[Senate Hearing 107-775]
[From the U.S. Government Publishing Office]
S. Hrg. 107-775
TRIBAL RECOGNITION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
S. 1392
TO ESTABLISH PROCEDURES FOR THE BUREAU OF INDIAN AFFAIRS OF THE
DEPARTMENT OF THE INTERIOR WITH RESPECT TO TRIBAL RECOGNITION
AND
S. 1393
TO PROVIDE GRANTS TO ENSURE FULL AND FAIR PARTICIPATION IN CERTAIN
DECISIONMAKING PROCESSES AT THE BUREAU OF INDIAN AFFAIRS
__________
SEPTEMBER 17, 2002
WASHINGTON, DC
82-968 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpr.gov Phone: toll free (866) 512-1800; (202) 512�091800
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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
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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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