[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


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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

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      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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