WA.........................................................    71
        Hill, Barry, director, Natural Resources and Environment,
          General Accounting Office..................................    50
        Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman,
          Committee on Indian Affairs................................     1
        Lieberman, Hon. Joseph I., U.S. Senator from Connecticut.....    37
        Malcolm, Jeffery, assistant director, Natural Resources and
          Environment, General Accounting Office.....................    50
        Martin, Aurene, deputy secretary, Indian Affairs, Department
          of the Interior............................................    43
        Mullane, II, Nicholas, First Selectman, Town of North
          Stonington, CT.............................................    59

                                    Appendix

    Prepared statements:
        Blumenthal, Richard..........................................    99
        Cunha, Jr., James A., chief, Paucatuck Eastern Pequot Tribal
          Nation.....................................................   194
        Flowers, Marcia..............................................    82
        Frazier, Carl, chairman, Burt Lake Band of Ottawa and
          Chippewa Indians...........................................   204
        Hall, Tex, president, National Congress of American Indians
          (with resolution)..........................................   210
        Hansen, Cecile...............................................    83
        Hill, Barry..................................................    89
        Malloy, Dannel P., mayor, Stamford, CT.......................    77
        Malloy, James J., town administrator, Sturbridge, MA.........    79
        Martin, Aurene...............................................    85
        Mullane, II, Nicholas (with attachments).....................   104
        SACIA, Fairfield County, CT..................................    80

                               TRIBAL RECOGNITION

                                  ----------

                          TUESDAY, SEPTEMBER 17, 2002

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10 a.m. in room
    485, Senate Russell Building, Hon. Daniel K. Inouye (chairman
    of the committee) presiding.
        Present: Senators Inouye and Campbell.

     STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
                 CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        The Committee on Indian Affairs meets this morning to
    receive testimony on two measures, S. 1392, a bill to establish
    procedures for the Bureau of Indian Affairs of the Department
    of Interior with respect to tribal recognition and S. 1393, a
    bill to provide grants to ensure full and fair participation in
    certain decisionmaking processes at the Bureau of Indian
    Affairs.
        [Text of S. 1392 and S. 1393 follow:]

        The Chairman. We are pleased to welcome the sponsors of
    these measures, Senators Dodd and Lieberman but before I call
    upon our distinguished witnesses, may I first call upon the
    vice chairman of the committee, Senator Ben Nighthorse
    Campbell.

     STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
          COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        Senator Campbell. Welcome to our colleagues, Senators Dodd
    and Lieberman.
        As we consider these bills, pending on the Senate floor, as
    you know, Mr. Chairman, is an amendment to the fiscal year 2003
    Interior appropriations bill to add administrative procedures
    to the process that is already in place. Although I personally
    do not believe the appropriations bill is the right vehicle for
    this, I certainly understand the sponsor's concern and
    frustration with a process that should have been streamlined a
    long time ago.
        This committee has held many hearings on the issue of
    recognition and recognition reform. We have also heard how for
    some people the process has taken years, even generations, to
    complete. I believe the process that governs how the United
    States recognizes tribes should be transparent, timely and
    afford due process to the petitioners. I also believe that the
    fundamental fairness requires that truly affected communities
    be given an opportunity to be heard. Sometimes in the past they
    have not been.
        I do find it ironic, Mr. Chairman, and I think I have told
    you this before, about native people who have lived in North
    America for thousands of years who have to document who they
    are by a government set up by post-Columbian immigrants. The
    legislation before us certainly, in significant ways, makes
    some changes. We have a tongue and cheek comment we hear
    sometimes in the Indian community that we had bad immigration
    laws years ago.
        These bills would remove the decisionmaking authority from
    the Assistant Secretary and give it to the Secretary; authorize
    interested parties to request the Secretary conduct formal
    hearings on a petition in addition to the hearings currently
    available; alter the standard of proof from a reasonable
    likelihood standard to a more likely than not standard; and
    increase the authorized funding for the recognition process to
    $10 million for each fiscal year after enactment.
        Those, however, clamoring for reform, must recognize that
    the process in place is sometimes made worse by an avalanche of
    lawsuits filed by local communities, State attorneys general
    and suits from already-recognized tribes. The BAR is also
    flooded with requests under the Freedom of Information Act that
    keeps churning the system and churning the dialog, preventing
    the BAR from performing its core functions. If we are going to
    reform the recognition process, we should make sure we are
    providing reforms not just for States and attorneys general but
    for the petitioners themselves.
         Thank you, Mr. Chairman. I am looking forward to hearing
    from our witnesses.
        The Chairman. Thank you very much.
        Our first witness is the distinguished Senator from
    Connecticut, Senator Dodd.

       STATEMENT OF HON. CHRISTOPHER J. DODD, U.S. SENATOR FROM
                              CONNECTICUT

        Senator Dodd. Thank you very much, Mr. Chairman.
        I am pleased to be joined at the witness table by my
    colleague from Connecticut, Senator Lieberman. I want to thank
    you and Senator Campbell for agreeing to hold this hearing
    today. I appreciate it very, very much. This is an
    extraordinarily important issue to both the people of our State
    of Connecticut and we think people across the Nation as well.
        I also want to thank both of you for your leadership on
    issues pertaining to Indian Affairs. No one has done more in
    the U.S. Senate or in the whole Congress, for that matter, to
    advance the cause of improving America's understanding of
    native peoples and native cultures than the two of you. Senator
    Inouye and Senator Campbell have worked to enable America to
    better understand itself, to see ourselves as one people who
    have grown out of many traditions. They have helped us to
    define and harness one of our greatest natural resources, the
    great diversity of America.
        I know that everyone in this room and people all across the
    country would want to take this opportunity to express that
    sense of gratitude to both of you for your tremendous
    contributions.
        The issue we are here to discuss today is the issue of how
    the Federal Government goes about the business of identifying
    which native American groups have maintained such cultural,
    social and political distinctiveness that they should be
    recognized as separate, sovereign nations. This is an issue
    that profoundly impacts the rights and obligations of the
    Federal Government, the States and the various Indian nations
    of North America.
        I am not here in any way to criticize the civil servants of
    the Bureau of Indian Affairs [BIA]. In my view, they are doing
    their best under extremely difficult circumstances but the
    process is doing a grave disservice, in my view, to the cause
    of good government and the significance of tribal sovereignty.
        As all of my colleagues know, Congress has the authority
    and a duty to respect, honor and protect the rights of
    sovereign native Indian nations that resided in the borders of
    the United States. The Federal Government has a unique legal
    relationship with each of the tribal governments that represent
    peoples whose ancestors were here long before people from the
    rest of the world joined them in calling America home.
        The history of the relationship between the Federal
    Government and all native Americans is a long and complicated
    one. We don't have the time here today to detail many of the
    facts of that history but for the purpose of this hearing
    today, it is important I think to remember there have been
    several ways in which the Federal Government has acknowledged
    that a particular group of tribal people are so socially,
    culturally and politically distinct that they should be
    regarded as a separate, sovereign nation, entitled to immunity
    from the laws of the various States and entitled to a direct
    government-to-government relationship with the Government of
    the United States.
        Initially, many groups were recognized as separate nations
    through treaties. Later, some Indian nations were recognized by
    acts of Congress. Most recently, it has become common for
    tribes to be recognized through an administrative process
    conducted by the BIA within the Department of the Interior.
        I suppose there is nothing inherently better or worse about
    any of these alternative ways of establishing the legal status
    of a tribal group. What is important, in my view, is that the
    public can have the confidence that the Federal Government has
    correctly determined that a group in fact is so historically,
    culturally and politically separate and distinct, that the
    group should be recognized as a nation.
        For many years now, the recognition process administered by
    the BIA has been under scrutiny and it has become clear that
    the current process is inadequate to ensure that the decisions
    being made are factually correct and legally just. The chairman
    and vice chairman of this committee have held hearings on this
    matter and perhaps more than anyone else have documented many
    of the shortcomings in this process.
        The General Accounting Office [GAO], in a highly critical
    study released last November, noted:

        The Assistant Secretary has rejected several recent
    recommendations made by the technical staff all resulting in
    either proposed or final decisions to recognize tribes when the
    staff had recommended against recognition.

        The GAO concluded that:

        Because of the weakness in the recognition process, the
    basis for the BIA's tribal recognition decisions is not always
    clear and the length of time involved an be substantial.

        These findings are reminiscent of the testimony offered by
    Kevin Gover who until January 2000 was the Assistant Secretary
    for Indian Affairs. In May 2000 before this committee,
    Secretary Gover stated:

        I am troubled by the money backing certain petitions and I
    do think it is time that Congress should consider an
    alternative to the existing process. Otherwise, we are more
    likely to recognize someone that might not deserve it.

        Mr. Gover further stated:

        The more contentious and nasty things become, the less we
    feel we are able to do it. I know it is unusual for an agency
    to give up responsibility like this, but this one has outgrown
    us. It needs more expertise and resources than we have
    available.

        Mr. Chairman, taken together, these statements amount to a
    startling admission. I would suggest anytime an Assistant
    Secretary says in effect that his or her agency is incapable of
    grappling with one of its fundamental responsibilities, that is
    a cry for help that should not and cannot be ignored, but that
    cry has been ignored by the agency despite near universal
    criticism of the process. Despite pleas for fundamental
    fairness, no fundamental change has been made.
        As a member of the Duwamish Tribe has said:

        We have known and felt the effects of 20 years of
    administrative inaccuracies, delays and blase approach in
    handling and processing the Duwamish petitions.

        Frankly, the BIA is just not doing its job as well as
    people in this country and the people in native American tribes
    deserve. Administrative irregularities, accusations of
    influence peddling and a process that is generally perceived as
    exceedingly arcane have given rise to profound and reasonable
    doubts about the validity of the decisions being rendered by
    the BIA. This is no way for the Federal Government to determine
    the legal status of tribal groups and set the conditions for
    how those groups will interact with State governments,
    municipalities or Federal agencies.
        The legislation Senator Lieberman and I have proposed is
    designed to ensure that the recognition process is a competent
    process and will yield decisions that are beyond the reproach
    of any reasonable person. The decisions the BIA is making are
    too far too important to be based on a flawed administrative
    procedure. Every recognition decision carries with it a legal
    significance that should endure forever. Each recognition
    decision made by the BIA is a foundation upon which
    relationships between tribes and States, tribes and towns,
    Indians and non-Indians will be built for generations and
    generations to come. We need to make sure that the foundation
    upon which these lasting decisions are built is sound and will
    withstand the test of time. We as a nation cannot afford to
    build relationships between sovereigns on the shifting sands of
    a broken bureaucratic procedure and system.
        There are currently more than 200 petitions for Federal
    recognition pending before the BIA. That means there are more
    than 200 groups of people who believe they are entitled to be
    treated as nations unto themselves. There are petitions pending
    in 37 of our 50 States and each of these groups may be legally
    entitled to be recognized as a foreign nation. Our legislation
    is intended to ensure that the Federal Government issues final
    decisions about whether these groups should be recognized as
    separate government and we can be absolutely confident that the
    facts leading to the decision were properly found in accordance
    with commonly accepted and prudent administrative procedures.
        I think we have an obligation to the people of the United
    States and to native Americans and their governments to ensure
    that the BIA gets its facts right in each and every case. I
    believe that every tribal government that is entitled to
    recognition should be recognized and should be recognized in an
    appropriately speedy process, but I am not willing to trade
    speed for accuracy.
        Ultimately, I think the greatest threat to tribal
    sovereignty may be sloppiness in the recognition process. If
    the process is not impeccable, then there will be mistakes.
    There is a danger that groups that should be recognized will
    not be and that others who should not be recognized will be. If
    sovereignty and the right to self governance become the booby
    prizes for winning some bureaucratic game, then we will have
    failed both native Americans and the American public as a
    whole.
        Mr. Chairman and Senator Campbell, this is a profoundly
    serious issue that cries out for some resolution. I did not
    like at all offering an amendment to an appropriations bill.
    That is not my style. I have been here 22 years and I generally
    believe that there are procedures and ways of doing things but
    we were left with no other alternative here given the
    timeliness of various events. So we are put in a situation of
    offering an amendment there. I would prefer not to go that way
    but we are faced with decisions that are going to be made very
    shortly and I would vehemently oppose, vehemently oppose any
    effort to undo a recognition once it has occurred. I think that
    would be a profoundly dangerous step to take but I am concerned
    that if we don't get this right, there will be moves made by
    this Congress or other Congresses in the future to undo
    recognitions. Nothing could be more injurious or dangerous to
    the right of sovereignty than that process.
        I am begging and pleading that we get this right as soon as
    we can so we don't build up the kind of resentments and
    hostility that could do great danger and damage. The process
    desperately needs to be fixed.
        For those reasons, Mr. Chairman and Senator Campbell, we
    are here before you today to petition your support. We have an
    amendment pending. I appreciate the efforts made over the last
    several days to try and reach some accommodation here but this
    is a profoundly important issue in our State and a growing
    issue across the country. I thank you for listening.
        The Chairman. Thank you very much, Senator Dodd.
        Now, may I recognize Senator Lieberman.

       STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR FROM
                              CONNECTICUT

        Senator Lieberman. Thank you, Mr. Chairman and Vice
    Chairman.
        Let me first thank Senator Dodd for a very eloquent,
    comprehensive and fair statement of what motivated us both to
    put in the two bills you are considering today in this hearing,
    S. 1392 and S. 1393 but also to offer the amendment we have
    offered on the floor.
        I thank you for convening this hearing. It comes at a very
    important time and I hope it sets the context in which all of
    us both in the Senate and outside who have competing points of
    view, different points of view, can find common ground to move
    forward.
        These two pieces of legislation were introduced by Senator
    Dodd and myself last year. Our motivation was to create a more
    fair and open Federal-tribal recognition process. That process
    has taken on extraordinary importance in our State of
    Connecticut which experience is close to us and motivates us
    because of the probability that recognized tribes will open
    large casinos and that creates a concern among the citizenry
    about the impact on the State, and therefore, on the fairness
    of the recognition process.
        I want to join Senator Dodd in saying very clearly probably
    what does not have to be said but we should say it, this is not
    an attempt to frustrate not just the statutory right that
    native Americans have to recognition and sovereign nation
    status when the claim can be made but the historic right, the
    right that comes from history and justice.
        The goal here is to improve the recognition process so that
    no one can feel that whatever the decision in that process it
    was achieved without due process in a way that was unfair. In
    another sense, going back to something Senator Campbell said,
    to see if we can create a process which after a decision is
    made, minimizes, one might say hopefully eliminates, the
    appeals, the litigation that delays this for so long.
        Senator Dodd quoted the GAO report of last November.
    Obviously GAO is independent and nonpartisan and it was a
    stinging I thought statement on the recognition process which
    then was seconded by the Interior Department's Inspector
    General and the past Assistant Secretary for Indian Affairs.
        I must say that since the issuance of the GAO report, there
    has been, in our view, no significant effort to reform the
    recognition process from within to fix the problems GAO cited.
    The BIA has continued to move forward without apparent change,
    most recently and most troubling to us in Connecticut, in its
    decision regarding the Eastern Pequots that has ignited a
    genuine cauldron of controversy in Connecticut.
        A review of the Eastern Pequot decision makes clear why
    people in our State have become extremely concerned about this
    issue and skeptical about the existing tribal recognition
    process. Faced with petitions for recognition from two tribes,
    both of which claim they were not the same tribe as the other,
    the BIA nonetheless created a new tribe out of the two
    petitioners. Thus, in the view of many people in Connecticut,
    the BIA affirmatively reached out and created a new tribe when
    no one was requesting that. In addition, the analysis contains
    several apparently unprecedented legal conclusions furthering
    the public distrust of the BIA process.
        In particular, there was reliance on the State's
    recognition of the tribes to fill gaps for:

        Specific periods of time where the other evidence in the
    record concerning community or political influence would be
    insufficient by itself.

        From the decision. I am not an expert in these matters but
    I have been informed that this is unprecedented, that never
    before has a State recognition been sufficient to satisfy the
    criteria for Federal recognition.
        Many observers were also troubled by the BIA's conclusion
    that the separate governing documents of the two tribes
    satisfied the statute's requirement that the recognized tribe
    have a single set of governing documents and membership
    criteria. This has brought public confidence, at least in our
    State, in the recognition process to an unprecedented low. It
    is in that context that Senator Dodd and I have gone forward
    both with our amendment and why we are so grateful that you
    have given a hearing this morning to the two pieces of
    legislation that we have introduced in an attempt to fix the
    problems. Rather than letting the process continue in its
    current manner, these legislative proposals would require the
    BIA to provide adequate procedures to ensure the fairness and
    credibility of its process, something, as Senator Dodd said,
    that will benefit both the tribes and the communities that
    surround them and provide the resources, the stakeholders of
    limited means required to meaningfully participate in the
    process.
        As a whole, our two pieces of legislation we think move
    toward a stronger recognition system in which all interested
    parties are able to participate fully and the results therefore
    are more likely to be more broadly accepted as not only fair
    but as final. In particular, S. 1392 is intended to ensure that
    the recognition criteria are satisfied and that all affected
    parties, including affected towns, have a chance to fairly
    participate in the decision process. This proposal ensures that
    affected parties be given proper notice, that relevant evidence
    from petitioners and interested parties including neighboring
    towns is properly considered, that a formal hearing may be
    requested with an opportunity for witnesses to be called, and
    with other due process procedures in place, that a transcript
    of the hearing is kept and that the evidence is sufficient to
    show that the petitioner meets the seven mandatory criteria in
    Federal regulations and that a complete and detailed
    explanation of the final decision and findings of fact are
    published in the Federal Register.
        Let me stress what I think should be clear from this, that
    this legislation is not an attempt--in fact it does nothing to
    affect already-recognized Federal tribes or to hinder their
    economic development plans, nor does it change existing Federal
    tribal recognition laws. It is simply an attempt to build into
    the system the most fundamental aspects of due process.
        Having created these new procedures in S. 1392, or proposed
    their creation, S. 1393 is intended to ensure that all
    stakeholders are able to benefit from them, to use them. It
    would provide grants to both native American tribes and local
    governments that can prove fiscal need to allow them to hire
    genealogists, lawyers and other professionals that will enable
    them to participate fully in these proceedings. Grants would be
    available to assist these eligible parties in BIA proceedings
    regarding the recognition of a tribe as well as proceedings
    whether to place land in trust for a tribe.
        We view these two bills as working in tandem. We cannot
    make the recognition process stronger and more transparent
    without giving participants the appropriate resources to be
    involved and benefit from the due process that we are trying to
    create.
        Because, as I have said, these bills do not affect already-
    recognized Federal tribes or hinder their economic development
    plans or change existing Federal tribal recognition laws in
    substance, it is our hope that these proposals might be the
    occasion for all of us, if I may speak directly, under the
    leadership of you, Mr. Chairman and Senator Campbell, to find
    common ground and move forward on that basis.
        I thank you very much for the time you have given us. I
    hope you will view the efforts Senator Dodd and I are making
    here in the realistic, real life context from which they emerge
    in Connecticut and that you will take them also in the spirit
    in which we both have spoken which is this is an attempt not to
    scuttle a process of recognition but to improve it so it is not
    only more fair but ultimately more credible and more final.
        I thank you both very much for your time.
        The Chairman. Senator Lieberman, Senator Dodd, on behalf of
    the committee, we thank you and I can assure you that I take
    this matter very seriously and admittedly in a sense,
    personally because I had the great honor of serving with
    Senator Dodd's father. I think the record would show that my
    relationship with Connecticut has always been a positive one
    and hopefully helpful.
        But I believe the record of the history of the recognition
    process, shows that the shortest time it took to get through
    the whole process was 4 years for a tribe in Michigan and the
    time entailed in processing the petition of the Eastern Pequot
    Tribe was one of the longest. They made their application 24
    years ago and they have been in this process for 24 years.
        In reading the record, I gather that in the investigation
    conducted by the Branch of Acknowledgment, they realized that
    Eastern Pequots and the Eastern Paucutuck Pequots were
    historically one tribe so they recognized them as one group.
    Even at this stage, this determination is subject to appeal by
    any interested party by appealing to the Interior Department,
    so I cannot see where this has been forced down the throats of
    the people of Connecticut for that matter, is this a done deal.
    It is not a done deal. It is a matter that has been pending for
    24 years and it has had public notice and notice in papers of
    vast circulation, so one cannot suggest that this was done in
    the still of the night.
        I can assure you that we will look into this matter with
    very intense interest. I can assure you that.
        Mr. Vice Chairman.
        Senator Campbell. I appreciate both of our witnesses and
    our personal friends, Senator Dodd and Senator Lieberman. I
    don't want to keep you and I don't want this to be a lesson on
    Indian history.
        If you go back far enough in time, there are many groups
    that were one tribe. The Arapaho before 1800 were one tribe.
    Now they are the Wind River Arapaho in Wyoming and the
    Cheyenne-Arapaho, another tribe, in Oklahoma. Before about
    1810, the Cheyenne were one tribe and then they divided. In
    those days, they divided because they got too many of them and
    the hunting grounds couldn't handle that big a group and they
    began to divide. The Shoshone I believe also did, the Wind
    River Shoshone divided years ago. The Sioux were a huge tribe,
    so they had different bands of the Sioux, and there are about
    nine western bands I believe now. So it is not uncommon in
    history for tribes to divide.
        I think the real difference now is--I was here in 1988 as
    all four of us were and believe me after 1988, there was a huge
    change and I have to tell you that I think Kevin Gover was
    right when he said that money is driving some of the dialog
    that we are getting into now because that is when we passed
    IGRA and nobody had any idea in 1988 that money was going to be
    such a big thing with the Indian casinos. I am not opposed to
    them; in fact, I support them. They have brought jobs and
    economic development for people that need it and I have never
    been opposed to that at all. I helped to write it when I was on
    the House side and I am sure you were all involved with it too.
        I think it has really made the problem worse. I know we
    hear all the time from local communities saying if this group
    is recognized as a tribe and they get land that is put in
    trust, they don't have to comply with local zoning codes, don't
    have to comply with the land use planning. I personally don't
    think that is right. It seems to me local communities should
    have a voice when their lives are going to be affected.
        Four years ago, when Slade Gorton was here and we did a
    hearing in his State, we heard of one casino that was built but
    they didn't take into consideration the routes to get to the
    casino and went right through some residential areas where
    children were playing on the sidewalks and lawns right by the
    street where you can see the danger that could create. So it
    has created one big problem, the advent of the money. That was
    the down side of it. The up side as I mentioned was the jobs.
        I understand there are about 250 cases now pending and I
    think that number is going to continue probably going up as
    groups either want to be reinstated, and I think many have
    every legitimate right. If you were a member in the 1950's
    before any of us were here, perhaps with the exception of
    Senator Thurmond who was here in 1950 and maybe 1850--he has
    been here a long time--but in 1950 a number of tribes were
    terminated which has always confused me. That is like telling
    an African American he is no longer black. That is what I
    equate it to. Telling American Indians they are no longer
    Indians and they took their land. Some they paid to give up
    their land rights and basically said, you are assimilated, you
    are no longer an Indian. So there are a lot of people who are
    Indians who want to reverse that process and I understand that.
        If you go back far enough in time, they were only
    designated as Indians and put on somebody's roll because the
    agreements under the treaties were that the Government would
    provide through trust responsibility something in terms of food
    or blankets in those days, or a land base they could call their
    own. That is how it all started.
        Things have changed considerably over the years as both of
    my colleagues know and it has gotten a heck of a lot more
    complicated.
        I just want to reassure both of you that I look forward to
    working with you. I know the BAR needs reforming too. The
    question isn't whether we need it reformed, we do. It is how we
    do it so that legitimate people don't get left out and maybe at
    the same time, the ones that should not be accepted as a tribe
    go through a criteria that is tough enough so that they are
    weeded out.
        Money changes a lot of peoples' attitudes about things and
    I know that when you talked about--maybe it was Senator
    Inouye--groups that now want to divide into subgroups so they
    can have their own land base and whether that is the proper
    thing to do or not, there needs to be a very clear process to
    determine whether that is a legitimate concern or if they just
    want their own casino. There is a big difference to me, a moral
    difference we ought to be dealing with here.
        I thank you both for appearing.
        Senator Dodd. Let me just say, first of all, I have often
    said, Mr. Chairman, both in your presence and in your absence,
    we often consider you the third Senator from Connecticut. You
    have been tremendously helpful to us on numerous occasions and
    the affection in which you are held by the people of our State
    is only exceeded I am sure by the affection held for you by the
    people of your own State. That only goes for my State but also
    for my family for all the reasons you and I have discussed on
    numerous occasions.
        It is with a certain degree of pain to even come and talk
    about this issue. I have had a wonderful and continue to have a
    wonderful relationship with my native American community in
    Connecticut and am a strong supporter of them and maintain that
    relationship.
        I certainly recognize that the history of what has happened
    in terms of how tribes have been recognized, how they have
    divided and come back together. Our concern is really over a
    process, not even the conclusion but how is it reached and is
    it reached with all the necessary information so it withstands
    the test of time.
        Our suggestions here and the reason for calling for a
    moratorium has specifically to do with what Senator Campbell
    suggested, and that is to straighten this out because our fear
    is as the process goes on and decisions get made and we look
    back, without the benefit of time to fix it, it could be fixed
    rather quickly in our view.
        Again, I am terribly sympathetic. As I said, the process is
    so broken it has taken some groups 25 years. That is outrageous
    that anyone should have to wait that long for a decision about
    whether or not they deserve the status of a sovereign nation as
    the process allows at conclusion. I think everyone is being
    adversely affected by the present process and the sooner we fix
    it, the better off everyone will be.
        Our proposal on the moratorium was merely to put things on
    hold and do what everyone recognizes needs to be done and that
    is the purpose and reason for the bill.
        Senator Lieberman. I join my colleague in thanking you. I
    was thinking, Mr. Chairman, in this Senate where overstatement
    tends to happen more often than understatement, your statement
    that you have been helpful to the State of Connecticut is
    surely one of the greatest understatements we have heard here
    in a long time. I agree with Senator Dodd that there is not a
    better friend of Connecticut in the Senate than you and no one
    has been more helpful to the State than you. So we thank you
    very much for that.
        I do want to say with regard to the Eastern Pequot
    decision, you are absolutely right about the result and about
    the fact that it is appealable, it is not over. In fact, I know
    you are going to hear from our Attorney General, Richard
    Blumenthal in a while as a witness. Attorney General Blumenthal
    did announce last week that he is appealing the decision, so
    that will go forward. We cite that only in terms of our concern
    about the process and how that decision was arrived at.
        The final point to build on what both you and Senator
    Campbell have said. Look, we all know the reality has changed
    since Indian gaming came into effect and the recognition
    process has not kept up with that change, not only in terms of
    the extent of due process but the funding for the BIA and the
    BAR is woefully inadequate.
        I do want to point out that S. 1392, which is the first of
    the two measures that has a series of due process requirements,
    does authorize an additional $10 million a year for increased
    staff and resources to process these adjudications. Probably
    there is a need for a lot more than that just to make it come
    out right.
        I appreciate what you both said and I do think it provides
    a context in which we can go ahead and try to make this right
    and try to protect everybody's rights, including particularly
    the rights of native Americans which is what the law is all
    about for tribal recognition, sovereign nation status as a
    result of a process that is fair.
        Therefore, I thank you for your time and for the statements
    you have just made.
        The Chairman. We thank you very much, Senator Lieberman and
    Senator Dodd, and we want to assure you that we will continue
    to work on this matter to the point of resolution. Thank you
    very much.
        Our next witness is the Deputy Assistant Secretary for
    Indian Affairs of the United States Department of the Interior,
    Aurene Martin.
        Madam Secretary, welcome to the committee. Before
    proceeding, will you introduce your associates?

    STATEMENT OF AURENE MARTIN, DEPUTY ASSISTANT SECRETARY, INDIAN
                  AFFAIRS, DEPARTMENT OF THE INTERIOR

        Ms. Martin. My name is Aurene Martin. I am the deputy
    assistant secretary for Indian Affairs, Department of the
    Interior.
        The Chairman. Will you recognize your colleagues?
        Ms. Martin. I am sorry. Accompanying me are Lee Fleming
    from the Branch of Acknowledgement and Research, BIA and
    Barbara Cohen with the Solicitor's Office.
        The Chairman. Thank you.
        Ms. Martin. Good morning.
        I would first like to take the opportunity to thank you
    today for allowing me to present testimony regarding S. 1392
    and S. 1393.
        S. 1392 would establish statutory procedures for the BIA
    with respect to Federal acknowledgement and S. 1393 authorizes
    grants to entities affected by the BIA decisionmaking process.
        While we agree with Senator Dodd that the Federal
    acknowledgement process must be guided by fairness, openness,
    respect and a common interest in bettering the quality of life
    for all Americans, we must respectfully oppose these bills. I
    will first address our concerns with S. 1392 followed by our
    views regarding S. 1393. I would like to conclude with some
    remarks regarding our current efforts to improve our delivery
    of services through the Branch of Acknowledgement and Research.
        It is generally the Department's view that S. 1392 is not
    necessary because substantially similar procedures for Federal
    acknowledgement are already provided for in Federal regulations
    which exist in 25 C.F.R. Part 83. Additionally, we have
    concerns regarding additions and omissions to those procedures
    that appear in the bill.
        There are a number of items which have been dropped from
    the existing regulations in this legislation. The most
    significant of these is the exclusion of 15 of the 23
    definitions currently provided in the regulations, including
    the definitions of interested party, political influence or
    authority, and sustained contact.
        I also note that the proposed definition of Indian tribe is
    different from the definition that appears in our regulations
    and it is also different from other statutory meanings attached
    to the term Indian tribe. Because those terms include all
    tribes who have established relations with the Federal
    Government prior to the establishment of the acknowledgement
    process, the definition provided in S. 1392 would only apply to
    tribes recognized through the acknowledgement process.
        Additionally, the substance of section 83.11 of our current
    regulation which sets out the review procedures for
    determinations made by the Assistant Secretary have likewise
    not been included in S. 1392 although section 17 of the bill
    attempts to apply the terms of the current regulation to
    reviews made under this bill's provision. The effect of this
    application is not clear because it is not clear whether the
    bill is intended to replace or supplement the current
    regulation or whether the purpose of that provision is to
    freeze our current review provision so that it cannot be
    changed.
        There are also two additions to the bill which raise
    departmental concern. Section 12(b) of the bill creates a new
    requirement that the Department notice States and
    municipalities in every area historically occupied by a
    petitioner. This is difficult and burdensome in cases where a
    group has been moved or has moved across a number of States
    because it is not always immediately apparent exactly how many
    places the tribe has stopped.
        Finally, the new requirement that the Secretary conduct a
    formal hearing at the request of a petitioner or interested
    party could be problematic unless the timing, scope and hearing
    of the hearing is more clearly defined.
        Currently, it is not entirely clear when the hearing will
    be held. If requested, the hearing could be held prior to the
    proposed finding or after a final determination is made. If
    this is possible, the hearing could duplicate the procedures
    outlined in Section 17 of the bill for review of decisions
    after final determination.
        With regard to S. 1393, the Administration has one major
    concern. The provisions of the bill authorize the Secretary to
    provide grants to parties affected by a decision which will be
    made by the Department or Congress. These decisions include fee
    to trust applications, acknowledgement determinations or
    restoration efforts of terminated tribes. The provisions of
    this bill could create a conflict of interest for the Secretary
    because it may later be claimed that the Secretary
    predetermined his or her decision through the choice of
    grantees. Also, this bill does not prohibit the use of funds
    for litigation, lobbying Congress or participation in actions
    against the Department.
        Finally, I would like to briefly discuss current efforts
    within the Department to improve our ability to process
    acknowledgements in a more timely and efficient manner.
        In November of last year, the GAO released its report
    regarding the tribal recognition process. The report identified
    weaknesses in the recognition process and recommended actions
    to improve that process. The Department of the Interior
    generally agreed with the report and we have taken actions to
    implement its recommendations.
        The GAO made two recommendations with respect to the
    Department. First, it recommended that the Department provide a
    clearer understanding of the basis used for recognition
    decisions by developing and using transparent guidelines.
    Second, it recommended that the Department develop a strategy
    for improving the responsiveness of the process.
        In response to these recommendations, the Department has
    completed a strategic plan which is currently in the
    departmental clearance process prior to public release.
    Generally speaking, we have identified actions that improve the
    process which include making documents produced by the BAR
    accessible to the general public. This includes digitizing
    documents and making them available on the Internet once we are
    able to access the Internet. Two, includes adopting clear
    guidelines to assist tribal petitioners develop their research
    and documentation. Three, is increasing resources to assist the
    BAR staff with a variety of tasks including looking into the
    possibility of contracting. Finally, we are reviewing
    procedures which may be streamlined or changed to increase
    responsiveness and timeliness of the process.
        We expect this plan to be released in the coming weeks and
    will provide you with a copy when it is available.
        That concludes my testimony. The Department has additional
    technical comments regarding S. 1392 and S. 1393 and would be
    happy to share them with the committee. I also ask my written
    testimony be entered into the record.
        Again, thank you for the opportunity to testify today. I am
    happy to answer any questions you might have.
        [Prepared statement of Ms. Martin appears in appendix.]
        The Chairman. Without objection, your full statement will
    be placed in the record.
        I have read the testimony that will be presented by
    Connecticut Attorney General Blumenthal who has expressed
    concern that in certain cases involving acknowledgement of
    tribes within the State of Connecticut, political appointees
    within the Department have overturned staff findings that
    particular petitioners have not met the criteria for
    recognition.
        Is the Secretary bound by the decisions of the staff?
        Ms. Martin. The short answer is no. The recommendations are
    made by staff to the Secretary or Assistant Secretary and they
    have the discretion to not go along with the recommendations.
        The Chairman. Is that decision by the Secretary appealable?
        Ms. Martin. It is. A decision by the Assistant Secretary is
    appealable to the IBIA. I believe a decision of the Secretary
    is appealable in Federal District Court.
        The Chairman. Does the Secretary or her senior subordinates
    outside the BIA ever overturn staff recommendations?
        Ms. Martin. Not that I am aware of, no.
        The Chairman. In your testimony, you have indicated that
    the Department does not support S. 1392 because the existing
    administrative regulations already provide for formal hearings
    in which the petitioner and interested parties are allowed to
    participate. To your knowledge, has this formal hearing process
    under the existing administrative rules been used by the State
    of Connecticut?
        Ms. Martin. My understanding is that it has during the
    pendency of the Eastern Pequot and Paucatuck Eastern Pequot
    petitions, there was a formal technical assistance hearing held
    and the State of Connecticut participated in that formal
    technical assistance hearing.
        The Chairman. So the State of Connecticut was aware of this
    petition pending and they had a hearing?
        Ms. Martin. They had a formal meeting which was on the
    record. They were aware of the petition and they submitted
    voluminous documentation outlining their position.
        The Chairman. Was this formal hearing requested under the
    provisions of our laws?
        Ms. Martin. It was requested by the State. It is not an
    adversarial hearing but is a formal meeting on the record in
    which all parties participate.
        The Chairman. You indicate that notification requirements
    set forth in S. 1392 would be unworkable because they require
    notification of all municipalities located in ``geographical
    areas historically occupied by a petitioning group.'' Can you
    tell me why this is unworkable?
        Ms. Martin. Our understanding is that the notice is
    expected to go out shortly after the letter of intent is issued
    or sent to the Department. At that point in the process, it is
    virtually impossible to be able to tell in how many different
    places a tribe resided because the contents of the letter of
    intent only show the current address of the petitioner.
        In the case of a tribe like the Oklahoma Cherokee, you
    would have to be able to go back and find where they started
    and all the places they traveled through and notify all those
    States, all of the counties and all the towns and cities
    through which they traveled. That is a very difficult process
    at early point in the proceedings and could be unworkable.
        The Chairman. What you are saying is that let us suppose
    that the Oklahoma Cherokees applied for recognition--if a
    petition of this nature were filed under S. 1392, the Branch of
    Acknowledgment would have to extend its investigation into and
    provide notice in the Carolinas, and other Eastern States.
        Ms. Martin. Yes; I think they would.
        The Chairman. Would the scope of the notice be similarly
    extensive if the Oklahoma Choctaw's, would the Branch have to
    go to Mississippi also?
        Ms. Martin. That is my understanding of how the bill is
    written.
        The Chairman. In fact, that would be the case for most of
    the Indian nations in Oklahoma, wouldn't it?
        Ms. Martin. Yes; it would.
        The Chairman. The Seminoles, Apaches, and Cheyennes would
    present the same the challenges wouldn't they?
        Ms. Martin. That is right.
        The Chairman. You have testified that the grants available
    under S. 1393 could be used by grantees to lobby, to litigate
    against those activities required by law to be performed by the
    Department. Can you explain why such funding is objectionable?
        Ms. Martin. I can explain in my detail in writing, but it
    is my understanding that there is a general disadvantage to
    funding tribes to lobby Congress. That is that when we provide
    funding to groups we want that to be used for developing a
    petition or other things like that but also, we don't want to
    create a conflict of interest for ourselves or additional
    burden on the Federal Government by providing funds to entities
    who are going to sue us and cause us extended, protracted
    litigation which uses more of our resources.
        The Chairman. What you are saying is that it just doesn't
    sound right or logical to give someone money to lobby against
    you or to fight you in court?
        Ms. Martin. In a nutshell, yes.
        The Chairman. I suppose that is the American way.
        I have before me a document I believe was prepared by your
    office called ``Summary Status of Acknowledgment Cases.''
        Ms. Martin. Yes.
        The Chairman. This document indicates that as of 1976 up
    this date, 276 petitions have been filed--letters of intent
    have been filed with your office?
        Ms. Martin. That is right.
        The Chairman. Of that 276, 8 petitions are ready and 56
    have been acknowledged, is that correct?
        Ms. Martin. Their petitions have been resolved. Not all of
    those petitioners have been acknowledged.
        The Chairman. For those acknowledged, there are just 13?
        Ms. Martin. I believe it is 17.
        The Chairman. 17. In other words, you have not rushed
    through the letters of intent? Is that one of the major causes
    of concern in Indian country, that the BIA has been slow in
    responding to these letters of intent and not because the BIA
    is are rushing petitions through the process?
        Ms. Martin. That is true. That is a major concern of Indian
    country but I would like to make a distinction between letters
    of intent and complete petitions. When a tribe files a letter
    of intent, that is simply putting us on notice they are going
    to complete a petition and it is once they complete the
    petition that we begin our active consideration process. We
    currently have 117 entities who have told us they are going to
    complete a petition but they have not done so.
        The Chairman. The Pequot case has been in the
    acknowledgment process for 24 years now. Is it true that their
    letter of intent was filed 24 years ago?
        Ms. Martin. My understanding is it was filed in 1979, yes.
        The Chairman. And the Department's consideration of that
    petition still not closed?
        Ms. Martin. No; the decision is not yet final. It will be
    final 90 days from the publication date or upon review by the
    IBIA or other pending litigation that might occur.
        The Chairman. So it is still open for further
    consideration?
        Ms. Martin. It is.
        The Chairman. That being the case, how long do you think it
    might take?
        Ms. Martin. I believe it could take years. I can't even
    speculate on how long.
        Ms. Cohen. My name is Barbara Cohen.
        Under the acknowledgment regulations, a request for
    reconsideration has to be filed within 90 days of when
    publication occurred in the Federal Register. At that point,
    there are timeframes set up within IBIA for purposes of the
    interested parties and the petitioners filing the briefs. At
    that point, the Department is neutral and does not take a
    position on the merits that are raised before IBIA. There is no
    set time period for IBIA to rule on a particular request for
    reconsideration. They have responded to some of them quite
    promptly within 1 month or 2; others they have taken perhaps
    about 1 year to respond.
        If IBIA refers matters back to the Secretary, there are set
    timeframes in the regulations for the Assistant Secretary to
    act. I believe since things have been remanded to the
    Department, usually a decision occurs within a year after that.
        The Chairman. So one would not describe this as a done
    deal?
        Ms. Cohen. That is correct.
        The Chairman. It may take over a year or more?
        Ms. Martin. Correct. That doesn't take into account any
    possible litigation that might arise from an appeal of the
    IBIA's decision.
        The Chairman. That would mean a decade or two?
        Ms. Cohen. Yes; but if the Department's final decision is
    to recognize the historical Eastern Pequot Tribe, that would be
    a final and effective decision at that point. If the State went
    to the courts to litigate that, it would still be the
    Department's position that they are a recognized tribe.
        The Chairman. So would you say that under the current laws,
    interested parties have had an opportunity and still continue
    to have the opportunity to stop it or make changes, is that
    correct?
        Ms. Cohen. Clearly, that is correct.
        The Chairman. Questions?
        Senator Campbell. I think you asked many that I had jotted
    down too, Mr. Chairman. Just a couple.
        First of all, this is more of a statement than a question,
    but it doesn't sound right, as you said, Ms. Martin--by the
    way, congratulations on your new appointment. I think this is
    the first time you have appeared before the committee since you
    worked for the committee, if I am not mistaken?
        Ms. Martin. That is right, sir.
        Senator Campbell. You mentioned it doesn't sound right for
    tribes to be using money they receive from the Federal
    Government to lobby the Federal Government but in fact, towns
    do that, cities do it, States do it. It is taxpayers' money at
    one point or another that they use to come back here and lobby
    for it. Frankly, I don't see why tribes can't do it just as
    well as any other government entity.
        Why doesn't the Department require more details when
    getting a letter of intent rather than after they form the
    petition and the second part is, is the burden of proof mostly
    on the tribes when they make the petition or do you have to do
    a lot of the research to find out the legitimacy of it?
        Ms. Martin. In regard to the letter of intent, I think we
    are looking into the possibility of amending the regulations to
    increase the amount of information that is available when the
    letter is submitted.
        In regard to the responsibility of the petitioners, the
    burden is on them to provide evidence to us which is sufficient
    to support their documentation. Once we receive the petition,
    we go over that research to make sure it is legitimate and the
    genealogy to determine the persons are also members of the
    tribe.
        Senator Campbell. On the portion that you have to do, is
    any of that outsourced or done through private contractors for
    the BIA?
        Ms. Martin. At this time, it is not but that is one of the
    options we are currently looking into to increase the
    efficiency of the process.
        Senator Campbell. Haven't done it yet though?
        Ms. Martin. We have not.
        Senator Campbell. I understand that about 40 percent of the
    staff time now is used responding to Freedom of Information
    requests. Is that true?
        Ms. Martin. Yes; I think it is true. It may be a little bit
    more time than that.
        Senator Campbell. It just goes to show in our system of
    government, nobody gives up and we appeal everything if we
    don't like the outcome, and I guess that reflects on the amount
    of time you have to spend providing information for the Freedom
    of Information Act.
        There are a number of court ordered deadlines that have
    been put in place in the past. Does that complicate the BAR
    system and how has that impacted you? For instance, does it
    require you get a court ordered decision. Does that
    inadvertently make it so that group can be a ``line jumper'' or
    move ahead of the ones that are trying to stay in the normal
    process?
        Ms. Martin. It can. If we get a court order that directs us
    to come up with a decision by a date certain, it requires us to
    place that petition at a point in the process which will put
    them ahead of other petitions that have been waiting.
        Senator Campbell. Do you know offhand how many times that
    has happened?
        Ms. Martin. Two times that we are aware of and then we have
    negotiated with parties to process their petitions earlier.
        Senator Campbell. Two times since when?
        Ms. Cohen. It has only been an issue that has been
    litigated in the past perhaps 2 years. We have two courts that
    have ordered two petitioners to be placed on active
    consideration above their other priority. We have negotiated
    schedules for other petitioners that were already on active
    consideration to determine when information would be submitted,
    particularly by interested parties and petitioners. We came up
    with a negotiated settlement as far as their procedures in the
    Schaghticoke litigation in Connecticut where we had a lot of
    information submitted where we frontloaded the information
    submitted by both the interested parties and the petitioner
    before we issue a proposed finding.
        I think one of the concerns that the Department has in the
    idea of the moratorium is how that moratorium is going to
    impact existing court ordered deadlines.
        Senator Campbell. What is your view? How would it impact
    court decisions?
        Ms. Cohen. I do realize that Senator Inouye's amendment
    talks in the context of a moratorium only on final
    determinations which would allow us to handle the immediate
    deadlines dealing with proposed findings. However, there is a
    proposed deadline for final determination I think in 2003, so
    it would create a conflict between court ordering the
    Department.
        Senator Campbell. What I am getting at is if there was a
    moratorium, would that open a floodgate of more lawsuits in
    hopes the decision would circumvent the process and put them
    near the top of the line?
        Ms. Cohen. It certainly would be an issue that would be
    litigated, yes.
        The Chairman. Correction. It is not my bill; it is Senator
    Dodd's bill.
        Ms. Cohen. But there as an amendment that was being
    proposed. I think it was an amendment to Senator Dodd's.
        The Chairman. No.
        Senator Campbell. I have no further questions. Thank you,
    Mr. Chairman.
        The Chairman. I would like to thank you, Secretary Martin,
    and your staff. I will keep the record open for 2 more days
    because we want action to come about as soon as possible. If
    you do have corrections you would like to make or addenda,
    please feel free to do so.
        Ms. Martin. Thank you very much, sir.
        The Chairman. Our next witness is the director of the
    Natural Resources and Environment, General Accounting Office of
    Washington, Barry Hill, accompanied by the assistant director,
    Jeffery Malcolm.
        Mr. Hill, welcome, sir.

       STATEMENT OF BARRY HILL, DIRECTOR, NATURAL RESOURCES AND
    ENVIRONMENT, GENERAL ACCOUNTING OFFICE, ACCOMPANIED BY JEFFERY
        MALCOLM, ASSISTANT DIRECTOR, NATURAL RESOURCES AND THE
                 ENVIRONMENT, GENERAL ACCOUNTING OFFICE

        Mr. Hill. Thank you, Mr. Chairman. Thank you for the
    opportunity to discuss our work on the BIA regulatory process
    for federally recognizing tribes.
        You introduced, Jeff Malcolm, our assistant director
    responsible for most of our Indian issues related work. Also
    accompanying me today is Mark Gaffigan who provided the
    leadership and the work that resulted in the report we issued
    last year.
        If I may, I would like to briefly summarize my prepared
    statement and submit the full text for the record.
        The Chairman. Your full statement will be made a part of
    the record.
        Mr. Hill. As you know, the Federal recognition of an Indian
    tribe can have a tremendous effect on the tribe, the
    surrounding communities and the Nation as a whole. There are
    currently 562 recognized tribes and several hundred additional
    groups seeking recognition. Recognition establishes a formal
    government-to-government relationship between the United States
    and a tribe. It also entitles the tribe to participate in
    Federal assistance programs and in some instances, exempts
    tribal lands from State and local laws and regulations.
        In 1978, BIA established a regulatory process intended to
    provide a uniform and objective approach to recognizing tribes.
    We issued a report last November evaluating this process and
    recommending ways to improve it.
        In summary, we reported the basis for BIA's tribal
    recognition decisions is not always clear. While we found
    general agreement on the criteria that groups must meet to be
    granted recognition, there is no clear guidance that explains
    how to interpret key aspects of the criteria. In particular,
    guidance is lacking in instances when limited evidence is
    available to demonstrate petitioner compliance with criteria.
    The lack of guidance in this area creates controversy and
    uncertainty for all parties about the basis for decisions
    reached.
        For example, recent controversy has centered on the
    allowable gap in time during which there is limited or no
    evidence that a petitioner has existed continuously as a tribe.
    The regulations state that lack of evidence is cause for denial
    but note that historical situations and inherent limitations in
    the availability of evidence must be considered.
        In writing the regulations, the Department intentionally
    left key aspects of the criteria open to interpretation to
    accommodate the unique characteristics of individual petitions.
    For example, the regulations do not identify the permissible
    interval of time during which a group could be presumed to have
    continued to exist if the group could demonstrate existence
    before and after the interval. Leaving key aspects open to
    interpretation increases the risk that the criteria may be
    applied inconsistently to different petitioners.
        To mitigate this risk, BIA's technical staff relies on
    precedence established in past decisions to provide guidance in
    interpreting key aspects in the criteria. While this appears to
    be a reasonable approach, there is no clear guidance on how
    precedent should be used in decisionmaking or the circumstances
    when it is appropriate to deviate from precedent. Nor is it
    clear how this information should be made available to
    petitioners, third parties and decision-makers who would need
    this information to understand the basis for past decisions and
    to make reasoned judgments about pending decisions.
        Ultimately, BIA and the Assistant Secretary will still have
    to make difficult decisions about petitions when it is unclear
    whether a precedent applies or even exists. Because these
    circumstances require the judgment of the decision-maker,
    acceptance of BIA and the Assistant Secretary as key decision-
    makers is extremely important. A lack of clear and transparent
    explanations of the decisions reached can cast doubt on the
    objectivity of decision-makers, making it difficult for parties
    on all sides to understand and accept decisions regardless of
    the merit or direction of the decisions reached.
        In our November report, we recommended that BIA develop and
    use transparent guidelines to help interpret key aspects of the
    criteria and supporting evidence used in Federal recognition
    decisions.
        In conclusion, the BIA's recognition process was never
    intended to be the only way groups could receive Federal
    recognition. Nevertheless, it was intended to provide a clear,
    uniform and objective approach and is the only avenue to
    Federal recognition that has established criteria and a public
    process for determining whether groups meet these criteria.
        However, weaknesses in the process have created uncertainty
    about the basis for recognition decisions and may keep the
    process from fulfilling its promise to provide a uniform
    approach to tribal recognition. Without improvements,
    confidence in the recognition process as an objective and
    efficient approach will erode and parties may look to the
    Congress or the courts to resolve recognition issues. This has
    the potential to further undermine the BIA's recognition
    process.
        This concludes my statement and we would be happy to
    respond to questions you or other members may have.
        [Prepared statement of Mr. Hill appears in appendix.]
        The Chairman. Mr. Hill, it has been suggested that the
    acknowledgment process is in need of reform. I gather you agree
    with that in part because interested parties are not able to
    affect the outcome of the determination. Based on your study,
    what is your opinion on the ability of interested parties to be
    able to affect the outcome of the present acknowledgment
    process? Are they kept out of the process or are they involved?
        Mr. Hill. When we did our work, we noted there was a
    problem in this area in that interested parties really only
    have access to the information that BIA has after the proposed
    decision has been put out there. They don't really have ready
    access to any of the information that is considered early in
    the process other than perhaps filing FOIA requests. The FOIA
    requests are really very time consuming from the staff's
    standpoint. They basically have to drop whatever work they are
    doing on the petition and start xeroxing copies of material and
    providing it to the interested parties.
        I think what needs to be done is some process that up front
    will allow third parties and interested parties to have earlier
    access to the information and to have earlier input into the
    process so there can be a greater sharing of information up
    front to avoid some of the problems in the back end of the
    process.
        The Chairman. Although it is slow, the information is
    available?
        Mr. Hill. All the information is not available in the early
    part of the process. Yes, it is available eventually but there
    are timeframes once the proposed decision is made that
    interested parties can react to that information. That is
    slowing down the back end of the process and probably resulting
    in a lot of uncertainties and disagreements with final
    decisions that are made.
        The Chairman. Is a reservation automatically established
    when a tribe is recognized through the BIA's administrative
    process?
        Mr. Hill. No; it is not. New tribes must petition BIA to
    have land brought into trust just like any other tribe. Until
    they do that, there really is no land that is considered to be
    the reservation.
        The Chairman. So this acknowledgment does not mean that
    land would automatically be placed into trust or that a tribe
    would be allowed to open a casino?
        Mr. Hill. That is correct.
        The Chairman. Once a newly recognized tribe acquires land,
    can it open a casino?
        Mr. Hill. No; not necessarily. Here again, the first step
    is they must bring land into the trust. That is a separate
    process after they have been recognized, and then second, the
    next step would be to get that land brought into the trust
    consistent and under the Indian Gaming Regulatory Act
    provisions that would allow gaming on the reservation. So it is
    actually three separate processes, the recognition decision
    process, the land trust decision, and then a gaming decision.
        The Chairman. Are the applications to place land in trust
    receiving automatic approval?
        Mr. Malcolm. No; they are not. There is also a different
    section in the Federal regulations dealing with land into trust
    decisions and that process also calls for the participation of
    State and local communities affected by that.
        Probably the biggest difference in that decision in
    contrast to a recognition decision is in a recognition
    decision, the input of third parties really goes to the
    criteria, has the petitioner submitted information relevant to
    the criteria being met or not met. A lot of the parties comment
    on the impact it is going to have down the road for land into
    trust decisions but under the land into trust regulations, how
    the local community is going to be impacted, that is, their tax
    base when the land is put into trust, it is in that process
    that those effects of the surrounding communities can and is
    taken into account in the decision to take land into trust.
        The Chairman. It has been suggested that the only lands to
    be placed in trust should be lands that are the tribes
    ancestral lands. As you know, most Indian tribes are located in
    places where they were force to relocate such as the Cherokees
    were forced to leave the Carolinas to go to Oklahoma. What sort
    of result would that bring about? Say my tribe has been located
    in one area of the county but my tribe was originally from two
    States away four generations ago my tribe was forced to move.
    The same thing happened all over California, as you know.
        Mr. Malcolm. This is an issue the BIA is trying to address.
    They have been trying to update their regulations on land into
    trust decisions as well as issuing regulations dealing with
    acquiring land for gaming purposes within those proposed
    regulations that were issued earlier in final form that have
    since been withdrawn for further review and comment, but in
    those regulations, one of the factors is the establishment of a
    tribal acquisition area. So in negotiation with the Assistant
    Secretary a tribe would define a geographical area that it
    could have a targeted acquisition plan within. So in the cases
    you are mentioning, hopefully that will be addressed in the new
    regulations for land into trust.
        The Chairman. In your studies of the acknowledgment
    process, is it correct that the average length of time taken
    for some sort of resolution of a pending petition is about 10
    years. Is that correct estimate from the time a letter of
    intent is filed?
        Mr. Gaffigan. A lot depends on whether you consider all the
    letters that first came in and what universe you choose but I
    think 10 years a good estimate. In fact it is probably on the
    low end, especially as you get to the later petitions that have
    become more and more contested.
        The Chairman. So it could be higher?
        Mr. Gaffigan. Absolutely, especially on an individual
    basis. Again, it depends on how controversial a particular case
    is. Some have been settled in a rather minimal time, and others
    in much more than 10 years.
        The Chairman. The case in point, the Eastern Pequots'
    petition was filed about 24 years ago?
        Mr. Gaffigan. The letter of intent was filed and when they
    actually got their petition in and that sort of thing, I would
    have to look at the different dates but that is the beginning
    of the process, this letter.
        The Chairman. So they have been persistent?
        Mr. Gaffigan. Very persistent.
        The Chairman. Thank you.
        Mr. Vice Chairman.
        Senator Campbell. Mr. Hill, you heard the BIA testify that
    they are considering putting some documents on the website. Do
    you support that? Would that help with transparency? Do you
    think that would be good?
        Mr. Hill. We have not seen specifically what their proposal
    is but certainly in concept, anything you could make accessible
    to third parties and to the communities early on in the process
    and easy to access like that would be a step in the right
    direction, yes.
        Senator Campbell. If you had two groups of people and they
    had a 70-year gap in their existence and wanted to be
    reinstated as a tribe, one of the groups through no act of
    their own was forced to give up their language and all these
    things you have heard about over and over, put their kids in
    boarding school and beat them when they spoke the language, cut
    their hair, did all that, one was intentional discouragement of
    that tribe by the Federal Government, that is one group.
        Then you have another group that simply let it die, didn't
    care, didn't keep up with it. Towns built around them and they
    sort of assimilated and went their own way, didn't keep track
    of anything.
        With those two groups, it looks to me they are going to
    have obvious outcomes when they put in their petitions. One
    simply won't have a lot of the information but the other might
    because if it was government orchestrated, there were still
    records in the government. Isn't that a justifiable difference
    in the outcomes based on those historic situations?
        Mr. Hill. Yes; I think you have pointed out the difficulty
    of this entire process. The seven criteria used are pretty
    clear-cut and well accepted by everyone. It is the
    interpretation of those criteria, the extent to which you need
    to document the evidence you need to provide that demonstrates
    you have met each of those seven criteria where it really gets
    to be a judgmental type of thing. There are circumstances like
    you mentioned that exist. That is where good judgment, good
    reason needs to come into play.
        On the other hand, I guess what we are saying is when you
    make these interpretations, there is a legitimate
    interpretation needed here, and there needs to be some history
    of that, some explanation of that. That is where we say there
    needs to be some kind of guidance. When you make a decision or
    interpretation like that, you need to be more open about the
    reasons, the justification you are making to make that final
    decision so you can develop over the years a history or a case
    law almost of this process that other petitioners, other
    decisionmakers could use and say this situation is similar to
    this situation in the past and here is how the judgment was
    made and we are going to do this consistently with that
    precedent or if you are going to deviate from the precedent, be
    open about that as well, here is why we are deviating from what
    was a precedent in the past. That is not occurring right now
    and because of that, there is a lot of uncertainty, appears to
    be a lot of inconsistency and a lot of confusion out there on
    the part of not only petitioners but the communities and States
    as well.
        Senator Campbell. Senator Inouye asked you several
    questions dealing with recognition and putting land into trust
    and moving on to apply for some gaming provision. You might not
    have the answer to this but I am interested in that one, two,
    three scenario. People seek recognition, then the other shoe
    drops somewhere after that and they want a piece of land,
    historic land or not, and many then move to develop gaming.
        How many or do you even have that information of people in
    the past who have sought recognition, how many have then gone
    on to seek land, to put land in trust and of those how many
    have gone on to try to establish a casino on that land? Do you
    have any information along that line at all? Would you say all,
    one or two, or what?
        Mr. Malcolm. We don't have any current information on that.
    We did provide information to the committee I believe in 1999
    or 2000 that looked at the land that had been acquired since
    IGRA was passed in 1988 and how much land had been brought into
    trust. At that time, we identified roughly five or six tribes
    that had been recognized since IGRA that had brought land into
    trust.
        Senator Campbell. Five or six out of how many that were
    recognized?
        Mr. Malcolm. Under the regulatory process, currently it is
    about 15 but this is only land for gaming, not land generally
    into trust. This would be based on my experience, the majority
    would eventually seek to get land into trust. A much smaller
    number of those do go on to open casinos.
        Senator Campbell. Thank you. No further questions.
        The Chairman. While listening to you I couldn't help but
    recall that my studies of our relationships with the native
    Americans would indicate that anthropologists estimate that
    there were about 30 to 50 million native people residing in the
    continental United States before the first Europeans come to
    these shores. However, there action untaken by the United
    States that we now refer to as the Indian wars. After those
    Indian wars, there were only 150,000 native people who survived
    those wars and they were scattered from here to there like the
    Cherokees were sent to Oklahoma, Apaches to Oklahoma, the
    Seminoles to Oklahoma.
        One of the requirements of the acknowledgment process
    requires documentation of the tribe's existence and I have
    always wondered how a tribe can prove it's existence when you
    have been tossed around like this, your tepees burned, your
    homes burned, your leaders massacred and I am surprised that
    with that historical background, we have been able to resolve
    any of these cases. Do you have any comment to make?
        Mr. HIll. I don't know if my colleagues want to weigh in on
    this but I will make a general comment that the point you are
    raising is a very, very legitimate point and it is an
    understandable problem where you have these seven criteria. It
    is not easy for these tribes and petitioners to provide the
    documentation for the reasons you cited and other reasons.
        The Chairman. Who has the documentation?
        Mr. Hill. In some cases, the documentation just doesn't
    exist, there was no documentation.
        The Chairman. If you do, it is in the hands of non-Indians
    hands, isn't it?
        Mr. Hill. It could be. It could be, or it would not exist
    at all but I think it is a legitimate problem and here again, I
    think that is where good judgment and reason needs to come into
    play and interpretations have to be made of these criteria in
    terms of whether a tribe satisfies any particular criteria.
        Mr. Gaffigan. I would just add as Mr. Hill pointed out, the
    situations and the regulations have been written this way that
    there is a lot of leeway built in in terms of you don't
    necessarily have to have written evidence of all these things
    going back because that doesn't exist. It is a question of what
    kind of documentation is acceptable. That is where you get into
    controversy and concerns we had in terms of what are the
    precedents for what is acceptable to deal with the situation
    when records are not there or the situation Senator Campbell
    outlined where there was a 70-year gap and you had the two
    differences.
        The Chairman. To put it mildly, it is confusing, isn't it?
        Mr. Hill. It is challenging and it is of great concern in
    that there are a lot of interested tribes and groups that have
    submitted letters of intent, a lot of petitioners waiting for
    decisions and it is frustrating and challenging. It is
    something I think needs to be fixed, the process needs to be
    improved, these obvious weaknesses need to be corrected and
    good, fair, objective, and consistent and visible decisions
    need to be made.
        The Chairman. We have taken your report very seriously, Mr.
    Hill.
        Senator Campbell. One more question before you excuse this
    panel. When you use the word documentation, you know as well as
    I that implies there is something written in black and white
    but that is not the way Indian history worked. They didn't have
    black and white, didn't do written documentation but most
    historians, at least those I have talked to, say verbal history
    qualifies as criteria for establishing what happened as well as
    the written word. What is your view on that?
        Mr. Hill. I think that is correct. When we say
    documentation, we're saying if there is written documentation,
    that certainly needs to be provided, but where there is no
    written documentation, then you need to provide whatever
    evidence would support that particular criteria.
        Senator Campbell. Accepted knowledge within the Indian
    community or something like that would also qualify?
        Mr. Hill. Again, we are not experts in terms of making
    these determinations but certainly those circumstances would
    exist and good reason and good judgment have to come into play
    here.
        Mr. Malcolm. That is correct. Oral testimony specifically
    regarding social and political interactions, you need to know
    who were the people involved in these social gatherings. The
    only way to really find that out is to talk to those involved
    as well as the political influence that either elders or other
    tribal people asserted in the community and oral testimony is
    certainly the best way to ascertain a lot of that information.
        Mr. Gaffigan. I would just add that the BAR within the BIA
    has also indicated they do use oral history and suggested in
    their guidelines that is acceptable.
        Senator Campbell. Thank you.
        The Chairman. Thank you very much. May I suggest if you do
    have addenda to make or corrections, the record will be kept
    open just for 48 hours because we have assured the delegation
    from Connecticut that we would act upon this as expeditiously
    as possible. Once again, thank you very much, you have been
    very helpful.
        Our next witness is the Attorney General of the State of
    Connecticut, Richard Blumenthal and the First Selectman of the
    Town of North Stonington, CT, Nicholas Mullane, II, accompanied
    by the District Director of Congressman Simmons, Jane
    Dauphinais.
        Attorney General Blumenthal, welcome, sir.

      STATEMENT OF RICHARD BLUMENTHAL, ATTORNEY GENERAL, STATE OF
                              CONNECTICUT

        Mr. Blumenthal. Thank you very much.
        If I may join my two distinguished U.S. Senators in
    thanking you, Senator Inouye, for your constant and continuous
    help to our State over the years. I know you are indeed a
    friend of Connecticut and I don't anticipate any special
    treatment here as a result but I do want to express my thanks
    to you for this opportunity, especially to testify here which
    in a way I think marks a milestone. I will submit written
    testimony with your permission but briefly summarize what I
    have to say.
        The Chairman. Your statement will be made a part of the
    record.
        Mr. Blumenthal. Today really marks a milestone because I
    think it recognizes that this system is indeed broken and needs
    to be fixed. I have said so for some years and that phrase,
    indeed the sentiment itself, now seems to have much more
    widespead force and momentum than ever before.
        There is a consensus and I hear it from everyone in this
    room except the BIA itself that there needs to be fundamental
    and far reaching change. The question really is when and how,
    not whether.
        I very much respect the sentiments that have been expressed
    by a you and Senator Campbell about some of the disadvantages
    of a moratorium at this point but I do believe the case has
    been made that these decisions should be held so the system can
    be given greater sanity and sensibility as Senator Dodd said on
    the floor of the Senate, greater clarity and transparency and
    fairness which are important now not just in the future.
        What we will see in the absence of reform is growing
    numbers of Federal court takeovers. We have seen it in other
    areas where the political process failed to act promptly and
    fairly. In this instance, we see it already in the State of
    Connecticut where three of the petitioning groups, including
    the Eastern Pequots and also the Golden Hill Paugussets and the
    Schaghitcokes now are within the Federal court jurisdiction and
    the fact of Federal court takeovers is a very profound sign of
    the failure of the current system. Essentially this system now
    is lawless and that is the reason the courts have taken over.
        We sued the BIA, we have never sued any tribe, because we
    were denied essential information when it was critical to our
    representing the people of the State of Connecticut, their
    interests and the public interest. Your point, Senator Inouye,
    about the information eventually being available is true. To be
    useful, it has to be provided before the decision is made. It
    cannot be afterward despite the availability of the appeal
    process which we are using in the Eastern Pequot situation.
        The fact of overruling staff decisions is another sign that
    the system is broken and needs to be fixed. Again, it isn't
    only a single instance. The pattern is documented by the
    Department of the Interior itself in the Office of Inspector
    General report prepared in February 2002 that in its very first
    finding cites six instances, two of them almost leading to
    criminal prosecution where staff was overruled.
        It isn't the fact of staff being overruled. I am an elected
    official. I overrule my staff on occasion when I disagree with
    them but it has to be for reasons that are based in law and
    fact, not simply arbitrary and capricious preferences, personal
    preferences on the part of the political official. That is the
    problem that has been found time and again in this process.
        Again, the transparency and clarity of the entire process
    really needs to be improved so that public credibility and
    confidence will be sustained and continuing court takeovers can
    be avoided.
        There has been no significant effort within the BIA to
    reform the process and testimony you have heard here today
    reaffirms its resistance to change. That is another reason that
    reform by the U.S. Congress is necessary, not only for the
    public interest but so that its powers will be reasserted.
        As you have heard in the past, the question of delegation
    of that authority is very much at issue, has not been resolved,
    remains open and the authority of the BIA is subject to serious
    question and could be questioned in continuing litigation.
        Let me summarize by saying that the current system does not
    provide the kinds of rights that the Dodd-Lieberman
    legislation, S. 1392 and S. 1393, provide. For example, there
    is no provision for a hearing. Yes, there are provisions for
    technical assistance meetings. There was one in connection with
    the Eastern Pequot decision but it does not provide the same
    kind of opportunity to establish a record and to be heard for
    the interested parties. Similarly, the standard of proof is
    vitally important as is the explanation in writing, meeting
    criteria with specific evidence, summarizing how the criteria
    are met.
        I believe very strongly that there is a central principle
    here which is that tribes that meet those criteria ought to be
    recognized. I am not here to advocate that sovereignty, the
    status of sovereignty, be changed in any way. In fact, my
    respect for the sovereign status that comes with recognition is
    one of the reasons that reform is vital because tribes that
    meet those criteria should be accorded that sovereign status.
    Those groups that do not meet it, should not receive
    recognition.
        I believe ultimately there ought to be an independent
    agency. These decisions are so profoundly important, so far
    reaching in their ramifications, wholly apart from casino
    gaming issues that they deserve an independent agency as we
    have established for the communications industry, the Federal
    Communications Commission or the Securities and Exchange
    Commission, or the Federal Trade Commission. All are very
    compelling precedents for a process insulated as much as
    possible from the improper influences of money and politics
    which too often have prevailed in Indian recognition decisions.
    There are also precedents for staggered terms, nonpartisan
    members and for rules that essentially provide fairness,
    transparency, objectivity so that the credibility and integrity
    of the process is preserved.
        Thank you very much.
        [Prepared statement of Mr. Blumenthal appears in appendix.]
        The Chairman. Thank you very much, sir.
        May I now call upon the First Selectman, Mr. Mullane.

      STATEMENT OF NICHOLAS MULLANE, II, FIRST SELECTMAN, TOWN OF
    NORTH STONINGTON, CT, ACCOMPANIED BY JANE DAUPHINAIS, DISTRICT
               DIRECTOR, CONGRESSMAN SIMMONS, NORWICH, CT

        Mr. Mullane. First, I want to thank you for holding this
    hearing. It is greatly appreciated.
        My name is Nicholas Mullane, the First Selectman of the
    Town of North Stonington, CT. I testify today also on behalf of
    Wesley Johnson, Mayor of Ledyard, and Robert Congdon, First
    Selectman of Preston. They are here present today in the room.
        Our three towns are the location of the giant Foxwood
    Casino of the Mashantucket Pequot Tribe and the immediate
    neighbor of the Mohegan Sun Casino. We have experienced
    firsthand the impacts and problems which follow tribal
    recognition and the development of Indian gaming. Our costs to
    our communities and the resulting conflicts have been
    significant and damaging to our towns.
        I want to note specifically for the committee that at the
    beginning of our struggle some 10 years ago, we did not enjoy
    the interest or support of many of our elected officials.
    Today, years later, problems associated with Federal Indian
    policy threaten to overwhelm the State. As a result, the
    concerns I express today I believe are shared on a non-partisan
    basis by virtually our entire U.S. House delegation, the two
    Senators from Connecticut, the Attorney General, many
    communities, business organizations and now the Governor of
    Connecticut himself.
        Our State is facing at least one and possibly several
    additional tribal acknowledgments. If casino development
    follows, the impacts would overtax our existing infrastructure
    and cause unacceptable impacts statewide.
        Although there are many issues I would like to bring to
    your attention today, my testimony focuses on the
    acknowledgment process. We are now contending with BIA's
    determination to acknowledge the Eastern Pequot Tribe by
    combining the acknowledgment petitions of two groups both of
    whom are longstanding rivals of each other. This unprecedented
    and unwarranted acknowledgment will be appealed by our towns
    and the Attorney General of the State of Connecticut, the
    Governor also supports the appeal.
        In a situation where serious community impacts have been
    caused by the new tribes and their gaming operations, it is
    essential that the tribal acknowledgment process not only be
    fair, open and also command respect. This is clearly not the
    case now and will not be the case in the absence of serious
    reform. True reform must be far more meaningful than
    streamlining.
        This committee is considering a series of measures, some of
    which have been introduced by members of the Connecticut
    delegation to address the shortcomings of the process. Few
    doubt the need for reform but the details of the actual reform
    remain in doubt. As a result, we offer the following five
    principles for reform of the acknowledgment process for your
    consideration.
        First, it is the position that Congress alone has the power
    to acknowledge the tribe as never been delegated that power to
    the Executive branch, BIA, nor has it set the standards for BIA
    to apply. In carving out the power, Congress must decide who
    must make these decisions and set rigorous standards.
        Second, the acknowledgment procedures which have been
    invented by the BIA do not provide an adequate role for
    interested parties, nor do they ensure objective results.
        Third, the acknowledgment criteria must be rigorously
    applied.
        Fourth, if Congress is to debate the power of the
    acknowledgment to the Executive branch, it should not delegate
    this authority to BIA. The BIA process has evolved into a
    result oriented system which at the minimum is subject to the
    bias inherent with having the same agency charged with
    advancing the interest of Indian tribes, also making the
    acknowledgment decisions.
        The process is also subject to political manipulation. An
    independent commission created for the purpose would have the
    same shortcomings unless checks and balances are imposed to
    ensure objectivity, fairness, full participation by all
    interested parties and the absence of political manipulation.
        Fifth, because of the foregoing problems, it is clear a
    moratorium on the review of the acknowledgment petitions is
    urgently needed. The purpose of reforming the acknowledgment
    process, S. 1392, is a good place to start, presently excellent
    ideas for further public debate and congressional review. We
    must say, however, that even more drastic reform is called for.
        S. 1393 also contains essential elements of a reform system
    by helping to level the playing field and providing assistance
    for local governments to participate in the acknowledgment
    process. We believe the dialog which can result from the
    decisions of these two bills and the proposal for a moratorium
    can ultimately result in a fair objective and most important, a
    credible system.
        Our towns look forward to working with you and your
    committee to achieve these goals and end results. I want to
    thank you for allowing me to testify today.
        [Prepared statement of Mr. Mullane appears in appendix.]
        The Chairman. Thank you.
        Mr. Attorney General, has the State of Connecticut
    participated in the Federal acknowledgment process in the
    Pequot case?
        Mr. Blumenthal. We have, Senator.
        The Chairman. You have I believe through the Selectman
    announced your intention to appeal the present decision,
    correct?
        Mr. Blumenthal. We announced our decision last week with
    the representatives, two of the selectmen and I believe a third
    has indicated his town may well join us. There are other towns
    around the State that may well support us.
        The Chairman. In this case, as you indicated, you have been
    afforded the opportunity to participate in the pending cases?
        Mr. Blumenthal. Only after we went to court, Senator.
        The Chairman. Were you aware that you were authorized to
    participate?
        Mr. Blumenthal. We not only were aware that we were
    authorized to participate, we did indeed seek to participate.
    We were denied documents that were essential to our
    participating, including the petition itself. In other words,
    we were participating in a process when we didn't have the
    basic application for acknowledgment from the tribe itself. We
    were excluded from interviews which were perfectly proper in
    and of themselves to establish oral history, we were denied
    other opportunities to participate in a meaningful way and in
    the meantime, there were private and secret sessions, meetings
    between representatives of the petitioning groups and the staff
    of the BIA, indeed, we believe the political appointees of the
    BIA. As recently as a number of weeks ago, an ex parte meeting
    occurred between the BIA and the petitioning groups.
        So there are profound and serious irregularities that we
    believe tainted this process as you have heard from the GAO and
    as has been documented by the Inspector General's report of the
    Department of the Interior itself.
        The Chairman. Do you believe this moratorium or the bills
    before us should apply to those petitions subject to court
    orders and ongoing adjudication?
        Mr. Blumenthal. Do I believe they would lead to additional
    court orders?
        The Chairman. No; do you think that the proposed moratorium
    should be imposed upon those petitions that have reached the
    stage where a finding has be issued, or are in the appeal
    process? In one case they have been waiting for 24 years.
        Mr. Blumenthal. I appreciate your question. First, I agree
    with the critics who say that these decisions absolutely need
    to be more timely, the BIA needs and deserves more resources.
    There have actually been reductions, as you well know, in
    resources by about 35 percent over recent years when the
    numbers of petitions have increased. I think there needs to be
    an increase in resources to address the delays that have
    occurred in the past.
        The moratorium, in my view, should be even-handed and
    equally applied to all petitions at whatever stage they are as
    long as they have not reached finality. That would include the
    petitions currently within the courts. I believe the courts
    would respect the will of Congress in that regard. Indeed the
    courts have sought guidance from the United States Congress and
    have intervened only because of the confusion, uncertainty,
    claims of partiality and prejudice by various parties.
        The Chairman. What do you mean by finality?
        Mr. Blumenthal. By finality, I mean a decision that
    remains--that has reached the point where it is no longer
    contested, where it is no longer on appeal, where there have
    been findings, not proposed but final findings and a
    determination of recognition that is no longer contested.
        The Chairman. In other words, the Eastern Pequot case would
    reach finality when the Supreme Court of the United States
    issued a judgment?
        Mr. Blumenthal. I hope it won't take that long or go that
    far, Senator, because I think that some of the errors in the
    findings will be readily apparent to the Interior Board of
    Indian Appeals or to the Secretary of the Interior.
        The Chairman. So in this case, the moratorium may last for
    a long, long time then?
        Mr. Blumenthal. No; the moratorium, as I understand the
    bill, would last only as long as it takes for the Department of
    the Interior to accomplish those steps that are provided, for
    example, to codify the regulations.
        I agree, by the way, with Senator Night Horse Campbell that
    parties, including tribes themselves, should be given an
    opportunity to comment before the codification. I read your
    comments on the floor of the Senate, Senator, and I strongly
    agree that in the past, neither they nor other interested
    parties perhaps had been given sufficient opportunity to
    comment, but I think that codification could be accomplished in
    a very timely way as well as the other provisions for notice
    and information, the standardization of the burden of proof,
    the requirement for explaining the final decision. It would be
    a time measurable in months, not years.
        I strongly agree with the GAO that the lack of clarity in
    many of those criteria would be addressed through that process
    of codifying the criteria and would not be unduly burdensome in
    terms of time.
        The Chairman. Mr. Attorney General, do the laws of
    Connecticut allow third party intervenors to demand trial type
    hearings of the kind contemplated in S. 1392, the bill before
    us, including the right to cross examine witnesses when they
    wish to oppose the granting of land use permits by State and
    local land use regulatory authorities?
        Mr. Blumenthal. Most land use authorities in Connecticut
    and elsewhere are local and there are very broad rights for
    third party intervention.
        The Chairman. Can they demand trial type hearings, to cross
    examine witnesses?
        Mr. Blumenthal. In some instances, certainly they can.
        The Chairman. Is that the law of Connecticut?
        Mr. Blumenthal. And indeed they can appeal those decisions
    in many instances to our State trial court, our Superior Court,
    and seek and be granted that kind of status. I guess what I am
    saying is there is nothing novel or original about the idea of
    hearings, especially in a matter of such importance where
    interested parties are already recognized. If I may
    respectfully add a suggestion, if you are leading to a concern
    that perhaps this process of hearings might be unduly
    burdensome in time or cost, perhaps one of the solutions would
    be to provide for better definition of the interested party
    status.
        The Chairman. In your testimony, Mr. Mullane, you state
    that the Mashantucket Pequots have opened a casino and have not
    addressed the impacts of that operation on your community.
    Isn't it true that the Pequots and the Mohegans in the last
    decade or so have paid into the Treasury of the State over $2.2
    billion and the State has the authority to distribute the
    monies to communities at their discretion without any Indian
    direction?
        Mr. Mullane. That is true, sir, there has been a
    substantial amount of money on a contract between the State of
    Connecticut and the Mashantucket Pequot Tribe where a franchise
    fee was established and the State of Connecticut has received a
    substantial amount of money. Until this year, there was no
    consideration in regard to the local impacts on the
    communities, nor did the tribal nation give any consideration
    to that whatsoever. So there is a contract agreement between
    the State of Connecticut and the Mashantuckets and they do
    convey land for the slot machine franchise and that money is
    distributed by the State.
        I am a small town of 5,000 people and have I would say one-
    third of a representative and my other gentlemen have the same.
    It is very difficult for us to advocate to the State the type
    of impacts we have. Recently, the State of Connecticut and the
    legislature who ultimately approves that money, has
    acknowledged that the towns, North Stonington, Preston,
    Ledyard, and others in the area, have endured significant
    impacts from the casinos and made some correction to that
    providing of funds for impact aid.
        The Chairman. So your concern was not one that could be
    addressed by the Indian nations, it had to be addressed by the
    State, correct?
        Mr. Mullane. In actuality, in the early 1980's, Skip
    Hayward acknowledged that the development of a casino was going
    to cause significant impacts to the local communities with
    infrastructure, fire, ambulance and police and committed that
    they would provide some support. That was never forthcoming. I
    want to identify that there are small rural roads, the traffic
    in front of my town on the road to the casino went from 8,800
    cars a day to 27,000 cars a day. I went from a full volunteer
    ambulance to a full paid ambulance. I had to implement
    incentive programs for the fire company. I went from one
    resident trooper to two resident troopers to three resident
    troopers and added $50,000 worth of overtime just for special
    events, active weekends and things like that. The town has been
    basically overwhelmed in areas of emergency service, fire and
    police, ambulance and other items. I could go on and provide
    you a list. The estimated cost to my town is somewhere around
    $500,000 to $600,000 a year for additional emergency services,
    impact, highway infrastructure and other things.
        The Chairman. Have you received any funds from the State
    Impact Fund?
        Mr. Mullane. Yes; I have. They did last year through a
    grant program provide $250,000 and this year they identified I
    believe about $486,000. There is also a fund which disburses
    the impact, the Pequot Fund, throughout the State.
        The Chairman. How much is the Pequot Fund?
        Mr. Mullane. I am going to guess. I believe it is $85
    million that is distributed throughout the State. That is on a
    formula which identifies nothing really to do with impact. It
    has to do with the sharing of the funds to the municipalities
    from the income of the casinos.
        The Chairman. These funds are insufficient to assist you in
    meeting the extra burden or the impact it has upon your
    community?
        Mr. Mullane. Let me read you a quick sheet. The traffic
    through town increased from 8,800 to 27,000 cars a day,
    increased not only on the primary roads but the secondary
    roads; the increased traffic brings traffic violations of
    everything from DWI to accidents. We had to pass an ordinance
    on 7 roads to bar tour buses from roads that are basically 23
    to 24 feet wide. I have closed two houses of prostitution, one
    with immigration violations. I closed one palm reading shop. I
    now have one pornographic superstore. Our ambulance is now full
    paid, manned by volunteers. Our troopers went from one to three
    plus added overtime. The DWI in southeastern Connecticut is the
    highest in the State. Gamblers Anonymous has the highest calls
    in the State. The embezzlement rates have increased from 2 to 3
    percent in the areas. The 911 dispatching fees have increased
    significantly. We have had to implement the incentive programs
    for both volunteer fire and ambulance, the Highway Department
    has a loss of efficiency because of the use of our secondary
    roads because of all the patrons and employees and everybody
    else that is now using secondary roads.
        We have empty businesses on Route 2. Although the traffic
    has improved and increased two or three times, we have empty
    restaurants. The people don't stop. I like to compare it to
    something like Fenway Park. You go to a ballgame, you have a
    hot dog, you have a hamburger, and you leave. So the town has
    gotten significant impacts and only this year has the State
    started to recognize that but there has been the past ten years
    that there has been absolutely no consideration whatsoever.
        The Chairman. I presume your town is close to the
    Mashantucket Pequot Casino?
        Mr. Mullane. I beg your pardon?
        The Chairman. I suppose your town is close to the casino?
        Mr. Mullane. It sits on our western boundary right in the
    corner of North Stonington, Preston, Ledyard. You could
    probably throw a rock from each town to their property.
        The Chairman. Are any of your citizens or residents
    employed in the casino?
        Mr. Mullane. Yes; they are.
        The Chairman. A small number?
        Mr. Mullane. Yes; it is a small number. We are a small
    town. We have basically 5,000 people. I would attempt to guess
    there is probably 3,000 of those who are employable. I don't
    know the exact numbers of which are employed at Foxwoods.
        The Chairman. Can you guess?
        Mr. Mullane. The last time I saw a number, I think it was
    200.
        The Chairman. Thank you very much. Your testimony has been
    extremely helpful.
        Mr. Mullane. Could I make one comment? You asked several
    questions about the length of the Eastern Pequot petition. I
    want to call to your attention at the BIA formal hearing in I
    believe 2000. The BIA researchers made a comment to the Eastern
    and the Paucatuck Easterns and they said them, I can't quote
    exactly but I'll give you the intent, you have not responded
    for the additional information that was identified to you in
    approximately 1990 which was called the letters of deficiencies
    and it was my understanding at that time that they were
    basically telling the petitioners you haven't overcome your
    deficiencies, you have not provided the additional information.
        The substantial information that was provided that the BIA
    researchers then said you have provided the additional
    information and then they ruled was not supplied until
    September I believe of 2001. There is a grave problem in BIA
    being the advocate for the native American and being
    sympathetic with an application and maybe not being very
    straightforward in telling them you haven't supplied the
    information, your petition really shouldn't be on active
    status. That is an injustice to somebody who is waiting in
    line, who does have a full, complete petition and should be
    reviewed.
        This is why in my comments when I said it is very difficult
    for BIA to be an advocate and also be an impartial judge. The
    impartial judge would also be one that would say you don't have
    adequate information, you haven't provided it, you haven't done
    the research or you are just filibustering the issue. So
    although I am very sympathetic with somebody who has waited a
    long time, we must be realistic about whether or not they have
    submitted a complete application, a complete file for BIA to
    properly rule on.
        The Chairman. Thank you very much.
        Mr. Vice Chairman.
        Senator Campbell. Since Assistant Secretary Martin has not
    left, with your permission, if I could ask her a question. We
    are dealing with two things. One is the Dodd bill, one is the
    Dodd amendment we have on the floor in the Interior
    Appropriations bill. I know how slow things work around here
    and I would like to ask Ms. Martin if we passed either one of
    them, how long would it take to implement the thing? I have
    known some agencies taking 2 years to implement a bill when we
    passed it here.
        Ms. Martin. We are not entirely sure but we believe both
    the amendment and the bill, if passed and signed into law,
    would require us to promulgate regulations and regulations can
    take a good deal of time, especially where they are in a
    controversial area like the recognition process. Regulations
    would require tribal consultation. I can't give you a definite
    timeframe but I do believe it would probably take well over 1
    year.
        Senator Campbell. For either one if we passed the Dodd bill
    or if we passed the amendment to the Interior appropriations
    bill, it would take perhaps the same amount of time?
        Ms. Martin. That would be for both, yes.
        Senator Campbell. I appreciate that because in all
    deference to our colleague, Senator Dodd, I thought time was of
    the essence and that is why the amendment was proposed to try
    to move this thing forward a bit faster than a bill would have.
        I have to take exception with a couple of comments and I am
    sure Mr. Mullane didn't mean it this way but just for the
    record. When he talked of all the negative sides of the Pequots
    being in the business they are in, which is casino gambling,
    when you talk about the pawnshops that have sprung up, the
    increased crime, the prostitution, things of that nature, let
    me tell you, the Indians didn't cause those things, somebody
    else did and I think it is really a big mistake to imply that
    because the Indians set up a casino, those things have sprung
    up.
        It seems to me there is a responsibility on other peoples'
    part too and we see that all the time. I happen to be enrolled
    with the Northern Cheyenne of Montana. It is a dry reservation
    which means you can't drink on the reservation, no liquor is
    allowed on the reservation but if you go to any gate around the
    reservation to get on or to get off, there is a shantytown bar
    built literally at every area. You see that with some of the
    Sioux Reservations too. Not built by the Indians, built by the
    non-Indians to prey on somebody else. I want the record to
    reflect that a lot of these problems we face that are built
    around Indian reservations, Indians didn't have one damned
    thing to do with.
        Mr. Mullane. I agree with you 100 percent, sir. It was not
    the implication that the Indian community was condoning or
    encouraging that but I wanted to try to impress upon you that
    for a small community of 5,000 people with a basic annual
    budget, the general government and the school of $14 million,
    it has been very difficult. It does attract and that was the
    point I was trying to make.
        If an Indian group is recognized, if a reservation is
    established, I tried to make the point that you must have
    concern for what is going to happen outside and give us the
    resources and the opportunity to comment on that and correct
    those. We want to work together as a team on that and resolve
    that problem so that the casinos won't have that appearance.
        Senator Campbell. I appreciate your understanding because I
    think it is important to reflect that Indians historically had
    no prostitution, no alcoholism, no crime, no pawnshops, nothing
    like that in their historic context. If they do at all now, it
    is learned behavior and they didn't learn it from other
    Indians.
        Even at that, every tribe I know, every Indian I know would
    like to get rid of that from the whole society standpoint.
        I think if you go to Atlantic City, Las Vegas, or any city
    where gaming is a major industry, you are not going to find all
    positive impact. You are going to find increased infrastructure
    needs, all kinds of things. You mentioned a number of those. It
    seems to me whether it is Indian casinos the size of the
    Pequots or the Mohegans, and I have seen and visited them,
    there is a positive side to it too. The positive side is the
    majority of the people that work in those casinos are not
    Indians. They provide a lot of jobs for non-Indians.
        You mentioned the increased amount of traffic and cars. A
    lot of those cars are paid for by the salaries earned by the
    non-Indians working in the casinos as well as the taxes they
    pay on everything they buy and their income tax too to the
    local, State, and Federal Governments.
        It seems to me when you talk of all the negative impacts,
    there is a lot of positive impacts too from having those large
    casinos just as there is in Las Vegas. I know there is some
    philosophical opposition to gaming. We have some of our own
    colleagues who simply do not believe in gaming and some think
    it is okay and there is every level in between.
        From an industry standpoint, the places I have visited it
    seems to me the down side, the negative impacts have to be
    factored in somewhere with local government too, in this case
    maybe non-Indian. You mentioned the Pequot Fund was $486,000
    and that was this year?
        Mr. Mullane. Yes.
        Senator Campbell. So they give about that much to local
    government. Is that what you get filtered down through the
    State?
        Mr. Mullane. No. That is the State of Connecticut
    distributing the proceeds.
        Senator Campbell. But there are not casinos all over
    Connecticut, so why hasn't your local government gone to the
    State and demanded a larger share of that Pequot Fund if it is
    impacting in a negative sense your community more than it is
    some community clear across the State that doesn't have Indian
    gaming?
        Mr. Mullane. That has been a campaign that Mr. Johnson, Mr.
    Condon and myself have gone to the State every year and
    advocated and many did not understand it. Basically it was not
    in their town, they were not familiar with it, they were not
    aware of it. We had a very difficult time persuading them of
    the impacts and then to understand it. It is only recently that
    they have been able to better understand it and the Governor
    has now supported it and has included it in the budget.
        Senator Campbell. You need a better lobbyist.
        Mr. Mullane. There is room for debate on the lobbyist.
        Senator Campbell. Is that formula changed by your
    legislature or is it done through some rule within the
    administrative branch?
        Mr. Mullane. This year the Governor proposed impact aid to
    the host communities and it was debated, it was modified a
    little bit but basically approved.
        Senator Campbell. My personal opinion and advice would be
    to get more of that money already in that pool somehow to
    offset any negative impacts in your community.
        To your knowledge has any local town or interested party
    been denied the opportunity to submit materials in the
    consideration by the BAR process?
        Mr. Mullane. Would you repeat that?
        Senator Campbell. Has anyone in your local communities
    intentionally been denied an opportunity to submit material in
    the recognition process? You mentioned 1 minute ago that some
    might not know of the Pequot Fund, for instance. Is there a
    possibility some don't know they can submit testimony in this
    recognition process?
        Mr. Mullane. People have come to our annual town meetings,
    to our selectman meetings, council meetings and so forth and
    they have encouraged us, we have had individuals testify also
    but it has been mostly the chief elected officials who have
    announced in advance that we will go and they have left it upon
    us, and they have come to our local meetings and supported us
    and advocated for us to continue. It's been done in that
    manner.
        Senator Campbell. Attorney General Blumenthal, you
    mentioned irregularities and improprieties. In your testimony I
    think you used the word lawlessness. I think those are pretty
    strong words. I am not aware that the GAO concluded there were
    improprieties or certainly not lawlessness.
        With respect to the Inspector General's report, I
    understand they sought to clarify some of those
    misunderstandings and mistakes, inaccuracies and so on
    contained in some correspondence to you. That included a
    corrected statement that the BAR staff did not issue a letter
    of non-concurrence about the final decision on the Eastern
    Pequot petition. Are you aware of that correction they said
    they sent you?
        Mr. Blumenthal. I am aware of that correction, Senator, and
    the strength of my language is based on our experience with the
    process as well as those reports, principally the Inspector
    General's report, which includes a number of findings that I
    think support that experience as well as with other petitions.
        I might just say in response to your fair and very good
    question to Nick Mullane about submitting information, one of
    our complaints is that in fact we have been denied the
    opportunity to submit information, highly relevant information,
    as a consequence of arbitrary deadlines that were established,
    in fact deadlines that worked only one way, against the State
    or the towns and not against the petitioning parties.
        So I think there is a pattern that supports my contention
    and I would simply say you have said quite well that money is
    now driving this process and your questions as to how the State
    has compensated the towns that have borne the burden here I
    think raise the very fair question about whether the State has
    acted promptly and fairly in dealing with the burdens that
    localities have to endure.
        The point here is that money shouldn't be driving these
    decisions, it shouldn't be a matter of let's make a deal and
    recognition shouldn't go to the highest bidder or the tribal
    group that is able to muster the most dollars in support of its
    petition so that it presents the most effective case. It ought
    to be a principled and objective and transparent decision.
        Senator Campbell. Were you aware that the Connecticut
    congressional delegation recently asked the GAO to investigate
    the positive final determination issued by Assistant Secretary
    McCaleb?
        Mr. Blumenthal. I am aware of that.
        Senator Campbell. What exactly are they asking him to do,
    in your view, must speed up the process or more transparency in
    the process?
        Mr. Blumenthal. Again, my understanding of the
    congressional delegation's purpose or intent is to elicit facts
    that further support the contentions we have made about the
    violations of internal standards, regulations, as well as
    ethical rules that ought to have been followed and perhaps were
    not.
        Senator Campbell. Maybe my last question. I think you
    mentioned you plan to appeal the positive final determination
    for the Eastern Pequots. I know we are off the bill a bit but
    it is still Senator Dodd's amendment to the Interior
    appropriations bill, how would the Dodd amendment to the bill,
    the Interior appropriations bill, be affected by your appeal or
    would it?
        Mr. Blumenthal. I don't think the bill would be affected,
    nor would our appeal.
        Senator Campbell. Would it affect your appeal?
        Mr. Blumenthal. It might not. In fact, I can't claim to
    have a final answer on this one but as I think Deputy Assistant
    Secretary Martin mentioned earlier, many of the internal
    aspects of the process could continue. For example, our appeal
    could continue and there would be a moratorium on final
    decisions. No final decision could be issued but there would be
    nothing to stop the BIA from continuing its work on pending
    petitions. There are 200 of them, indeed 9 from Connecticut,
    and the BIA staff could continue on those petitions, but it
    would send a very strong signal that the Congress will insist
    on compliance with the criteria, that it must codify the
    criteria, establish a standard of proof, provide reasoned and
    complete explanations, assure that the criteria are met and in
    my judgment, would not necessarily require even the relatively
    short amount of time that the BIA has stated it would take.
    Regulations of equal complexity and importance are done in
    matters of months where they are required by Congress to do so.
    The Congress could well do so.
        Senator Campbell. I see. Thank you.
        Mr. Chairman, I have no further questions. I would like to
    apologize to both of our witnesses about some of my disjointed
    questions. I have never been encumbered with a law degree, so
    sometimes I get scattered around a bit.
        Mr. Blumenthal. There are some of us who wish we hadn't
    been so encumbered at some point in our careers.
        The Chairman. Gentlemen, I thank you very much.
        Mr. Mullane. I would like to make one more comment if I
    could. I want to read a paragraph I have looked at for many
    years.

        The serious significant of gaining Federal recognition also
    makes adherence to the Federal acknowledgment process a vital
    necessity. As we have stated previously in testimony before the
    Congress, Federal recognition establishes a perpetual
    government-to- government relationship between a tribe and the
    United States and has considerable social, political and
    economic implications for the petitioning group, its neighbors
    and Federal, State and local governments.

        This is a letter written by the Department of the Interior,
    William Battersby and goes back to 1992. I hope as we leave
    these hearings we can go forward as a team to understand that
    on the highest level of the Federal Government, the State level
    that I have along side of me, the local level and those tribes
    that get recognition, that we can work out a system and be able
    to resolve the differences and have addressed those problems
    that develop or those issues and be able to come to an amicable
    solution.
        If we resolve it now and spend the time, a year or two,
    maybe it won't take in somebody's eyes 24 years to recognize a
    tribe. Maybe it will be able to be done in an expeditious,
    professional, scholarly manner that the results can be accepted
    and that people will go away with the process and feel they
    have had fair involvement and have had their say, and that the
    process was equitable. If we are to have a process, that is
    what we should be looking to do.
        Thank you very much, gentlemen.
        The Chairman. Mr. Mullane, you can be assured that both of
    us are extremely serious and concerned about the issue before
    us. Mr. Attorney General, Mr. Selectman, we thank you very much
    for your testimony.
        Now, if I may call upon the final panel, tribal chairwoman
    of the Eastern Pequot Indians of Connecticut, Marcia Flowers
    and the tribal chairperson of the Duwamish Tribe of Burien,
    Washington, Cecile Hansen.
        Chairperson Flowers, welcome.

    STATEMENT OF MARCIA FLOWERS, TRIBAL CHAIRWOMAN, EASTERN PEQUOT
                         INDIANS OF CONNECTICUT

        Ms. Flowers. Thank you for giving the Eastern Pequot
    Indians of Connecticut an opportunity to speak on these two
    pending bills.
        My name is Marcia Jones Flowers. I am the chairwoman of the
    Eastern Pequot Indians of Connecticut. I also was the
    coordinator of the petition that was filed at the BIA.
        The Eastern Pequot Indians have occupied the Lantern Hill
    Reservation in North Stonington, CT since 1683 following the
    Pequot war of 1638. This reservation has been held in trust by
    the colony and then the State of Connecticut. Our people were
    under an overseer system from early 1800's and before. We were
    then under the welfare system of the State of Connecticut and
    then the Parks and Forest and the Connecticut Indian Affairs
    Council. We have always been under a colonial or State of
    Connecticut branch of government.
        Twenty-four years ago, the Eastern Pequot Indians submitted
    a letter of intent to the BIA for Federal recognition. This was
    before any Indian gaming was established. On June 24, 2002, the
    Assistant Secretary of the Department of the Interior issued a
    final decision to recognize the Eastern Pequot Indians of
    Connecticut as the historic Eastern Pequot Indians comprised of
    the members of the Eastern Pequot and the Paucatuck Eastern
    Pequot Tribes.
        That decision is under attack by a number of people in this
    room today. It is being made as an example of why reform of the
    BIA acknowledgment process is required. The decision on the
    historic Eastern Pequot determination was a unique one but it
    was the correct one based on the facts and the regulations of
    the BIA. It was no surprise to the members of the Eastern
    Pequot Tribe that the decision was made.
        Throughout history, the Eastern Pequot Tribe and the
    Paucatuck Eastern Pequot Tribe were one. Our petition reflected
    it, the Connecticut Indian Affairs always reflected it, those
    decisions reflected it. During that time in the 1970's when the
    Connecticut Indian Affairs Council existed, they saw one tribe.
        The Attorney General of Connecticut in his comments on our
    petition stated when asked that the State of Connecticut
    recognized one tribe. All of the State statutes identify one
    Eastern Pequot Tribe.
        When the proposed finding in favor of acknowledgement was
    issued for both petitioning groups, the interested parties
    criticized the preliminary decision, complaining that the
    Assistant Secretary ignored the recommendations of the
    professional BAR staff. For the final determination, our
    petition team took the BAR's recommendation seriously. They
    advised more research was needed for final and more analysis to
    strengthen our petition.
        The final determination on the Eastern Pequots was prepared
    by the excellent professional staff at the Branch of
    Acknowledgment and Research and accepted by the Assistant
    Secretary of the Interior. Even with the BAR staff decision,
    the interested parties continued to criticize and challenge
    that decision. That decision was a thoughtful, well reasoned
    and detailed analysis of thousands upon thousands of pages of
    documents supported by evidence. Most of those documents were
    retrieved at the State library in Hartford, CT. Because we were
    under colonial and later State jurisdiction, those documents
    were held by the State of Connecticut to this day.
        The bill, S. 1392, graphs onto the existing BIA
    acknowledgment process a formal hearing required if requested
    by interested parties. It would turn the acknowledgment process
    into an adversarial proceeding and cause further delays in an
    already costly and time consuming process. We see the potential
    for great mischief if interested parties can call witnesses in
    an effort to only discredit them.
        I thank you for your time and your attention to this
    serious matter.
        [Prepared statement of Ms. Flowers appears in appendix.]
        The Chairman. Thank you very much, Madam Chairperson.
        Now may I call upon Cecile Hansen.

    STATEMENT OF CECILE HANSEN, TRIBAL CHAIRPERSON, DUWAMISH TRIBE,
                               BURIEN, WA

        Ms. Hansen. My name is Cecile Maxwell-Hansen. I am the
    great, great, great niece of Chief Si'ahl for whom the city of
    Seattle is named.
        I appreciate the opportunity to submit testimony on S.
    1392, a bill to establish procedures for the BIA, the BAR, with
    respect to tribal recognition and S. 1393, a bill to provide
    grants to eligible Indian groups and local governments to
    participate in certain decisionmaking processes of the BIA.
        May I tell you 14 years ago I testified before this
    committee on Federal acknowledgment process. Now I am appearing
    before the committee on the same subject. It seems to me
    nothing has changed. Our experience with the Federal
    acknowledgment procedures have been bitterly disappointing and
    disheartening. The BAR should be embarrassed to testify time
    after time that the BAR process works.
        The Duwamish people were the first indigenous people of
    Seattle, having lived there 1,000 years before the arrival of
    European Americans in 1851. In 1855, the Duwamish Tribe was the
    first signature of the Point Elliot Treaty which guaranteed
    fishing rights and reservations to all the signature tribes.
    The first one to sign our treaty was Chief Si'ahl. In 1859, the
    Point Elliot Treaty was ratified by the Congress but the
    promises made by the United States in the treaty was never
    fulfilled with my people.
        Governor Stevens who was the agent for the U.S. Government
    at that time promised us two buckets of gold and a smaller
    reservation. We first submitted a petition for Federal
    acknowledgment in 1976 before the final regulations in 1978. In
    1988, we submitted a complete petition to the Branch of
    Acknowledgment and Research; 8 years later, we received a
    decision against acknowledgment. The preliminary decision
    concluded that we met four of the seven mandatory criteria but
    there was some deficiency with respect to criteria 83.7(a),
    identification of the American Indian entity and the community
    and political authority or influence.
        We worked diligently over the next 2 years to address this
    deficiency and believed we had succeeded when we were advised
    that the Acting Secretary of Indian Affairs had issued a final
    determination in favor of acknowledgment on January 19, 2001.
    One day later, our President issued an order imposing a
    moratorium on all substantial decisions made during the final
    days of the Clinton administration, including the Duwamish
    Tribe's positive final determination in favor of Federal
    acknowledgment.
        On September 26, 2001, the new Assistant Secretary of
    Indian Affairs issued a new final determination declining to
    acknowledge the Duwamish Tribe. The administrative appeals have
    been unsuccessful. Nearly 150 years later, after the Duwamish
    Tribe signed the Point Elliot Treaty, my people are still
    struggling for recognition that was promised when the treaty
    was signed and ratified.
        The Duwamish Tribe believes there are severe problems with
    the Federal acknowledgment process but not of the type stated
    by other witnesses. We are the Duwamish Tribe, we signed the
    Point Elliot Treaty, we gave up 54,000 acres which is now
    Seattle. From treaty times to the present, the Duwamish people
    have been maintaining independent entity as a tribe with
    elected leaders and preservation of our culture. Until 1970, we
    received Federal Indian Services and exercised our Indian
    treaty fishing rights. We have never been terminated by the
    Congress. Now the BIA is telling us that we are not federally
    recognized. This a grave injustice to the Duwamish people and
    other tribes like us.
        We recommend that if changes are made to the Federal
    acknowledgment process that at a minimum, tribes who were
    signatory to a treaty and gave up lands and fishing rights
    should be presumed federally recognized and the burden should
    be put on the Secretary or the Federal Government to prove that
    we are not federally recognized, not the other way around.
        The BIA also says there are breaks in our culture and
    continuity of our tribe and this is further proof that we
    should not be a federally acknowledged tribe. We believe
    undoubtedly starting out as commonsense, acknowledgment
    requirements are now turning on its head. It ignores the sweep
    of U.S. history and Federal policy that systematically destroys
    tribal governments. The Indian treaties were a part of this
    policy. The Indian Allotment Act also contributed to the
    weakening of tribal governments.
        The forced assimilation of our children into Federal Indian
    schools, and my mother was in an Indian boarding school until
    she was 17, and the termination policies of 1950 also played
    with undermining Indian tribes. The hard edged implementation
    of tribal continuity requirements punishes tribes a second time
    because they might not have been able to understand the heavy
    hand of the Federal Government even after 150 years.
        The Congress has passed legislation in the 103rd Congress
    and the 104th Congress, and introduced in the 105th Congress.
    S. 1392 essentially codifies the existing Federal
    acknowledgement regulations and 25 C.F.R. Part 83 including the
    seven mandatory criteria. The bill incorporates some but not
    all identifications found in existing acknowledgment
    regulations.
        For example, the bill does not define community, political
    influence and sustained contained, interested party and
    informed party. These definitions are fundamentally important
    in understanding the criteria or identifying who may
    participate in the process.
        Section 14 of the bill established a new hearing
    requirement in addition to the existing BIA process. If
    requested by an interested party and if the Secretary of the
    Interior determines there is good cause shown, the Secretary
    must conduct a formal hearing. The formal hearing should allow
    all interested parties to present evidence, call witnesses,
    cross examine witnesses and rebut evidence in the record. The
    transcript of this hearing would be made part of the
    administrative record.
        We are not convinced that a formal hearing is an
    appropriate or necessary addition to the process. The existing
    regulations allow interested parties to participate in the
    process by submitting their own evidence and comments on the
    proposed findings, requesting and receiving technical
    assistance from the BAR and appealing a decision they do not
    agree with. A formal hearing would only further cause delays in
    an overly long process.
        Section 19 authorizes the appropriation of $10 million for
    Federal acknowledgment activities. This represents a
    significant increase in the BAR's existing budget. We support
    increased funding for Federal acknowledgement activities.
        S. 1393 would provide grants to Indian tribes and Indian
    groups seeking Federal acknowledgment and local governments in
    order to participate in the Department of the Interior process
    concerning Federal acknowledgment, fee to trust land
    acquisition requests, land claims and other actions affecting
    local governments. We support a grant program for Indian tribes
    and groups who lack financial resources to pursue Federal
    acknowledgment and other actions.
        We do not agree that Federal funds should be made available
    to local governments to essentially fight Indian groups seeking
    Federal acknowledgment and Indian tribes seeking to acquire
    trust lands. Under the bill, a local government could receive a
    Federal grant to challenge a decision of the Secretary of the
    Interior to acknowledge tribes or acquire land in trust. To us,
    this is unsound public policy.
        For the record, I want to tell you that the Duwamish Tribe
    has spent three-fourths of a million dollars to get through
    this process since 1978. We are now broke. We have no appeal to
    Assistant Secretary McCaleb. I just wanted the committee to
    know this.
        I am really happy to have the opportunity today to share
    our viewpoint and all the Duwamish people in the State of
    Washington. I would like to enter my statement in the record.
        Thank you, Mr. Chairman.
        [Prepared statement of Ms. Hansen appears in appendix.]
        The Chairman. Thank you very much.
        May I ask Ms. Flowers a few questions. You have been
    waiting for 24 years. What sort of hurdles have you had to
    overcome?
        Ms. Flowers. Where do I begin? In the recognition process,
    hiring anthropologists over the years and researchers, going
    through the multiple steps of the process because the steps are
    written very understandably. It is just the steps don't take
    the time limit that they are set up to be, going to the State
    library, researching all of the documents, going to Washington
    to the National Archives, a lot of documentation. In the early
    years tribal members did that research. Many of those tribal
    members are gone without having seen Federal recognition. It
    was hard work. In the early days there weren't good copiers,
    hand cranked copiers, and it wasn't easy to come by the
    documentation.
        The problem in recent years in pulling documentation out of
    a lot of historical places is there has been a lot of pilfering
    and stealing of Indian genealogy and documentation because
    there are so many people that are looking for their heritage,
    and also a lot of people that don't want Indian tribes to find
    the documents. You may find razor cuts out of books in the town
    halls where you have to pull birth certificates, death
    certificates, marriage certificates. All of these things are
    required and were part of the research and people have defamed
    a lot of records in town halls which has made it more
    difficult.
        The Chairman. You have submitted documents to the Branch of
    Acknowledgment. About how many documents have had to be
    submitted?
        Ms. Flowers. Thousands upon thousands upon thousands. We
    are running out of space literally but those documents we
    cannot archive because it appears we are now going into appeals
    which means we will have to pull those documents as evidence so
    we have to keep them around still, at least over 40,000. We
    stopped counting there.
        The Chairman. The interested parties in the process were
    municipalities near you plus the State of Connecticut?
        Ms. Flowers. Right. It was the towns of North Stowington
    where our reservation is located, Ledyard which we border where
    Nashantucket is located and Preston, and also the State of
    Connecticut.
        The Chairman. The State of Connecticut requested a formal
    hearing. Did you participate in that hearing?
        Ms. Flowers. Yes; I did. It was 2 days and it was in
    Washington at the Daughters of American Revolution building. It
    was failed to be mentioned that there was a conference call
    technical meeting, called by the State and that was also 2 days
    and all parties were on conference call for that. So there were
    two formal technical meetings, one in person and the other
    everyone was on conference call.
        The Chairman. Having asked you all these questions, what do
    you think about the passage or the adoption of S. 1392?
        Ms. Flowers. I think it would be a huge mistake. I believe
    there is a hidden agenda behind passage of the amendment, that
    a moratorium on any Federal recognitions going forward, if the
    process is to be corrected, a moratorium is not the answer. I
    feel very uncomfortable when a process does need reform, and we
    all know that, but to say we want a moratorium on a process
    that has already taken so many years for most of us to achieve
    does not make sense to our tribe.
        The Chairman. As you know, the Dodd amendment will be
    addressed tomorrow and will be debated and voted upon sometime
    tomorrow when we take up the Interior appropriations bill. So
    you can be assured that this matter will be discussed with the
    committee members in as great a detail as possible.
        Ms. Flowers. Thank you.
        The Chairman. We will do our best to bring justice to all
    peoples concerned.
        For the Duwamish, may I say as I heard your statement, I
    became increasingly concerned because the legal counsel of the
    Department of Justice just issued a statement of a legal
    position that would have a terrible impact upon your people.
    The legal position is that Indians who are not members of
    federally recognized tribes will not eligible for programs or
    laws enacted for native Americans.
        As you know, we have educational programs, health programs
    and because of some technicality, if you are not recognized,
    the members of your tribe will be denied access to all of these
    programs you have been receiving to date because as the legal
    counsel has indicated, that would be race based and the Justice
    Department would recommend to the President that any bill that
    includes Indians who are not members of federally recognized
    tribes would be vetoed.
        I can understand your concern. It is urgent and I can
    assure you that we will act upon this with great expedition.
        Ms. Hansen. May I say another that gives me great anguish
    is if you are not recognized by the Federal Government, you
    cannot secure artifacts, remains from museums, depositories and
    that really impacts the Duwamish people. We have artifacts in
    the Burt Museum at the University of Washington. They will loan
    them to us but if you are not recognized, you will not get
    those artifacts or remains back.
        The Chairman. We will do our best.
        I would like to thank all the witnesses. I announced
    earlier that the record will be kept open for 48 hours but I
    have been requested by the office of Senator Dodd that the
    record be kept open for 7 days and it is so ordered.
        Furthermore, as I indicated, the Dodd amendment will be
    considered by the full Senate tomorrow sometime during the
    morning and I can assure you the Senate will one way or the
    other act upon it, for or against.
        With that, may I thank all of you for your participation,
    thank all the witnesses for their testimony.
        This hearing is recessed.
        [Whereupon, at 12:47 p.m., the committee was adjourned, to
    reconvene at the call of the Chair.]
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                                A P P E N D I X

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                  Additional Material Submitted for the Record

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

          Prepared Statement of Dannel P. Malloy, Mayor, Stamford, CT

        Mr. Chairman and members of the committee, I am pleased to submit
    this testimony on S. 1392 and S. 1393, bills to reform the Federal
    Indian tribal acknowledgement system. The city of Stamford and all the
    municipalities in Connecticut are directly affected by Federal Indian
    policy. I appreciate the opportunity to provide testimony to the
    committee and express my community's views on the need to bring greater
    fairness and objectivity to the procedure used to assess the merits of
    petitions for acknowledgment as Indian tribes under Federal law.
        In recent years, Federal Indian policy has become a major issue in
    Connecticut. Beginning with the Congressional recognition of the
    Mashantucket Pequot Tribe in 1983, and the subsequent development of
    the Foxwoods Casino pursuant to the Indian Gaming and Regulatory Act of
    1988, Connecticut has experienced the negative effects of Federal
    Indian law and policy on the State and local communities. Tribal
    development has occurred without regard to impacts on local
    communities. The land involved is removed from the State and municipal
    tax base. The land and resulting development also occurs without regard
    to State and local environmental laws and land use requirements. Local
    communities have difficulty keeping pace with the impacts and service
    sector demands created by tribal casino development, such as increased
    traffic, crime, adverse social impacts, negative economic consequences
    for non-Indian businesses, and a general decline in the quality of life
    for surrounding areas. All this is the direct result of actions at the
    Federal level, which have all too often been undertaken without regard
    to these consequences.
        There are many aspects of Indian law and policy that need careful
    review, especially in light of the changed circumstances that have
    resulted from the dramatic growth of Indian gaming. No longer do
    decisions related to tribal acknowledgement and trust lands affect only
    Indian tribes. To the contrary, especially in the context of urban
    settings such as Connecticut, these decisions are being influenced by
    non-Indian financial backers of tribes and tribal petitioner groups who
    seek to reap windfall benefits from the development of Indian casinos.
    These developers associate themselves with Indian interests by means of
    contracts under which they underwrite tribal acknowledgement, casino
    development, and trust land acquisition, in exchange for profitable
    arrangements that produce huge financial gains for them once casino
    resorts are developed on Indian land. This is a suspect arrangement
    that calls for thorough investigation and Congressional reform. The
    future of our State should not be dictated by the ``get rich quick''
    schemes of developers and gambling entrepreneurs who seek to capitalize
    on Indian gaming.
        Currently, Connecticut is potentially affected by the
    acknowledgement petitions of several Indian groups under active review
    by BIA--the Eastern Pequots, Paucatuck Eastern Pequots, Golden Hill
    Paugussetts, and the Schaghticokes. All of these petitioners have
    announced plans to pursue major casino resort development if they are
    successful with their acknowledgement petitions. Those casinos would,
    in turn, have serious negative consequences for our region.
        Closest to Stamford, the Golden Hill Paugussett group threatens to
    develop the world's largest casino in Bridgeport. This part of
    Connecticut is already suffering serious economic and quality-of-life
    consequences resulting from traffic congestion and an over-burdened
    transportation system. Studies have been conducted which show that
    adding a major casino in this region will produce traffic gridlock and
    serious associated environmental and economic consequences. As a
    result, the plans that these petitioner groups intend to pursue, and
    propose to undertake without reference to the needs and concerns of the
    region, will have devastating consequences on Connecticut.
        Before the Pequot decisions, it was widely understood that none of
    the petitioning groups in Connecticut had developed evidence that would
    support positive tribal acknowledgment findings. Indeed, the two
    Eastern Pequot petitions had themselves been subject to negative
    proposed findings, until political interference resulted in positive
    proposed findings. The Golden Hill Paugussett petition has been
    rejected by BIA in the past for clear deficiencies, and the Scaghticoke
    petition has been noted by the experts retained by that group itself to
    be deficient and incapable of meeting the Federal criteria.
    Nevertheless, BIA has now fabricated a decisionmaking construct in
    Connecticut that bolsters these otherwise deficient petitions. It has
    done so by combining separate petitioners into a single tribe, as it
    did with the Eastern and Paucatuck Eastern Pequot groups, and by giving
    undue and improper weight to the manner in which the State of
    Connecticut has historically dealt with Indians. By departing from all
    past BIA precedent and giving artificial weight to the fact that the
    State has set aside land for Indians and provided oversight functions,
    BIA has allowed these petitioners to fill otherwise fatal gaps in their
    evidence. BIA arrived at this result based upon incorrect analysis of
    Connecticut law and history. In part, it did so because it has failed
    to undertake a thorough review of the record or to provide a full and
    complete role for interested parties.
        To correct these problems, we believe that Congress must undertake
    sweeping reform of the acknowledgment process that begins with the most
    basic issues. Congress has never enacted a law that deals with the
    acknowledgment process. The acknowledgment of the existence of Indian
    tribes, who will claim sovereign status and exemptions from state and
    local law, is a very important power. We question why such a
    significant political act by the U.S. Government has never been
    addressed in a comprehensive Federal law that defines who exercises
    this power, under what standards, and pursuant to what procedures. The
    United States Code is silent on this subject, but nonetheless BIA is
    now in the process of changing the face of Connecticut by exercising
    the power it claims to have to acknowledge tribes.
        This is the sort of issue that requires careful consideration by
    Congress, informed by the recommendations from the executive branch,
    the affected States, the affected local governments, and interested
    parties. If Congress intends to have this authority exercised by some
    other governmental entity, such as BIA, it should be done only through
    an express act of delegation, subject to rigorous procedural and
    substantive standards. That act of delegation should, in turn, be the
    result of a comprehensive public debate on the best way to ensure that
    only legitimate Indian tribes are acknowledged and that their powers
    are appropriately defined, and as necessary, constrained. It is time
    for Congress to speak on this issue. Until it has, BIA must be halted
    from applying the current flawed system.
        I am deeply concerned that interested parties do not have a
    sufficient role in the process. The problems inherent in the review of
    the Eastern Pequot petitions are a perfect example. In that case,
    evidence was not made available on a timely basis. Deadlines for
    submission of evidence were set on an ad hoc basis and applied
    retroactively to interested parties. The previous Assistant Secretary
    for Indian Affairs unilaterally established new rules on the
    acknowledgment process which have made it more difficult for interested
    parties to participate. Those rules were not subject to any notice or
    comment procedures. The petitioners were not required to provide their
    evidence to interested parties, although interested parties had to do
    so for the petitioning group. Even more unfair was the fact that
    petitioning parties were allowed to have the last word in responding to
    evidence submitted to interested parties. The result was a procedure
    inherently skewed in favor of the petitioner.
        In terms of substantive standards, the criteria currently
    administered under BIA's acknowledgment regulations. They have not been
    applied in a rigorous or evenhanded manner. The Eastern Pequot
    decisions are a perfect example of this problem, where a results-
    oriented effort to acknowledge these groups as a tribe prevailed under
    the BIA criteria. This is a result of BIA's forcing, contrary to its
    regulations, two petitioning groups to come together into a single
    tribe. In addition, BIA gave undue and incorrect weight to
    Connecticut's historical relationship with Indians. BIA allowed that
    historical relationship, which was nothing more than a welfare
    function, to serve as evidence of the existence of internal political
    and social activity within the petitioning groups. In doing so, it
    departed from all precedent and ignored important evidence to the
    contrary.
        I question why tribal acknowledgment power should be invested in
    BIA at all. This agency is responsible for exercising the U. S.
    Government's trust responsibility to Indian tribes. As a result, there
    is an inherent bias in favor of tribal interests. An agency with such a
    mission cannot be expected to pass judgment on tribal acknowledgment
    petitions. The suggestion calling for creation of an independent
    commission can be subject to the same problems, if it is not
    established in a way that ensures objectivity, fairness, and absence of
    political influence. The problems inherent with the BIA review, and its
    susceptibility to political manipulation, are well-documented in the
    report from the Department of the Interior Inspector General's office,
    which revealed the abuses of decisionmaking power that occurred under
    the last Administration.
        For all of these reasons, I believe that the acknowledgment process
    is fundamentally flawed and needs serious Congressional reform. While
    that reform initiative is underway, there should be a moratorium
    imposed on the processing on all petitions. It makes no sense to allow
    the process to proceed when it is so badly broken.
        I am committed to supporting Congress in making these important
    changes. Please let me know what I can do to assist in the reform of
    the acknowledgment process. Thank you for considering this testimony.
                                     ______

    Prepared Statement of James J. Malloy, Town Administrator, Sturbridge,
                                       MA

        Mr. Chairman and members of the committee, on behalf of the town of
    Sturbridge, MA, I am pleased to submit this testimony on S. 1392 and S.
    1393, bills to reform the Federal Indian tribal acknowledgement system.
    I am James J. Malloy, Town Administrator, Sturbridge, MA. I appreciate
    the opportunity to testify before the committee and express our views
    on the need to bring greater fairness and objectivity to the procedure
    used to assess the merits of petitions for acknowledgment as Indian
    tribes under Federal law.
        Our town is currently participating in the tribal acknowledgement
    process for the two Nipmuc petitioner groups. Although we have not
    taken a position on the merits of either petition, our town has
    witnessed the problems associated with tribal acknowledgment from the
    perspective of local communities. This experience has convinced us that
    reform of the process is necessary at this time.
        Tribal acknowledgment has major effects on local governments. Once
    a tribe is acknowledged, land is removed from the local taxbase, often
    for purposes of major developments such as casinos that impose great
    burdens on small towns such as ours. This Indian land also becomes
    exempt from State and local regulation, including land use,
    environmental and public health and safety requirements. When Indian
    casinos are developed, a variety of problems such as traffic, crime,
    and social problems are visited upon local communities. These impacts
    point to the importance of ensuring that local governments are allowed
    to play a meaningful role in the acknowledgment process and that the
    results are fair and objective.
        Unfortunately, tribal acknowledgment decisions are being influenced
    by non-Indian financial backers of tribal petitioner groups who seek to
    reap windfall benefits from the development of Indian casinos. These
    developers associate themselves with Indian interests by means of
    contracts under which they support tribal acknowledgement efforts, in
    return for profitable arrangements that produce huge financial gains
    for them once casino resorts are developed on Indian land. Such is the
    case for the Nipmuc petitioners, where substantial amounts of money are
    being invested to support the petitioners.
        This involvement of gaming interests raises the stakes and costs of
    the process. In the face of the considerable investment made by
    financial backers of petitioner groups, it is very difficult for other
    interested parties, like our town, to participate in a meaningful way.
    It is simply too expensive to do so, and we commend the sponsors of
    this legislation for introducing proposals that would grant funding
    assistance to local governments.
        We also believe that the process itself must be reformed. The
    Nipmuc petitions are an example of where a BIA recommendation for a
    negative proposed determination was overturned at the policy level.
    Fortunately, that decision never took effect. However, it demonstrates
    how the acknowledgment process is subject to political interference. A
    significant political act by the U.S. Government recognizing an Indian
    tribe should be subject to a comprehensive Federal law that defines who
    exercise this power, under what standards, and pursuant to what
    procedures. No such law exists.
        We also are deeply concerned that interested parties do not have a
    sufficient role in the process. The problems inherent in the review of
    the Eastern Pequot petitions in Connecticut are a perfect example. In
    that case, evidence was not made available on a timely basis. Different
    rules were applied to interested parties. Procedures were changed in
    mid-course. BIA staff was, like in the Nipmuc matter, overturned by
    policy officials. And in the final determination, BIA unilaterally
    forced two competing groups to join together, even though the
    acknowledgment regulations do not allow for such a result. This is a
    practice that should not be repeated for the two Nipmuc petitioners.
        For all of these reasons, we believe that the acknowledgment
    process needs serious Congressional reform. While that reform
    initiative is underway, there should be a moratorium imposed on the
    processing on all petitions. It makes no sense to allow the process to
    proceed when it is so badly broken.
        Thank you for considering this testimony.
                                     ______

               Prepared Statement of SACIA, The Business Council

        SACIA, The Business Council, is pleased to submit this testimony on
    S. 1392 and S. 1393, bills to reform the Federal Indian tribal
    acknowledgment system. SACIA is a regional business association serving
    Fairfield County. Formed in 1970 by business leaders engaged in an
    effort to build more livable, workable communities, SACIA is committed
    to maintaining and improving the economic vitality of southwestern
    Connecticut. We advocate for a positive business environment, work to
    ensure a quality business structure, and seek to create opportunities
    for diverse businesses to grow, develop, and locate within the region.
    Because several tribal petitioner groups have expressed interest in
    opening major casinos in this region, SACIA has followed the issues
    associated with the acknowledgment process.
        SACIA expresses its appreciation to Senators Dodd and Lieberman for
    introducing this legislation. Tribal acknowledgment is a matter of
    great concern in Connecticut, and SACIA is grateful for their
    leadership on this issue.
        SACIA recognizes the importance of maintaining a procedure whereby
    Indian groups can petition to be acknowledged as tribes under Federal
    law. Groups that qualify for such treatment are entitled to important
    benefits, and they should be accorded the rights bestowed upon other
    acknowledged tribes. The process used for this purpose must be
    balanced, objective, fair, and efficient. Undue delay should be
    avoided, and tribal petitioners must be treated with respect and
    dignity.
        Based upon the consequences tribal acknowledgment already has had
    in Connecticut, however, SACIA also recognizes that the decision to
    recognize Indian tribes under Federal law affects non-Indian parties as
    well. Acknowledged tribes can take land into trust, exercise sovereign
    powers, and open casinos. These manifestations of tribal status can, in
    turn, have major adverse impacts on the affected state, local
    governments, private landowners, and the business community. Recent
    experiences with tribal acknowledgment in Connecticut indicate that the
    interests of these parties are not always adequately taken into
    account. As a result, SACIA believes that the acknowledgment process
    must be revised, not only to address the needs and concerns of tribal
    petitioners, but also to ensure that other affected parties are able to
    play an equal role and to do as much as possible to bring about valid
    and credible decisions.
        Federal Indian policy has become a major factor in the State of
    Connecticut. There are now two tribes in Connecticut, the Mashantucket
    Pequot, and the Mohegan. Both own and operate major casinos. While
    these enterprises have had some positive effects, such as the
    generation of revenues for the State, these benefits have been offset
    by many adverse consequences. Tribal development has occurred without
    regard to impacts on local communities. The land involved is removed
    from the State and municipal tax base. The land and resulting
    development also occurs without regard to State and local environmental
    laws and land use requirements. Local communities have difficulty
    dealing with the impacts and service sector demands created by tribal
    casino development, such as increased traffic, crime, and adverse
    social impacts. There also are serious negative economic consequences
    for non-Indian businesses, which cannot compete with enterprises
    located on tribal land that are exempt from state and local taxes and
    regulations. The creation of major casinos on Indian land can change
    the character and quality-of-life in surrounding communities overnight,
    and do so with no input from the affected local governments, citizens,
    or businesses.
        Currently, Connecticut is potentially affected by the
    acknowledgement petitions of several Indian groups under active review
    by BIA--the Eastern Pequots, Paucatuck Eastern Pequots, Golden Hill
    Paugussetts, Schaghticokes, and Nipmucs. As many as 10 other
    Connecticut-based petitioners have expressed the desire to pursue
    acknowledgment. All of the currently active petitioners have announced
    plans to pursue major casino resort development if they are
    acknowledged. Those casinos would, in turn, have serious negative
    consequences for our region. For example, the Golden Hill Paugussett
    group threatens to develop a massive casino in Bridgeport. It proposes
    to do so even though southwestern Connecticut is already suffering
    serious economic and quality-of-life consequences caused by traffic
    congestion and an overburdened transportation system. A detailed study
    prepared by the Southwest Region Planning Agency, shows that building a
    major casino in Bridgeport will produce traffic gridlock and serious
    environmental and economic consequences. Members of SACIA will be
    directly affected. Indeed, businesses in this region of Connecticut may
    be forced to leave the State if these events unfold.
        These potential impacts underscore the need to develop the most
    effective and comprehensive process for tribal acknowledgment possible.
    Today, in Connecticut, there is great distrust of tribal acknowledgment
    decisions and the procedure used to render them. This is the result of
    the well-publicized politicization of the process, as documented by the
    recent Department of the Interior Inspector General's report. It also
    is the outcome of actions in Connecticut, such as the recent
    determination to acknowledge the Eastern Pequots by forcing two groups
    together (which the regulations do not allow) and by relying upon a
    questionable reading of Connecticut history that seeks to equate the
    State recognition of this tribe with the existence of internal tribal
    political and social structure. SACIA agrees with Attorney General
    Blumenthal and Governor Rowland that this result is incorrect; and we
    are concerned that the flawed acknowledgment process administered by
    BIA has lead to such a result.
        To correct these problems, we believe that Congress must undertake
    sweeping reform of the acknowledgment process. First and foremost,
    Congress must enact a law that defines the acknowledgment process.
    Acknowledgment of the existence of Indian tribes, who will claim
    sovereign status and exemptions from State and local law, is a very
    important power. With the stakes so high for all parties, it is
    essential that Congress provide detailed guidance on how these
    decisions are to be made. This matter cannot be left to BIA alone. The
    principles established by Congress must be clear, specific, and
    pointed. They must leave no room for result-oriented decisionmaking or
    political interference.
        In addition, interested parties must be guaranteed a sufficient
    role in the process. The problems that typified the review of the
    Eastern Pequot petitions must be avoided. In that case, evidence was
    not made available on a timely basis. Deadlines for submission of
    evidence were set on an ad hoc basis and applied retroactively to
    interested parties. Rules dictating the process were established
    without public input. The petitioners were not required to provide
    their evidence to interested parties. Problems of this nature must be
    avoided in the future, and Congress needs to define the procedures that
    govern this process.
        The substantive standards that petitioners must meet to be
    acknowledged need to be as reliable and credible as the procedural
    rules. BIA's existing criteria have not been applied in a rigorous or
    even-handed manner. An example of this problem is found in the Eastern
    Pequot decisions, where BIA gave improper and incorrect weight to
    Connecticut's historical relationship with Indians. BIA allowed that
    historical relationship to serve as evidence of the existence of
    internal political and social activity within the petitioning groups.
    In doing so, it departed from all precedent and ignored important
    evidence to the contrary.
        Congress should carefully assess the question of which governmental
    body should be responsible for making acknowledgment decisions. BIA may
    not be properly equipped to administer this function. An independent
    agency may be appropriate, but only if it is apolitical and objective.
    Indeed, a continuing role for Congress itself may be needed, given the
    considerable importance of acknowledgment these decisions.
        Finally, a moratorium should be imposed now on the further
    processing of petitions until the deficiencies inherent in the
    acknowledgment process are eliminated. If the principles set forth in
    this testimony are followed, the end result will be a tribal
    acknowledgment system that is fair to all parties and achieves the
    confidence of petitioner groups and interested parties alike. Until
    those changes are made, however, it makes no sense to process
    additional petitions. Petitioner groups spend decades developing their
    proposals and evidence before initiating the review process. The short
    additional time necessary to reform the process is a small price to pay
    to ensure fair and objective decisions.
        SACIA appreciates the opportunity to submit this testimony. We look
    forward to working with this committee to achieve the reforms discussed
    in this testimony. Thank you for considering these views.
                                     ______

       Prepared Statement of Marcia Flowers, Chairwoman, Eastern Pequot
                             Indians of Connecticut

        Mr. Chairman, Mr. Vice Chairman and members of the committee, thank
    you for the opportunity to submit testimony on S. 1392, a bill to
    establish procedures for the Bureau of Indian Affairs [BIA] with
    respect to tribal recognition and S. 1393, a bill to provide grants to
    eligible Indian groups and local governments to participate in certain
    decisionmaking processes of the BIA.
        On June 24, 2002, some 24 years after filing our notice of intent
    to seek Federal acknowledgment, the Assistant Secretary-Indian Affairs
    [Assistant Secretary] issued a final determination acknowledging the
    historic Eastern Pequot Tribe whose membership is comprised of the
    Eastern Pequot and Paucatuck Eastern Pequot Indians of Connecticut.
    That decision is under attack by a number of people in this room today
    as an example of why reform of the BIA acknowledgment process is
    required. These attacks are unjustified and are simply wrong. The
    decision to recognize a single tribe comprised of two petitioning
    groups is unique, but it is the correct decision based on the facts and
    the regulations. The decision should come as no surprise. The proposed
    findings in favor of acknowledgment for both Eastern Pequot petitioners
    specifically stated that depending on the evidence and analysis
    developed during the comment period, the Department of the Interior
    could recognize a combined entity. Contrary to published reports, the
    Eastern Pequots have always considered the Paucatuck Eastern Pequots to
    be part of the historic Eastern Pequot Tribe.
        When the proposed findings in favor of acknowledgment were issued
    for both petitioning groups, the interested parties criticized the
    preliminary decisions complaining that the Assistant Secretary ignored
    the recommendations of the Branch of Acknowledgment and Research [BAR]
    staff. They asserted that BAR staff should be allowed to make these
    decisions, not political appointees. Despite the positive proposed
    findings, our petition team took seriously the BAR's advice concerning
    the additional research and analysis we needed to undertake to
    strengthen our petition. We followed their advice and submitted new
    evidence and analysis during the comment and response periods.
        That additional evidence and analysis paid off, and we were
    rewarded with a final determination in favor of acknowledgment. The
    final decision was prepared by the professional staff of the BAR and
    accepted by the Assistant Secretary. Notwithstanding the fact that this
    decision is the product of the career staff of the BAR, the interested
    parties continue to criticize and challenge the decision. The final
    determination is a thoughtful, well reasoned and detailed analysis of
    thousands of pages of documentation submitted by the petitioners and
    interested parties. It is supported by the facts and complies with the
    BIA acknowledgment regulations. We are confident that it will withstand
    any challenge or review, notwithstanding the efforts of the interested
    parties.
        S. 1392 codifies the existing seven mandatory criteria for Federal
    acknowledgment found in 25 C.F.R. Part 83 and incorporates by reference
    much of the existing Federal acknowledgment regulations. Inexplicably,
    it leaves out many of the key definitions in the regulations, such as
    ``community'', ``political influence'' and ``sustained contact'', that
    are critically important to understanding the criteria. We note that,
    unlike the acknowledgment regulations, S. 1392 provides no definition
    for interested parties or informed parties.
        Section 14 of the bill grafts on to the existing BIA acknowledgment
    process a formal hearing requirement if requested by an interested
    party and if the Secretary of the Interior [Secretary] determines that
    there is good cause shown for a hearing.
        Under the bill, a formal hearing would allow all interested parties
    to present evidence, call witnesses, cross-examine witnesses and rebut
    evidence in the record. The transcript of the hearing would be made
    part of the administrative record.
        A formal hearing with witnesses, cross-examination and rebuttal
    evidence would not improve the current acknowledgment process that
    already requires the Secretary to issue proposed findings for or
    against acknowledgment, provide formal, on the record technical
    assistance if requested by the petitioning group or interested parties,
    and consider comments and evidence from all parties on the proposed
    findings. It would turn the acknowledgment process into an adversarial
    proceeding and would only cause further delays in an already costly and
    time-consuming process. Such a formal hearing is inappropriate for a
    process that involves primarily documentary evidence, not witnesses. We
    see the potential for great mischief if interested parties can call as
    witnesses subject to cross-examination tribal members, the tribal
    historian, genealogist or anthropologist or even the staff of the BAR.
        Section 19 authorizes the appropriation of $10 million per fiscal
    year to implement the bill. This represents an almost ten fold increase
    in the Branch of Acknowledgment and Research's current annual budget.
    The inadequacy of the current budget for processing acknowledgment
    petitions is well documented in the General Accounting Office Report
    entitled ``Improvements Needed in Tribal Recognition Process'' issued
    November 2, 2001. The funding increase will go along way toward
    addressing the backlog of petitions awaiting evaluation.
        S. 1393 would provide grants to Indian tribes, Indian groups
    seeking Federal acknowledgment and local governments in order to
    participate in Department of the Interior processes concerning Federal
    acknowledgment, fee to trust land acquisition requests, land claims and
    other actions affecting local governments. We understand and welcome a
    grant program for Indian tribes and groups who lack the financial
    resources to pursue Federal acknowledgment and other actions. We
    question, however, the wisdom of providing Federal funds to local
    governments so that they can oppose Indian groups seeking Federal
    acknowledgment and Indian tribes seeking to acquire trust land. Under
    the bill, the Secretary of the Interior could award a Federal grant to
    a local government so that it could challenge a decision of the
    Secretary of the Interior. That to us is not sound public policy.
    Sadly, it has been our experience that the participation of some of the
    interested parties in the acknowledgment process has not been to insure
    that a fair and impartial decision is made by the Assistant Secretary,
    but the rejection of our petition. They have expressly stated that
    their real concern is what they believe flows from Federal
    acknowledgment--land claims, the acquisition of land into trust and
    gaming. By defeating an Indian petitioner's acknowledgment petition,
    the interested parties real concerns are rendered moot.
        I thank the committee for providing me with an opportunity to
    present the comments of the Eastern Pequot Indians of Connecticut.
                                     ______

                  Prepared Statement of Cecile Maxwell-Hansen

        Good morning, Mr. Chairman and distinguished members of the
    Committee. My name is Cecile Maxwell-Hansen. I am the great, great,
    great, niece of Chief Si'ahl, for whom the city of Seattle is named. I
    appreciate the opportunity to submit testimony on S. 1392, a bill to
    establish procedures for the Bureau of Indian Affairs [BIA] with
    respect to tribal recognition and S. 1393, a bill to provide grants to
    eligible Indian groups and local governments to participate in certain
    decisionmaking processes of the BIA.
        Fourteen years ago I testified before this committee on the Federal
    acknowledgment process. Now I am appearing before the committee again
    on the same subject. It seems as if nothing has changed. Our experience
    with the Federal acknowledgment procedures has been bitterly
    disappointing and disheartening. The Duwamish people were the first
    indigenous people of the Seattle, WA area having lived there for more
    than 1,000 years before the arrival of the European-Americans in 1851.
    In 1855, the Duwamish Tribe was the first signatory on the Treaty of
    Point Elliot, which guaranteed fishing rights and reservations to all
    the signatory tribes. The Duwamish signatory to the 1855 Treaty was our
    chief, Chief Si'ahl. In 1859, the Treaty of Point Elliot was ratified
    by Congress, but the promises made by the United States in the Treaty
    were never fulfilled to my people.
        We first submitted a petition for Federal acknowledgment in 1976
    before the promulgation of the acknowledgment regulations in 1978. In
    1988, we submitted a completed petition to the Branch of Acknowledgment
    and Research and 8 years later received a preliminary decision against
    acknowledgment. The preliminary decision concluded that we met four of
    the seven mandatory criteria, but there were some deficiencies with
    respect to criteria 83.7(a) (identification as an American Indian
    entity), and (b) (community) and (c) (political authority or
    influence).
        We worked diligently over the next 2 years to address the
    deficiencies, and believed we had succeeded when we were advised that
    the Acting Assistant Secretary-Indian Affairs had issued a final
    determination in favor of acknowledgment on January 19, 2001. One day
    later, President Bush issued an order imposing a moratorium on all
    substantive decisions made during the final days of the Clinton
    administration, including the Duwamish Tribe's positive final
    determination in favor of Federal acknowledgment. On September 26,
    2001, the new Assistant Secretary-Indian Affairs issued a new final
    determination declining to acknowledge the Duwamish Tribe. Our
    subsequent administrative appeals have been unsuccessful. Nearly 150
    years after the Duwamish Tribe signed the Point Elliot Treaty, my
    people are still struggling for the recognition that was promised when
    that treaty was signed and ratified.
        The Duwamish Tribe believes that there are severe problems with the
    Federal acknowledgment process, but not of the type stated by other
    witnesses. We're the Duwamish Tribe. We signed the Point Elliott Treaty
    and gave up our lands and other rights. From treaty times to the
    present, the Duwamish people have maintained an independent identity as
    a tribe with elected leaders and the preservation of our culture. Until
    the 1970's, we were receiving Federal Indian services and exercising
    our Indian treaty fishing rights. We have never been terminated by
    Congress. Now the Bureau of Indian Affairs is telling us that we are
    not federally recognized. This is a grave injustice to the Duwamish
    people and other treaty tribes like us. We recommend that if changes
    are made to the Federal acknowledgment process, that at minimum, tribes
    that were signatories to treaties and gave up their land or other
    rights, should be presumptively federally recognized. In the
    acknowledgment process, the Secretary of Interior should bear the
    burden of proving that we are not a federally recognized tribe, not the
    other way around.
        Now the BIA also says that there are breaks in the cultural and
    political continuity of our Tribe and this is further proof that we
    should not be a federally recognized tribe. We believe that what
    undoubtedly started out as a common-sense acknowledgment requirement is
    now turned on its head. It ignores the sweep of U.S. history and
    Federal policy that systematically destroyed tribal governments. The
    Indian treaties were part of this policy. The Indian allotment acts
    also contributed to weakening tribal governments. The force
    assimilation of our children in Federal Indian schools and the
    termination policies in the 1950's also played a role in undermining
    Indian tribes. The hard edged implementation of this tribal continuity
    requirement punishes tribes a second time because they may not have
    been able to withstand the heavy hand of the Federal Government every
    day for 150 years.
        S. 1392 essential codifies the existing Federal acknowledgment
    regulations found in 25 C.F.R. Part 83, including the seven mandatory
    criteria. The bill incorporates some, but not all, of the definitions
    found in the existing acknowledgment regulations. For example, the bill
    does not define ``community'', ``political influence'' and ``sustained
    contact'', ``interested party'' and ``informed party''. These
    definitions are fundamentally important in understanding the criteria
    or identifying who may participate in the acknowledgment process.
        Section 14 of the bill establishes a new hearing requirement in
    addition to the existing BIA acknowledgment process. If requested by an
    interested party and if the Secretary of the Interior [Secretary]
    determines that there is good cause shown, the Secretary must conduct a
    formal hearing. A formal hearing would allow all interested parties to
    present evidence, call witnesses, cross-examine witnesses and rebut
    evidence in the record. The transcript of the hearing would be made
    part of the administrative record.
        We are not convinced that a formal hearing is an appropriate or
    necessary addition to the acknowledgment process. The existing
    regulations allow interested parties to participate in the process by
    submitting their own evidence and comments on the proposed findings,
    requesting and receiving technical assistance from the BAR and
    appealing a decision they do not agree with. A formal hearing would
    only cause further delays in an overly long process.
        Section 19 authorizes the appropriation of $10 million for Federal
    acknowledgement activities. This represents a significant increase in
    the BAR's existing budget. We support increased funding for Federal
    acknowledgment activities.
        S. 1393 would provide grants to Indian tribes, Indian groups
    seeking Federal acknowledgment and local governments in order to
    participate in Department of the Interior processes concerning Federal
    acknowledgment, fee to trust land acquisition requests, land claims and
    other actions affecting local governments. We support a grant program
    for Indian tribes and groups who lack the financial resources to pursue
    Federal acknowledgment and other actions. We do not agree that Federal
    funds should be made available to local governments to essential fight
    Indian groups seeking Federal acknowledgment and Indian tribes seeking
    to acquire trust land. Under the bill, a local government could receive
    a Federal grant to challenge decisions of the Secretary of the Interior
    to acknowledge a tribe or acquire land in trust. To us, this is unsound
    public policy.
        I thank the committee for providing me with an opportunity to
    present the views of the Duwamish Tribe.
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