[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
FEDERAL RECOGNITION AND ACKNOWLEDGMENT PROCESS BY THE BUREAU OF INDIAN
AFFAIRS
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
Wednesday, March 31, 2004
__________
Serial No. 108-89
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://resourcescommittee.house.gov
______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C O N T E N T S
----------
Page
Hearing held on Wednesday, March 31, 2004........................ 1
Statement of Members:
Johnson, Hon. Nancy, a Representative in Congress from the
State of Connecticut....................................... 5
Prepared statement of.................................... 7
Kildee, Hon. Dale E., a Representative in Congress from the
State of Michigan, Prepared statement of................... 56
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 3
Prepared statement of.................................... 4
Statement of Witnesses:
Cambra, Rosemary, Chairperson, Muwekma Ohlone Indian Tribe,
San Francisco Bay Area, California......................... 24
Prepared statement of.................................... 26
Fleming, R. Lee, Director, Office of Federal Acknowledgment,
Bureau of Indian Affairs, U.S. Department of the Interior.. 78
Prepared statement of.................................... 80
Responses to questions submitted for the record.......... 81
Gumbs, Lance, Tribal Trustee, Shinnecock Indian Nation....... 20
Prepared statement of.................................... 22
Marshall, Glenn, President, Mashpee Wampanoag Tribe.......... 15
Prepared statement of.................................... 17
Martin, Tim, Poarch Band of Creek Indians, Nashville,
Tennessee.................................................. 63
Prepared statement of.................................... 65
Spilde, Katherine, Ph.D., Harvard Project on American Indian
Economic Development....................................... 67
Prepared statement of.................................... 69
Taylor, Wilford ``Longhair,'' Tribal Chief, MOWA Band of
Choctaw Indians............................................ 30
Prepared statement of.................................... 32
Additional materials supplied:
Benedict, Jeff, President, Connecticut Alliance Against
Casino Expansion, Inc., Statement submitted for the record. 90
Blumenthal, Hon. Richard, Attorney General, State of
Connecticut, Statement submitted for the record............ 95
Charley, Benjamin, Tribal Chairman, Dunlap Band of Mono
Indians, Letter submitted for the record................... 98
Jones, Laura, Ph.D., Campus Archaeologist, Stanford
University, Senior Scholar, The Carnegie Foundation, Letter
submitted for the record................................... 100
Mullane, Nicholas H., First Selectman, Town of North
Stonington, Connecticut, Statement submitted for the record 101
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut, Statement submitted for the
record..................................................... 9
Simmons, Hon. Rob, a Representative in Congress from the
State of Connecticut, Statement submitted for the record... 10
Towns of Ledyard, North Stonington, and Preston, Connecticut,
Letter submitted for the record............................ 105
OVERSIGHT HEARING ON THE FEDERAL RECOGNITION AND ACKNOWLEDGMENT PROCESS
BY THE BUREAU OF INDIAN AFFAIRS
----------
Wednesday, March 31, 2004
U.S. House of Representatives
Committee on Resources
Washington, D.C.
----------
The Committee met, pursuant to notice, at 10:05 a.m. in
Room 1324, Longworth House Office Building, Hon. Richard W.
Pombo, [Chairman of the Committee] presiding.
Members present: Representatives Pombo, Duncan`, Jones,
Tancredo, Hayworth, Osborne, Flake, Rehberg, Cole, Pearce,
Rahall, Kildee, Pallone, Christensen, Inslee, and Baca.
STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
The Chairman. The Committee on Resources will come to
order. The Committee is meeting today to hear testimony on the
Federal Recognition and Acknowledgment Process by the Bureau of
Indian Affairs.
Under Rule 4(g) of the Committee Rules, any oral opening
statements at hearings are limited to the Chairman and the
Ranking Minority Member. This will allow us to hear from our
witnesses sooner and help Members keep to their schedules.
Therefore, if other Members have statements, they can be
included in the hearing record under unanimous consent.
The purpose of today's hearing is to examine the
administrative process used by the Bureau of Indian Affairs to
determine which groups are federally recognized tribes. This
job is performed by the Office of Federal Acknowledgment, which
used to be called the Branch of Acknowledgment and Research.
The theme of today's hearing is simple. Most everyone here
thinks that the current system used to determine recognition is
broken, so how do we fix it? This is an extremely important
question because Federal recognition establishes a formal
relationship between tribes and the United States which has
major implications for the Federal Government, for the members
of the recognized tribe, and for other tribes, states and
communities.
Prior to the adoption of the administrative process in
1978, the Department of Interior and Congress usually judged
petitions for recognition on a case-by-case basis. And back in
the 19th Century recognition was established through treaties
and executive orders. While Congress retains its plenary power
under the Constitution to recognize tribes, the BIA
administrative process was established to provide an objective,
uniform means of judging whether a group is really a tribe that
has been in continuous existence since European settlers
arrived. It was also created in order to process a large number
of petitions that were pending and anticipated to be filed.
Unfortunately, as today's testimony will bear out, the
system is fraught with major shortcomings. The acknowledgment
process was supposed to resolve many petitions per year. In
reality, less than two, on average, are completed per year.
One of today's witnesses represents a tribe that began its
quest for recognition in the 1970s. In spite of having its
record complete and ready, the tribe is being told it may have
to wait 10 or more years for a decision. The tribe could wait a
half century before obtaining a final determination. Regardless
of whether the tribe's petition should be approved or denied,
there needs to be a conclusion to this. It costs valuable
taxpayer dollars and denies justice.
Another problem with the current system is how
determinations are made. There is a set of criteria used to
judge the merits of each petition for recognition but as the
testimony of today's witnesses will assert, the criteria are
not always objectively applied. Whether or not this is caused
by a weakness in the regulations or by a personnel problem in
the Department remains to be seen.
The Committee is searching for solutions, solutions that
result in final determinations based on factual evidence, not
on subjective whim, and final determinations made without undue
delay. No one should wait three decades to process an
application for anything. Many people's home mortgages are paid
in that time.
Perhaps the solution is to transplant the work involved in
the recognition process from the BIA into an independent
commission. The final determination can still be made by the
Secretary or another government official specifically assigned
this duty by Congress.
I look forward to today's testimony and hearing from our
witnesses and hope that we can find solutions to this serious
problem.
[The prepared statement of Mr. Pombo follows:]
Statement of The Honorable Richard W. Pombo, Chairman,
Committee on Resources
The purpose of today's hearing is to examine the administrative
process used by the Bureau of Indian Affairs to determine which groups
are federally recognized tribes. This job is performed by the Office of
Federal Acknowledgment, which used to be called the Branch of
Acknowledgment and Research.
The theme of today's hearing is simple: Most everyone here thinks
the current system used to determine recognition is broken, so how do
we fix it?
This is an extremely important question because federal recognition
establishes a formal relationship between tribes and the United States,
which has major implications for the federal government, for the
members of the recognized tribe, and for other tribes, states, and
communities.
Prior to the adoption of the administrative process in 1978, the
Department of the Interior and Congress usually judged petitions for
recognition on a case-by-case basis. And back in the 19th century,
recognition was established through treaties and executive orders.
While Congress retains its plenary power under the Constitution to
recognize tribes, the BIA's administrative process was established to
provide an objective, uniform means of judging whether a group is
really a tribe that has been in continuous existence since Europeans
settlers arrived. It was also created in order to process a large
number of petitions that were pending and anticipated to be filed.
Unfortunately, as today's testimony will bear out, the system is
fraught with major shortcomings. The acknowledgment process was
supposed to resolve many petitions per year. In reality, less than two
on average are completed per year.
One of today's witnesses represents a tribe that began its quest
for recognition in the 1970's. In spite of having its record complete
and ready, the tribe is being told it may have to wait 10 or more years
for a decision. The tribe could wait a half-century before obtaining a
final determination. Regardless of whether the tribe's petition should
be approved or denied, there needs to be a conclusion to this. It costs
valuable taxpayer dollars, and denies justice.
Another problem with the current system is how determinations are
made. There is a set of criteria used to judge the merits of each
petition for recognition, but as the testimony of today's witnesses
will assert, the criteria are not always objectively applied. Whether
or not this is caused by a weakness in the regulations, or by a
personnel problem in the Department remains to be seen.
This Committee is searching for solutions, solutions that result in
final determinations based on factual evidence, not on subjective whim.
And final determinations made without undue delay. No one should wait
three decades to process an application for anything. Many people's
home mortgages are paid in that time.
Perhaps the solution is to transplant the work involved in the
recognition process from the BIA into an independent commission. The
final determination can still be made by the Secretary or another
government official specifically assigned this duty by Congress.
I look forward to the testimony of today's witnesses and hope that
we can find solutions to this serious problem.
______
The Chairman. I would now like to recognize the Ranking
Member, Mr. Rahall, for his opening statement.
STATEMENT OF THE HON. NICK J. RAHALL, II, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WEST VIRGINIA
Mr. Rahall. Thank you, Mr. Chairman, and thank you for
having this very important hearing today.
As we consider the topic of the hearing, I believe that it
should be put into its historical context. First the European
settlers tried to exterminate all American Indians. Shortly
after, the United States Government banished Indians to remote
reservations and endeavored to abolish their documentation,
culture and livelihood and established often unfair treaties
and settlements. And in more modern times we set up a system
where Indian tribes must prove to the same United States
Government that made these often disreputable treaties that
they are truly descendants of this country's original
inhabitants and can show the documentation to prove it.
I do not think that this is what American Indians had in
mind well over 100 years ago when they agreed to laying down
arms and turn over to the Federal Government their land,
including sacred burial grounds, places of worship, sources of
livelihood.
As it stands, that is the system in place and the fact of
the matter is that Federal recognition carries with it a
sovereign status that is essential to a tribe's long-term
survival, including control by Indians over their lands and
decisions affecting the lifestyle of their members.
Further, federally recognized tribes enjoy a unique
government-to-government status with the United States
Government and are eligible to receive services and funding for
better health care, housing, education, law enforcement, and
transportation. Yet the descendants of those who agreed to lay
down their arms and come to terms with the U.S. Government are
now faced with a Federal recognition process that does not work
in a fair or timely fashion and it has become too complicated
and too costly.
Since the Bureau of Indian Affairs was charged with the
recognition process in 1978, only 16 applications have been
approved and they were approved after a tribe has often had to
wait up to 20 years for a decision.
Now I am by no means suggesting that every application is
bona fide or that every single application has merit. At the
same time, it does appear that the process is sorely in need of
becoming more efficient.
I look forward to today's panel and again thank the
Chairman for conducting these hearings.
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, II, Ranking Democrat,
Committee on Resources
Mr. Chairman, as we consider the topic of this hearing, I believe
that it should be put into its historical context.
First, European settlers tried to exterminate all American Indians.
Shortly after, the United States government banished Indians to remote
reservations, endeavored to abolish their documentation, culture, and
livelihood and established often unfair treaties and settlements.
And in more modern times, we set up a system where Indian tribes
must prove to the same United States government that made these often
disreputable treaties that they are truly descendants of this country's
original inhabitants and can show the documentation to prove it.
I do not think this is what the American Indian had in mind well
over one hundred years ago when they began agreeing to lay down arms
and turn over to the Federal government their land-including sacred
burial grounds, places of worship, sources of livelihood.
As it stands, that is the system in place and the fact of the
matter is that Federal recognition carries with it a sovereign status
that is essential to a tribe's long-term survival including control by
Indians over their lands and decisions affecting the lifestyle of their
members.
Further, Federally recognized tribes enjoy a unique government-to-
government status with the United States government and are eligible to
receive services and funding to better health care, housing, education,
law enforcement and transportation.
Yet, the descendants of those who agreed to lay down their arms and
come to terms with the United States government are now faced with a
federal recognition process that does not work in a fair or timely
fashion and has become far too complicated and costly.
Since the Bureau of Indian Affairs was charged with the recognition
process in 1978, only 16 applications have been approved. And they were
approved after a tribe has often had to wait up to twenty years for a
decision.
I am by no means suggesting that every single application is bona
fide, and that every single application has merit. At the same time, it
does appear that the process is sorely in need of becoming more
efficient.
______
The Chairman. Thank you.
I'd now like to introduce our first witness but before I do
that I just wanted to announce to those of you that are in the
audience today that Room 1334, which is right down the hallway,
is open and you can hear the audio of the hearing if you would
like to. So if anybody gets to the point that they'd like to
sit down, the other hearing room is open and the audio is open
down there.
Our first witness today representing the 5th District of
Connecticut, The Honorable Nancy Johnson. Let me take this time
to remind all of today's witnesses that under our Committee
Rules oral statements are limited to 5 minutes. Your entire
statement will appear in the record.
Congresswoman Johnson, welcome to the Committee. It is nice
to have you today and when you are ready, you can begin.
STATEMENT OF THE HON. NANCY JOHNSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CONNECTICUT
Ms. Johnson. Thank you very much. I am sorry that my voice
is a little off today but I very much appreciate the
opportunity to testify. I also respect the history of the
tribal nations in our country but something has gone terribly
wrong with the tribal recognition process.
First of all, it has become driven by casino money, big,
big bucks, and in my part of the country the people affected by
that are small governments, governments of towns with 2,000,
3,000, 4,000 people. Those towns are heavily impacted by a
tribal recognition decision made here. Local cities and towns
already with tight budgets because in Connecticut those small
town budgets fund the local schools, so there's tremendous
pressure on these local budgets, they also have to then deal
with the traffic problems, the heavier road maintenance, the
heavier traffic control, the heavier fire control, all of the
things that you have to deal with if you're adjacent to a
reservation, and yet they aren't being given any help to have
the resources necessary to do the research that's so essential
to a balanced, fair tribal decision.
When we faced this issue in the environmental area, and
remember the Superfunds and the big companies were saying what
the plan would be for cleaning up the site, we gave citizen
groups grants so they would have the money to get the same
scientific back-up, so they would know that the solution would
be fair and balanced and in their interest, as well.
We need to do that with these small towns. Their mill rates
are skyrocketing just to fund the litigation and the research
that's necessary when there is a tribal determination going on
in their area. It's unbalanced. You're letting casino dollars
roll into areas where there weren't tribal traditions and
overwhelm the process in the local, state, and also down here.
We cannot let big money just drive this. We have to balance
that equation so the local people who know the history and also
have resources locally that could give them information that
would be relevant, so the balance is there, so the process is
fair.
I understand the importance of timeliness, absolutely, but
there's no way that the people down here can do the kind of
research they need to counter the research coming in as a
result of gambling money in the timeframes required.
So we need to balance the inputs. We need to have a fairer
process so that both sides can offer their information about
the recognition of the tribe.
And then the standards absolutely have to be clarified and
adhered to. We have a terrible situation in Connecticut. A
tribe in my district was recognized. The proposed recognition
said it could not be recognized; then the final recognition
completely reversed the decisions in the proposal and even
acknowledged that there was not adequate information to make
clear that for 60 years there was any political continuity.
They completely reversed precedent on the issue of whether a
state reservation indicated continuity and helped to meet the
standards. In some of those years there was no functional
entity on the land and while the states managed the lands like
they do parks and things like that, they didn't do it with
Indian leadership.
So while they have criteria and in their first proposed
decision they said this application doesn't meet the criteria,
in their final decision, even though they recognized the
additional information and said the additional information
didn't close all the holes, they went ahead and proposed
recognition with all the consequences for the small towns and
all the consequences for the absolutely catastrophically jammed
interstates in Connecticut.
There has to be clear standards. There has to be a fair
process that is not arbitrary and is not controlled and run by
high-paid lobbyists here in Washington.
So I call on the Committee to invalidate the Schaghticoke
decision, to impose a moratorium on BIA acknowledgment
decisions pending a comprehensive review of BIA process and the
issuance of recommendations for improvement, that you take
steps to bring into public view the financial and gaming
interests behind the Federal recognition petitions, that
fourth, you examine how the Federal process usurps, usurps the
traditional power of local governments to control economic
development, implement long-term planning policies, and provide
public safety and educational services, and fifth, that you
prohibit the liening of property claimed by a tribe because
while the Federal law does not allow them to take land that
they claim--they have no eminent domain--the way they do it is
they put liens everywhere.
It brings the whole town to a standstill. Retired people
cannot sell their property. Small businesses cannot sell their
property. The value of the land declines. That means that the
tax revenues of the town decline. The schools are still there.
The kids are still there. The police still have to be paid. The
roads still have to be repaired.
They have brought whole sections of Connecticut to an
absolute economic state of paralysis by liening property, so as
I have been told, they should be held to the standard that they
buy property like anyone else, and then the issue of bringing
it into trust is something that the law governs through a
process down here. Fine, but in that case do not allow the
liening of land claimed in Connecticut they claim five, six
towns.
So what is happening is a handful of people backed by very
big money are claiming lands that in some instances have been
farmed by people for hundreds of years, same family.
This is a serious issue. The process has to be looked at.
It has to be rebalanced. I agree it should be timely, that the
tribes have a right to be addressed in a timely fashion, but we
cannot do that unless the process is rebalanced so all the
information can come down to Washington together and the
standards can be clear and transparent.
Nothing less will do because these recognition decisions
are taking people's property in our country right and left.
These recognition decisions are imposing on small local
governments high costs that no local government can withstand
for police, for fire, and it is wiping out public education in
these towns.
So we are facing an extremely serious situation. In the
small State of Connecticut we have two big, established tribes
but we have lots of little ones now looking to also imitate
because of the casinos. In just 1 week each of our casinos on
just the slots took in $60 million. That is what is driving
this--big money. And that is just the only money we know about.
So I do not begrudge the Indians economic opportunity and
help and all those things, but their economic opportunity ought
to be integrated with the economics of the region, as well,
because the costs that are being imposed on small towns are
absolutely crushing.
So I wish you well in your work. I hope you will take
seriously the need to put a moratorium on this process until we
can figure out a more balanced, equitable and a process that
moves more rapidly for all concerned, but a process that is
more equitable and in which the standards are consistent and
adhered to.
Thank you for your time. I appreciate it.
[The prepared statement of Ms. Johnson follows:]
Statement of The Honorable Nancy L. Johnson, a Representative in
Congress from the State of Connecticut
Mr. Chairman and members of the Committee, thank you for inviting
me to testify today on the important subject of the Bureau of Indian
Affairs' federal recognition process. This subject is creating
tremendous controversy in my home State of Connecticut. While this
issue has stirred grave concerns in numerous other states dealing with
the federal recognition process, I wish to focus on the substantial
impact it is having on my constituents in Connecticut.
Over the last two years, BIA has issued final determinations
granting federal recognition to two groups in Connecticut: the
``Historic Eastern Pequot'' tribe, located in North Stonington, a town
represented by my colleague Rep. Rob Simmons. The second was the
Schaghticoke Tribal Nation, in the town of Kent in my district. The
Schaghticokes have expressed interest in building a casino resort in
Danbury or Waterbury in my district, or in Bridgeport, represented by
my colleague Rep. Christopher Shays.
In addition, BIA will also soon issue a final determination on the
petition on the Golden Hill Paugussett group, located in Colchester and
Bridgeport.
It is an unfortunate reality that the tribal recognition process
has become for many but a means to the end of profiting from casino
gambling. Petitioning tribes make it publicly known that their ultimate
interest is in casino gambling, and millions of dollars are flowing in
from out-of-state gaming interests to fund recognition petitions. We
cannot, as a matter of public policy, fail to understand this nor the
extraordinary impact recognition--often on very slender threads of
evidence--is having on local governments and local taxpayers.
Casinos in Connecticut have far-reaching consequences. Our major
highways are already choked during rush hour and would be completely
overwhelmed with the 24-hours-a-day, seven-days-a-week traffic of a new
casino in Bridgeport, Danbury, or Waterbury. Local cities and towns,
already facing budget crunches, would be forced to pay for far more
frequent road repairs and construction, traffic control, and increased
fire and police protection. In effect, local property taxpayers would
be forced to support the economic development decisions of
``sovereign'' entities that do not have to pay all the costs of their
decisions, nor the cost of public education, which is primarily funded
through local property taxes in Connecticut. When asked recently about
the benefits of the existing casino in Ledyard, Connecticut, to his
community, the former Mayor of Ledyard said there have been none. Yet
the costs have been great.
The issue today, Mr. Chairman, is one of both ends and means. While
Connecticut residents overwhelming oppose the goal of more casinos,
they also now suspect the integrity of the recognition process. Their
loss of trust in this process is a serious matter, and for good reason,
they consider this process arbitrary at best, dishonest at worst.
Problems within the BIA process are well-known and have been
documented by well-respected, independent agencies. In 2001, the U.S.
General Accounting Office reported that the recognition process is
characterized by inconsistency, unfairness, and delay. A subsequent
report by the Interior Department Inspector General about the
recognition process cites troubling irregularities, the use of
political influence in what should be an objective process, and the
questionable practice of recently-departed BIA officials lobbying for
petitioning tribal groups.
Some of these problems are brought into stark relief in the case of
the recognition of the Schaghticoke tribal group. In December 2002, the
BIA issued a proposed finding that the recognition of the Schaghticoke
group did not meet all seven criteria for federal recognition, and that
its tenuous relationship with the State of Connecticut did not add
evidentiary weight to the group's claim. On January 29, 2004, however,
the BIA reversed itself and issued a final determination that the
Schaghticoke tribe had satisfied the seven federal criteria for
recognition. In reaching this conclusion, BIA contradicted its own
reasoning in its proposed finding by determining that the tribal
group's relationship with the state did, in fact, bolster their
petition. In addition, the BIA argued in its final determination that
the tribe had satisfied a previously unmet criterion while admitting
insufficient evidence had been provided to justify it. This reversal
left many of us in Connecticut bewildered and eager for answers. Since
then, my colleagues in Connecticut and I have written to the GAO, to
Interior Secretary Gale Norton, and to the Interior Department's
Inspector General requesting an investigation and answers to the
questions raised by this inexplicable reversal.
Shockingly, we received answers to some of our questions in the
form of a disturbing decision memorandum, written by BIA staff two
weeks before its final determination was handed down and only revealed
this month. In it, BIA staff admit that the Schaghticoke group did not
meet the criterion for continuous political influence for two periods
encompassing 64 years of its history, an admission also reflected in
the final determination. The memorandum says plainly, ``The petitioner
has little or no direct evidence to demonstrate that criterion
83.7(c),'' the political influence criterion, ``has been met between
1820 and 1840 and between approximately 1892 and 1936.'' The memorandum
also admits that BIA precedent holds that the state's relationship with
the group, which has essentially been a symbolic function, does not add
evidentiary weight to the group's claim.
Rather than deny the Schaghticoke petition in the final
determination, as it had in the proposed finding and as the regulations
and precedent would suggest, the BIA memorandum lays out a strategy to
overturn existing precedent and abrogate federal regulations. The
memorandum admits that BIA knew the petition did not meet the standards
outlined in the ``regulations and existing precedent,'' and that they
would have to be ignored or reevaluated in order to approve the
petition. Indeed, the memorandum reads, recognition ``would require a
change in how continuous state recognition with a reservation was
treated as evidence.'' Two weeks after that memorandum was written, the
BIA issued a final determination recognizing the Schaghticoke and
opening the door to casino gambling in Western Connecticut.
My constituents in Connecticut, as well as many Americans across
the country, are strongly opposed to further casino gambling in their
area. But they also strongly object to the clearly faulty, unfair, and
arbitrary process that seems to respond more to the millions spent by
casino interests than to the law. The relatively paltry sums small
towns can spend with local property taxes as their sole sources of
financing are simply no match for the big money behind the big business
of casino gambling.
I believe immediate action is necessary to restore the credibility,
predictability, and integrity of the overall tribal recognition process
and address what is, in my view, a flawed and illogical decision
regarding the Schaghticoke tribal group. Specifically, I recommend the
Department of the Interior do the following:
1. Invalidate the Schaghticoke decision and issue a new final
determination that is consistent with federal recognition regulations
and existing precedent;
2. Impose an immediate moratorium on all BIA acknowledgment
decisions pending a comprehensive review of BIA processes and the
issuance of recommendations for improvement;
3. Take steps to bring into public view the financial and gaming
interests behind federal recognition petitions;
4. Examine how the federal process usurps the traditional power of
local governments to control economic development, implement long-term
planning policies, and provide public safety and education services;
and
5. Prohibit the liening of property claimed by a tribe as it
dramatically undermines property values and paralyzes home and land
sales throughout the affected region.
In conclusion, it is widely-held and well-documented that the BIA
recognition process is faulty. Certainly, Connecticut residents have
lost faith in that process and worry that it will result in new casinos
in areas that neither want them nor can support them.
The question before this Committee and this Congress is what to do
to address this problem. Congress can no longer put off its
responsibility to address questions of credibility, competency, and
fairness within an agency under its jurisdiction. Only through clear,
concrete and effective action can Congress right this ship; restore
credibility to the process; and ensure that federal recognition
petitions are dealt with objectively, consistently, and fairly for both
petitioning groups and local communities.
Thank you for considering my testimony today.
______
The Chairman. Thank you. I know that you are very
passionate about this. We have had the opportunity to discuss
this in great detail in the past and the Committee does take
this issue extremely seriously and it is part of the
jurisdiction of this Committee that we will work through on a
bipartisan basis to deal with this problem.
Ms. Johnson. Thank you, Mr. Chairman. I also meant to
mention that Mr. Shays and Mr. Simmons would like to submit
their written testimony.
The Chairman. Without objection, it will be included in the
record.
[The prepared statements of Messrs. Shays and Simmons
follow:]
Statement of The Honorable Christopher Shays, a Representative in
Congress from the State of Connecticut
Mr. Chairman and members of the Committee, thank you for allowing
me to submit testimony on the Bureau of Indian Affairs' (BIA) federal
recognition process.
It has become clear that the recognition process is neither
transparent nor accountable and needs to be significantly reformed.
I have long said we must live with the BIA's decisions on federal
recognition, as long as they are made using the proper gauges. In
recent weeks, however, evidence has surfaced that even petitioning
tribes that fail to meet the seven established criteria for federal
recognition may be recognized in spite of rather significant
shortcomings in their petitions.
The fact is, the federal recognition process creates sovereign
nations and, in doing so, has far-reaching social, political and
economic consequences--even more so when casinos are involved, which is
becoming more and more often the case. Without transparency and
accountability in the process, the integrity of the BIA, and by
extension the federal government, is eroded.
On January 29, 2003, the BIA announced its decision to recognize
the Schaghticoke Tribal Nation of Kent, Connecticut, as a federal
tribe, even though it seemed clear they did not meet the BIA criteria
for proving continuity from pre-colonial times.
Then, on March 12, The Hartford Courant made public a memo
circulated within the Department of Interior two weeks before the
Schaghticokes were federally recognized indicating that the
Schaghticokes were granted recognition without having met the
established criteria.
The memo demonstrated the agency knew the tribe lacked political
continuity for a period of 64 years in the 19th and 20th centuries. The
memo also raised questions about whether several people whose names
were on the petition were ever actually members of the tribe.
Even more disturbing, the memo provided BIA directions for
recognizing the tribe in spite of these facts.
The unfortunate reality highlighted by this example is that the BIA
quite clearly did not decide this case on its merits--and I fear this
instance was not an anomaly.
Indian gaming is a $23 billion industry, and its expansion hinges
on the federal recognition process.
Private investors and powerful casino developers stand to make
fortunes when a tribe is recognized. And all too often they have
encouraged tribes to petition, even when they might not otherwise have
united to do so because they do not meet established recognition
criteria.
Our nation has a responsibility to uphold certain unbreakable
obligations to the continent's native peoples, but I believe the
process has been corrupted by big money gaming interests that have
literally started assembling tribes with the hopes that they can
eventually reap huge profits from an Indian casino.
In this way, a process designed to afford due rights and privileges
to legitimate petitioners has almost become an administrative vehicle
to print money.
Furthermore, legitimate tribal interests are finding themselves in
a process where they cannot hope to gain recognition without being able
to spend lavish sums of money on lobbying--an obfuscation, if not a
mockery, of the original intent of the federal recognition process.
Simultaneously, a shadow has unfairly been cast over all of the tribes
that have met the criteria and achieved due recognition.
The bottom line is, granting federal recognition is a very serious
decision that requires a thoughtful and transparent process, but back
in 2001, the General Accounting Office found the BIA's process for
doing so to be inconsistent, slow and unfair.
The Department of Interior's Inspector General also found political
influence and pervasive irregularities have corrupted the recognition
process.
These factors combine to project a resounding message: a full-scale
reform of the federal recognition process with the objective of
restoring transparency and accountability to a system that has become
quite corrupt is long overdue.
In her testimony before your Committee today, Congresswoman Nancy
Johnson made several recommendations for ways to restore the
credibility, predictability and integrity this broken system has come
to lack.
Specifically, she recommended reevaluating the Schaghticoke
decision, this time applying all established criteria to determine the
validity of the petition; imposing a moratorium on future recognition
decisions pending a review of the BIA process; and making public the
financial forces that support petitioning tribes.
I wholeheartedly support my distinguished colleague's suggestions
and hope they will be adopted by the Department of Interior.
Thank you for considering my testimony.
______
Statement of The Honorable Rob Simmons, a Representative in Congress
from the State of Connecticut
Mr. Chairman and members of the Committee, thank you for holding
this hearing, and for allowing Rep. Nancy Johnson, the dean of the
Connecticut congressional delegation, to testify on behalf of our home
state. She has worked tirelessly on this issue and I appreciate her
bringing this issue to the forefront.
Mr. Chairman, my home State of Connecticut has been, and continues
to be, affected by our federal Indian recognition process. My district,
Connecticut's Second Congressional District, is host to two of the
world's largest casinos: Foxwoods Resort Casino, run by the
Mashantucket Pequot Tribe, and Mohegan Sun, run by the Mohegan Tribe.
Connecticut has seen both the benefits and the adverse effects of
tribal recognition. One benefit is that Indian gaming has produced jobs
at a time when defense contracting and manufacturing have been on the
decline. Foxwoods Resort and Mohegan Sun purchase goods and services,
and contribute upwards of $300 million a year into the state budget.
Tribal members have also been personally generous with their wealth,
supporting numerous community projects and charities.
But there is also a considerable negative impact. In Connecticut,
recognition means the right to operate a casino and that places
pressure on local municipalities who have no right to tax, zone or plan
for these facilities. Small rural roads are overburdened with traffic,
understaffed local police departments are routinely working overtime,
and volunteer fire and ambulance services are overwhelmed with
emergency calls. The small towns that host and neighbor these casinos
are simply overwhelmed by this strain.
In year's prior, many in Connecticut questioned the presence of
tribal casinos because they wondered whether the federal process was
fair. The people of Connecticut no longer wonder. They know the federal
system is broken.
BIA's recent actions involving groups in Connecticut seeking status
as Indian tribes under federal law demonstrate that the acknowledgment
process is unfair and corrupt. This, of course, is not the fault of the
petitioning groups, some of whom I have considered friends and
neighbors for many years. It is the fault of the federal government.
Congress must act promptly to correct these problems.
Over the last two years, BIA has issued final determinations that
would grant federal tribal status to two groups in Connecticut. The
first of these was the ``Historic Eastern Pequot'' tribe, located in
the town of North Stonington in my congressional district. The second
was the Schaghticoke Tribal Nation, in the town of Kent in the
congressional district of Ms. Johnson.
The BIA also will soon issue decisions for the Golden Hill
Paugussett group, located in Colchester and Bridgeport, and the two
Nipmuc groups, located in Massachusetts, but targeting land in
northeastern Connecticut.
With such significant decisions pending before a federal body, it
is our duty in Congress to ensure that a fair and objective procedure
is used to make these decisions. Tribes need to be granted the federal
status they deserve and accorded their sovereign rights, but the
determination to acknowledge such tribes cannot be made under false
pretenses and without regard for the overall economic, social and
political consequences that will result. Unfortunately, that is exactly
what is happening under the flawed and biased BIA system.
Nowhere are these problems with BIA's acknowledgment procedure more
apparent than in Connecticut. The record is clear that BIA is breaking
its own rules to reach their own desired outcome and that of
petitioning groups and their wealthy financial backers. The recent
Schaghticoke decision is a case in point. BIA specifically admits in an
internal agency memorandum that the Schaghticoke group does not satisfy
the acknowledgment criteria. Nonetheless, BIA violated its own
regulations to reverse a previous ruling and find in favor of the
Schaghticoke group.
It did so by creating a presumption in favor of acknowledgment for
petitioner groups in Connecticut based simply on the fact that the
State has held land for Indians. BIA equated this simple act by the
State undertaken primarily as a welfare function with the existence of
a continued political relationship between the State and the Indian
beneficiaries of the land. BIA admits in its own internal decision
document that such a result is not allowed under its regulations, but
nevertheless proceeded to rule in favor of the Schaghticoke petition.
Just as egregious, the memorandum went on to specifically lay out
potential avenues under which regulations could be averted and final
recognition could be conferred.
BIA followed a similar pattern in the Eastern Pequot decision in
2002. In that case, BIA went so far as to forcibly combine two
petitioner groups who openly opposed each other. Only by doing so was
BIA able to issue a favorable decision. BIA also invoked the mistaken
assumption that the simple existence of a state reservation was
sufficient grounds for the two Pequot petitioner groups to meet the
acknowledgment criteria.
Most recently, the New York Times detailed in a front-page story
the ties between powerful money interests and petitioner groups.
Included in this article was a troubling reference to the business
relationship between the current head of BIA, David Anderson, and the
primary backer of the Massachusetts and Connecticut Nipmuc groups, Lyle
Berman. Mr. Anderson and Mr. Berman were founding partners of what is
now Mr. Berman's casino development company, Lakes Entertainment. Lakes
Entertainment has provided nearly $4 million to the Nipmucs in their
effort to obtain federal recognition.
There is a laundry list of other problems and abuses arising from
the acknowledgment process in recent years. These include actions under
the previous Administration such as changing the acknowledgment
procedures without notice or public comment, discriminating against
interested parties opposed to acknowledgment by not revealing critical
evidentiary deadlines, issuing incomplete proposed rulings so as to
prevent comment on key findings, and even signing post-dated favorable
determinations after the change in Administrations.
How could so many serious problems arise? The answer starts with
the most basic principle of our system of government. Congress is
vested with the power to recognize tribes. That power has never been
delegated to the Executive Branch.
In addition, Congress has never taken the constitutionally
necessary step of defining and placing in statute the standards under
which BIA could rule on tribal acknowledgment petitions. Absent this
statutory guidance from Congress, BIA has simply made up its own rules.
It administers those rules as it sees fit, even ignoring them when
necessary to reach a desired result. The system is out of control.
For many years, the acknowledgment process has been criticized for
being too slow, too expensive and too academic. While those are valid
concerns, the bigger problem is that BIA's acknowledgment process also
has lost its credibility. Decisions of such importance can no longer be
left to this agency.
Strong and immediate action is necessary to address those problems.
In my conversations with numerous citizens throughout the State of
Connecticut, including leaders like Nick Mullane, Connecticut's State
Attorney General Richard Blumenthal, Bob Congdon, Wes Johnson, Susan
Mendenhall, and others, I've heard the following recommendations:
Impose a moratorium on all BIA acknowledgment decisions;
Enact a law that establishes an independent, objective
process for making findings of fact regarding tribal acknowledgment
requests;
Define and place in law the acknowledgment standards that
will be used in this process;
As part of that process, require all petitioners to
identify the sources of their funding, the contractual arrangements
with financial backers, and the amount of money spent;
Prohibit all ex-parte contacts between parties to an
acknowledgment process and the entity responsible for review;
Require all recommended decisions on acknowledgment
petitions to be acted upon by Congress; and
Establish a funding mechanism that assists interested
party state and local governments in participating in such reviews.
In conclusion, Federal recognition policies are turning the
``Constitution State'' into the ``casino state.'' We want more control
over the process. We want to close the loopholes. We want relief
provided to our localities for what can be a very expensive battle on a
very uneven playing field.
The victims of the situation include all parties to the
acknowledgment process--petitioning groups, states, local communities,
and the public. It is time for Congress to step in and solve this
problem by reforming the system by statute. This is the only way to
ensure fair, objective and credible decisions.
Thank you for considering this testimony.
______
The Chairman. Mr. Rahall?
Mr. Rahall. Thank you, Mr. Chairman.
I thank the gentlelady from Connecticut for her testimony,
as well. She brings a great deal of empathy and understanding
of the issue here.
I can understand the cutbacks that many state, local and
city governments are facing today. We are certainly
experiencing that in my area of the country, as well, with the
cutbacks coming from Washington and with the tax breaks
emanating from this city, it makes it very hard for the state
and local governments to make ends meet these days and we are
putting additional burdens upon them. There is no doubt about
it.
Ms. Johnson. I thank you. You know, this is so difficult
that the Indians living on the reservation did not support the
petition because they are afraid of what it is going to mean
for their reservation, their way of life, the traditions they
are trying to preserve.
So we are not getting a fair record into Washington and we
need to make sure we do that because we are overriding very
fundamental rights granted in our Constitution to citizens of
this country and that should not be. Thank you very much?
The Chairman. Mr. Pallone?
Mr. Pallone. I respect the gentlewoman's opinion but I have
to take issue, both on a theoretical level as well as a
practical level, about what she said, and then I did have a
question, Mr. Chairman.
On the theoretical level, I have a real problem with the
way you have addressed this because I believe that the issue of
sovereignty predates states, predates local governments. The
bottom line is the Constitution recognizes Indian tribes as
sovereign nations and that really has nothing to do with the
status of states or the status of local governments.
So I have a real problem with our government at the Federal
level providing funding, if you will, to local units of
government or to states to help them make a case against
sovereignty once the BIA has made that decision or that
preliminary decision, primarily because the issue of
sovereignty is a Federal issue. It is not a state issue. The
Federal government should decide essentially on its own whether
or not a tribe is sovereign.
And the problem with most of these cases is that state and
local governments over the years and the Federal Government, as
well, have done their best to try to terminate the rights of
American Indians and to eliminate their sovereignty and for us
to sit here and say that somehow the states or the local
government should have some input or should be able to
influence in some way the decision the BIA makes about whether
a nation is sovereign and should be recognized as such I think
is wrong and I think essentially violates the Constitution.
Now that is the theoretical problem. The practical problem
is that I think the way the gentlewoman portrays tribes as
somehow wealthy and able to have all this money to make their
case is essentially just the opposite. If I could use the
Eastern Pequots, and I do not know whether or not she opposes
their recognition, but I know that when I visited them what I
found essentially was a handful of people who had very little
resources and ability to influence what goes on.
Now for all I know they may have some casino money or
somebody who has promised them money that they can hire but
they had a small land area historically, they have clear
indications with the graves on the site and the fact that they
have existed as a tribe and they are entitled to sovereign and
recognition, but they had a very difficult time over the 20 or
30 years when they have been trying to get their recognition in
getting the resources and being able to hire people to make the
case.
So this idea that the tribes are somehow with all this
money and all this power and all this ability and the local
municipalities have nothing, I think it is just the opposite. I
do not think it makes any sense for us to give money to towns
to be able to make that case because we do not give the money
to the tribes to be able to appeal decisions or make those
cases.
So I think that theoretically I do not agree with the
gentlewoman in terms of the state or the local role in this
decision. I do not think there should be one. I think this is a
Federal issue.
Second, practically speaking, I think it is just the
opposite. Many of these tribes have a hard time making their
case and getting the money to be able to make the record
straight.
I just wanted to ask a question which sort of relates to
the practical aspect. We know that the BIA does not have a lot
of resources. Why is it appropriate for the Department of the
Interior to foot the bill for municipal appeals, which is what
I think the gentlelady is saying in her bill, but not for
tribes who appeal unfavorable decisions? Would the gentlewoman
who now advocates that the towns get money to take the appeal,
would she have a problem with the tribes getting money in the
same way to make their appeal from the government?
Ms. Johnson. You misunderstand me from the beginning, so
let me back up a little bit.
I certainly am not challenging the concept of sovereignty.
I am saying that in a part of the country where we are
recognizing tribes for the first time in hundreds of years you
have to look at the facts to see if they meet the criteria. So
you want advocates of recognition and opponents of recognition
to be able to get their facts on the table so the Federal
Government can make an honest decision about whether there is a
tribe that meets the criteria to be recognized.
So I would not object to Indians being given the resources
and the town being given the resources but if you accept public
resources, you then would have to not accept additional
resources.
My goal is to try to balance this so that when the Federal
Government looks at the tribal recognition issue it looks at it
with its experience but it also looks at it with local
knowledge of the history and life of the people because the
criteria demands some continuity of existence. So if you do not
have equal resources, you are not getting equal facts.
Now I am not knowledgeable about this process in the West
so much but in the East, it was not an issue until gambling
made such a big hit. Now we have two big casinos, two big
recognized tribes. I am not challenging that. The reason I am
challenging the recognition of the Schaghticokes is because the
process has been an absolute travesty. In my written statement
I went through this in a far more orderly fashion than I did in
my summary but for instance, there was a memorandum from staff
in the BIA to the decisionmakers about how it did not meet the
criteria but if you still wanted to recognize them, this is how
you could do it. They say, for instance, ``The petitioner has
little or no direct evidence to demonstrate that criteria
83.7(c), the political influence criteria, has been met between
1820 and 1840 or between 1892 and 1936,'' and that is a long
time. The memorandum also admits that the BIA precedent holds
that the state's relationship with a group, which has
essentially been a symbolic function, ``does not add
evidentiary weight to the group's claim.''
So you have this proposed decision, then you have the final
decision, and in between you have this memorandum that says
they do not meet the criteria but if you still want to do it,
this is how you do it.
Now to put people's property rights at risk, to put the
viability of local government services at risk, is simply an
outrage in the face of that kind of a memo. That is why I say
you need a moratorium because you need to look back at this
process. One possible component of the solution would be in
every case to make sure that the sides have the resources they
need to bring forward the information. If you did that you
would want to ban outside money, I guess, so everybody had the
same.
But you have to recognize that gambling has changed this
because it is big, big money and the take is so large, they do
not care how much money they invest in the recognition process.
So they not only----
The Chairman. The gentleman's time has expired.
Ms. Johnson. You get it.
The Chairman. Are there further questions of the witness?
Well, thank you, Mrs. Johnson.
Ms. Johnson. Thank you for the opportunity. I do appreciate
it.
The Chairman. Thank you for your testimony.
Ms. Johnson. I know our perspective from the Northeast is
different but the impact is going to be very, very different.
It is all right if they are tribes that truly meet the criteria
but not if they are tribes that do not. Thank you.
The Chairman. Thank you.
I would like at this time to call up our second panel
consisting of Glenn Marshall, President of the Mashpee
Wampanoag Tribe, Lance Gumbs, Tribal Trustee of the Shinnecock
Indian Nation, Rosemary Cambra, Chairperson of the Muwekma
Ohlone Indian Tribe, and Wilford ``Longhair'' Taylor, Tribal
Chief of the MOWA Band of Choctaw Indians. I should note that
these witnesses are members of tribes that are seeking or have
sought recognition but have not yet received it.
The Committee has a practice of swearing in all witnesses,
so if I could ask you to please stand and raise your right
hand.
[The witnesses were duly sworn.]
The Chairman. Thank you very much. Let the record show that
they all answered in the affirmative.
Mr. Marshall, we are going to begin with you. I again
remind our witnesses that your entire written statement will be
included in the record but if you could try and keep your oral
testimony to 5 minutes it will help us a great deal to stay on
schedule. So Mr. Marshall, thank you.
STATEMENT OF GLENN MARSHALL, PRESIDENT,
MASHPEE WAMPANOAG TRIBE
Mr. Marshall. Thank you, Mr. Chairman, members of the
Committee. I appreciate the opportunity to testify today. My
name is Glenn Marshall and I am the President of the Mashpee
Wampanoags.
Our tribal offices are located on Cape Cod in Massachusetts
in a town that bears our name. Most of our 1,468 members live
in close proximity to our ancestral lands. Our history is rich
and closely intertwined with the history of America. Our local
villages have existed for 5,000 years and we are best known for
having greeted the Pilgrims at that best known spot in
Plymouth. Despite what you might think, we do not regret
opening our arms to those settlers, although I have joked in
the past that we loaned the Pilgrims the moorings to land their
boats and we have been paying for it ever since.
Seriously, we are proud of our participation in that
historic event and our prominent role in American history did
not end there. Our tribe has answered the call to defend
America, fighting in every conflict starting with the fight for
independence and the war on terrorism. The first casualty of
the Revolutionary War was Crispus Attucks, a Mashpee. I am
joined today in the audience by my Chief, Vernon Lopez, who
fought at D-Day. I myself am a survivor of the Surge of Khe
Sanh and many incursions into Vietnam.
Mr. Chairman, hundreds of the Mashpees have given their
country their fullest measure of devotion in battle and we have
shared our land and blood and served our nation with
distinction and pride. We have also been good neighbors in our
local community. We maintain the oldest Christian church
building on Cape Cod, the Old Indian Meeting House.
I have with me here today a book that dates prior to the
Commonwealth of Massachusetts that tells us we have had a
continuum of presence in the Commonwealth of Massachusetts and
this great country since the beginning of time. I could have
brought an older book that dates to the 1600s--it has our
genealogy, it has our governance of our tribe here--but it was
too fragile to travel. It makes me angry that we are not able
to bring these books and show the members of Congress and the
people within the BIA.
Because of that church, we are known as the praying
Indians. We use this facility for special services now only.
Most of our services are done in Algonquin and in dialect.
It has taken me a long time to understand the workings of
the government. I am sorry that we could not bring more
evidence, but I knew that our time would be short.
We are here for one simple reason. Twenty-nine years ago
the Mashpees asked the Federal Government to confirm in law
what everybody knows to be true, that we are a tribe, and 29
years later we are still waiting. When we filed our letter
stating our intention to seek Federal recognition in 1975 the
BIA's response was prompt, stating that Mashpee would be among
the first to be considered. Only 14 others had filed prior to
that time. Three years later the BIA finalized their
recognition rules and regulations and we certainly never
expected it would take more than 30 years. We immediately
initiated our formal petition and it was not complete until
1990. We spent years trying to navigate through the confusing
regulations, unresponsive bureaucracies of the BIA and further,
just knocking on doors everywhere and getting the same answer.
Looking back, it is not surprising that our tribe, with few
resources and even fewer academics, struggled to understand the
nuances of the process.
Since 1996 when our petition went on active, we have
watched it stay dormant. We have watched other tribes who were
lower on the consideration list leapfrog over us and get
determinations from the BIA. We followed the rules and
regulations set forth by the BIA, still with no decision.
Finally, we abandoned that and we took our case to court.
We started well. In 2001 a Federal judge ordered that we would
have a final decision December 21, 2002. The bureau pushed. The
Court of Appeals reversed that decision and directed the court
to find a new and fresh evaluation as to whether the delay had
been unreasonable. Our litigation continues and they say that
we will not be recognized or have a decision for seven to 14
more years within the bureau process.
Mr. Chairman, we have no desire to be in court. We would
have settled this out many, many times over in the last 4
years, since 1996, since 1975.
The system needs to be fixed. There are several ways that
we can do it. I have some ideas. I would love to share them
with you. But the time-consuming, costly litigation helps no
one. It absolutely helps no one. It does not help the tribe. It
does not help the community. It does not help the Commonwealth
of Massachusetts and it certainly does not help the United
States of America.
When I look at the Lady of Liberty I see a black eye
underneath the right eye and it says Mashpee Wampanoag for the
travesty this country has permitted to happen to us. Mr.
Chairman, I beg you for your help and there are situations here
that we can fix.
There are only 27 tribes left that filed for recognition
prior to 1988. I say that those tribes should be the ones that
are looked at first. Anyone that filed after 1988, let us go
through the queue. Let us make them stand up to their
regulations or let us find some outside independent folks that
can do some of the legwork that they do, academics. We have
some of the most wonderful colleges with academic archives for
colonial history; it would not take long.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Marshall follows:]
Statement of Glenn Marshall, President, Mashpee Wampanoag Tribe
Mr. Chairman, members of the committee, I thank you for the
opportunity to offer these remarks today. I am President of the Mashpee
Wampanoags, the largest tribe in the Commonwealth of Massachusetts. Our
tribal offices are located on Cape Cod, Massachusetts, in the town
which bears our name. We are a tribe of 1,468 members, most of whom
live in close proximity to our ancestral lands. I present myself today
on their behalf in order to share our story. I hope my remarks will not
only narrate the historical significance of the Mashpee and our record
of service to the United States, but will also demonstrate the
compelling factual case for federal recognition. It is my hope that
these remarks help present a more clear picture of our tribe's
experiences, and, in turn, a clear picture of the reality of the
federal recognition process.
The vision of the Pilgrim forefathers disembarking from the
Mayflower at Plymouth Rock is the starting point for many people's idea
of significant history in the New World. More exactly, it is a pivotal
point in American history. It started a new chapter, but it is only a
brief moment in a much longer narrative of life on this continent. That
story is one of men and women whom have lived for thousands of years
prior to the arrival of Europeans. Archeologists have discovered
evidence to support the claim that local Mashpee villages have existed
for 5,000 years with an unbroken continuum of habitation to the
present. Our extensive history, therefore, is not predicated on the
single instance in which our ancestors greeted the Pilgrims as they
landed upon the shores of America. Rather, this moment enriched the
history of the Mashpee as a community tied to the land on which we have
existed for thousands of years. We are proud to have been part of this
historically significant event and many since.
Since that meeting, our history has been shared with the European
settlers. However, our experience has not always lived up to the
promise of that first meeting in Plymouth. In fact, our experience with
the Bureau of Indian Affairs has only intensified the lingering taste
of past oppression. But our commitment to this, our great country, has
been and remains steadfast. We are proud to be Americans. We are proud
of our country. We have not always been treated with fairness and
equality. But, we know ourselves to be a significant tribe tied to the
long history of this nation, and we remain firm in our faith in its
commitment to justice.
The fight for freedom and development of democracy has been a
tumultuous one, often calling for men and women to fight in order to
secure liberty. The first casualty of the Revolutionary War, Crispus
Attucks, was a member of the Mashpee. Another distinguished Mashpee,
Massasoit, stands point on the state seal and flag of the Commonwealth.
In fact, the Mashpee have consistently answered the call to arms,
fighting in every American conflict beginning with the fight for
independence from England: 21 in the Spanish American War, 145 in World
War I, 5 in the Haitian Insurrection, 6 in the Philippine Insurrection,
80 in World War II (including 44 at D-Day), 61 in the Korean War, 30
during the Cuban blockade, 50 in the Vietnam War, 6 at Grenada, 11 in
Panama, 13 in Desert Storm and 17 in Afghanistan and the War on Terror.
I am joined today by our Chief, Vernon Lopez, who was among the Mashpee
fighting at D-Day; I, am a survivor of the siege of Khe Sanh, in
Vietnam. Our ties to our community at home compliment our record of
service and sacrifice to the country.
Currently, sixty percent of our tribal members live in close
proximity to the town of Mashpee. We maintain the oldest Christian
church building on the Cape, the Old Indian Meeting House, established
in 1673 by John Eliot. Our devotion to the church has earned us the
name ``Praying Indians,'' and presently we use this facility for
special occasions of worship. Our services are performed in Algonquin,
the official Wampanoag language. Moreover, we assist other tribes in
maintaining their traditional languages and customs. Meticulous care is
given to preserving the nuances of our cultural traditions with hope of
enculturation for subsequent generations. Nevertheless, the lack of a
defined tribal land makes preservation of our traditions and cultural
identity very difficult to maintain. Our frustration is intensified in
the light of our progressive social and legislative history in the
Commonwealth of Massachusetts and prior relationship with the federal
government.
The significance of Mashpee history in Massachusetts is confirmed
in historical texts dating back hundreds of years. As population
swelled in states, the idea of westward expansion became a reality. The
United States government explored the removal of Indians from eastern
states through the endowment of tribal lands in the west in places such
as Oklahoma. The shortsighted and thoughtless nature of such proposals
aside, such a consideration was rejected when considering the
relocation of the Mashpee. A document dating from 1822, A Report to the
Secretary of War of the United States on Indian Affairs, states in
regard to Mashpee relocation,
``They are of public utility here as expert whalemen, and
manufacturers of various light articles; have lost their
sympathy with their brethren of the forest; are in possession
of many privileges, peculiar to a coast, indented by the sea;
their local attachments are strong; they are tenacious of their
lands; of course the idea of alienating them and removing to a
distance, would be very unpopular. This is evident from the
feelings manifested by those whom I have sounded on the
subject; I have no reason therefore, to believe the scheme
would take with them.'' 1
---------------------------------------------------------------------------
\1\ Jedidah Morse, A Report to the Secretary of War of the United
States on Indian Affairs (New Haven 1822).
---------------------------------------------------------------------------
Then, the rebuff of Mashpee removal was predicated on our strong
ties to the land and sea, as well as our fierce love for the land we
have inhabited for so long. Now we seek to have the federal government
recognize the Mashpee and acknowledge our history in this land, a
history recognized in texts such as these. Yet, this is not the
singular piece of supporting evidence in our case for federal
recognition.
The town of Mashpee, Massachusetts, was incorporated as a township
in 1870 and common land allotted to Indians and non-Indians. Members of
our tribe served in all leading roles in the town of Mashpee until
1964, serving the town in governance positions including selectman, as
police and firemen, and as municipal officials. During this period, we
opened to the public our traditions in hope that others could
understand our culture as we had been forced to understand theirs. In
1920 we began the first community powwow, inviting citizens to
participate in one of our most sacred customs. Over time, Massachusetts
embraced our tribe and, most notably, recognized the Mashpee in
statute. In fact, more recently, members of the Massachusetts
Legislature submitted a joint resolution supporting federal
recognition; ``Massachusetts Legislature recommends that the Federal
Government follow the Commonwealth's lead by formally recognizing the
Mashpee Wampanoag Tribe.'' 2 And yet, federally we have been
unable to gain recognition.
---------------------------------------------------------------------------
\2\ Joint Resolution Offered by State Representative Matthew C.
Patrick, Representative Eric Turkington, Senator Robert O'Leary and
Senator Therese Murray.
---------------------------------------------------------------------------
Currently, our main land base consists of 55 tribally leased acres
in the town, located near the southwestern end of Cape Cod--a small
sliver of the 16,500 acres originally provided by England's King George
II and reaffirmed by Plymouth Colony. In the past we have struggled to
survive on the Cape, and continue to do so today. As Cape development
reshaped our community and the vacation-based economy boomed, the
Mashpee tribal members did not benefit from the growth. One of the
fastest growing communities in the State, population soared to almost
13,000 by 2000. Mashpee land continued to shrink and the challenge of
retaining our identity grew.
We, as Mashpee, struggle every day to teach our Indian culture,
while, concurrently teaching the mores and history of the United
States. We find it hard to resolve our history on this land and our
dedication to this country with the lack of recognition by the
government we helped shape. Thus, in 1932 we began the federal
recognition process and rejuvenated our efforts in the 1970s. We have
pursued our status in court as well as through the Bureau of Indian
Affairs.
The Wampanoags of Mashpee filed a letter of intent with the United
States Department of the Interior's Bureau of Indian Affairs (BIA) in
1975. The BIA's response was prompt, stating the Mashpee were among the
first tribes to be considered for only fourteen others had filed prior
to that time. However, at the time the BIA had not adopted any
regulations setting forth official criteria for federal recognition of
tribes.
In 1978 the Bureau of Indian Affairs had solidified the criteria
for achieving federal recognition. Although we understood the process
was a long one, taking years, we initiated our formal petition. This
process was not complete in full until 1990.
In 1990, after years of research, the Mashpee submitted its formal
application, compiled without the aide of scholars due to our lack of
resources. Our lack of scholarly or professional consulting in our
application resulted in the BIA reply that there existed obvious
deficiencies in our argument that the Wampanoag functioned as a tribal
entity throughout the twentieth century. Consequently, under the
leadership of Harvard-educated Tribal President, Russell Peters, we
went back to work. In 1996 we resubmitted our application, supported by
hundreds of pages of documentation and several boxes of vital records.
Through the aid of lawyers, archaeologists, genealogists and
researchers we meticulously documented our history in the Commonwealth.
Less than a month after our second submission, the agency deemed the
petition ``ready for active consideration.''
Our petition has been ready for active consideration for seven
years--since 1996. In that time, other tribes' petitions have jumped
our own for consideration. For example, the Muwekma, a tribe which was
not on the ready list for consideration until 1998, has already
received a ruling. The Department has also entered into settlements
placing groups, including the Schaghticoke and Golden Hill Tribes, on
expedited schedules for consideration. Moreover, the Department has
jumped tribes such as the Pawcatuck Eastern Pequots and the Match-E-Be-
Nash-She-Wish Band of Potawatomi Indians of Michigan ahead in order to
consider their petition in tandem with similarly situated tribes. In
contrast, the Mashpee continue to await a decision to move forward on
our petition.
We have followed the rules and regulations put forth by the BIA and
it's predecessor, the War Department. Despite our best efforts to
comply, we remain without any sense of when we can expect completion of
our petition or whether the BIA will meet its obligations under the
established procedures. Thus, we felt we had no choice but to proceed
through the courts. We are presently seeking a court order to force the
BIA to process our petition in a timely manner. We believe that we can
establish that the delay in processing our petition has been
egregiously unreasonable particularly in light of the other tribes
whose petitions have been considered before our own.
In 2001, the U.S. District Court for the District of Columbia found
the BIA had unreasonably delayed action on the Mashpee petition, and
ordered the BIA to make a final finding on the petition by December 21,
2002. The District Court decision was appealed by the BIA to the U.S.
Court of Appeals for the D.C. Circuit. In 2003, the Court of Appeals
remanded the case back to the District Court ``for a full and fresh
evaluation of whether the delay Mashpee is encountering should be
deemed ``unreasonable.'' Thus, the case is now pending once again
before the District Court.
The Mashpee fully expect to be successful in demonstrating that the
BIA has unreasonably delayed action on the Mashpee petition. The
petition has been languishing at the BIA for seven years. Unless the
Court or Congress intervenes, the Mashpee are likely to be waiting
seven to fourteen more years before receiving a decision. After
considering the facts surrounding the Department's history of delay,
its past actions, as well as the fundamental rights and privileges at
stake in the tribal recognition process, we believe the District Court
will again find that this delay--with no end in sight--is egregious and
must be remedied.
Tribes which have won court decisions forcing the BIA to review
their file have received negative rulings. My worry, as Tribal
President, is that the Mashpee will be reprimanded in the form of a
negative ruling. Seventeen tribes, winning a legally forced review,
have all been denied federal recognition since 1980. Six of those had
lower placement on the list for consideration. Five of the denied
tribes sought litigation to no avail. Only the Schaghticoke of
Connecticut won their suit and received favorable consideration.
It is our contention that the Department is adversarial at best. It
is difficult for tribes to prove their case for recognition and,
furthermore, there exists no readily available clarification of the
rules and regulations to improve the process. The BIA only respond when
something is wrong, rather than explaining their interpretation of the
facts and application of the criteria.
It is not only possible for the consideration process to be
improved, but also necessary. Experts have told us that the entire
backlog of petitions could be completed in 2 years if the Bureau worked
efficiently and with a view toward achieving equitable resolution of
the various pending applications. The Mashpee application could be done
in a few months given our long history of recognition by the
Commonwealth of Massachusetts, substantial shared history with a tribe
recognized by the Bureau, and other factors. Yet, the Bureau proceeds,
year after year, with no enforced standards, no clear procedures, no
commitment to completion and no effort to secure resources to get the
job done either internally or through a limited contractual program
utilizing the top experts from across the country.
With the aid of scholars and the use of historical archives the
time frame could be truncated considerably. Schools such as Rutgers,
University of Virginia and University of Pennsylvania, with well-
established and respected leaders in the field of Native studies, could
review the applications of a number of tribes if each were assigned
just two per year.
The lack of communication on behalf of the Bureau of Indian Affairs
has been not only frustrating, but also insulting. We feel we have
pursued our federal recognition through the proper channels and deserve
due process of our claim. We have observed the Bureau's lack of ability
to adhere to its rules and regulations; yet, the tribes seeking
recognition are made to adhere to said regulations. Capriciously, the
BIA has moved forward on the claims of tribes which had submitted their
applications significantly after the Mashpee with little or no
explanation.
Mr. Chairman, members of the committee, the denial of resolution on
our petition carries real consequences for the members of my tribe. We
are denied access to health care and many of the other federal benefits
that recognition conveys. As a result, like many other native people,
we suffer from diseases such as diabetes at levels substantially higher
than most populations. More importantly, failure to complete our
petition denies Mashpee tribal members the pride that only recognition
of our tribe and its contributions to this country will convey.
Given our record of service to this country, the Mashpee people
have earned and deserve better treatment. We have shared our land, shed
our blood, and have grown together as part of this nation. Still, we
struggle every day to live on the land that has always been our home.
We struggle to preserve a history and language that is critical to the
telling of the story of America. And, yet, we remain committed to the
dream that we have so long been denied, and seek only that to which we
are justly entitled.
As a representative of these hardworking, dedicated and proud
Mashpee tribal members I respectfully submit these thoughts for your
consideration. I would welcome the opportunity to discuss our tribe and
our case for federal recognition further or furnish any requests for
more information. I thank you for your time and consideration.
______
The Chairman. Thank you.
Mr. Gumbs?
STATEMENT OF LANCE GUMBS, TRIBAL TRUSTEE,
SHINNECOCK INDIAN TRIBE
Mr. Gumbs. Mr. Chairman, Ranking Member Rahall, and members
of the Resources Committee, thank you for inviting me to
testify on this critical issue here today.
Today is the first time that a member of the Shinnecock
Indian Nation has testified before Congress since the year
1900. In 1976 we were one of the first four tribes to file an
application for Federal recognition. That was 25 years ago. Our
recognition effort was stalled in part because we could not
afford the high cost of completing our application. We were
finally placed on the ready for active consideration list by
the BIA on September 9, 2003. A month later we were informed
that the Shinnecock petition is now 12th on the current list
and according to BIA, ``Without additional resources it may
take the OFA up to 15 years to decide all completed
applications.'' Thus, without a change to the current process,
the Shinnecocks will have languished in an unrecognized status
for almost half-a-century.
The Shinnecock Indian Nation is one of the oldest
continuously self-governing tribes in the country and was one
of the first to have contact with the European settlers who
sailed into Peconic Bay in 1640. From that time on, early
settlers have deceived our ancestor and illegally began taking
our lands, which we repeatedly tried to prevent.
We continued our practice of self-governance until 1792
when New York State enacted a law entitled ``An Act for the
Benefit of the Shinnecock Tribe of Indians Residing in Suffolk
County.'' This Act took away our traditional self-governance
and established a trustee form of government. Our tribal
election process has been recorded each April by the clerk of
the town of Southampton from 1792 to the present.
Thus, it is well documented that the Shinnecock Indian
Nation has had a continuous existence and contact with
colonialists dating to the 1600s and formal relations with New
York State since its creation. This history was reaffirmed in
1974 when the New York State Legislature called on Congress to
grant our tribe Federal recognition.
In addition, a 1987 letter from the Secretary of the State
of New York to trustees stated, ``The Shinnecock tribe is one
of the historic tribes of Long Island which still has tribal
existence and occupies fee simple land generally within its
aboriginal territory and it is clear that the Federal
government deals with the Shinnecocks as an Indian tribe.''
You should also know that legal experts in the Federal
recognition process from the Native American Rights Fund have
stated that our application is one of the strongest documented
petitions ever submitted to the OFA.
As you know, the GAO stated in November 2001, ``The
regulatory process is not equipped to respond in a timely
manner; nor does the process impose effective time lines that
create a sense of urgency.'' The GAO also noted that it takes
the BIA an average of 15 years to resolve a petition in a
system that was originally designed to take 2 years.
In response to the GAO report, then Assistant Secretary of
Indian Affairs McCaleb testified before Congress in February
2002 that staff research positions remain vacant. That is
completely unacceptable.
It seems each time Congress looks into this matter there is
a flurry of activity at BIA but ultimately little is done and
nothing changes. I hope this time this will be different.
What systems could be put in place to provide for
additional funding and manpower to establish a reasonable time
line for application decisions? For example, I am aware there
is presently an expedited procedure to disapprove a petition.
Why not develop a process that would expedite the approval of a
petition if certain criteria are met, such as being
continuously recognized by a state, as is the case with my
tribe in New York State?
In addition, we oppose H.R. 3838 and I am appalled that the
Federal government would contemplate using tax dollars to
potentially oppose tribal recognition or related issues. No
Federal funds have been made available to assist us or any
tribe on recognition, yet some in Congress want to fund local
governments to oppose us. This seems another unfair tactic to
me.
In conclusion, please remember that we are among the first
people of what is now New York State. Our roots have been
traced back thousands of years and we have endured countless
hardships since that time. Our lands have been illegally taken
and we have been forced to walk in two worlds as we fight
assimilation and struggle to maintain our ancestral heritage.
At present we number 1,320 tribal members, of which 650
reside on or about 800 livable acres of our original lands. In
many ways the injustices that we and our fellow indigenous
people have endured for centuries continue today under this
broken Federal recognition process. I am here today as a
descendent of a proud and ancient people and as an elected
leader who has a sacred responsibility to my nation and the
unborn seventh generation. I would respectfully request that
you do all in your power to fix this Federal recognition
process and to correct the past indignities and to provide for
our future for all time. Thank you.
[The prepared statement of Mr. Gumbs follows:]
Statement of Lance A. Gumbs, Tribal Trustee, Shinnecock Indian Nation
Mr. Chairman, Ranking Member Rahall and Members of the Resources
Committee, thank you for holding this oversight hearing on Tribal
Recognition and for inviting me to testify on behalf of the Shinnecock
Indian Nation on this critical issue.
The committee will hear testimony today from other tribes who have
struggled for many years with the bureaucratic morass known as the
federal recognition process. Many of these tribes have waited decades
while their application has languished at what is now the Office of
Federal Acknowledgment or, ``OFA.''
Today is the first time that a member of the Shinnecock Indian
Nation has testified before Congress since 1900. In 1978, we were one
of the first four tribes to file an application for federal
recognition--the completion of which was delayed for many years due to
the cost involved. Twenty five years later, we were finally placed on
the ``Ready for Active Consideration'' list by letter from the BIA
dated September 9, 2003.
Then in an October 2003 letter, we were informed that the
Shinnecock Petition is now 12th on the current list and, according to
BIA, ``without additional resources, it may take the OFA up to 15 years
to decide all completed applications.'' Amazingly, it may take another
15 to 20 years before a final determination is made! Thus, without a
change to the current OFA process, the Shinnecock will have languished
in an unrecognized status for more than half a century--a time in which
several generations have passed on--and it appears that the present and
future generations will also have to wait before we, the original
inhabitants of Eastern Long Island, receive acknowledgment from the
federal government.
My nation, the Shinnecock Indian Nation, is one of the oldest,
continuously self-governing tribes in the country and was one of the
first to have contact with the European settlers when eight men, one
woman and a child newly arrived from Lynn, Massachusetts, sailed into
Peconic Bay in 1640. From there my Shinnecock ancestors led the group
southward to what became the town of Southampton.
In 1640, early settlers deceived the inhabitants of the area and
illegally began systematically taking our land, which we repeatedly
tried in vain to prevent.
We continued our practice of self-governance until February 24,
1792, when the State of New York enacted a law titled ``An Act for the
benefit of the Shinnecock Tribe of Indians, residing in Suffolk
County.'' This Act took away our form of self-governance and
established a trusteeship form of government in which the minutes of
our tribe and the elections of our trustees have been recorded each
April by the Town of Southampton Clerk from 1792 to the present. During
this time, the State of New York has attempted to illegally regulate
our sovereignty by enacting numerous constitutional amendments,
statutes, rules and regulations.
Thus, it is well-documented that we, the Shinnecock Indian Nation,
have had a formal relationship with colonists dating to the 1600s and
subsequently with the State of New York, which predates contact Western
Tribes have had with the federal government by over 200 years. This
history was reaffirmed in 1974 when the State Legislature of New York
unanimously adopted a resolution calling on Congress to grant our tribe
federal recognition. In addition, a 1987 letter from the Associate
Counsel of the Secretary of State of New York to trustees on a zoning
issue stated that ``the Shinnecock Tribe is one of the historic tribes
of Long Island which still has tribal existence and occupies fee simple
land generally within its aboriginal territory...(and)...it is clear
that the federal government deals with the Shinnecocks as an Indian
Tribe.''
Therefore, records show that we have had a continuous existence and
relationship with colonial settlers and later governments for more than
400 years and formal relations with the State of New York for more than
200 years. Yet, because of a lack of resources and commitment by the
government agency responsible for tribal recognition, our application
will likely collect dust for at least two more decades before we are
granted the recognition by the federal government that we rightly
deserve.
You should also know that legal experts in the federal recognition
process from the Native American Rights Fund, which have supported
petitions for numerous tribes, have stated that our application is one
of the strongest documented petitions ever submitted to the OFA.
As you know, the GAO issued a report in November 2001 stating that
the ``basis for the BIA's...recognition decisions (are) not always
clear ``as to what level of evidence is sufficient to demonstrate a
tribe's continuous existence over time;'' that the ``regulatory process
is not equipped to respond in a timely manner;'' nor does the process
``impose effective time lines that create a sense of urgency.'' The GAO
also recognized that it takes on average 15 years to resolve petitions
in a system that was originally designed to take 2 years!
In response to the GAO report, then Assistant Secretary of Indian
Affairs Neal A. McCaleb testified before the House Government and
Reform Oversight Committee in February 2002 that then-BAR staff
research positions remain unfilled. From our perspective, this is
unacceptable.
I am certain that you will hear testimony later today that OFA and
BIA are taking steps internally to address the GAO's and Congress's
concerns. While these efforts are laudable, it seems a lot of noise and
a flurry of activity occurs each time Congress looks into this matter
and ultimately, little is done and nothing changes. I hope this time
will be different. No matter what, it would appear that tribes
currently ``in the pipeline'' will continue to wait--without recourse--
for their federal status for years to come.
I would ask what mechanism exists or can be put in place to provide
for additional funding and personnel resources in order to establish a
reasonable time line for application decisions? For example, I am aware
that there is presently an expedited procedure to disapprove a
petition. Why not develop a similar process to provide for expedited
approval of a petition if certain criterion, such as being continuously
recognized by the state--as is the case with my tribe and the State of
New York--are met?
In addition, we oppose H.R. 3838, legislation introduced by Members
from Connecticut to provide federal grants of up to $500,000 to offset
costs to local governments facing acknowledgment, land trust or land
claim issues. I am appalled that the federal government would
contemplate using taxpayer dollars to potentially oppose tribal
recognition or related issues. In fact, our recognition effort was
stalled in part for the past twenty-five years because we could not
afford the costs associated with completing our application. No federal
funds have been made available to assist us, or any other tribe, with
this costly and burdensome process, yet some in Congress want to fund
local governments to oppose us? It would seem to me that there is a
basic underlying issue of fairness here.
In conclusion, please remember that we are among the ``First
People'' of what now is New York State. Our roots have been traced back
thousands of years and even though the survival of that original colony
can be credited to my people, we have endured countless indignities
since that time. Our lands have been illegally taken and we have been
forced to walk in two worlds as we fight assimilation and struggle to
maintain our ancestral heritage. At present, we number 1,320 tribal
members, of which 650 or so reside on about 800 acres of our original
lands.
In many ways, the indignities that we and our fellow indigenous
people have endured for centuries continue today under this broken
federal recognition process. I am here today as the descendant of a
proud and ancient people and also as an elected tribal leader who has a
sacred responsibility to my people and the unborn ``seventh
generation''.
I would respectfully request that you do all that is in your power
to help the first people of this land and our Nation by fixing the
federal recognition process, not only to correct past injustices but to
provide for our future, both tomorrow and for all time.
Thank you.
______
The Chairman. Thank you.
Ms. Cambra.
STATEMENT OF ROSEMARY CAMBRA, CHAIRPERSON,
MUWEKMA OHLONE INDIAN TRIBE, SAN FRANCISCO BAY AREA, CALIFORNIA
Ms. Cambra. Good morning, Mr. Chairman and members of the
Oversight Hearing Committee. My name is Rosemary Cambra and I
am the Chairwoman for the Muwekma Tribe of San Francisco Bay
region. I also Co-Chair the Recognition Task Force for the
National Congress of American Indians. I have also worked on
the Recognition Task Force for the congressionally created
Advisory Council on California Indian Policy between 1994
through 1998.
The National Congress of American Indians (NCAI) allowed a
created working group in the year 2000 and became an official
National Congress of American Indian task force in the year
2001. Two Co-Chairs, the honorable Ken Hansen, who comes from a
recognized tribe, and myself, Rosemary Cambra, from an
unrecognized tribe. We are 100 percent supported by President
Sue Maston and the honorable Tex Hall.
The NCAI task force has developed several goals and
objectives that I want to share with you today. One is to
support and develop reform measures either through legislation
or regulatory reform or court intervention to ensure a timely,
a fair and efficient recognition process, to demand full and
meaningful consultation with both recognized and nonfederally
recognized tribes in any proposed reform measures prior to the
enactment.
The task force has heard testimony from many tribal groups
expressing their frustration over the near insurmountable
costs, in the millions, necessary to complete the BAR process,
the enormous amount of time waiting in bureaucratic limbo, the
nonresponsiveness by the negative attitudes of the BAR staff,
and the obstacles and the regulations posed relative to the
unique historical circumstances surrounding particular
petitioning tribal groups.
The National Congress of American Indians is trying to help
formulate suitable alternatives and take the recognition
process out of the BIA and supports the creation of a
commission, as specified in Senator Campbell's bill, S. 611.
Other alternatives include legislation for those tribes that
have demonstrated that they are previously recognized and who
were never terminated by any Act of Congress, as is the case in
the restoration of the Tlingit and Haida Tribes of Alaska in
1944--see H.R. 4180--or through Federal court systems.
The Advisory Council on Indian Policy of California was
created through a passage of H.R. 2144 and was signed into law
by President Bush in October of 1992. The ACCIP finalized their
findings in a series of reports and submitted them in 1988, as
mandated by Congress. In those ACCIP reports it was estimated
that 80,000 California Indians, many of whom have BIA numbers,
currently have no legal standing because their tribes, although
never formally terminated by Congress, no longer appear on the
list of federally acknowledged tribes. See H.R. 4180. Presently
these tribal groups are no longer federally acknowledged by the
Secretary of Interior due to the dereliction of duty, neglect,
and gross mismanagement by the BIA.
Since the revisions of the acknowledgment regulations, 25
C.F.R., Part 83, in 1994, at least two of these California
tribal groups, the Muwekma Tribe and the Tsnungwe Council, have
obtained formal determinations of previous unambiguous Federal
recognition from the Office of Federal Acknowledgment.
In 1998, the ACCIP made the following statement with regard
to several of the previously recognized tribes in California.
``The Dorrington report provides evidence of previous Federal
acknowledgment for modern-day petitioners who can establish
their connection to historical bands identified therein.
Clearly, the BIA recognized its trust obligations to these
bands when it undertook, pursuant to the authority of the
Homeless California Indian Acts and the Allotment Act, to
determine their living conditions and their need for land. The
fact that some were provided with land and others were not did
not diminish that trust.''
``Among those California Indian groups that have petitioned
for Federal acknowledgment there are several who can trace
their origins to one or more bands identified in the Dorrington
report. The Muwekma Tribe is one whose connections to the
Verona Band has been recently confirmed in a letter from BAR.''
In that final report eight other tribes were also
identified. These tribes are the Dunlap Band of Mono Indians,
the Kern Valley Indian Community, the Tinoqui-Chalola Council,
the American Indian Council of Mariposa County, the YOKo, the
Shasta Nation, the Hayfork Band of Nor El-Muk Wintu Indians and
the Tsnungwe Council.
In the year 2000 Congressman George Miller formulated the
California Tribal Status Clarification Act. As a potential
follow-up to the ACCIP recommendations, in Title II of that
proposed Act the following tribal groups were included for
restorations as previously recognized tribes: the Lower Lake
Koi, the Muwekma Tribe, the Tsnungwe Council, the Dunlap Band
of Mono Indians. That bill never got out of Committee.
The Muwekma Tribe was recognized under a series of Acts
enacted by Congress beginning in the year 1906 to secure home
sites for the landless Indians of California. Our tribe was
identified in a special Indian census and we came known as the
Verona Band of Alameda County. Our tribe fell under the
jurisdiction of the Reno and later Sacramento agencies and
through the dereliction of duty by Superintendent Dorrington,
no land was ever purchased for our people.
Our men and women have served in the United States armed
forces from World War I to the present conflict in Iraq. Our
men are buried in the Golden Gate National Cemetery.
In March of 1989 the Muwekma Tribal Council submitted a
letter of intent to petition, number 111, the Federal
government for acknowledgment. The following month, on April
25, 1989, our tribal council received a response from the BIA
Tribal Government Services acknowledging the receipt of our
letter. In that letter the Acting Chief of Tribal Services
informed our council that ``Because of the significance and
permanence of acknowledgment as a tribe, the process of
evaluation is a lengthy and thorough one.''
Mr. Chairman, I want to point out the word permanence. If I
am not mistaken, permanence means something intended to last
indefinitely, without change. When the Muwekma had obtained its
determination of ``previous unambiguous Federal recognition''
in 1996, my tribal council had the audacity to ask the BIA the
following question. Now if we are previously recognized, a
recognized tribe, and have never been terminated by Congress,
how then did we lose our status? The BIA could not and would
not answer that question until we went to court.
In 1998, Muwekma was placed on ready status and we realized
we were the only tribe with previous recognition. By our
accounting, it would have taken approximately 20 more years
before the BIA would look at our petition.
The tribe decided to sue the DOI and in 1999 submitted a
complaint before the U.S. District Court in D.C., the result of
which was the court found the BIA in violation of the
Administrative Procedures Act and Justice Urbina stated that 2
years was too long to wait. This action challenged the BIA's
control over this process and we have had to pay for this
dearly. The overall Federal acknowledgment process, including
the research for the petition, the trips to Washington, D.C.,
the lawsuit, has cost my tribe millions.
On September 9, 2002, the BAR denied extending the
acknowledgment to my tribe, even though we had submitted
evidence for each decade under each criteria. Although the BIA
was predisposed to reject our petition, they never once refuted
any evidence we submitted. They also failed, as promised in
their response to Justice Urbina in our lawsuit, to explain how
the tribe lost its acknowledgment status. We also discovered
that they never referenced 87.6(d), reasonable likelihood of
the facts when reviewing our petition.
The BIA did, however, conclude----
The Chairman. Ma'am, I am going to have to ask you to wrap
it up on your oral testimony. We do have your entire written
testimony that will be included in the record. I have tried to
be lenient with the time but if I could ask you to wrap it up.
Ms. Cambra. Yes. I would just like to conclude that 100
percent of our living members today descend from a historical
tribe. It has never been terminated and I am pleading from you
today and the Committee members to grant my tribe justice, not
to deny us justice but to grant us justice by proposing
legislation to reaffirm my tribe. Thank you.
[The prepared statement of Ms. Cambra follows:]
Statement of Rosemary Cambra, Chairwoman, Muwekma Ohlone Tribe
Good Morning Mr. Chairman and Members of the Oversight Hearing:
Mr. Chairman, my name is Rosemary Cambra and I carry several badges
of honor in Indian Country. I am the elected Chairwoman of the Muwekma
Ohlone Tribe of the San Francisco Bay region since 1984 and I am the
Co-Chair of the Recognition Task Force for the National Congress of
American Indians (NCAI). I also had the good fortune to work on the
Recognition Task Force for the Congressionally created Advisory Council
on California Indian Policy between 1994 and 1998.
As you can tell by my commitment, Mr. Chairman, I am a person
deeply concerned about the justice issues not only confronting my
tribe, but the plethora of issues confronting the many disenfranchised
historic tribes throughout this country that were either previously
recognized or whom fell through the administrative cracks, thereby
rending both groups as Unacknowledged by the Secretary of Interior
today.
Today, I want to speak on four points. The first is my involvement
as Co-Chair of the Recognition Task Force for NCAI. The second reports
upon the implications of ACCIP reports submitted to the Congress in
1998. The third address to long, painful and costly efforts that my
Tribe has been engaged in both prior to and during the Recognition
Process and the adverse ramifications for my people. And lastly, I want
to discuss about the conflict of interest and violations under the
Administrative Procedures Act by both BAR staff and DOI Legal Council.
NCAI Recognition Task Force
Since 2001, I have had the honor to serve as Co-Chair on the NCAI
Recognition Task Force. My fellow Co-Chair is The Honorable Mr. Ken
Hansen, Chairman of the Samish Tribe from the State of Washington,
which suffered for over 20 years in the BAR Process. Together, Mr.
Hansen and myself, along with a cadre of devoted Native Americans and
non-Native professionals are working towards the development of a
meaningful alternative to the arduous, disheartening, painful and
obviously untenable Federal Recognition process as currently executed
by the Office of Federal Acknowledgment (previously called the BAR).
During the course of these past several years the NCAI Task Force
has heard the testimonies from many tribal groups expressing their
frustration over the near insurmountable costs (in the millions)
necessary to complete the BAR process, the enormous amount of time
waiting in bureaucratic limbo, the nonresponsiveness by and negative
attitudes of OFA/BAR staff, and the obstacles that the regulations pose
relative to the unique historical circumstances surrounding that
particular petitioning tribal group.
As a result of this effort, the NCAI is trying to help formulate
suitable alternatives that takes the Recognition Process out of the
BIA/OFA and supports the creation of a commission as expressed in the
many bills considered since 1989 and specified in Senator Campbell's
Bill S.B. 611. Other alternatives includes legislation for those tribes
that have demonstrated that they were previously recognized and whom
were never terminated by any Act of the Congress as in the case of the
restoration of the Tlingit and Haida Tribes of Alaska in 1994 (see H.R.
4180) or through the Federal Court system.
As a result of the above, these issues hearken back to what Bud
Shapard, the retired Bureau Chief of the Branch of Acknowledgment and
Research had stated in his testimony before the Congress with regards
to the then-proposed H.R. 3430 bill. Shapard stated that:
''...After fourteen years of trying to make the regulations
which I drafted in 1978 work, I must conclude that they are
fatally flawed and unworkable. They take too long to produce
results. They are administratively too complicated. The
decisions are subjective and are not necessarily accurate. The
criteria are limited in scope and are not applicable to many of
the petitioning groups which are in fact, viable Indian tribes;
and
...To continue to operate under the present regulations or any
legislative approximation will not resolve the question of
unrecognized Indian tribes in this country.
The present regulations cannot be revised, fixed, patched,
dabbled with, redefined, clarified or administered differently
to make them work. Additional money, staff, computer hardware,
or contracts with outside organizations will not solve the
problem. The problem lies within the regulations.
In short, the regulations should be scrapped in their entirety
and replaced with a simpler, less burdensome, and more
objective solution. They should be administered by an
independent agency--
The essential element, the bottom line key to any solution to
the question of serving unrecognized Indian tribes falls
directly on the Congress. If there is to be any sort of
permanent answer, Congress must spell out in unmistakable terms
who the United States will serve as Indians and Indian
tribes.''
These words from former Branch Chief Shapard still ring today as
they did 14 years ago and even with his testimony, little has changed
in the Recognition process. Bills have been threatened to be introduced
by concerned Congressional representatives to remove the process from
the BIA, however, the burden on the tribes have not been alleviated,
but instead have become increasingly more difficult and politicized.
Advisory Council on California Indian Policy (ACCIP)
As you know, the Advisory Council on California Indian Policy was
created through the passage of H.R. 2144 and was signed into law by
President Bush in October 1992. Under President Clinton, the ACCIP's
council was in place by 1994, and having authorization to spend public
moneys, the ACCIP held hearings around the state addressing the
critical issues confronting the California Indians. The ACCIP finalized
their findings in a series of reports, and submitted them in 1998, as
mandated by the Congress. It has now been over five years since those
reports were issued to the Congress and since then, the Congress
appears to be totally mute on any response in addressing those critical
issues confronting California tribal groups.
In those ACCIP reports, it was estimated that approximately 80,000
California Indians (many of whom have BIA numbers) currently have no
legal standing because their tribes, although never formally
``Terminated'' by the Congress, no longer appear on the List of
Federally Acknowledged Tribes (see H.R. 4180). Presently, these
historic tribal groups are no longer Federally Acknowledged by the
Secretary of Interior due to dereliction of duty, neglect and gross
mismanagement by the BIA. Since the revisions of the Acknowledgment
regulations (25 CFR Part 83) in 1994, at least two of these California
tribal groups, the Muwekma Ohlone Tribe and Tsnungwe Council, have
obtained formal determinations of ``previous unambiguous Federal
recognition'' from the Office of Federal Acknowledgment (OFA). In fact,
since 1996 no other tribe has been issued such a determination, and, in
fact, the OFA has decided to eliminate such determinations under the
end of the review process. Previous Recognition was written into the
revised regulations to supposedly lessen the burden of a tribe. With
the elimination of previous recognition during the Technical Assistance
phase, the OFA has ensured that tribes will indeed be once again
burdened with their research.
In 1998, the ACCIP made the following statement with regards to
several of the previously recognized tribes in California:
``The Dorrington report provides evidence of previous federal
acknowledgment for modern-day petitioners who can establish
their connection to the historic bands identified therein.
Clearly, the BIA ``recognized'' its trust obligations to these
Indian bands when it undertook--pursuant to the authority of
the Homeless California Indian Acts and the Allotment Act ``to
determine their living conditions and their need for land. The
fact that some were provided with land and others were not did
not diminish that trust.
``Among those California Indian groups that have petitioned for
federal acknowledgment, there are several who can trace their
origins to one or more of the bands identified in the
Dorrington report. The Muwekma Tribe is one whose connection to
the Verona Band has been recently confirmed in a letter from
the BAR....''
In that final report, eight other tribes were also identified:
These tribes are the Dunlap Band of Mono Indians, Kern Valley Indian
Community, Tinoqui-Chalola Council, American Indian Council of Mariposa
County, Yokayo, Shasta Nation, Hayfork Band of Nor El-Muk Wintu Indians
and Tsnungwe Council. In 2000, Congressman George Miller formulated the
California Tribal Status Clarification Act. As a potential follow up to
the ACCIP recommendations, in Title II of that proposed Act the
following tribal groups were included for restorations as previously
recognized tribes: Lower Lake Koi, Muwekma Ohlone Tribe, Tsnungwe
Council and Dunlap Band of Mono Indians. That bill never got out of
committee. Since then nothing has come out of the Congress that
addresses the recognition issues confronting the previously recognized
tribes of California, with the exception of the restoration of the
Graton Rancheria in 2002.
Muwekma Ohlone, A Previously Recognized Tribe and its Quest For
Restoration
Mr. Chairman, as you may already know, the Muwekma Ohlone Tribe was
recognized under the series of Acts enacted by the Congress beginning
in 1906 to secure homesites for the landless Indians of California. Our
tribe was identified in special Indian censuses and we became known as
the Verona Band of Alameda County. Our tribe fell under the
jurisdiction of the Reno and later Sacramento agencies and through the
dereliction of duty by Superintendent Dorrington, no land was ever
purchased for out people. Nonetheless, we still maintained ourselves as
a landless tribe. Our men and women have served in the United States
Armed Forces from World War I to the present conflict in Iraq and our
men are buried in the Golden Gate National Cemetery.
In March 1989, the Muwekma Tribal Council submitted a letter of
intent to petition (#111) the Federal Government for acknowledgment.
The following month on April 25, 1989, out Tribal Council received a
response from the BIA Tribal Government Services acknowledging receipt
of our letter.
In that letter, the Act Chief of Tribal Services informed our
council that ``Because of the significance and permanence of
acknowledgment as a tribe, the process of evaluation is a lengthy and
thorough one.'' Mr. Chairman, I want to point out the word
``permanence.'' If I'm not mistaken permanence means something
``intended to last indefinitely without change.''
When Muwekma had obtained its determination of ``Previous
unambiguous Federal Recognition'' in 1996, my Tribal Council had the
audacity to ask the BIA the following question. If we are a previously
recognized tribe and we were never terminated by any Act of the
Congress, how did we lose our ``permanent'' Recognized status? And the
BIA could not and would not answer our question until we went to court.
In 1998, Muwekma was placed on Ready Status and we realized that we
were the only tribe with previous recognition. By our accounting, it
would have taken the BIA approximately 20 or more years before they
would look at our petition. The Tribe decided to sue the DOI and 1999
submitted a complaint before the U.S. District Court in D.C. The result
was that the Court found the BIA in violation of APA and Justice Urbina
stated that two years' wait was too long. This action challenged the
BIA's control over this process and we have paid dearly for this. The
overall federal acknowledgment process including the research for the
petition, the trips to Washington, D.C. and the lawsuit has cost my
tribe several millions of dollars.
On September 9, 2002, the OFA/BAR denied extending Acknowledgment
to my tribe even though we had submitted evidence for each decade under
each criterion. Although the BIA was predisposed to reject our
petition, they never once refuted any of the evidence that we
submitted. They also failed, as promised in their response to Justice
Urbina in our lawsuit; to explain how our Tribe lost it's Acknowledged
status. Also, we discovered that they never referenced 87.6 (d)
reasonable likelihood of the facts when reviewing our petition.
The BIA did however conclude that our 100% of members have
demonstrated their descent from a historical tribe the Verona band of
Alameda Council and that the Congress never terminated us.
When we started the Recognition process in 1984, there were around
eighteen original members of the Verona Band alive, today there are
only three. Today there are over 400 members enrolled in our tribe all
of whom are directly descended from the Verona Band.
The Federal Acknowledgment Process clearly constitutes a war of
attrition against the many disenfranchised tribal groups that have been
and continue to be adversely impacted by the very Federal governmental
entity that has had fiduciary responsibility over Indian tribes.
BAR Staff and DOI Solicitor
During the course of our interaction with the BIA since 1989, we
found some of them to be completely evasive, fraudulent and outright
hostile. For example, in November 1995, the BAR Branch Chief contacted
us and we were told to come to Washington, D.C., that our letter for
previous recognition would be issued. Five of us flew into Washington
and when we met with this person, we were told that no such letter
existed. We complained to AS-IA Ada Deer office, which apparently took
action against this individual. This individual was one of the three
BAR staff assigned to our petition.
During the period of our successful lawsuit against the BIA between
1999 and 2000, we discovered that the same people who bitterly opposed
our Tribe in the lawsuit, were the same individuals who made the Final
Determination against the Tribe. One of these people is Scott Keep,
Solicitor from Interior. Presently we have been waiting for Mr. Keep to
respond to our FOIA requests since the beginning of last year. We are
also waiting for him to respond to Principal Deputy Aurene Martin's
request for a possible alternative review of our charted petition.
On November 7, 2001, the BAR held an ``On-The-Record Technical
Assistance Meeting'' with representatives from my tribe. During the
course of the Technical Assistance meeting one of our consultants
inquired if the 1997-1998 ACCIP reports ``had a bearing'' on the BAR
decision making process. The response by one of the BAR staff was:
``Well, if you want us to consider the report, you really
should submit it for the record.--That makes it part of the
record. And, furthermore, when you submit it as part of the
record, you can give us an explanation of how you think it
applies. And the we can consider that argument and your take on
how the report applies.'' (On-The-Record Technical Assistance
Meeting, page 52)
In the Final Determination the BAR staff determined to circumvent
such considerations by stating:
``Given these conclusions of the Proposed Finding under
criterion 83.7(a), that the period prior to 1927 is outside the
period to be evaluated and that the petitioner met this
criterion during the period after 1985, it is not necessary to
respond to the petitioner's comments and arguments for those
two time periods. Neither the petitioner nor any third party
challenged the conclusions of the Proposed Finding that the
petitioner met the criterion before 1927 and after 1985.
Therefore, the evaluation of criterion 83.7(a) for this Final
Determination will review the evidence and arguments for the
years between 1927 and 1985.'' (FD 2002 page 9)
As a result, the BAR staff avoiding reviewing and considering
numerous amounts of crucial evidence that Muwekma submitted for its
Final Determination. The documents that the BAR staff decided to
disregard were those that dated after 1985 and before 1931 These
documents included the ACCIP reports, the GAO Report of November 2001,
Congressional legislation, the BAR's own report on Recognition in
California, and also the Bureau's correspondences from 1918 to 1931,
that demonstrated Superintendent Dorrington's dereliction of duty and
disregard for Office policies and the need to purchase homesites for
Muwekma and other California Tribal bands).
Based upon the above statement, the (is fact, most, if not all)
Technical Assistance provided by the BAR was as useless as the treaties
that were made between Indian Nations and the Government. On the one
hand the BAR suggests to us to submit reports and documents for ``the
record,'' and on the other hand, although they didn't inform us during
the Technical Assistance meeting, that anything submitted as evidence
prior to 1927 or after 1985 will not be considered in the Final
Determination. This is Technical Assistance par excellence!
Furthermore, by circumventing any evidence dating 1985 and later,
the BAR simply and unilaterally decided that not only were they not
going to consider the merits contained in the ACCIP reports, but they
would not consider any of the Congressional legislation (e.g., H.R.
4180), or the BAR's own precedents and Working Paper on California
Acknowledgment, or the GOA report, or even the BAR's own directive to
the ACCIP with regards to Muwekma's previous Recognition.
Solutions
The Muwekma Ohlone Tribe supports alternatives to the current
process. Clearly new directions such as pilot projects utilizing the
expertise of University or Museum based scholars could be immediately
implemented that are cost effect and nonpartisan.
Finally, in the Tribe's Final Determination decision the BAR staff
wrote:
``When a Final Determination is negative, the regulations
direct that the petitioner be informed of alternatives to this
administrative process for achieving the status of a federally
recognized tribe, or other means by which the petitioner's
members may become eligible for services and benefits as
Indians (25 CFR 83.10(n).--In addition, Congress may consider
taking legislative action to recognize petitioners which do not
meet the specific requirements of the acknowledgment
regulations but, nevertheless, have merit.'' (Pages 7-8)
[Emphasis added.]
I am requesting of you, Mr. Chairman, to take this last BAR
recommendation to heart and please introduce legislation during this
session of Congress that restores the Acknowledged status to my tribe.
My Elders are dying and our people just cannot afford to go through
such costly litigation in order to secure their rights as a tribe.
Thank you for considering these pressing issues.
______
The Chairman. Thank you.
Mr. Taylor?
STATEMENT OF WILFORD ``LONGHAIR'' TAYLOR, TRIBAL CHIEF, MOWA
BAND OF CHOCTAW INDIANS
Mr. Taylor. Mr. Chairman and Committee members, good
morning. My name is Wilford Longhair Taylor and I am the
elected Tribal Chief of the MOWA Band of Choctaw Indians. Thank
you for granting me the opportunity to testify on the Federal
recognition acknowledgment process by the Bureau of Indian
Affairs, the BIA.
The Choctaw Indians of Mobile and Washington Counties,
Alabama, MOWA, are descendants of American Indians who occupied
this territory prior to European discovery. We selected the
acronym MOWA to represent our modern-day geographic area. We
live in an area transacted by the county line between south
Washington and north Mobile Counties. Although the State of
Alabama legislature officially recognized the MOWA Choctaw
Tribe in 1979, and an official recognition proposal was
approved by a U.S. Senate Committee in 1991, the Bureau of
Indians Affairs later denied our petition for Federal
acknowledgment.
The criteria for Federal acknowledgment which a petitioning
group must satisfy were designed to provide a uniform and
objective view. However, the immense latitude granted to and
demonstrated by the agency in its evaluation of the evidence
submitted has clearly yielded arbitrary and subjective
decisions. One example is the radically different standards
applied in evaluating the petitions of the MOWA Choctaw and the
Jena Band. The oral history of our venerated elders were
discounted as allegations while the oral histories of the Jena
Choctaws were described as even more reliable than written
records. Identical types of written documentation that we were
required to produce for BIA were characterized as an impossible
and unreasonable expectation for the Jena Choctaws. Our
petitions were evaluated within just months of each other. In
all fairness, the same criteria should have been applied.
The Federal recognition process was designed to take 2
years but in reality, the process often places a petitioning
group in an endless loop of research and expenses that for most
tribes is overwhelming. It took 7 years for our initial
petition to be processed. It took 10 years for the final
determination report. If you include the years needed to
undertake the research the BIA requires for documentation and
our continued fight today, my people are in the 23rd year of
this process.
Although it is obviously not practical for me to present to
you today my tribe's entire struggle with the recognition
process, it is spelled out in detail in my written testimony.
Therefore please allow me to share with you just a few comments
of independent experts from across the country regarding our
failed effort to achieve recognition.
In the words of the well-known and renowned Native American
legal scholar and member of the Standing Rock Sioux, Professor
Vine Deloria, Jr. writes, ``The Federal acknowledgment process
today is confused, unfair, and riddled with inconsistencies.
Much of the confusion is due to the insistence that Indian
communities meet strange criteria which, if applied to all
Indian nations when they sought to confirm a Federal
relationship, would have disqualified the vast majority of
presently recognized groups.''
He further writes, ``The MOWA Choctaws have a typical
profile for Southeastern Indians. Their credentials are solid
and the historical data that identifies them as Indians extends
back to the days when they were integral villages in the
Choctaw Nation. The fragmentation of the Five Civilized Tribes
before, during, and after removal makes their history a
fascinating story of persistence and survival but certainly
does not eliminate them from the groups of people that should
rightfully be recognized as Indians.''
Dr. Richard W. Stoffle, Ph.D., an anthropologist from the
University of Arizona, wrote to me in response to the BIA's
decision to deny recognition, saying, ``I can only express my
deepest disappointment in the BIA's decision. As someone who
has reviewed your petition at length and has talked with your
elders, there is no just argument against recognizing your
status as an American Indian tribe. After working for 27 years
with more than 80 American Indian tribes, it is my considered
opinion that the MOWA Choctaw people are a persistent tribal
society. It is difficult for me to understand how that point
could have been missed by the BIA.''
Dr. Kenneth York, Ph.D., a member of the Mississippi Band
of Choctaw Indians, after critical review of our evidence
writes, ``It is my belief as a member of the MBCI that members
of the MOWA Band are decedents of the Great Choctaw Nation
which was disbanded by the U.S. Government during the Indian
Removal Period. It is my professional opinion that the MOWA
Band has provided the documentation regarding the history,
culture and ancestral relationship as well, if not better, as
any tribal petition in recent years.''
Dr. Loretta A. Cormier, Ph.D. and anthropologist at the
University of Alabama at Birmingham, recently wrote, ``As you
are well aware, I have had the opportunity to work among the
MOWA Choctaws over the course of the last 3 years and have
researched your cultural history. Let me say unequivocally that
I have no doubt that the MOWA Choctaws are an American Indian
community. I am astounded by the BIA's denial of Federal
recognition and find the technical report they prepared to be
seriously flawed in terms of its historical, cultural and even
logical analysis of MOWA Choctaw history.''
The work and words of these individuals, and many other
informed professionals, should provide ample support to prove
that the BIA's recognition process is flawed and riddled with
inconsistencies. The Bureau of Indian Affairs, as a Federal
government agency, has a duty to make decisions on a rational
basis which are neither arbitrary nor capricious. I find it
quite disturbing that the BIA can selectively pick and choose
the evidence it uses to deny a petition and, at the same time,
not even consider or, in fact, totally and completely disregard
stronger, more solid compelling evidence that it normally uses
as support to acknowledge other tribes.
The Federal acknowledgment process was originally designed
to be fair, objective and neutral. Today the process is
dehumanizing and insulting. As American Indians, we are the
only people in this country who have to prove to the United
States government who we are. I strongly believe that as long
as the BIA has the power to serve as judge, advocate and
adversary, the issues we discuss today will never be resolved
and the recognition process will continue to be widely held in
contempt. Thank you.
[The prepared statement of Mr. Taylor follows:]
Statement of Wilford ``Longhair'' Taylor, Tribal Chief,
MOWA Band of Choctaw Indians
Mr. Chairman and committee members: good morning. My name is
Wilford ``Longhair'' Taylor and I am the elected tribal chief of the
MOWA Band of Choctaw Indians. Thank you for granting me the opportunity
to testify on the federal recognition and acknowledgment process by the
Bureau of Indian Affairs (BIA).
The Choctaw Indians of Mobile and Washington Counties, Alabama,
(MOWA) are the descendants of American Indians who occupied this
territory prior to European discovery. We selected the acronym, MOWA,
to represent our modern day geographic location. We live in an area
transected by the county line between south Washington and north Mobile
Counties. Although the State of Alabama legislature officially
recognized the MOWA Choctaw as a tribe in 1979, and an official
recognition proposal was approved by a U.S. Senate committee in 1991,
the Bureau of Indian Affairs later denied our petition for Federal
acknowledgment.
The criteria for Federal acknowledgment which a petitioning group
must satisfy were designed to provide a uniform and objective review.
However, the immense latitude granted to and demonstrated by the agency
in its evaluation of the evidence submitted has clearly yielded
arbitrary and subjective decisions. One example is the radically
different standards applied in evaluating the petitions of the MOWA
Choctaw and the Jena Choctaw. The oral histories of our venerated
elders were discounted as ``allegations'' while the oral histories of
the Jena Choctaw were described as even more reliable than written
records. Identical types of written documentation that we were required
to produce for BIA were characterized as an impossible and unreasonable
expectation for the Jena Choctaw. Our petitions were evaluated within
just months of each other. In all fairness, the same criteria should
have been applied.
The Federal recognition process was designed to take two years, but
in reality, the process often places a petitioning group in an endless
``loop'' of research and expense that, for most tribes, is
overwhelming. It took seven years for our initial petition to be
processed. It took ten years for the final determination report. If you
include the years needed to undertake the research the BIA requires for
documentation and our continued fight today, my people are in the
twenty-third year of this process.
Although it is obviously not practical for me to present to you
today my tribe's entire struggle with the recognition process, it is
spelled out in detail in my written testimony. Therefore, please allow
me to share with you just a few comments of independent experts from
across the country regarding our failed effort to achieve recognition.
In the words of the well-known and renowned Native American legal
scholar and member of the Standing Rock Sioux, Professor Vine Deloria,
Jr., writes ``The Federal acknowledgment process today is confused,
unfair, and riddled with inconsistencies. Much of the confusion is due
to the insistence that Indian communities meet strange criteria which,
if applied to all Indian nations when they sought to confirm a Federal
relationship, would have disqualified the vast majority of presently
recognized groups. He further writes, ``The MOWA Choctaws have a
typical profile for Southeastern Indians. Their credentials are solid
and the historical data that identifies them as Indians extends back to
the days when they were integral villages in the Choctaw Nation....the
fragmentation of the Five Civilized Tribes before, during and after
Removal makes their history a fascinating story of persistence and
survival but certainly does not eliminate them from the groups of
people that should rightfully be recognized as Indians.''
Dr. Richard W. Stoffle, Ph.D., an anthropologist from the
University of Arizona, wrote to me in response to the BIA decision to
deny recognition, saying, ``I can only express my deepest
disappointment in the BIA's decision. As someone who has reviewed your
petition at length and has talked with your elders, there is no just
argument against recognizing your status as an American Indian tribe.--
After working for 27 years with more than 80 American Indian tribes, it
is my considered opinion that the MOWA Choctaw people are a persistent
tribal society. It is difficult for me to understand how that point
could have been missed by the BIA.''
Dr. Kenneth York, Ph.D., a Member of the Mississippi Band of
Choctaw Indians, after critical review of our evidence writes, ``It is
my belief as a member of MBCI that members of the MOWA Band are
descendents of the Great Choctaw Nation which was disbanded by the U.S.
Government during the Indian Removal Period. It is my professional
opinion that the MOWA Band has provided documentation regarding the
history, culture, and ancestral relationship as well, if not better, as
any tribal petition in recent years.''
Dr. Loretta A. Cormier, Ph.D., an anthropologist at the University
of Alabama at Birmingham, recently wrote, ``As you are well aware, I
have had the opportunity to work among the MOWA Choctaw over the course
of the last three years and have researched your cultural history. Let
me say unequivocally that I have no doubt that the MOWA Choctaw are an
American Indian community. I am astounded by the BIA's denial of your
Federal recognition and find the technical report they prepared to be
seriously flawed in terms of its historical, cultural, and even logical
analysis of MOWA Choctaw history.''
The work and words of these individuals, and many other informed
professionals, should provide ample support to prove that the BIA's
recognition process is flawed and riddled with inconsistencies. The
Bureau of Indian Affairs, as a federal governmental agency, has a duty
to make decisions on a rational basis, which are neither arbitrary nor
capricious. I find it quite disturbing that the BIA can selectively
``pick and choose'' the evidence it uses to deny a petition and, at the
same time, not even consider or, in fact, totally and completely
disregard stronger, more solid and compelling evidence that it normally
uses as support to acknowledge other tribes.
The federal acknowledgment process was originally designed to be
fair, objective and neutral. Today, the process is dehumanizing and
insulting. As American Indians, we are the only people in this country
who to have to prove to the United States government who we are. I
strongly believe that as long as the BIA has the power to serve as
judge, advocate or adversary, the issues we discuss today will never be
resolved and the recognition process will continue to be widely held in
contempt.
Thank you.
Introduction: The Choctaw of Mobile and Washington Counties, Alabama
We, the MOWA Band of Choctaw, are a community comprised of the
ancestors of American Indians who escaped the 1830 Indian removal act
and remained in our traditional homeland in southwest Alabama. We chose
the acronym ``MOWA'' to refer to our location in the area bordering
Mobile and Washington Counties.
Our credentials are solid and the historical data that identifies
us as Indians extends back to the days when we were integral villages
in the Choctaw Nation. Few people realize that not all people were
removed when the Army marched our nation to the West. Our ancestors
have been documented as a distinct American Indian community since
shortly after the 1830 Indian removal act. In 1835, a government Indian
School was built in Mount Vernon, Alabama, and described in the Library
of Congress Historic Building Survey as built for Indians by Indian
labor (Russell 1935 [1835]). Census records, birth certificates, sworn
court testimony, government correspondence, military records, and
anthropological descriptions provide written documentation of our
continuous history in the area. However, the strongest evidence of our
American Indian ancestry is not found in written documents, it is found
in our lives. Our ancestors passed to us our Indian identity and
traditions, persevering and preserving our heritage despite a long
history of injustice and persecution.
Our ancestors essentially became fugitives in their own homeland.
After the Indian Removal Act of 1830, they retreated into heavily
forested, marginally desirable land along the Tombigbee River, married
amongst themselves, and maintained a separate community. It is critical
to understanding the experience of our ancestors to know that such
segregation was not only due to the amalgamation of our Indian
ancestors who escaped removal: it was an imposed isolation. Isolation
helped to spare our people from persecution, although not completely.
Elders describe atrocities against our ancestors such as being hunted
down and imprisoned; killed, dismembered and stuffed in a gopher hole;
or taken West in periodic Indian round-ups by government-paid
contractors. These types of events are well-documented in the
literature (e.g., Debo 1972 [1934] and Forman 1982 [1932], Matte 2002).
Non-Indian settlers to the area applied the term ``Cajun'' to our
ancestors' community, a term borrowed from a nickname given to French-
Canadian immigrants to the Gulf Coast area originating in Acadia, which
our ancestors clearly were not. We consider the term a pejorative, but
nevertheless, this is the term often used to document our community in
the literature, including a 1948 Smithsonian Institute description of
the Cajun Indians of southwest Alabama (Gilbert 1948:144).
Unfortunately, such erroneous descriptions of our culture have been
the rule rather than the exception in our history. The ultimate irony
is that the very isolation and persecution contributing to our bonding
together as an Indian community have, even today, impeded our ability
to receive acknowledgment that we are who we say we are. We were denied
federal recognition primarily on the basis that the BAR found
insufficient written documentation by outsiders to substantiate the
reality of our history and our lives.
The second section of this document entails a critique of the BAR
denial of federal recognition for our people. At this juncture, it is
important to make the point that we did provide the BAR with
substantial documentation of the type that is acceptable to them in
these matters. We maintain that we provided clear evidence to them that
should have been more than sufficient to prove by their standards that
we are who we are.
In brief, the BAR accepts that Indians remained in the area
inhabited by the MOWA Choctaw today after the 1830 Removal Act. They
also accept that our MOWA Choctaw community demonstrates clear ancestry
from late 19th century core ancestors with Indian traditions. The crux
of the denial is that our ancestors from the mid to late 19th century
who lived as a separate community with Indian traditions cannot provide
a level of documentation of Indian ancestry written by the non-Indian
peoples who persecuted them that is considered acceptable to the BAR.
Logically, it defies reason that non-Indians of that time period would
desire to voluntarily adopt Indian traditions that would only invite
persecution. Even if such self-destructive individuals were to exist,
then one would have to presume that another, as of yet unidentified,
Indian community existed in the MOWA Choctaw area from whom these non-
Indians would be able to acquire foreign traditions. This is a bizarre
and irrational scenario. Our MOWA Choctaw ancestors had Indian
traditions because they were Indian.
Our people are, and have always been, a self-governing community
following traditional ways of our ancestors and not accommodating
ourselves to the rigid institutional organization that the majority of
the nation adopted. Traditional ways, our people rightly feel, are more
precise and enable the community to meet the needs of our people
whereas the institutional process serves only people who fit into
rigidly defined categories of assistance. Thus, the political and
social profile of our MOWA Band of Choctaw Indians does not always fit
into the neat and narrow categories required by the federal
acknowledgment process. Although the Alabama legislature officially
recognized the MOWA Choctaw as a tribe in 1979, as did a U.S. Senate
committee in 1991, the Bureau of Indian Affairs denied our petition.
Nevertheless, as our revered elder, Mr. Leon Taylor stated to Congress
in 1985,
``Today, I am Choctaw. My mother was Choctaw. My Grandfather was
Choctaw. Tomorrow, I will still be Choctaw.''
This abstract and time line form the basis of the petitions and
supporting documents submitted to the Bureau of Indian Affairs-Branch
of Acknowledgment and Research in 1988, 1991, and 1996. A more in-depth
treatment of the material summarized here can be found in Jacqueline
Matte's, They Say the Wind is Red: The Alabama Choctaw--Lost in Their
Own Land (2002, New South Books).
Critique of the BAR Technical Report
The following is a summary critique of the BAR Technical Report
denying our federal recognition. Our critique addresses four key
problem areas we see in their evaluation, 1) dismissal of written
documents, 2) arbitrariness in evaluating oral history, 3) failure to
appreciate the historical context of the MOWA Choctaw experience, and
4) procedural errors. It should be duly noted that space limitations
for this testimony do not allow us to present to the Committee on
Resources a complete description of the factual errors, erroneous
interpretations, and inconsistencies in the BAR technical report of our
people. However, we are fully prepared to present more extensive
evidence and inaccuracies of the BAR report and, more extensive
documentation demonstrating that we are a legitimate American Indian
people.
1. The BAR Discounted Written Documents Presented as Evidence of MOWA
Choctaw American Indian Ancestry
a. The Bar Discounted Written Documents of MOWA Choctaw Antebellum
Ancestry
We presented extensive written documentation to the BAR of the
continuous settlement of our people in the region we inhabit today from
1813 until the present. Included were letters of correspondence to
representatives of the U.S. government between 1832 and 1859, which
provide a continuous record of our presence for a time period that
spans approximately 30 years after the 1830 Indian removal act (Exhibit
1: Choctaw Time line). In our original petition, we described the
segregation of our ancestors from the surrounding community in that
they were not permitted to attend either ``white'' or ``black''
schools, and built their own. A record of the school exists in the
Library of Congress that verifies that the school was built in 1835
``by Indians and for Indians'' (Exhibit 2: Original Catalogue Record of
Indian School). We presented to the BAR documentation of 120 records in
the U.S. General Land Office from 1836 to 1936 of homesteads showing
land occupation by the same names listed on the 1910 census who were
described as mixed blood Indians (see Exhibit 1 for references for
census data and Database of Land Records, 1836-1936). These records
demonstrate 100 years of our continued occupation in the area from
shortly after the Indian Removal Act until nearly the middle of the
20th century. We also provided the evidence of an 1855 ``Census Roll of
the Choctaw Indians,'' which describes Indians living in our present-
day area as well as evidence of a ``Choctaw Regiment'' in Mobile County
during the Civil War (see Exhibit 1: references for the Cooper Roll
1855, showing Choctaws in Mobile, Alabama, and the 1862 Choctaw
Regiment of Mobile, Alabama.)
The evidence above contradicts the conclusion of the BAR which
states,
``the petitioner's attempt to demonstrate the existence of a
continuing American Indian tribal entity, or community, in
southwestern Alabama in the first half of the nineteenth
century was not documented'' (Technical Report: MOWA Band of
Choctaw 1994:72 [cited hereafter as TR-MOWA]).
Not only did we provide such evidence, it should be duly noted that
BIA regulations under which the final determination was made do not
require evidence of ancestry prior to 1900. The BAR required a burden
of proof in violation of BIA standards and failed to acknowledge
documentary evidence that indeed met the inappropriate standard they
imposed upon us.
In addition, although the BAR relied most heavily on genealogical
historical records, support for the material we presented is found in
genetic research published in professional medical journals that
characterize our contemporary MOWA Choctaw people as a community of
Native American ancestry that have intermarried and been genetically
isolated since antebellum times. Our community has been a subject of
study by medical geneticists from the University of South Alabama due
to the high frequency of Marinesco-Sjorgren syndrome, an extremely rare
autosomal recessive genetic disorder. The community of these patients
was described as,
``each patient was a member of an inbred population living in a
well-defined area of South-Western Alabama. The ancestry of
this population is Indian, with White and Black admixture''
(Superneau et al. 1987:9); and
``all come from a remote, rural area of southwest Alabama that
has been virtually isolated since before the Civil War''
(Brogdon, Snow, and Williams 1996:461-462).
b. The BAR Discounted 1910 U.S. Census Evidence of American Indian
Ancestry
The 1910 United States Census for Washington County, Alabama,
contained marginal notes which identify MOWA Choctaw families in the
Fairford and Malcolm precincts of Washington County. The original
identification of Indian was written over with the word ``mixed.'' The
interlineations were written by an official taker of the United States
Census. The note explains: ``These people entered as mixed are composed
of Indian, of Spanish, some of them French, some with White, and some
with Negro. The prevailing habits are Indian. Called ``Cajun'' (see
Exhibit 1 references to 1910 Census Identifying Indian People and
Communities in Washington County).
Despite this direct proof, the BAR concludes, ``nor were the core
ancestors identified as an Indian entity on the 1910 U.S. Census.'' It
should also be noted that the core ancestors were dead by the time of
the 1910 census, and these would have been descendants of our core
ancestors. Moreover, the BAR concluded that ``none of the primary
records demonstrate that the petitioner's members descend from a
historical tribe or tribes which combined to form an autonomous
political entity'' (Summary under the Criteria and Evidence for Final
determination of the MOWA 1997:5 [cited hereafter as SCFD-MOWA]. We
offered the report of Professor Richard Stoffle (1996), entitled, ``A
Persistent People: A Rapid Ethnographic Assessment of MOWA Choctaw
Federal Acknowledgment Petition.'' Stoffle, using an anthropological
approach, concluded that we were operating as an Indian community at
the time of the Treaty of Dancing Rabbit Creek in 1830.
Rather than respond to the substantive conclusions reached by
Stoffle, the BAR suggested that we did not demonstrate that our core
ancestors descended from persons listed on the Dawes Rolls. However,
when the Curtis Act of 1898 directed the commission to enroll the
Mississippi Choctaw (Mann 2003:293), some of our ancestors did make
application for enrollment. They were rejected because they had no
written documents to verify their Indian identity and were labeled
``half-bloods.'' Most of the applicants rejected lived in Alabama and
traced their descendancy through Lofton and Byrd's lineage. This
information was submitted to the BAR. The basis for the exclusion from
the list was not that the applicants were not Choctaw. Indeed they
could speak the Choctaw language. No logical reason exists for anyone
to speak the Choctaw language in 1898 in Alabama if they were not
Choctaw. They were not permitted on the list because they could not
supply written documentation and were deemed ``half-bloods.'' The BAR
ignored this information.
In addition to the 1910 census, the 1920 census identified our
people as ``French and Indian'' (see Exhibit 1 reference to the 1920
Census Identifying Indians in Washington County). We have also recently
found Birth and Death Certificates from around this time period
identifying our people as Indian (see Exhibit 1 references to Birth and
Death Certificates Identifying MOWA Choctaw as ``Indian''). Moreover,
the 2000 U.S. census is unequivocal in its description of our people as
Indian. In its ``Race List Codes,'' the MOWA Choctaw Indians are listed
under the category ``American Indian,'' subcategory ``Choctaw,''
subcategory ``C12-Mowa Band of Choctaw'' (Exhibit 4: Federal Agencies
Recognizing the MOWA Choctaw, U.S. Department of Commerce). We agree
with the contemporary classification of our people as American Indian
by the United States Federal government, and so should the BAR.
c. The BAR Discounted Sworn Testimony Related to the American Indian
Ancestry of Core MOWA Choctaw Families
The MOWA Choctaws submitted minutes from ``The State v. John
Goodman and Jenny Reed,'' dated 1881-1882 (Washington County, Alabama
Circuit Court 1881-1882). We also presented a 1918 miscegenation case,
``The State of Alabama v. Percy Reed and Helen Corkins [aka Calkins]''
(See Exhibit 1 reference to 1920 Miscegenation Case of Percy Reed and
Helen Caulkins). The BAR ignored direct evidence of Indian ancestry
which arose out of these hearings and also intentionally refused to
draw inferential conclusions from the trials.
First, we used the minutes from ``The State v. John Goodman and
Jenny Reed'' to support the claim that Rose Gaines was half-Choctaw and
half-white. The minutes indicated that Alabama prosecuted John Goodman
and Jenny Reed under the miscegenation acts. The BAR concluded that the
not-guilty verdict was non-supportive of Choctaw heritage. The BAR
discredited sworn testimony of witnesses who stated that Rose was the
daughter of Young Gaines and a Choctaw woman. Additionally, the BAR
questioned the reference to burned records in our 1988 petition,
``Initially, the petitioner claimed that ``these [1880's] court records
were burned'' (FD-MOWA 1997:13). The 1988 petition was based on
information available at the time. That the BAR would castigate us for
dutifully supplementing its submission is inconceivable,
unprofessional, and insulting. We did not know that the records existed
because we were told in 1988 that some of the courthouse records had
burned in 1907. However, some of the records had been moved and were
later found in a storage closet in Chatom, Alabama.
At the trial involving John Goodman and Jenny Reed, testimony was
offered that Jenny was American Indian. The BAR ignored this testimony,
which was provided in prior submissions to the BAR. They took issue
with the fact that Mr. Sullivan, the foreman of the jury, had testified
similarly in the 1920's. However, that does not discredit the
testimony, rather it supports the conclusion of Indian descendancy. The
fact that the jury found the defendants not guilty in the Goodman and
Reed case is strong proof that Jenny Reed was of Native American rather
than African descent. This is the only defense that would have worked
in the jury trial. The BAR completely and literally ignored this
conclusion.
In addition, the specific reasons outlined by the BAR for not
accepting this conclusion are specious. First, the BAR says that the
testimony was given at a time greatly removed from the events being
discussed. The BAR is acting as a super-jury in determining the Reed
and Goodman case again. The original jury, hearing the evidence and
seeing the witnesses, concluded that the defendants were not guilty of
miscegenation. The only reasonable conclusion for that verdict can be
that Jenny Reed was Native American. The credibility and weight
accorded to witnesses' testimony is to be decided by the jury in that
case and not decided by a reviewing agency some 115 years after the
court hearing. The BAR does not, and should not, sit as a super-
reviewing agency of previous court decisions. Finally, the BAR impugns
the testimony of George Sullivan because he was 74 years old. Again,
this is a matter which was weighed and determined by the jury hearing
that case. The BAR does not have legitimate basis for declining to
believe sworn testimony evaluated by a jury.
We also presented the 1918 case of ``Alabama v. Percy Reed and
Helen Corkins [Calkins].'' Percy was the son of Reuben Reed and the
grandson of Daniel and Rose Reed. Percy Reed was originally found
guilty of miscegenation; however, the Alabama Court of Appeals reversed
that verdict and concluded that the evidence presented at the trial was
hearsay and that the trial Judge should have directed a verdict in
favor of the defendants. The Court of Appeals concluded: ``Judgment
entry that court ascertained `that defendant is of Indian or Spanish
origin' significant that state failed to make a case of miscegenation
(State of Alabama 1918),'' the BAR did not accord this judicial
conclusion any weight at all. In fact, the BAR ignored this direct
evidence of Native American descent.
2. The BAR Demonstrated Bias, Arbitrariness, and Inconsistency in
Evaluating MOWA Choctaw Oral History
Recording of oral histories is a key research methodology for both
historians and anthropologists. It is also the traditional Native
American means of transmitting family history and cultural traditions
from generation to generation. Glaring problems exist in the BAR
evaluation of information from oral history we provided to them. The
BAR is inconsistent and arbitrary in its utilization of oral history
information as evidence of Native American ancestry. Oral history
information substantiating written documents is dismissed. The BAR
reviewed the petitions of the MOWA Band of Choctaw and the Jena Band of
Choctaw within several months of each other. However, similar types of
oral history information were deemed superior to written documents for
the Jena Choctaw, but judged as inadequate evidence for the MOWA
Choctaw. Second, the requirement for extensive antebellum documentation
of genealogy is an unreasonable expectation for a non-literate people
whose cultural norms are based on preserving cultural heritage through
oral tradition.
a. The BAR Discounted Oral History Information Substantiating Written
Documents
The BAR has completely dismissed our oral history as ``vague and
unreliable when tested.'' The BAR refused to accept oral history
``until verified from contemporary documentary sources.'' As
demonstrated with Nancy Fisher, contemporary documentary sources have
been provided that have, for reasons beyond being described as
frivolous, been discounted. The BAR concludes that oral traditions
cannot be accepted at face value and must be evaluated where there are
accuracy and reliability. The BAR refers to Rubicam, ``consider and
analyze all of the facts, regardless of the source, whether tradition
or an official record, then decide if you should accept or reject those
facts'' (Rubicam 1980:48).
The BAR has ignored its own advice and refused to consider and
analyze all of the facts. We have urged, on more than one occasion,
that the strong common thread of references to Indian heritage, the 180
year-old story of our Indian ancestor who swam the river with the baby
on her back and self-identification has to be given weight. Further
support for the veracity of our oral tradition has been found in an
1816 Washington, D.C., newspaper which recounts the incident (Marschalk
1816). A transcript of the newspaper account is provided in Exhibit 3.
Jacqueline Matte has served as the primary historical researcher
for our people. Over a twenty-year period, she collected every
reference, published or unpublished, related to our ancestors. Each
piece of this information has been sent to the BAR, some of it
repeatedly, in the anticipation that gaps in chronology, incomplete
documentation, and unanswered questions could be expected for a
nonliterate people. Those gaps, however, were used offensively by the
BAR to deny recognition rather than to leave open the analysis for
further consideration.
While we do not discredit the value of genealogical records, the
BAR has not taken into account that our earliest ancestors were not
literate in English. It is unreasonable to expect that they would have
kept extensive genealogical records of themselves in a language they
did not know. Vine Deloria, Jr., (Lakota Sioux, Professor Emeritus at
the University of Colorado) has commented on this very problem in the
federal recognition process, and specifically in reference to the MOWA
Choctaw stating,
``Much of the confusion is due to the insistence that Indian
communities meet criteria which, if it had been applied in the
past, would have disqualified the vast majority of presently
recognized groups'' (Deloria 2002:10).
He refers to the ``catch-22'' in the federal recognition process.
If our ancestors had assimilated, they would have been more likely to
have left the types of written documentation the BAR requires to
demonstrate Indian ancestry. However, such assimilation, by the BAR
rules, would disqualify a community as a legitimate Indian tribe.
A recently discovered 1960 letter written by U.S. Representative
Frank Boykin also demonstrates the veracity of our oral history. An
excerpt follows below:
I'll take care of him when he gets here, because we have a lot
of wild Indians. You will remember that Aaron Burr was captured
there on our game preserve at McIntosh in 1806; and then a
little later, Chief Geronimo, that great fighting chief, was
captured here. Well, we sent them all to Oklahoma, after having
them in captivity here a long time. Well, I still have a lot of
them and they work for us. They can see in the dark and they
can trail a wounded deer better than some of our trail dogs
(Boykin 1960).
Boykin's description of the MOWA Choctaw is that they are
descendants of Indians who escaped removal and remained in the area
that we currently inhabit. Although Boykin's use of the term ``wild
Indian'' is insulting, it is, nevertheless, an indisputable description
of us as an Indian community.
b. The BAR Applied Radically Different Standards in Evaluating the MOWA
Choctaw and the Petitions of Other Tribes, Particularly in
Terms of Oral History
The BAR has applied radically different standards in evaluating the
petitions of the MOWA Band of Choctaw and other tribes. We have chosen
to draw comparisons between the petition of the Jena Band of Choctaw
with our own since they were evaluated within months of each other and
both are Southeastern Indian groups with Choctaw ancestry. The BAR
applied a higher standard for the MOWA Choctaw than the Jena, in some
cases, requiring the MOWAs to provide information that was described as
impossible to obtain for the Jena. They were particularly inconsistent
in evaluating the oral history of these two groups. Similar types of
information derived from oral history were accepted for the Jena and
rejected for the MOWA Choctaw. In one instance where a discrepancy
between oral history and census data existed for the Jena Choctaw, oral
history was deemed more reliable. However, the exact opposite
conclusion was drawn for the MOWA Choctaw for similar circumstances. We
should be clear that we are in no way questioning the legitimate Indian
status of the Jena band of Choctaw. Rather, we are making the point
that we feel that in all fairness, the same standards should have been
used in evaluating our petitions.
One example of this type of discrepancy in the BAR's evaluation of
the MOWA Choctaw and Jena Choctaw petitions involves the importance of
oral history in establishing ancestral links. For the Jena, the BAR
recognized that their earliest Choctaw ancestors would have logically
had Choctaw rather than Anglicized names and established a linkage
between 1830 Choctaw based on the oral history of their 1880
descendants among the Jena. The following citation from the Jena
petition is lengthy, but important for it makes clear that the federal
government acknowledged the impossibility of linking Choctaw names to
anglicized names and further, argued that it was ``fair and reasonable
to assume'' that 1880 persons living in traditional Choctaw territory
who claimed descent from Choctaw ancestors through oral history, were,
indeed, Choctaw:
After one commissioner visited Mississippi for several weeks,
the Dawes Commission produced a roll of the Mississippi
Choctaws and submitted it to the Department of the Interior in
March 1899. Later in the year, however, the Commission asked
that the roll be withdrawn and returned it. The roll contained
1,923 names (Dawes Commission 1899, 78; 1900, 18, 10;
Commissioner of Indian Affairs 1899, 122; 1901, 157-158). The
Commission had identified as Mississippi Choctaws all of the
full-blood Choctaws who had appeared before it. The Commission
noted that it was impossible to prove that an individual's
Choctaw ancestors had made a good-faith effort to comply with
the provisions of Article 14 of the treaty after 1830. The
facts were not known to those living 60 years later, the
Choctaws with English names could not be traced back to
ancestors with Indian names; the Government's records were
inadequate; and the investigations made after the treaty had
demonstrated that Agent William Ward had refused to register
Choctaws who sought to comply with the treaty's terms. The
Mississippi Choctaws, the treaty contended could not be
reasonably expected to show that their ancestors had complied
with the provisions of the treaty. It was ``fair and reasonable
to assume,'' however, that the Choctaws who had remained in
Mississippi had intended to declare their intention to do so
and to use the treaty to assure themselves of a homestead
([Dawes Commission 1899, 78-79] from TR-Jena 1994:21).
(Emphasis added.)
We provided the BAR with similar documentation in the form of an
1851 petition signed by our Choctaw ancestors that was submitted to the
Commissions of Indian Affairs on our behalf by John Seawell (Mayor of
Mobile) and Felix Andry (See Exhibit 1 references to Indians of South
Alabama of the Choctaw Nation 1851 and Choctaws in Mobile). The BAR
rejected this evidence on the grounds that 1851 Choctaw names could not
be linked to Anglicized names, although this was described as an
unreasonable and even ``impossible'' expectation for the Jena Band of
Choctaw:
Evidence was presented by the petitioner to indicate that some
Choctaw Indians remained in Southern Alabama between the Treaty
of Dancing Rabbit Creek in 1830 and the Civil War. However, no
evidence was presented by the petitioner to indicate that
either the Reed or the Weaver/Rivers/Byrd family associated as
colleagues or witnesses with Felix Andry, who was married to a
Choctaw woman named Nancy and who submitted claims to the
Federal government on behalf of the Choctaw remaining in
Alabama (TR-MOWA 1994:5).
It should be noted that one of the progenitors of the MOWA Choctaw
described in our petition to the BAR has been traced to a person with
an Anglicized name, Chief Tom Gibson (aka Eli-Tubbee, Elah, Tubbee, or
Elatatabe). He lived in Washington County, Mississippi Territory
(presently Washington County, Alabama) until 1813 when the influx of
whites caused him to move to Killistamaha (English Town) clan of the
Six Towns located in southeastern corner of the present boundary of the
State of Mississippi, just miles from the current southwest Alabama
location of our MOWA Choctaw community. John Gibson, James Gibson, and
Betsy Gibson were in Mobile area in 1850 as shown in U.S. government
correspondence and 1880 census. However, the BAR discounted this
information because the 1860 census described her probable place of
birth as Georgia, her father's North Carolina, and her mother's
Virginia (TR-MOWA 1994:75-76). The BAR concluded that the link is
``based on oral tradition only'' (TR-MOWA 1994:75) rather than
acknowledging that the census information itself was ambiguous.
The conclusion drawn here is particularly troubling given that when
the Jena proposal contained ambiguous census date, oral history was
described as more reliable than census data,
``The Dawes Commission testimony suggests that tribal members
born before 1872 were born in Mississippi, while those who were
younger than that were born in Louisiana during the 1880's.
Census data on individuals' place of birth does not support
this conclusion, but the census is less reliable than personal
testimony'' (TR-Jena 1994:16).
In multiple instances, the BAR discounts our oral history as
legitimate evidence. In the first example below, it is belittled by
stating that our petition ``alleges'' a family connection. In the
second example, even sworn court testimony is treated as allegation and
discounted because we were expected to produce additional written
documents to support the testimony.
``The MOWA petition alleges, also on the basis of oral
tradition, that a George W. Reed, supposedly the son of Hardy
Reed and a Creek woman whose maiden name was Elizabeth Tarvin,
was the brother of Daniel Reed, as were Amos Reed and Squire
Reed, but provides no documentation for the assertion, and the
BAR researchers located none'' (TR-MOWA 1994:31).
``According to the witness in the 1920 trial, Mrs. Rush
testified that Rose Reed, who had died in 1878, had told her
that her mother was a `Choctaw squaw.' This hearsay testimony
was not documented by any contemporary evidence'' (TR-MOWA
1994:6).
The oral history of the Jena is treated with more respect and
regarded as legitimate in terms of both historical dates and social
relationships,
``In the oral history of group members, William Bill Lewis is
remembered as the group's leader from the time of his arrival
from Catahoula Parish about 1917 until his death about
1933...as the eldest male among the Choctaw residents of the
Jena area after the death of Bill Lewis, Will Jackson was
expected to play the role of community leader...'' (TR-Jena
1994:30).
Another example of information that was accepted for the Jena
Choctaw and rejected for the MOWA Choctaw is the presence of Indian
Schools. The Jena Choctaw petition states,
``Local authorities and private individuals made efforts to
create a school specifically for the Indian population. During
the 1930's the Penick Indian School operated with some funding
from the Federal Office of Indian Affairs'' (SUC-Jena 1994:4).
We provided the BAR with virtually identical information about a
separate, federally funded Indian school for the MOWA Choctaw. In our
original petition, we provided evidence of federal funding being sought
in 1934, the same time period identified for the Penick Indian School
of the Jena Choctaw (see time line). Moreover, as previously described,
the Indian school for the MOWA Choctaw ancestors was established 100
years earlier than that of the Jena Choctaw. In addition, since 1965,
we have received federal funding through the Title IV and Title IX
Indian Education Programs (Exhibit 4: Federal Agencies Recognizing the
MOWA Choctaw, Department of Education).
Another extraordinary example of the BAR applying wholly different
criteria to the Jena Choctaw and the MOWA Choctaw is in their
evaluation of virtually identical events involving a Choctaw family
moving into the community around 1900. For the Jena Choctaw, the
addition of the Choctaw Lewis family in the early 1900's is described
as a positive event which allowed a dwindling Jena Choctaw community to
remain viable. For the MOWA, the addition of the Choctaw Laurendine
family is described as irrelevant because they did not marry into the
community until the early 1900's. The BAR description of the Lewises
states,
``Before the arrival in LaSalle Parish about 1917 of William
Bill Lewis and his extended family from Catahoula Parish, the
Trout Creek settlement may have shrunk to two families, those
of brothers Will Jackson and Chris Jackson...At that time, the
two Jackson families may have consisted of only eight
people...The arrival of the Lewis family gave the Trout Creek
settlement the potential to remain a viable community'' (TR-
Jena 1994:28).
But the description of the MOWA Choctaw states,
``The Mississippi Choctaw Laurendine family did not, apparently
settle in Mobile County until after the Civil War''.No
Laurendine descendants married into the petitioning group until
after 1900...'' (TR-MOWA:87).
The inconsistency is incredible. The BAR completely dismisses the
intermarriage of the Choctaw Laurendine family into the ancestral MOWA
Choctaw community as anomalous because it did not occur until around
1900. However, for the Jena Choctaw, the intermarriage of the Choctaw
Lewis family around 1900 is viewed as critical to the very existence of
the Jena Choctaw today.
c. The BAR Placed little value on oral history as the traditional
American Indian means of transmitting heritage.
Finally, it is disappointing that the BAR, as an Indian agency,
places so little value on oral history. For all American Indians, oral
history is the traditional Indian way of transmitting our heritage from
generation. Disregarding these traditions demonstrates disrespect for
our venerated elders and more generally, disrespect for Indian cultural
traditions. Moreover, the very existence of our oral history, passed
down through generations to multiple descendants could not be been
motivated by any other logical reason except as a means to preserve our
heritage. Cedric Sunray's ``MOWA Tribal Council Presentation'' put it
well,
``When elder after elder recounts the same story in a
relatively similar fashion...how can we discount it? How could
an entire group of elderly people be convinced to lie and
falsify such a long story? They would need to go against their
own collective beliefs, have meetings to get their stories `on
the same page' and then, with a straight face, lie to
anthropologists and BAR officials. No one could possibly
believe that the senior population of the MOWA community
organized to this level with the intent to mislead the BAR''
(Sunray 2002:15).
3. The BAR failed to evaluate written documentation in its historical
context
a. The BAR failed to recognize the widespread American Indian
resistance to the Dawes Roll. The BAR equates the Dawes Roll (and
similar registers) as a Native American census, failing to recognize
both the widespread Native American Resistance to the Dawes Act, and
the fraud and corruption in the Miriam Report of 1928 which led to its
repeal.
b. The BAR failed to recognize racism and racial designations
applied to American Indians in Alabama. The BAR has characterized the
documents identifying MOWA Choctaw ancestors with Indian heritage as
ambiguous. We have presented clear documentation that our MOWA Choctaw
ancestors were described as Indian. However, the BAR describes this
evidence as ambiguous pointing to terms such as ``free person of
color'' and ``mulatto'' that have sometimes been applied to them. Such
an attitude demonstrates a lack of awareness of not only historical
racial categories in the region, but more importantly, it indicates a
lack of awareness of the racism and prejudice that our people have
experienced.
c. The BAR applied an unreasonable standard for the level of
documentation required for non-literate antebellum American Indians.
The requirement of the BAR for the MOWA to present extensive antebellum
evidence is an unreasonable standard for an American Indian people who
were not literate in the language. Applying such a standard indicates a
clear failure to appreciate the cultural, historical, and linguistic
history of the Indians who escaped removal in 1830.
4. The BAR deviated from BIA protocol in evaluating the MOWA Choctaw
Petition.
a. By the BIA's own admission, the Federal Recognition process
is a confusing, ambiguous, expensive, and time-consuming
process (Bureau of Indian Affairs 2001:3-4). One consequence of
the confusion and delays is that we presented our petition
under the set of guidelines in effect at the time but our
petition was not evaluated until seven years later. The rules
for federal recognition were changed just months before the BAR
evaluated our proposal. We believe our petition should have
been evaluated in a timely manner. Further, given that the BAR
did not evaluate our petition within the recommended two-year
time frame, that our petition should have at least been
evaluated under the guidelines in effect when we submitted our
proposal.
b. The BAR deviated from BIA protocol in requiring pre-1900
documentation. Much of the criticism in the 1994 BAR Technical
Report is directed at their evaluation of our providing
insufficient antebellum documentation of our ancestry. As we
have already argued, we strongly disagree with this conclusion.
But leaving that aside, as a matter of procedure, the
requirement for antebellum documentation deviates from
protocol. By the BIA's own admission, the meaning of
``historical'' has been ambiguous and inconsistently applied
for tribes seeking federal recognition. The BIA clarified the
time frame in 1997 to mean ``since 1900.'' However, in the
Final Determination, written after the BIA clarified the
appropriate time frame, the BAR continued to apply an
antebellum standard. We find it particularly unfair,
frustrating, and inconsistent that the BAR applied outdated
standards in the Final Determination given that our original
petition was required to meet standards that had been changed
only months before.
c. The BAR deviated from the BIA protocol in failing to
provide an objective evaluation of the MOWA Choctaw petition.
The BAR failed to provide an objective analysis of our
petition. We base this on (1) the adversarial tone of the BAR
report; (2) evidence of racial bias by the BAR evaluator; and
(3) politics. Our experience has made it clear that the federal
recognition process is rife with politics and bias. We were not
evaluated objectively. Kevin Gover, the Assistant Secretary of
Indian Affairs who signed off on the negative determination of
our petition perhaps puts it better than we can. He is quoted
in the Hartford Advocate as saying,
``The tribal recognition process should be ``fair, open,
objective, and neutral...our present system lacks these
features and we need an impartial commission...Today the tribal
recognition process is `dehumanizing' and `insulting'...
imagine have to prove to the government who you are.'' (Miksch
2003, quoting Gover).
Concluding Remarks
With the exception of the Bureau of Indian Affairs, virtually
everyone who has come into contact with our people recognizes that we
are Indian. We have multiple letters of support from professionals that
are all willing to provide expert testimony under oath. As previously
described, we already have established relationships with numerous
branches of the federal government who recognize us as Indian, even to
the extent of our being given an Indian racial code for the purpose of
compiling governmental statistical data. But more importantly that all
of the letters and government documents that repeatedly substantiate
our American Indian heritage, we simply are who we are.
References
Boykin, Rep. Frank. 1960. Letter to Dr. Sam McGee. Congress of the
United States, House of Representatives, Washington D. C.
Brogdon, B.G., R. D. Snow, and J. P. Williams. 1996. Skeletal Findings
in Marinesco Sjogren Syndrome. Skeletal Radiology 25:461-465.
Bureau of Indian Affairs. 2001. Indian Issues: Improvements Needed in
the Tribal Recognition Process. United States General
Accounting Office, Report to Congressional Requesters.
Debo, Angie. 1972 [1934] The Rise and Fall of the Choctaw Republic.
Norman: University of Oklahoma Press.
Deloria Jr., Vine. 2002 Foreword. The Say the Wind is Red, Jacqueline
A. Matte. Pp. 9-11. Montgomery: New South Books.
Foreman, Grant. 1982 [1932] Indian Removal: The Emigration of the Five
Civilized Tribes of Indians. Norman, OK: University of Oklahoma
Press.
Gilbert Jr., William Harlen Gilbert. 1948 Surviving Indians of the
Eastern United States. Annual Report. Smithsonian Institution:
Washington, D.C.
Mann, Barbara Rice. 2003. Native Americans, Archaeologists, and the
Mounds. New York: Peter Lang.
Marschalk, Andrew. 1816. By This Morning's Mail. Washington Republican
and Natchez Intelligencer. Vol. 4. No. 12 (Wednesday, July 10,
1816).
Matte, Jacqueline A. 2002. They Say the Wind is Red: The Alabama
Choctaw--Lost in Their Own Land. Montgomery: New South Books.
Miksch, Joe. 2003 A ``Broken'' Bureau of Indian Affairs. Hartford
Advocate: January 9, 2003, http://hartfordadvocate.com/gbase/
News/content.html?oid=oid:1065
Rubicam, Milton (ed). 1980. Genealogical Research: Methods and Sources.
Washington, DC: American Society of Genealogists.
Russell, E. W. (photographer). 1935 [est. 1835] Photograph of 1835
Indian Schoolhouse, County Road 96, Mount Vernon, AL. Card
Catalogue No. #AL0387; Photograph Nos.: HABS, ALA, 49- MOUV, 4-
1, 4-2, and 4-3. Historic American Buildings Survey (HABS).
Washington D.C.: Library of Congress, Prints and Photograph
Division.
State of Alabama. Appellate Court Records. 1918. The State of Alabama
v. Percy Reed and Helen Corkins [aka Calkins]. Book 270, 1st
Division 372-471.
Stoffle, Richard W. 1996. A Persistent People: A Rapid Ethnographic
Assessment of MOWA Choctaw Federal Acknowledgment Petition.
Prepared Report Submitted to the Bureau of Indian Affairs.
Sunray, Cedric. 2002. MOWA Tribal Council Presentation. Graduate
student paper submitted to the University of Kansas.
Superneau, Duane W., Wladimir Wertelecki, Hans Zellweger, and Frank
Bastian. 1987. Myopathy in Marinesco-Sjogren Syndrome. European
Neurology 26:8-16.
United States. Commission and Commissioner to the Five Civilized
Tribes. 1894-1907. Annual Report. Washington, D.C.: Government
Printing Office (cited as Dawes Commission).
United States. Department of the Interior. Bureau of Indian Affairs.
Branch of Acknowledgment and Research (BAR). 1994 Historical
Technical Report: Jena Band of Choctaw Indians. Washington,
D.C.: Bureau of Indian Affairs (cited as TR-Jena)
United States. Department of the Interior. Bureau of Indian Affairs.
Branch of Acknowledgment and Research (BAR). 1994 Summary Under
the Criteria and Evidence for Proposed Finding Against Federal
Recognition of the MOWA Band of Choctaw. Washington, D.C.:
Bureau of Indian Affairs (cited as SC-MOWA).
United States. Department of the Interior. Bureau of Indian Affairs.
Branch of Acknowledgment and Research (BAR). 1994 Technical
Report: MOWA Band of Choctaw. Washington, D.C.: Bureau of
Indian Affairs (cited as TR-MOWA).
United States. Department of the Interior. Bureau of Indian Affairs.
Branch of Acknowledgment and Research (BAR). 1997 Final
Determination: Mobile-Washington County Band of Choctaw Indians
of South Alabama, Technical Report. Washington D.C.: Bureau of
Indian Affairs (cited as FD-MOWA).
United States. Department of the Interior. Bureau of Indian Affairs.
Branch of Acknowledgment and Research (BAR). 1997 Summary Under
the Criteria and Evidence for Final Determination Against
Federal Acknowledgment of the Mobile-Washington County Band of
Choctaw Indians of South Alabama. Washington, D.C.: Bureau of
Indian Affairs (cited as SCFD-MOWA).
Exhibit 1: Time line for Choctaw Indians in Alabama from 1813 to 2003
For references see: They Say the Wind is Red: The Alabama Choctaw
Lost in Their Own Land by Jacqueline Anderson Matte, with foreword by
Vine Deloria, Jr., Revised Edition, 2002, NewSouth Books, Montgomery,
AL
1813 Forty-five Choctaw families join Creeks to fight against
Americans in Creek War of 1813 (part of War of 1812)
Source: ``John Pitchlynn, Ocktibbaha to Governor Blount,
September 14, 1813,'' Roll 6; ``George Smith, Pitchlands, to A.
Jackson, November 23, 1813,'' Roll 7; ``John McKee, Fort Smith Mr.
Pitchlynn, to A. Jackson, January 6, 1814'' and ``John McKee, Campte
Toote, Massatabbe east bank of the Black Warrior 85 miles above its
junction with the Tombigby, to A. Jackson, January 26, 1814, Roll 8,
Andrew Jackson Papers, Manuscript Division, Library of Congress;
``Narrative, December 5, 1813,'' John McKee Papers, Manuscript
Division, Library of Congress; ``David Holmes to Turner Brashears,
August 3, 1813,'' RG 2, Mississippi Territorial Governor's Papers,
6:308, Mississippi Department of Archives and History; ``John McKee,
Mr. Pitchlynn's to GS Gaines, January 2, 1814,'' RG 217, Records of the
Accounting Officers of the Department of the Treasurer, Records of the
Fifth Auditor, box 1, account 475, National Archives; Gideon Lincecum,
``Life of Apushimataha, ``Publications of the Mississippi Historical
Society, 9(1906): p. 479 (hereafter cited PMHS).
1819 Choctaw village in Mobile and inhabitants described March
31, by James Leander Cathcart, agent for U.S. Navy, in his
daily journal.
Source: Jean Strickland and Patricia N. Edwards, Residents of
the Southeastern Mississippi Territory--Three Journals, Book Four.
``Records of the General Land Office, Journal and Report of James
Leander Cathcart and James Hutton, agents appointed by the Secretary of
the Navy to survey timber resources between the Mermentau and Mobile
Rivers, in accordance with an act of March 1, 1817, November 1818-May
1819,'' pp. 48-49.
Daniel Reed worked for Young Gaines as a cattle
drover. A notice in the St. Stephens, Alabama Territory
newspaper, The Halcyon and Tombeckbe, proclaimed: ``Lost, a
red Morocco Pocket book containing a Due Bill on Mr. Young
Gaines for $60; which I forewarn all person from trading
for the same. Daniel Reed. St. Stephens.''
Source: Halcyon & Tombeckbe, March 10, 1819.
1824 Choctaw families in Mobile described and interviewed by
Gideon Lincecum, Botanist, who lived with Choctaw.
Source: Lincecum, ``Life of Apushimataha,'' Publications of the
Mississippi Historical Society, 1906, p. 480.
1830 Treaty of Dancing Rabbit Creek to remove all Choctaw Indians
West of the Mississippi River.
Source: Charles J. Kappler, ed., Indian Affairs, Laws and
Treaties, 2:310-15.
1832 George S. Gaines reported ``A great number of Chactaw [sic]
Indians for many years past have resided with the corporate
limits of this city during the winters and spring months, and
many families remaining through the summer, to the annoyance of
the citizens...''
Source: NARC, RG 75, Entry 201, Letters Received, 1831-
36,Records of the Commissary General of Subsistence, June 30, 1832.
1835 Indian Schoolhouse, County Road 96 (Old Saint Stephens
Road), Mount Vernon, Mobile County, AL. Built approx. 1835;
Owner: State of Alabama. Built for Government School for
Indians by Indian labor. Description: Frame, one story, wood
cypress siding, small porch on the front.''
Source: Historic American Buildings Survey (HABS), Library of
Congress, Prints and Photograph Division, Washington, DC 20540, Card
#AL0387. http://memory.loc.gov/ammem/hhhtml/hhhome.html
1836 James Gibson, descendant of Chief Tom Gibson (Eli- tubbee/
Elah-tubbe) listed on ``Muster Rolls of Choctaw Indians,'' and
in Correspondence from Mobile.
Source: Records of the War Department, Office of the Advocate
General, Alabama at war, 2nd Creek War, 1836, SG13379, Alabama
Department of Archives & History. (ADAH)
1836-1936 Inclusive--120 Land Records show ownership and occupation by
people with whose same names are listed on 1910 U.S. Census in
Mobile & Washington counties as ``Mixed...the prevailing habits
are Indian.''
Source: General Land Office, Suitland Maryland.
1838 Investigation into fraudulent land claims. Testimony taken
to establish claims by Choctaws; 7,000 who refused to move
west.
Source: NARC, RG 75, Entry 270 Evidence, 1837-38, U.S. Court of
claims, No. 12742, The Choctaw Nation of Indians vs. the United States.
1844 George S. Gaines reported ``The south eastern Indians known
as the Six Towns under the influence of Capts. Oak-lah-be and
Post Oak...number about 2,000.
Source: NARC, RG 75, M234, Letters Received, Choctaw Emigration,
Roll 185, pp. 903-908, September 22, 1844.
1847 ``Since the time of 1830 the Choctaws who remained...has
been left to follow there own inclination, the greater part of
them leading vagrant lives...in the southern part of Alabama
and deriving a precarious subsistence by--hunting and fishing
in swamp...about 3,000, including 2 and 300 who have wandered
off to the seashore between Mobile and New Orleans..''
Source: NARC, RG, 75, M234, Roll 188, fr. No. 226, Choctaw
Agency, Emigration, April 27, 1847.
1851 ``Several hundred Indians were determined to remain in
vicinity of Mobile'' 6 Nov 1851; reports that ``several hundred
more Indians have come to vicinity'' 27 Nov 1851; ``about 500
are assembled...'' 15 Dec 1851; ``petition signed by Choctaws:
60 men, 45 widows and 4 children.'' 29 Dec 1851.
Source: NARC, RG 75, M234, Roll 171, Letters Received by OIA,
Choctaw Agency, 1839-51, fr. no. 738 753.
1852 ``Petition in behalf of all the Indians of south Alabama of
the Choctaw Nation...over 400 Choctaws residing in Southern
Alabama and near Mobile, who do not wish to emigrate but to
remain where we are and become citizens. Signed in behalf of
all the Indians of South Alabama of the Choctaw Nation.''
Source: NARC, RG 75, M234, Roll 172, Fr. no. 44-47, Letters
Received, Choctaw Agency, August 17, 1852.
1856 ``Census Roll of Choctaw Families, Residing East of the
Mississippi River and in the States of Mississippi, Louisiana
and Alabama made by Douglas H. Cooper, U.S. Agent for Choctaws,
July 26, 1856: Original manuscript: Six Town clan located in
Jasper & Newton Counties, Mississippi and Mobile, Alabama; list
of Choctaw names; recapitulation, showing number of men, women
and children, number of families and places of abode. The Six
Town Clan was comprised of 129 men, 191 women, 194 children for
a total of 514 individuals or 96 families.''
Source: NARC, RG 75, Entry No. 260.
1859 ``Gov't has no intention to make any further removal of
Choctaws...''
Source: NARC, RG 75, M234, Roll 175, Letters Received by OIA,
Choctaw Agency, Frame No. 409-417.
1860 Response to series of letters requesting information on name
and residence of Choctaw Agent, ``No such agent has been
appointed by the Department...``
Source: NARC, RG 75, M234, Roll 176, Letters Received by OIA,
Choctaw Agency, Frame No.13-17 & 165-167.
1862 Choctaw ancestors of the MOWA remained in Alabama and were
recruited for the Confederacy at the foot of Stone Street in
Mobile, Alabama. The majority of the men were killed, leaving
the women and children in south Alabama.
Source: ``Major S. C. Spann, Commander Dabney H. Maury Camp, No.
1312, UCV, Meridian, Miss.'', Halbert Collection, Folder No. 178, ADAH;
Muster Roll of this Choctaw Regiment is in Department of Archives and
History, Jackson, Mississippi (cover only, roll missing).
1870 U.S. Census: Indians identified in Mobile County--9.
1880 U.S. Census: Indians identified in Mobile County--19; in
Washington County--2.
1890 U.S. Census (manuscript burned) population totals only
available. Indians identified in Washington County--0; in
Mobile County -- 402 (plus 384 Apaches).
1898-1914 MOWA Choctaw enrollment applications in Mobile and
Washington Counties for Dawes Roll, generated in response to
General Allotment Act, February 8, 1887. (U.S. Statutes at
Large, 24:388-91).
Source: Applications for Enrollment of the Commission to the
Five civilized Tribes 1898-1914, RG 75, M1301, roll 116, Mississippi
Choctaw Roll no. 2556, MCR number 2189 and 2190.
1900 U.S. Census, Indians identified in Washington County--0; in
Mobile County--5.
1907-1909 U.S. Agent, John Beck, enrolled 64 Choctaw families in
Mobile and Washington Counties on Eastern Cherokee Roll (Guion
Miller Roll). Ancestors of MOWA Choctaw Application Numbers
14393, 17390- 17395, 41601-41750, 43551-43700 Eastern Cherokee
Roll (a.k.a. Guion Miller roll).
Source: RG 75, Records Relating to Enrollment of Eastern
Cherokees by Guion Miller, 1908-1910, M685; RG 123, M1104, Eastern
Cherokee applications,
1909--1930s Indians identified in Birth and Death Records, Vital
Statistics,: Washington county--12 births, 1 death; and Mobile
County, 6 births, 0 death..
Source: Mobile County Probate Court, Archival Birth and Death
Records; Birth and Death Records, Registration No. 651200, Vital
Statistics, Records of Washington County, ADAH
1910 U.S. Census, Indians identified in Washington County--172;
in Mobile County--7. Marginal notes designated clusters of
families in Fairford, (Precinct 12) and Malcolm (Precinct 13),
ED 14 as: ``These people entered as mixed, are composed of
Indian, of Spanish, some of them with French, some with white,
and some with Negro. The prevailing habits are Indian,. Called
Cajun.'' The original identification in column, ``Ind'' was
written over with ``mixed.''
1919 Choctaw Indians in Mobile and Washington counties
``discovered'' by Southern Baptists.
Source: The 39th Annual Session of the Mobile Baptist
Association, Citronelle Baptist Church, 1919.
1920 U.S. Census, Indians identified in Washington County--10; in
Mobile County--12.
1921-1955 Thirty-four years of Reports by Baptist Missionaries provide
continuous written documentation to Mobile and Washington
Counties to teach ``American Indians of Choctaw heritage, under
the overall program of missions to American Indians.''
Source: Annual Reports of the Southern Baptist Convention, 1922-
1955.
1924 Governor W. W. Brandon's report on ``Cajan- Indians'' in
Mobile and Washington counties. Hilary Herbert Holmes, ``The
so-called Cajan Settlements in Southern part of Washington
County, Alabama: A Survey made for Governor William W. Brandon,
1924.''
Source: Governors' Papers (1920-27: Brandon), RC2:G156,
Administrative files, folders: ``Cajan,'' ADAM.
1930 U.S. Census, Indians identified in Washington County--0; in
Mobile County--50.
1930s-1990s Several Master's theses and ``scientific studies'' done on
Choctaw Indians in Mobile and Washington Counties.
Source: Horace Mann Bond, ``Two Racial Islands in Alabama,''
American Journal of Sociology 36 (1931: 552-567; Laura Frances Murphy,
``The Cajans of Mobile County, Alabama'' (master's thesis, Scarritt
College for Christian Workers, 1935); Clatis Green ``Some Factors
Influencing Cajun Education in Washington County, Alabama'' (master's
thesis, University of Alabama, 1941); Edward Thomas Price, Jr. ``Mixed-
Blood Populations of Eastern United States as to Origins,
Localizations, and Persistence, (Ph.D. Anomalies in School Children of
an American Triracial Isolate: A Frequency Study'' (master's thesis,
University of Alabama at Birmingham, 1965); George Harry Stopp, Jr.,
``The Impact of the 1964 Civil Rights Act on an Isolated `Tri-Racial'
Group'' (master's thesis University of Alabama, 1971; Duane W.
Superneau, Wladimir Wertelecki, Hans Zellweger, and Frank Bastian,
``Myopathy in Marinesco-Sjogren Syndrome. European Neurology 26:8-16,
1987; B.G. Brogdon, R.D. Snow, and J.P. Williams, ``Skeletal Findings
in Marinesco Sjogren Syndrome,'' Skeletal Radiology 25:461-465, 1996;
``Circle of Life: University of Alabama Researchers look at how
children with developmental disabilities fit into the Circular scheme
of Native American World View,'' UAB Magazine, Summer, 1995: 13-15.
1930-1965 Separate school system established for ``Cadians'' (Indians)
in Mobile and Washington counties.
Source: Minutes of Mobile County Board of Education and Minutes
of Washington County Board of Education.
1931-1966 Annual Reports of Mission Work Among the Cajan Communities
1931-66 to the Woman's Missionary Society and Woman's Society
of Christian Service. Work among these communities identified
by following names: Byrd's Chapel, Work Among the Cajans,
Methodist Community House, Aldersgate Mission, Mobile County
Rural Center, Calcedeaver School.
Source: The United Methodist Church Commission on Archives and
History, Alabama-West Florida Conference, Houghton Memorial Library,
Huntingdon College, Montgomery, AL.
1934 Mrs. Elvin Byrd sought federal aid for Indian schools.
Source: Indian Office File No. 55742-1934; file no. 150. Report
on findings was submitted to the Commissioner of Indian Affairs by Dr.
W. Carson Ryan, Jr., Director of Indian Education.
1940 U.S. Census--No statistics on Indians.
1940-1941 School year. Miss Eva Crenshaw's Sixth and Seventh grade
students of Weaver School compiled a ``History of Byrd
Settlement,'' ``with the help of some of the oldest
people....Mrs. Laura Byrd, Mrs. Irene Rivers, and Mr. Book
Byrd.'' The story of the ``woman who swam the river with her
baby'' is included.
Source: ``History of Byrd Settlement,'' typescript., 1940-41.
Copy acquired in 1991 from Miss Eva Crenshaw, former Methodist
Missionary to South Alabama Indians, 1937-44.
1940s Indians from Mobile and Washington counties served in World
War II.
Source: Cemetery Records, U.S. Military Identification cards,
Discharge papers.
1948 ``The 3rd major census of Indians in 1930 was the occasion
for the `discovery' of two more Indian mixed groups...These
people are centered in the area of heavy woods and hills about
Citronelle in upper Mobile and lower Washington Counties, and
number 3,000 or more.''
Source: William Harlen Gilbert, Jr., ``Surviving Indian Groups
of the Eastern United States.'' Annual Report of the Board of Regents
of the Smithsonian Institution for 1948 (1949): 407-438. See No. 18,
Alabama.
1950 U.S. House of Representatives report lists all Indians in
U.S. including the Cajans of Alabama [ancestors of the MOWA
Choctaw] under category of ``Siouans of the East.''
Source: ``Compilation of Material Relating to the Indians of the
United States and the Territory of Alaska, Including Certain Laws and
Treaties Affecting Such Indians by Subcommittee on Indian Affairs of
the Committee on Public Lands House of Representatives'' H. Res. 66
(81st Cong., 2d Sess.) June 13, 1950, Serial No. 30.
1950 American Indians across the South, including MOWA Choctaw,
joined ``Kinsmen of Indians for Liberty, Reform and
Instructions in Civic Affairs'' (KILROI). As Descendants of the
Creek Indians, East of the Mississippi River.''
Source: Docket 21, Indian Claims Commission, Bureau of Indian
Affairs. Microfilmed copy of Register, Mobile County Public Library
Local History Division.
1965 Secured federal assistance for Indian Education in schools.
Title IV, Part A, Indian Education Program implemented in
Reed's Chapel School, McIntosh, Washington County, Alabama and
Calcedeaver School, Mt. Vernon, Alabama. The Indian Education
program continues today in Mobile and Washington Counties.
Source: ``Statement of Jack Edwards, Member of Congress for
Alabama 1965-1985'' in Testimony in support of S.362 (S.282) Proposed
Legislation for Federal Recognition of MOWA Choctaw of Alabama.
1976 Choctaws in Mobile and Washington Counties, 4,000.
Source: Report of American Indian Policy Review Commission.
Chapter 11, ``Nonrecognized Tribes,'' p. 468,
1979 The MOWA Band of Choctaw Indians recognized by State of
Alabama.
Source: Legislative Act No. 79-228, H.313--Turner, Alabama Laws
of the Legislature of Alabama, 1979, Vol. I, p.350.
1980 U.S. Census, Washington County, Alabama: Indians--779
Alabama Attorney General confirms that Choctaw
Indians of Mobile and Washington counties retain their
rights as a sovereign tribe.
1981 MOWA Band of Choctaw Indians sought help of the Bureau of
Indian Affairs to provide assistance to be federally
recognized. Alabama Humanities Foundation--awarded a study
grant.
Letter from Eddie L. Tullis, Chairman, Poarch Band
of Creek Indians to Framon Weaver, Chairman, MOWA Band of
Choctaw Indians, June 20, 1981 requesting ``in the spirit
of Indian brotherhood, to support our efforts for Federal
Recognition....We as Native Americans must work together to
protect our rights. I assure you that if you assist us with
our struggle for Federal Recognition you can count on us to
be there when your petition is ready for consideration by
BAR.''
1983 MOWA Choctaw hired an Executive Director as a grants writer;
applied for research grant from the Administration of Native
Americans, which they received. Held organizational meeting for
federal acknowledgment research team. Letter of intent to
petition was sent to the Branch of Acknowledgment and Research
(BAR), May 19, 1983.
1984-1987 Data collection--research, interviews, writing
1987 S. 1142, Shelby; H.R. 3107, Callahan, Nichols, Erdreich
1988 Submitted FAP to BIA/BAR, April 28, 1988; up-dated tribal
roll submitted
1989 S. 381, Shelby, Heflin; H.R. 1562, Callahan
1990 BIA/BAR reviewed FAP and sent Obvious Deficiency letter to
MOWA Choctaw, February 15, 1990.
1991 S. 362 Shelby, Heflin; H.R. 2349, Callahan; BAR held
technical assistance teleconference in September; MOWA Choctaw
submitted response to Obvious Deficiency letter, November 8,
1991.
1992 Supplementary documentation showing Choctaws in Mobile area
from 1832-1860 was presented to the BAR and reported as
received in the BAR's Proposed Finding. However, in a 1996
meeting with BAR officials (Virginia DeMarce, Kay Davis and
Holly Reckord), they stated they did not receive them.
1993 S. 282; Shelby, Heflin, Inouye; H.R. 3605, Hilliard;
supplementary documentation showing MOWA Choctaw ancestors'
Dawes Roll Applications and supporting evidence as to why they
submitted applications for the Eastern Cherokee Roll (a.k.a.
Guion Miller Roll).
1994 S. 282, H.R. 4231, MOWA Band of Choctaw Indians Recognition
Act; hearing May 17, 1994; BAR sent Proposed Finding Against
Federal Acknowledgment of the MOWA Band of Choctaw, December
16,1994.
1995 Because a new chief was elected, MOWA Choctaw requested
extension of time. We applied for and received Administration
for Native Americans (ANA) Grant to complete Federal
Acknowledgment Petition (FAP).
1996 New chief, research committee and tribal council met with
BAR staff in Washington for technical assistance on March 1,
1996. Research committee met with anthropologist, May 7-8. On
June 27, 1996, Chief Wilford ``Longhair'' Taylor submitted
Report and up-dated tribal roll.
1997 BIA/BAR issued a negative Final Determination Technical
Report.
1998 MOWA Band of Choctaw Indians of South Alabama filed an
Appeal before the Interior Board of Indian Appeals, U.S.
Department of Interior. The appeal was denied.
2000 Kevin Gover, Assistant Secretary of Indian Affairs under
President Clinton invited Chief Taylor to meet with him to
discuss MOWA Choctaw Federal Recognition
2003 The School Board of Washington County returned Reed's Chapel
School and property to the MOWA Choctaw. The first school was
held in Reed's Chapel Church by missionaries. The school was
built by ancestors of the MOWA Choctaw on land they donated for
this purpose.
[GRAPHIC] [TIFF OMITTED] T2827.006
[GRAPHIC] [TIFF OMITTED] T2827.007
Exhibit 3: Transcript of Washington Republican and Natchez
Intelligencer Newspaper Account of the Nancy Fisher Story
By This Morning's Mail
ST. STEPHENS, JUNE 7
We learn from the most respectable authority that two of the
murderers of Johnston and McGaskey have been given up, and that
diligence is promised on the part of some of the chiefs in apprehending
the balance of the party. It is stated that the Seminoles and some of
the lower Creeks are determined on war and have embodied 1500 warriors
to cut off the supplies and provisions ordered up the Apalachicola for
the use of the U.S. Troops. The most stringent measures are adopted by
the commanding general to ascertain their statement and intentions as
to prevent the commission of outrages on the frontier. In consequence
of the reports of the Indian unrest, the surveyors of the Creek lands
have suspended their labors, but we understand, under security assumed
by military force, they are about to recommencing them.
June 23
The following interesting part of a letter was communicated by our
friend at Fort Stoddert dated June 15, 1816.
``Left Tuesday night, about the rise of the moon, five Creek
Indians came to the home of Mrs. Fisher, about fifteen miles
below this place on the eastern bank of the river. Three of
them fired on a Chactaw, who had been at the same time about
Fort Montgomery, engaged in hunting and who was then encamped
near Mrs. Fisher's hours. As soon as they had killed him, they
fired at the door upon which her daughter catched up a child
escaped at the opposite door, and the Indians rushed in and
fell upon an old woman with clubs. Her cries only excited the
taunts of the Indians, whose conversation, in the Creek
language, was heard by her distracted daughter. The old woman
was left for dead; but the daughter got to a canoe and escaped,
with the child, to the swamp on the western side of the river,
where she soon saw the house buried in flames. Mrs. Fisher,
however, was not actually dead, but was enabled to have--from
immediate destruction.
Mr. Myric in whose employ her son was, had them all brought up in a
boat yesterday evening. I have just been to see them, but found the
poor old woman dead. She had been disabled in her hip, her fingers were
miserably mashed, and her head considerably fractured. The whole of
their furniture, clothing, and provisions were destroyed with their
house. Every family on the same side of the river is equally exposed.
Mrs. Fisher was a sister to the later Mrs. Stiggins. Her father was a
Cherokee and her mother was one of the old Natchez tribe. She has lived
with the white people upwards of 20 years, and her husbands (both of
who are dead) were white men. She had not seen a Creek Indian before
since the commencement of the war, and had no idea who they were that
killed her, except they were Creeks.
Marschalk, Andrew. 1816. By This Morning's Mail. Washington
Republican and Natchez Intelligencer, Wednesday, July 10, 1816.
Exhibit 4: Federal Agencies Recognizing the MOWA Band of Choctaw
Indians
1. U.S. Department of Commerce
The U.S. Bureau of the Census
The U.S. Bureau of the Census recognizes the MOWA Band of Choctaw
as an American Indian group. The Bureau of the Census uses a racial
classification code for generating statistical profiles of the American
population. The MOWA Band of Choctaw is listed under the category,
``American Indian,'' as a Choctaw group with the racial code number C12
(See Department of Commerce, Bureau of the Census, American Community
Survey Race Code List:
http://www.census.gov/acs/www/UseData/CodeList/SSAll/2000/
Race.htm). In addition, the Bureau of the Census has also generated a
map of American Indian groups resulting from the 2000 Census, and the
MOWA Band of Choctaw reservation is southwest Alabama is included (See
http://www.census.gov/geo/www/maps/aian--wall--map/aian--wall--map.htm
[map can be enlarged on-line).
2. U.S. Department of Housing and Urban Development
Office of Native American Programs
Indian Community Development Block Grant Program (ICDBGP)
The MOWA Band of Choctaw has received a federal grant (ICDBGP)
through the Office of Native American Programs, U.S. Department of
Housing and Urban Development. The criteria for receipt of the grant
states,
Eligible applicants for assistance include any Indian tribe,
band, group or nation (including Alaskan Indians, Aleutes, and
Eskimos) or Alaskan native village which has established a
relationship to the Federal government as defined in the
program regulations. In certain instances, tribal organizations
may be eligible to apply (http://www.hud.gov/offices/pih/ih/
grants/icdbg.cfm)
MOWA Choctaw Chief Taylor is featured on the front cover of the
June 2003 Native American Housing News, a publication sponsored by the
U.S. Department of Housing and Urban Development.
3. U.S. Department of Health and Human Services
a. Low Income Home Energy Assistance Program (LIHEAP)
b. Administration for Native Americans
c. Centers for Disease Control and Prevention
The MOWA Band of Choctaw have, in the past, received federal
funding through the Administration for Native Americans (ANA) to assist
them in researching their cultural history and are currently receiving
federal funding through the Low Income Home Energy Assistance Program
(LIHEAP). The LIHEAP grant is administered specifically to the MOWA
Band of Choctaw with those eligible being, ``eligible Choctaw
households in Baldwin, Choctaw, Mobile and Washington Counties''
(http://www.ncat.org/liheap/Directors/Agreements/Alabama.htm). In
addition, the Centers for Disease Control and Prevention employ the
same racial designation for the MOWA Band of Choctaw as does the U.S.
Bureau of the census (American Indian, code C12).
4. U.S. Department of Education
Office of Indian Education
Title IV and Title IX
For almost 40 years, the MOWA Choctaw have received federal funding
for Indian education through Title IV (beginning in 1965) and later
Title IX programs through the U.S. Department of Education's Office of
Indian Education. If one considers the Indian School built for MOWA
Choctaw ancestors in 1835, they have a 155 year history of government
sponsored Indian education for the MOWA Choctaw people.
______
The Chairman. Thank you.
Mr. Marshall, in your written testimony you state that 17
tribes winning a legally forced review have all been denied
Federal recognition. Chairperson Cambra testified that the same
people at Interior who fought her tribe's lawsuits were the
ones responsible for the final determination denying
recognition to her tribe.
This makes me wonder about objectivity of the people that
are making a decision. Can you maybe enlighten the Committee a
little bit about how you feel or how the people that you
represent have dealt with the objectivity of those that are in
the decisionmaking process.
Mr. Marshall. Thank you, Mr. Chairman. First off, the
frustration of all tribes is well known. It is well documented.
Not only the frustration of the process but yet when you seek
remedy outside of the process, because your people do not have
access to health programs, education programs, 638 programs, we
are denied the process. When you seek outside remedies through
the court or through congressional help, they become
adversarial, at best.
Partly because there is just such a vacuum of bureaucracy
up in that particular building, I do not want to go to that
building. Where I come from we call it bad medicine. You do not
feel human going in there. You do not feel like you are getting
your just day in court. You do not feel like you are going to
have your fair say. You feel like you are going there with your
hat in your hand to beg for something. But I will you that we
did not allow any foreign settlers to beg for anything when
they came to us for help.
I think it is totally disgusting that a tribe who has been
a consistent living, breathing tribe has to prove to someone
else that they are a tribe. If you are of European descent and
you say you are English, they do not ask you how much English
you are. If you say you are Indian, they want to know what part
and how much.
The sad part about it is that whole thought process goes
throughout the country. But without Native Americans'
contribution to this country, we would not have a country. We
would not have a Constitution. We governed our people long
before--our constitutions and our governance predate the
Constitution of this country and we have been living in peace
and harmony and planning for seven generations since the
beginning of time and I find that when we do seek outside
remedies, we have to pay the piper. But the frustration is do I
go back and tell my elders that I cannot get the job done
inside the BIA in a timely fashion and on my watch?
I will tell you this. From the time that we put in our
letter of intent to today, we have lost 147 members because
they did not have access to programs and I find that a little
tough.
The Chairman. Mr. Marshall, you and I have had a chance to
talk in the past and as I told you privately, whether the
decision is to recognize you as a tribe or not recognize you as
a tribe, it is unconscionable to not give you a decision. That,
in my mind, is just beyond any bureaucratic mess-up. It is just
something that this Committee is going to have to deal with in
one way or another.
Unfortunately, as we were preparing for this hearing we
found that you were not alone and that there are a lot of folks
that are out there that have been waiting for decades just to
get an answer.
Mr. Marshall. That is correct.
The Chairman. And that is uncalled-for in my mind.
I do have questions dealing with the objectivity of people
in the decisionmaking process. I happen to have one of my local
tribes that has gone through--in fact, it has made national
news lately--quite an ordeal in terms of the leadership of that
particular tribe and the accusations have been made that those
that were making the decision within the BIA for one reason or
another had a conflict in that decisionmaking process and
listening to the testimony of this panel really makes me wonder
if there is not a different way that we ought to approach the
Federal recognition process and maybe have some kind of an
independent process.
You heard on the first panel somebody who felt very
strongly against the recognition process in one particular
tribe and has the ability to have political pressure brought
into bear on that particular decision. In my mind, this should
not be political or bureaucratic. It is either yes or no.
Either you qualify or you do not. To me, I do not understand
how that can take 30 years.
Mr. Marshall. Mr. Chairman, we are not sure, either, but I
can guarantee you that the tribal leaders sitting at this table
either meet or exceed all seven of the criteria. The BIA knows
it. They know we have been tribes for years.
I find it hard to believe that a governmental agency would
go 50/50--16 approved, 16 denied. How does that happen? If you
did that in business you would be a miracle man. But you know
what the sad part about it is? That we even have to come here
to tell you this.
And you know the really disgusting part is in Connecticut
you have tribes there that contribute a great deal of money and
resources and jobs to the State of Connecticut and I would say
to you, sir, that if they lost those casinos, that the State of
Connecticut would be in a financial ruin without those two
tribes. Instead of embracing the tribes they fight them.
But in Massachusetts we have a resolution that says from
the statehouse, please recognize this tribe, urging the
Massachusetts delegation to seek recognition for this tribe. We
are not saying yes or no; we are asking to have our chance at
the bat. But I am afraid, like most people are, that when you
seek an outside remedy that the first answer is going to be a
negative, as happened to the Muwekmas, as happened to
Schaghticokes, and as happened to Eastern and Pawcatuk Pequots.
The Department has taken upon itself the ability to change
the rules when they want to, jumping people from behind us
ahead of us, and they have done that at least five or six
times. And you know the wonderful part about that is they send
you this great letter that says it will not harm you as far as
time is considered because we are going to short-circuit and
take the time of the process. And I think they drank Reverend
Jim's Kool-Aid.
The Chairman. Thank you, sir.
Mr. Rahall.
Mr. Rahall. Thank you, Mr. Chairman.
I would like to ask Chief Taylor a question. You stated
that in denying your tribe Federal recognition, the BIA failed
to take into account that your earliest ancestors were not
literate in English. Could you explain how this worked
adversely against you?
Mr. Taylor. Well, our people, you know, they required us to
match our Choctaw names with English names, which we could not
do that. Over time, assimilation, most all Indian tribes are
losing their native language. We are trying to bring ours back.
So that works against us there, I believe, if I understood your
question right.
Mr. Rahall. Right.
Let me ask Chairwoman Cambra if I might, how has the
Interior solicitor's involvement with your lawsuit created
complications? And this could very well be a follow-up to the
Chairman's questions, as well. Are there conflicting
personalities here that you feel have worked against you?
Ms. Cambra. I believe so. I believe that they have made a
process into a personal vendetta against my tribe specifically.
I also believe that it is very clear when they admit that
we are a historical tribe, 100 percent of our members descend
from a historical tribe, it is very clear that Congress has
never terminated our tribe in any way, shape or fashion, then
they automatically should come up with an alternative. And I
have requested since, in fact, the earliest administration that
I started working politically was with Ada Deer's
administration and I asked the question, can you help us? If we
are previously recognized, never terminated, how can you help
us? Well, go through the process, which we did.
The BAR said we were previously recognized, never
terminated, 100 percent of our membership comes from a
historical tribe. They did not offer any alternative except to
recommend legislation and that was their only recommendation
that they offered the tribe, and I am assuming through the
solicitor. And I can testify as a witness that American Indians
are no friend of the solicitor.
As a taxpayer and as a grandmother and a mother and as a
leader, is this what the American Federal government provides
Indians? Instead of taking the fiduciary responsibility, they
take a very negative pro-war process with them and that has to
stop. We cannot afford that. We cannot afford that.
Mr. Rahall. Thank you.
Thank you, Mr. Chairman.
Mr. Hayworth. (presiding) I thank the Ranking Member and I
am going to ask your indulgence. Obviously a frog decided to
take root in my throat today.
I would like to thank the witnesses for coming down here
today. A couple of points. As I heard your testimony I thought
back to the district I represented when I first came to
Congress. Things changed because of reapportionment but in the
district that I initially represented I was honored to
represent the sovereign Navajo Nation, the largest of our
tribes. The area the Navajo inhabit transcends the borders of
four states. It itself is about as large as the Ranking
Member's home State of West Virginia.
What I keep coming back to when I hear your words today
remind me of a tribal elder whom I met in a town hall meeting
when he said, ``Congressman, as far as I am concerned, as far
as the people I represent are concerned, BIA stands for bossing
Indians around.''
But listening today, I hear another unfortunate acronym to
hear your experiences. BIA seems to now stand for bureaucratic
indecision always.
If you would again, and I share Mr. Marshall's lament; it
is unfortunate in the first place that this hearing even has to
take place but even accepting that for a second, there is
something good that comes from this because we have the chance
to put into the record and to amplify for the record the
challenges you face.
I would ask each of you who have testified, I know it is in
your official record but again to distill and to amplify for
this Committee and for the Congress and for our friends who
join us here today how long have you been involved in this
process? Let us begin with Mr. Marshall and just in the order
of testimony, if you would tell us the number of years you have
been involved in seeking recognition.
Mr. Marshall. Officially, 29.
Mr. Gumbs. Officially, since 1978, 25 years.
Ms. Cambra. Since 1989--23, 24 years.
Mr. Taylor. This year 24.
Mr. Hayworth. So an average of a quarter century for all
these tribes just through the official recognition process.
That is on average what we are hearing here today. A quarter
century to reach some conclusion.
As the Chairman said and as I would amplify, simple respect
and decency should have prompted a yes or no answer at some
point during the span of a quarter century of seeking this
recognition.
The Chair would recognize the gentleman from Michigan, Mr.
Kildee.
Mr. Kildee. I thank the Chair and thank the witnesses.
You certainly have appeared before the right body. Each one
of us in this body take an oath to uphold this Constitution and
the Constitution, as I am sure most of you know, Article 1,
Section 8 says, ``The Congress shall have the power to regulate
commerce with foreign nations and among the several states and
with the Indian tribes.'' This Constitution states the three
types of sovereignties that we deal with and you are one of
those three.
I have two citizenships. I am a citizen of the United
States and I am a citizen of the State of Michigan. Native
Americans have three citizenship recognized by this
Constitution. They are citizens of the United States and they
have proven that over and over again by their service in our
armed forces. They are citizens of their respective states and
they are citizens of their sovereign tribes, recognized--not
granted--recognized by this Constitution, because it is a
retained sovereignty.
John Marshall in 1832, Chief Justice of the United States
Supreme Court, said, ``The Indian nations had always been
considered as distinct, independent political communities
retaining their original natural rights as the undisputed
possessors of the soil from time immemorial. The very term
nation so generally applied to them means a people distinct
from others.''
You have a retained sovereignty and our job is to make sure
that we recognize--not grant--we recognize that retained
sovereignty.
In my time here in the Congress I have helped some tribes
in my own state get their sovereignty reaffirmed, reaffirmed
their recognition, not granted. As a matter of fact, I had
three tribes one time over in the Oval Office when President
Clinton was President, three tribes and the President signed
those bills. I will tell you a quick story about that, too. I
really believe in this sovereignty.
After President Clinton signed those three bills
recognizing the retained sovereignty of three Michigan tribes I
turned to the three chiefs or Chairmen, because Clinton was
wandering around as he generally does in the Oval Office
talking to everybody. I said, ``Why do you not sit down in the
President's Chair?'' And one of the senators said, ``Dale, I do
not think we can do that.'' And I said, ``We probably should
not because we are not chief executives of sovereign tribes,
sovereign nations, but these three are.'' So they all took
their turn sitting in the President's Chair.
But it is a real sovereignty and it is a shame when we
recognize foreign nations much more quickly than we recognize
those who had sovereignty and are recognized by this
Constitution.
You know, I have gone through the process of helping tribes
go through the--I got so tired of the BAR process because it is
broken, it is shattered, it just is not working. So very often,
I have had to take tribes through the congressional process
and, by the way, I have taken tribes through the congressional
process long before IGRA, long before gaming ever came in. Now
every time you think of trying to get your sovereignty
recognized people think of gaming. Well, that is beside the
point. The main thing is that if you are sovereign, you are
sovereign, and it is a retained sovereignty.
All you are asking of the BIA or asking the Congress is to
recognize again that retained sovereignty. You come before this
body and I think it is more than a legal responsibility; it is
a moral responsibility this Congress has to either repair the
BAR process or to use the congressional path to help again
recognize your retained sovereignty.
I have some prepared remarks, Mr. Chairman, I would like to
submit for the record but I just wanted to speak to you. I
admire your loyalty to this country, I admire your loyalty to
the state in which you live, and I admire the loyalty to the
sovereign tribes of which you are members.
Thank you very much and I yield back the balance of my
time.
Statement of The Honorable Dale E. Kildee, a Representative in Congress
from the State of Michigan
Mr. Chairman, I am pleased that you scheduled this hearing today so
that we can engage in the type of dialogue that will lead to badly
needed changes to the federal recognition process.
I have met with several tribes over the years who have informed me
of the complaints they have about the current administrative process.
We all have heard these complaints:
that the office of federal acknowledgment is underfunded;
that the process is too slow as it can take decades
before a petition is reviewed;
that the process is too expensive;
that the process is filled with conflicts of interest
within the BIA; and
that the BIA is more worried about the fiscal impacts of
approviing petitions than providing justice to tribes who legitimately
deserve to have their status as tribes restored.
It is because of those complaints, and my commitment to provide
justice to Indian tribes, that I have supported and sponsored over the
years specific legislation to reaffirm the federal recogniton of a
tribe.
Previous attempts to revamp the federal recognition process have
failed in the past because of fears by some that doing so would lead to
more Indian gaming.
Just this week, the New York Times published an article about
gaming investors seeking to create tribes. Certainly, I am appalled by
this idea. I know it does happen. It has happened in my own state and I
opposed that effort, but these few examples do not remove the fact that
there are Indian groups that deserve to have federal recognition and
that the federal recognition process needs to be improved.
I look forward to hearing from the witnesses today. Thank you.
______
The Chairman. Thank you.
Mr. Pearce?
Mr. Pearce. Thank you, Mr. Chairman.
I appreciate your testimony and like the others, echo the
response that answers should be given. I would ask if any of
you happen to know the number of employees that work in the
Department who are in charge of recognition, the recognition
process? Just approximately.
Mr. Marshall. I understand there are three teams of three--
an anthropologist, a genealogist, and a historian. For a long
time there was one team of three but they have since hired new
people.
Mr. Pearce. Mr. Chairman, I just have some observations
here that I have been working out on the calculator. If you
figure 8 hours per day per person, which may be at risk, but 5
days a week per person, you get 40 hours a week times 48 weeks
if they get a month's vacation. That is 1,920 hours and over 25
years, which these people have averaged, that is 48,000 hours
of manpower. And if you multiply it times the nine employees,
the three teams of three, we have 432,000 hours and it seems
like we could give these people an answer with 432,000 hours of
labor time.
On another note, if we spend 15 minutes a day on coffee
breaks, that is 1,500 hours in the careers, the 25 years that
these people have been waiting. If we just post a little note
at the coffee table that if you will simply talk about it over
a break, you have 1,500 hours, so surely we could come up with
an answer for at least one of the tribes.
Thank you, Mr. Chairman.
The Chairman. If the gentleman would yield just for a
second, how many hours was that?
Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman.
I was glad that Congressman Kildee brought out the
Constitution and read that section where it says Congress has
the power because I guess my biggest concern after listening to
Mrs. Johnson on the first panel was that states and towns are
looking to influence this process of recognition in a way that
I think is inappropriate and I think we need to be reminded
that it is a Federal issue, that Congress has the power.
Congress is the one that deals with the sovereignty issue.
And in the same respect, I guess I am concerned about
opening up the BIA recognition process in the sense that we
would amend it or we would change it because my fear is that
there is so much pressure now and maybe Connecticut is the
worst example but there are others, too, that if we reopen it
and try to change it, rather than it becoming a better process
and less bureaucratic, that it might become more limiting and
the states would, through their representatives here, exercise
their ability to make it even more difficult to get
recognition.
That is just by way of background. I am not saying I
understand all the problems in the bureaucracy and everything
you have but that is just my fear.
I guess it was Lance Gumbs, who is a Trustee. You said
something about if the states have recognized the tribe, maybe
there should be some expedited procedure because of the state
recognition but I would fear that if states thought that was
true they might just rescind it. I could see maybe Connecticut
just rescinding state recognition of the Eastern Pequots or
some of the others, knowing that that might have some factor.
What I really wanted to ask you is Mrs. Johnson talked
about giving money to the localities to help with the
recognition process or challenging recognition and I asked a
question about well, what about the tribes? They do not get any
money.
What would you say about--and this goes to the cost issue.
I just want each of you, if you could, to tell us what would
you say if there was a bill introduced--I guess I could
introduce it--that mirrors Mrs. Johnson's but does not give
money to the towns or the states; it gives money to the tribes
and says that if a tribe is seeking recognition, we will give
them money to make their case?
I think it was Mr. Gumbs and Chief Taylor who both talked
about how difficult and costly it was to go through the
process. Give me a little information about how difficult it is
because the perception that Mrs. Johnson and some of the others
are giving is that tribes have all this money from the casinos
to help them with the recognition and they have no problem
getting money to help the process.
Two questions. One is what would you say about legislation
that would give money to tribes so that they could use it for
the recognition process? And how difficult is it and where are
your resources coming from to go through this 20-year process?
I will start with maybe Mr. Gumbs and Mr. Taylor because they
talked about how costly the process is but anybody could
answer.
Mr. Gumbs. Thank you. The costs have been astronomical for
us at the Shinnecock Nation. Our sole source of income within
our community--and we are a community. We have health
facilities. We have a family preservation center. We are an
active community. The costs have been astronomical. Our sole
source of income at this point has been our annual Labor Day
weekend powwow and that has gone to fund our tribal offices and
the various programs that we have within our community and, to
say the least, it is not a lot.
To take it a step further, if it had not been for NARF
coming in to give us a hand with our process, we would probably
still be doing it. You know, 25 years and NARF has spent
approximately, just since 1988, approximately $800,000 on our
process. The research that goes into this process is
tremendous. You have to go to different places. In New York,
for instance, we have had to go to Albany and some of our
records are up in New Bedford, Connecticut, and some of our
records are actually over in England dating back to the
colonial times.
So in order to achieve what has been required of the
process we have had to expend an inordinate amount of funds to
get this process done. And, as I said, if it had not been for
NARF coming in and giving us a hand with that, we would still
be in the process. We would not have been able to afford this
based on the income that we have within our community at this
present time.
Mr. Pallone. What about having the Federal Government help
you pay for it?
Mr. Gumbs. That would have been great. I mean we could have
used that 25 years ago.
Mr. Taylor. Do you want me to answer?
Mr. Pallone. It is up to the Chairman. Yes, I guess, sure.
Mr. Taylor. It has been a great burden on us. We did secure
one ANA grant that gave us $65,000 but when you look at hiring
professionals to do your work, it is costly. They do not do it
for thank you. They have to travel. They have to go to the
archives, land records, military service records, and they have
to search and search and search. They have to fly. They have
paperwork and all to do and they really, like Dr. Richard
Stoffle from the University of Arizona, he works for them and
we had to fly him in to do some research. We had to fly him in
to talk to our elders. We had to fly him back and we had to pay
him for his time.
So we are looking at, for 10 years there when we were
working on the process, it cost us a half-a-million dollars and
we got one $65,000 ANA grant from the government and we had to
foot the other bill on our own, from our pow-wows, from
fundraisers.
The Chairman. Thank you.
Mr. Flake, did you have questions?
Mr. Flake. No questions.
The Chairman. Mr. Baca?
Mr. Baca. Thank you very much, Mr. Chairman.
Mr. Pallone, I agree with you that it should stay in
Congress as far as Congress having the power and I would hate
to see the states even get the power in terms of recognizing
Federal tribes or tribes within our areas because that would do
away with a lot of the sovereignty and the protection for
sovereignty that we have to continue to protect.
Mr. Hayworth, you mentioned what BIA stood for. I believe
it stands for bureaucratic inaction versus the definition that
you gave.
But it is a shame that when we look at tribes having to
spend 29 years, 25, 23 and 24 years, that they are not able to
be recognized, especially for many different kinds of reasons.
One is when you look at dignity and respect they are very
important and you cannot put a dollar price in terms of
identifying who you are, where you are coming from and that
tribe to also be recognized.
Government has the habit of recognizing all of us.
Immediately we are labeled. I remember when we were first
labeled as Caucasians and then it was changed from Caucasians
to Hispanics and then from Hispanics to Latinos and from
Latinos to Mexican-American, where I think we are a combination
of all of them with a little bit of Indian blood that is still
in us.
But it is a shame that individuals have spent so much time
in trying to gain the kind of dignity and respect that we
should have in identifying individuals. I would like to see
hopefully some kind of a process or guidelines with time lines
in terms of when a tribe asks for an application, that within a
certain period of time they should be recognized within that
period of time and they should be held accountable. BIA should
be held accountable to say if a tribe has filed, why has it
taken so long?
It is appalling--I agree with you, Mr. Chairman--it is
appalling to see them go so long and to see a tribe--can you
imagine us sitting in this Committee--I do not think all of us
will be here for 29 years or 25 or 23 or 24; maybe you, Mr.
Chairman; you are a little bit younger--to finally recognize
one of these tribes that is seeking the recognition that they
rightly deserve. I think that we need to reassess what goes on
there.
So my question would be to the panelists out here how do
you suggest the process can be sped up? And any one of you can
answer that. Then do you feel that you have been taken
advantage of in your efforts to become a federally recognized
tribe? That means financially or otherwise, gouged by
individuals, attorneys and others, because there are a lot of
people out there that are willing to gouge individuals to say I
am willing to work on your application and all of a sudden for
whatever reason, conflicts or others, it is still there and we
are still dealing with 29 and 25 and 23 and 24 years. Any one
of you can answer that.
Ms. Cambra. I believe, Congressman Baca, I believe that
immediately this Committee and Congress should take action,
immediately take that authority and power away from the BAR.
Personally I believe that the tribes that are previously
recognized or have merit for recognition and have spent
millions of dollars on the process and have been treated with
ill will and have been basically--what I think the BAR has done
is that they have tried to kill our spirit in this whole
process and the will to want to continue to face you men and
women in Congress.
I mean what the BAR has done to our integrity or to my
tribe and its integrity and even to function, it is worse than
9/11. It is actually worse than 9/11. Also, anthrax. Here we
get a letter that says you no longer are to be considered a
candidate for recognition; you have to follow another process.
Yet we know, yet we know with the history of our people and the
legal history and even a court document, Federal court
document, that we were previously recognized, never terminated,
and 100 percent of us are from the same group. I mean we know
the truth and we carry the truth with pride but when we face
the BAR and the Interior solicitors, it is like they dismiss
our presence and our rights as a sovereign nation. That, in
itself, their actions are insulting. And it is not only
insulting to us as Indians but it is insulting to the American
government.
Mr. Baca. Good. Would anybody else like to answer?
Mr. Taylor. Yes, I would like to say something, sir.
Mr. Baca. Yes.
Mr. Taylor. My personal opinion is to let the BAR continue
to work but I think Congress, what they should do, they should
have a watchdog Committee. Instead of appealing to the BAR,
like the fox watching the henhouse, you know, so to speak,
instead of appealing to the BAR, appeal it to a Committee of
Congress and let the Congress decide. Let them have some expert
witnesses, something like those expert witnesses that testified
on my behalf. I think if they knew they had a watchdog
Committee and if they denied a petition and Congress had a
Committee sitting here that is going to scrutinize their
decision, I think they would be more honest and more fair. I
really do. That is my opinion.
Mr. Baca. Thank you.
Mr. Marshall. Mr. Congressman, I would respectfully say
that the BAR staff is overburdened, first off, but they have
not yet asked for more money, either. They have not asked for
more money for the recognition process.
In a deposition that we had we talked to one of their
budget people and all of the money seems to go to the trust
fund issue at this point. So that leaves the Federal
recognition and the BAR or OFA in limbo. There was only one
funding source for tribes that were seeking recognition and
that was ANA and NARF.
And to answer your question, my tribe has not been unduly
harmed by anybody that has done any work for it in any way,
shape or form. We do not allow it. We are not insensitive and
we are not stupid. We can find the right people to do these
things. I think that sometimes people have this predisposed
notion that we do not know what to do or how to do it and I
would say that the BAR staff needs to be shored up. I believe
that they need some help. I believe they need some guidance and
they need a fresh evaluation of what their job is. Their job is
to go through the process and not personally hold one decision
over another and it certainly is not to jump one tribe from
behind another, ahead.
Mr. Baca. Thank you.
Mr. Gumbs. I think that the process clearly was designed to
have Indian tribes fail. As the Chairwoman said, the process is
long, it is an exhausting process, and they constantly change
the rules. Our stuff was submitted in 1998 and then there was a
TA letter that was sent to us, which said that we had not met a
certain criteria. We then went back and spent another couple of
years working on that criteria, only to have another tribe
given recognition with the same problems that we had, that they
claimed that we had.
So we are looking at it as well, what is going on here? You
know, here we spent all of this time doing this and then we
turn around and you tell us that we did something or left
something out, and then when we turn around and look, you
recognize another tribe with the same problems. So there is no
consistency in the process itself.
And as Glenn said, ANA was the only agency that we were
able to get a small fund from and at this time now they have
even taken the position that they are not going to be funding
recognition anymore. So how do we do this with no money?
It is a process that is designed to have Indian nations
fail and it is as simple as that.
Mr. Baca. Thank you very much. It sounds familiar because
that is part of the process that happens with many individuals,
immigrants who want to become citizens who accidentally somehow
leave a blank or a space left and they go to the end of the
line and the whole process has to begin again. That is why we
have 10 million and some that are backlogged right now that
they have never even processed in that area, so am hearing the
same kind of problems that we have here right now.
Mr. Marshall. Forty percent of the tribes that enter the
recognition process give up and there is nobody in this room
that would understand that frustration unless you have been
through it. Forty percent of the tribes do the job of the BIA
by quitting because they cannot take the frustration, the
pressure, and the financial responsibility that it takes to
push a petition through and that is pretty sad.
Mr. Baca. Thank you very much.
Thank you, Mr. Chairman, for allowing me extra time.
The Chairman. Thank you.
Before I dismiss this panel and call up our third panel I
wanted to first of all, thank all of you for your testimony. I
think the entire Committee realizes how difficult it is for all
of you to be here and to testify in front of a congressional
panel in the way that you did and we appreciate your having the
tenacity to stick with it but we really do appreciate your
making the effort to be here and to share with us your
experiences.
Mr. Taylor, you suggested that there be some kind of a
congressional oversight, congressional watchdog. Well, that is
who we are and that is the job of this Committee. I will fully
admit that in the past we may not have done some of the things
we should have on this Committee but that is changing. We are
here to do our job and our job is to have oversight over these
functions and we are doing that. That is part of the effort of
this hearing here today.
Mr. Taylor. I know in my particular case what I was
referring to, sir, was like when our petition was denied we
appealed it but we appealed it back to the Bureau of Indian
Affairs. Instead of appealing it back to the Bureau of Indian
Affairs, if you could appeal it to the Oversight Committee it
might help.
See, when someone makes a decision, then you are going to
appeal it back to the same people. That is what I am trying to
say.
The Chairman. Yes, which unfortunately came up, I think, in
all of your testimony, that there is something wrong with this
process that we are going through. I am sure that in working
our way through this, that any legislative changes that we need
to make, that that will definitely be part of the process that
we have to go through in order to figure out if there is a
better way to do this. I know in listening to your testimony
and reviewing your testimony before that the process that all
of you have gone through is unconscionable and we need to do
something different. I do not think any of us knows exactly the
way we are going to work that out but I do know that we need to
change it.
I appreciate all of you being here and your testimony.
Thank you very much.
I would like to call up our third panel, consisting of Tim
Martin of the Poarch Band of Creek Indians, a federally
recognized tribe, and Miss Kate Spilde, an expert on
recognition issues for the Harvard Project on American Indian
Economic Development. If you could join us at the witness
table, please?
And before you take a seat if I could just have you stand
and please raise your right hand.
[The witnesses were duly sworn.]
The Chairman. Thank you very much. Let the record show they
both answered in the affirmative.
Welcome to the Resources Committee. I appreciate your being
here today. I am going to start with Mr. Martin.
STATEMENT OF TIM MARTIN, POARCH BAND OF CREEK INDIANS,
NASHVILLE, TENNESSEE
Mr. Martin. It is almost good afternoon but I will say
still good morning, Chairman Pombo and other distinguished
members of the House Resources Committee.
On behalf of the Poarch Band of Creek Indians of Alabama, I
am happy to be here to have the opportunity to testify on the
Federal recognition process. I extend the regrets of my tribal
Chairman, Mr. Eddie L. Tullis, who is unable to be with us
today but has authorized me to speak on behalf of the tribe.
My name is James T. Martin. I am an enrolled member of the
Poarch Band of Creek Indians. I am Executive Director of United
South and Eastern Tribes, an intertribal council representing
24 federally recognized tribes in the South and Eastern parts
of the United States.
Prior to my position as Executive Director, I was employed
by my tribe between 1979 and 1985. During that time I observed
and took part in our tribe's endeavor to go through the Federal
recognition process. Therefore today I will reflect on our
tribe's experience and the current atmosphere that is
surrounding the Federal recognition process.
My tribe, the Poarch Band of Creek Indians, is located in
South Alabama. We have a current enrollment of roughly 2,250.
And I would like to read some excerpts from the Federal
Register notice of Monday, June 11, 1984, to give you a
perspective of where I am coming from. Our tribe was one of the
first tribes to go through the FAB and avail ourselves of the
BAR and the criteria that we will be talking about today.
Evidence indicates that the contemporary Poarch Band of
Creek Indians is the successor of the Creek Nation of Alabama
prior to its removal to Indian Territory. The Poarch Band of
Creeks remained in Alabama after the removal of the 1830s and
shifted within a small geographic area until it settled
permanently near the present-day Atmore, Alabama. The band has
existed as a distinct political unit since before the Creek
wars of 1813-1814. It was governed by a succession of military
leaders and permanent men in the 19th Century from the late
1800s through 1950. Leadership was clear but informal. A formal
leader was elected in 1950.
Virtually all of the band's 1,470 members can document
descendancy from the historical Creek Nation. No evidence was
found that the members of the Poarch Band of Creek Indians are
members of any other tribe or that their tribe or its members
have been subject to congressional legislation which would
expressly terminate or forbid the relationship with the Federal
Government.
The BAR process can work. Federal recognition of Indian
tribes is a formal act that acknowledges the sovereign status
of a tribe and affirms the perpetual government-to-government
relationship between the tribe and the United States. Federal
recognition assures the tribe the dignity it deserves and the
same privileges and immunities enjoyed by other federally
recognized tribes for their status as Indian tribes. Federal
recognition has a tremendous effect on the tribe, the
surrounding communities, and the Nation as a whole.
Historically, tribes have been granted Federal recognition
through treaties, by Congress, or through administrative
decisions with the executive branch. The criteria used was not
always clear and often depended upon the official who received
the inquiry from the group.
The General Accounting Office in its report GAO-02-49
reports that until 1960 there were limited requests by groups
to be federally recognized and the Department was able to
assess these requests on a case-by-case basis.
The Poarch Band of Creek Indians recognizes that Congress
has the ultimate power to recognize certain groups but in your
infinite wisdom Congress has considered the Federal recognition
process to be a complex one, a tedious one not to be entered
into lightly. Therefore, the Congress has deferred most Federal
recognition determinations to the U.S. Department of Interior.
The Department of Interior has established a set of
regulations standardizing the recognition process and creating
an administrative procedure to determine whether particular
Indians' groups qualify as federally recognized Indian tribes.
The Bureau of Indian Affairs Branch of Acknowledgment and
Research procedures were established in 1978 as a result of a
2-year study by the congressionally established American Indian
Policy Review Commission.
The BAR guidelines are composed of the following seven
criteria for recognition, and due to the time, Mr. Chairman, I
have listed in my written testimony so I will not state all of
those one by one, the seven criteria.
As I said, the Poarch Creek are proud to be one of the
first tribes to go through that process. We are in general
agreement with the seven criteria that the groups must meet to
be granted recognition. However, the length of time involved to
receive recognition is increasingly becoming substantial. This
is due, in part, to the workload of the BIA BAR staff, which is
substantially increasing. The workload is increasing due to the
detailed petitions ready for evaluation at the same time the
staff at the BAR has been decreased. It has received a 35
percent decrease from 1973, a staff of 17, down to averaging no
more than 11 over the last 5 years.
The GAO report continues to state that as of November 2001,
of the 250 petitions received, 55 had been completed
documentation to be considered for the process and the bureau
finalizing 29, recognizing 14 and denying 15. Of the 10
petitions currently in ready status, six of these have been
waiting at least 5 years. At the current rate of review it
could take over 100 years to resolve all the petitions awaiting
consideration. The initial regulations outlined a process for
active consideration of a complete petition that should take
approximately 2 years.
Federal recognition for the Poarch Band of Creek Indians
was also slow. We began our process in 1975. A petition for
Federal recognitions was officially filed in January 1980 and
the tribe did not receive a notice of active consideration
until November 1982. Final determination for Federal
acknowledgment was published in the Federal Register in June
1984.
As I said, the Poarch Band of Creek Indians were proud to
be one of the first to go through the Federal recognition BAR
process when the process should have been timely and the cost
been appropriate. The long time lags and increased costs are a
deterrent to petitioners, as you have well seen today.
Recently in a New York Times article Eric Eberhard, a
lawyer specializing in Indian law, stated that roughly it took,
as it was validated today, about $100,000 to $200,000 to go
through the FAB process. Now it costs into the millions. And we
in this room know why some of that is, and that is through the
outside influences of third parties for economic interests.
The Chairman. Mr. Martin, I am going to have to ask you to
wrap it up.
Mr. Martin. OK, yes, sir. I will cut to the end of my
testimony to talk about the recommendations that our tribe
thinks should be made.
The BAR process was intended to provide a clear, uniform
and objective approach for the Department of Interior that
established specific criteria. The Poarch Band of Creek Indians
believes that the process could be improved and the ultimate
goal of timeliness could be accomplished with the following
changes. More resources allocated to the BAR staff or resources
allocated to the BIA to out-source parts of the review that are
fact-finding only. A defined list of information that must be
submitted by the petitioners prior to the petitioners
submitting a letter of intent. Provide adequate technical
assistance available to petitioners to assist them in providing
substantial amounts of work required to receive the letter of
intent and help avoid continued submission of incomplete
petitions. Expand the authority of the Assistant Secretary to
review petitions and declare negative determinations on
frivolous petitions. Changes in procedures to further insulate
BAR staff from outside third-party influence to maximize their
productivity.
The Poarch Band of Creek Indians submits these suggested
changes for your consideration but reiterates that any changes
that would have a significant impact on the Federal recognition
process should be undertaken only after considerable review and
deliberation was conducted, as it was conducted in the initial
set-up of the regulations in 1978. Thank you for this
opportunity to provide testimony.
[The prepared statement of Mr. Martin follows:]
Statement of James T. Martin, Enrolled Member, Poarch Band of Creek
Indians, Executive Director, United South and Eastern Tribes, Inc.
Chairman Pombo and distinguished members of the House Resources
Committee, on behalf of the Poarch Band of Creek Indians (PBCI) of
Alabama, I thank you for the opportunity to provide testimony regarding
the Federal Acknowledgment Process. I extend regrets from my Tribal
Chairman Eddie L. Tullis who is unable to be here today and has
authorized me to speak on behalf of the Tribe.
My name is James T. Martin. I am an enrolled member of the Poarch
Band of Creek Indians and the Executive Director of United South and
Eastern Tribes, Inc. (USET), an intertribal organization consisting of
twenty-four federally recognized Indian Tribes from twelve states in
the South and Eastern region of the United States. Prior to my position
as Executive Director of USET, I was employed by the Poarch Band of
Creek Indians from May 1979 until June 1995. During that time, I
observed and was a part of the Tribe's endeavor to obtain federal
recognition; therefore today I will reflect on our Tribal experience
and the current atmosphere surrounding the Federal recognition process.
Federal recognition of Indian Tribes is a formal act that
acknowledges the sovereign status of a Tribe and affirms a perpetual
government-to-government relationship between a Tribe and the United
States. Federal recognition ensures a Tribe the dignity it deserves and
the same privileges and immunities enjoyed by other federally
recognized Tribes by virtue of their status as Indian Tribes.
Federal recognition has a tremendous effect on Tribes, their
surrounding communities, and the nation as a whole. Historically,
Tribes have been granted federal recognition through treaties, by
Congress, or through administrative decisions within the executive
branch. The criteria used was not always clear and often depended on
which official responded to the group's inquiry. The Government
Accounting Office (GAO) Report GAO-02-49 reports that until the 1960's
there was a limited number of requests by groups to be federally
recognized and the Department was able to assess these requests on a
case by case basis.
PBCI recognizes that Congress has the power to extend recognition
to certain groups, but in its infinite wisdom Congress has considered
the federal recognition process a complex and tedious one, not to be
entered into lightly. Therefore they deferred most federal
acknowledgment determinations to the U.S. Department of the Interior
(DOI). The DOI has established a set of regulations standardizing the
recognition process and creating an administrative procedure to
determine whether particular Indian groups qualify as federally
recognized Indian Tribes. The Bureau of Indian Affairs (BIA)/Branch of
Acknowledgment and Research (BAR) procedures were established in 1978
as a result of a two-year study by the Congressionally established
American Indian Policy Review Commission.
The BAR guidelines are composed of the following seven criteria for
recognition under the 25 CFR Part 83 regulatory process:
(1) The petitioner has been identified as an American Indian on a
substantially continuous basis since 1900;
(2) A predominant portion of the petitioning group comprises a
distinct community and has existed as a community from historical times
until the present;
(3) The petitioner has maintained political influence or authority
over its members as an autonomous entity from historical times until
the present;
(4) The group must provide a copy of its present governing
documents and membership criteria;
(5) The petitioner's membership consists of individuals who
descend from a historical Indian tribe or tribes, which combined and
functioned as a single autonomous political entity;
(6) The membership of the petitioning group is composed
principally of persons who are not members of any acknowledged North
American Indian Tribe; and
(7) Neither the petitioner nor its members are the subject of
congressional legislation that has expressly terminated or forbidden
recognition.
The Poarch Band of Creek Indians is in general agreement with the
seven criteria that groups must meet to be granted recognition.
However, the length of time involved to receive recognition is
increasingly becoming substantial. This is due in part because the
workload of the BIA/ BAR staff is substantially increasing. The
workload is increasing due to more detailed petitions ready for
evaluation and at the same time the number of staff assigned to
evaluate the petitions has decreased by 35 percent, from 17 staff
members in 1993 and in the last five years averaging no more than 11.
GAO Report GAO-02-49 stated that as of November, 2001 of the 250
petitions received, 55 have completed documentation to be considered by
the process with BIA finalizing only 29, recognizing 14 and denying 15.
Of the 10 petitions currently in ready status, six of these have been
waiting at least 5 years. At the current rate of review, it could take
over 100 years to resolve all of the petitions awaiting active
consideration. The initial regulations outline a process for active
consideration of a completed petition that should take approximately 2
years.
Federal recognition for the Poarch Band of Creek Indians was a slow
process beginning in 1975. A petition for recognition was filed in
January 1980 and the Tribe did not receive notice of active
consideration until November 1982. Final Determination for Federal
Acknowledgment was published in the Federal Register in June 1984.
Poarch Band of Creek Indians was among the first to be federally
recognized through the BAR process when the process should have been
timely and costs should have been appropriate. Time and cost have
increased even more in the years following. The long time lags and
increased costs are a detriment to petitioners. Eric Eberhard, a lawyer
specializing in Indian law, stated in a New York Times interview,
entitled ``Would-Be Tribes Entice Investors'' on March 29, 2004, that
the recognition process that once cost between $100,000 and $200,000
now runs in the millions of dollars. A monumental factor in the
increased costs is that the political climate at the time of Poarch
Band of Creek Indians was totally different than now due to the
onslaught of Indian gaming.
The Summary Status of Acknowledgment Cases as of February 10, 2004,
compiled by the BAR office reports that 294 petitioners currently await
consideration to permit processing under 25 CFR 83. There are 9 active
status petitions, 13 ready petitions, 57 resolved petitions, 2
petitions in post-final decision appeal process, one decision in
litigation, and 213 petitions not ready for evaluation. The not ready
for evaluation petitions include 68 incomplete petitions, 130 letters
of intent to petition with no documentation submitted, 9 petitions no
longer in touch with the BIA, and 6 with legislative action required.
There were 40 petitioners when 25 CFR 83 became effective in October
1978 and 254 new petitioners since October 1978.
Compounding the backlog of petitions awaiting review is the
increased number of third parties active in the process, the increased
number of administrative responsibilities that the BAR staff must
assume, and the increased number of lawsuits from dissatisfied
petitioners. The increasing amount of time involved in the process will
continue to frustrate petitioners. Improvements that focus on fixing
the time problems will improve confidence in the process. Money and
politics must not be a concern of a petitioner for federal recognition.
BIA resource constraints must not negate the need for thorough review
of a petition.
The BAR process was intended to provide a clear, uniform, and
objective approach for the DOI that established specific criteria and a
process for evaluating groups seeking federal recognition in a timely
manner. Poarch Band of Creek Indians believe the process could be
improved and that the ultimate goal of timeliness could be accomplished
with the following changes:
more resources allotted to the BAR for staffing or
resources allocated to the BIA for outsourcing parts of the review
process that are fact-finding only;
a definitive list of information that must be submitted
by the petitioner prior to the petitioner submitting and receiving a
letter of intent;
with affordable technical assistance available to
petitioners to assist them in providing a substantial amount of work
required to receive the letter of intent and help avoid the continued
submission of incomplete petitions;
expanded authority for the Assistant Secretary to review
petitions and declare negative determinations on frivolous petitions;
and
changes in procedures to further insulate BAR staff from
outside third party influence to maximize their productivity.
Poarch Band of Creek Indians submits these suggested changes for
consideration but the Tribe would reiterate that any changes to the
criteria that would significantly impact the federal recognition
process should be undertaken only after considerable review and
deliberation as was conducted in the initial development of regulations
that govern the recognition process to date.
Again, on behalf of the Poarch Band of Creek Indians we appreciate
the opportunity to provide testimony on this critically important
issue.
I would be happy to respond to questions at this time.
______
The Chairman. Thank you.
Ms. Spilde?
STATEMENT OF KATHERINE SPILDE, PH.D., HARVARD PROJECT ON
AMERICAN INDIAN ECONOMIC DEVELOPMENT
Ms. Spilde. Mr. Chairman and distinguished members of the
Committee, good morning. My name is Katherine Spilde and I am a
Senior Research Associate with the Kennedy School of
Government, Harvard University. My background also includes a
Ph.D. in cultural anthropology, which frames my work on Indian
affairs. I appear before the Committee today not as a
representative of Harvard University nor of the Kennedy School
of Government. Nor do I appear on behalf of any other person,
corporation or organization and I have no connections with
anyone with any interest in the outcome of this hearing.
I am honored to be here today to participate in this
discussion of ways to improve the Federal acknowledgment
process and I want to commend the Committee for undertaking the
very important task of finding a solution to the substantial
delays facing Indian groups that are seeking Federal
recognition and for showcasing their struggles.
Unfortunately, some of the loudest voices for reform of the
Federal acknowledgment process have been those who are critical
only of positive determinations and have called for a
moratorium on all decisionmaking, a proposal that seems beside
the point for a process that, as we have heard today, can take
decades.
In undertaking a discussion of the critical importance of
streamlining the processing recognition petitions, it seems
meaningful to point out that the current process was
established in 1978, in part to address the very issue of long
delays in making recognition decisions. Today we know that the
system that was created is not functioning as intended. That
is, the process is not meeting the needs of the Indian groups
still seeking formal recognition.
The BIA's regulations outline a process that was designed
to take about 2 years. The facts show that the process is
inefficient. In the 26 years since 1978 the Office of Federal
Acknowledgment has made decisions in only 35 petitions, 16 of
those positive and 19 negative, which amounts to an average of
1.3 decisions per year.
Since 1978, 294 Indian groups have submitted letters of
intent. Nine are currently on the active list and 13 petitions
are ready, waiting for active consideration. Of course, a final
determination, positive or negative, is rarely the last word
since lawsuits and appeals are now common.
There are a host of reasons why the current process takes
so long, the most obvious being that the OFA is severely
underfunded. With so many competing priorities among existing
federally recognized tribes, it is a difficult decision for the
Department of Interior to allocate scarce resources to this
process.
One complicating factor is that there is no real
constituency for unrecognized tribes so there seems to be
little incentive among Federal agencies or Congress to address
the needs of unrecognized Indian groups, since they have no
formal relationship with the Federal Government.
Political considerations also prolong the process by
overburdening the OFA staff, who must review and make
recommendations on existing and incoming petitions, which is
their task, while also undertaking many additional and
distracting tasks, including responding to a growing number of
Freedom of Information Act requests. In fact, the BIA estimates
that professional OFA staff spend between 40 and 60 percent of
their time on these administrative activities.
Given the range of challenges involved in streamlining the
process, my suggestions fall into three general categories:
first, increased appropriations, second, supplemental human
resources, and third, changes in the current regulations to
make it more efficient.
First, increased appropriations. The BIA estimates that the
OFA would need to triple the size of its current staff in order
to meet the increased demands associated with petitions and
follow-up requests. At current funding levels it could take 15
years to resolve only those petitions on the active and ready-
for-active lists. With adequate funding, however, this
timeframe could be reduced to three to 4 years.
In addition to hiring sufficient professional staff to
review petitions, OFA could contract with qualified academic
researchers from independent research institutions who could be
asked to provide technical assistance and additional context
for petitions, potentially saving time. In addition, BIA's
regional offices could be encouraged to provide the OFA with
access to critical information both before and during field
visits to petitioning Indian groups in that region.
After meeting both funding and staffing needs, the process
itself could be streamlined by reducing the paperwork
associated with each petition. There are a couple of ways to do
this. First, the regulations could be adjusted to address when
and how often interested parties could participate in the
process. Under current political conditions, the comment and
response period appears to be too involved and could be
revisited.
A second recommendation for reducing paperwork would be to
revisit and narrow the definition of who is eligible for
interested party status. It seems reasonable to consider
narrowing the definition even further at this time in the
interest of streamlining the process by defining interested
parties as those who have a legal or property interest in the
final decision, specifically other tribes or states.
Under the current regulations, the Assistant Secretary for
Indian Affairs has the authority to expedite a proposed
negative finding after the technical assistance review. I would
also recommend exploring a grant of authority to the Assistant
Secretary to expedite a proposed positive finding in the same
way. If the Assistant Secretary, after the technical assistance
review, finds that a tribal group has an obviously strong case
to support recognition, then the Department of Interior could
recommend that Congress legislatively recognize the group based
upon the research and findings of the OFA and the Assistant
Secretary. This process would give Congress the opportunity of
exercising its constitutional authority with regard to Indian
tribes while also reducing the challenges of litigation.
Thank you for the opportunity to appear here today and once
again I commend the Committee for exploring this important
topic.
[The prepared statement of Ms. Spilde follows:]
Statement of Katherine A. Spilde, Ph.D., Senior Research Associate,
Harvard Project on American Indian Economic Development, Kennedy School
of Government, Harvard University
Mr. Chairman and distinguished members of the Committee, good
morning. My name is Katherine Spilde and I am a Senior Research
Associate with the Kennedy School of Government, Harvard University.
Prior to my appointment at Harvard, I served in a number of research
and policy positions here in Washington, D.C., including work with the
Congress' National Gambling Impact Study Commission (NGISC) and the
National Indian Gaming Association (NIGA). My background includes a
Ph.D. in cultural anthropology, which frames my work on Indian affairs.
I appear before the Committee today not as a representative of the
Kennedy School of Government nor of Harvard University. Nor do I appear
on behalf of any other person, corporation, or organization. I have no
political, financial, organizational or other connections with anyone
with any interest in the outcome of this hearing. I appear today at the
unsolicited request of the Committee on Resources. I am honored to be
here today to participate in this discussion of ways to improve the
federal acknowledgment process.
I commend you on undertaking the very important task of finding a
solution to the substantial delays facing Indian groups that are
seeking federal recognition. In particular, I want to commend the
Committee for showcasing the struggles endured by Indian groups who are
petitioning for federal recognition. This is an important event because
it highlights the frustrated attempts by---and impacts of these delays
on--tribal groups to receive recognition decisions from the Office of
Federal Acknowledgment (OFA) (formerly the Branch of Acknowledgment and
Research (BAR)). Recently, we have heard a great deal about the system
for federal recognition being ``broken.'' However, some of the loudest
voices for reform of the Federal Acknowledgment Process (FAP) have been
those who are critical only of positive determinations and have called
for a moratorium on all decisionmaking. I commend the Committee for
holding a hearing that forwards the concerns of Indian groups seeking
acknowledgment as Indian tribes, who have the most to lose if the
process continues to stagnate. I am pleased that this hearing will
focus on solutions, particularly on ideas for streamlining the process
so that petitioning groups receive decisions in a timely manner.
The History of and Need for a Formal Recognition Process
In order for members of Indian tribes to be eligible for federal
programs through the Bureau of Indian Affairs (BIA) and the Indian
Health Service (IHS), the Indian tribal governments must have a formal
government-to-government relationship with the United States. The names
of all federally recognized tribes appear on a list that the Secretary
of the Interior publishes annually, pursuant to the Federally
Recognized Indian Tribes List Act of 1994. The latest list of tribes
was published in the Federal Register on December 5, 2003, and includes
562 tribes. 1
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\1\ See also 25 C.F.R. Sec. 83.5(a).
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The United States government has recognized Indian tribes in
various ways since its own inception. The earliest executive branch
recognition of tribes occurred in the context of treaty-making and the
establishment of executive order reservations. 2 In the
twentieth century, the Department of the Interior determined which
tribes were eligible for its administrative services. For example,
after the 1934 Indian Reorganization Act (IRA), the Federal
government's recognition activities focused exclusively on determining
which Indian nations were eligible to organize under the Act and which
were not. In 1934, the BIA compiled a list of 258 recognized tribes. In
1936, two Acts were passed that also allowed the Alaska and Oklahoma
tribes to organize under the IRA. Between 1936 and 1978, Indian nations
would generally get ``on the list'' through the Department of the
Interior or Congress on a case-by-case basis. 3
---------------------------------------------------------------------------
\2\ ``The Imprimatur of Recognition: American Indian Tribes and the
Federal Acknowledgment Process.'' Washington Law Review. V. 66, January
1991 at 210. See also, The Great Father, by Francis Prucha. (1984)
\3\ ``Federal Acknowledgment of American Indian Tribes: Authority,
Judicial Interposition, and 25 C.F.R. Sec. 83.'' William W. Quinn, Jr.
American Indian Law Review. V.17 No.1, 1992. According to Quinn, the
so-called ``Cohen criteria'' were used as the standard.
---------------------------------------------------------------------------
In 1978, the Bureau of Indian Affairs (BIA) established an
administrative process for federal acknowledgment of unrecognized
Indian tribes. 4 This process, called the Federal
Acknowledgment Process, originated out of concern for Indian groups
that were denied rightful recognition. 5 In addition, there
were some concerns about tribes being administratively recognized at
that time without any supporting standards.
---------------------------------------------------------------------------
\4\ 25 C.F.R. Sec. 83
\5\ TASK FORCE TEN, AMERICAN INDIAN POLICY REVIEW COMMISSION, 94TH
CONGRESS, 2ND SESSION, REPORT ON TERMINATED AND NONFEDERALLY RECOGNIZED
INDIANS (1976). See also, ``The Imprimatur of Recognition: American
Indian Tribes and the Federal Acknowledgment Process.'' Washington Law
Review. V. 66, January, 1991 at 210. There were many ways to be left
off ``the list.'' For example, many tribes in California remain
unrecognized because of unratified treaties.
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The Process was Created to Address Considerable Delays
In undertaking a discussion of the critical importance of
streamlining the processing of recognition petitions, it seems
meaningful to point out that the current process was established in
1978 precisely to address the issue of long delays in making
recognition decisions and concern about the absence of a formal process
of recognition. One impetus for creating a formal process derived from
the findings and recommendations of Task Force No. 10 of the United
States Congress' American Indian Policy Review Commission.
Specifically, the work of the 1976 Policy Review Commission found that
unrecognized tribes, because they were not being served by federal
programs, were among the nation's poorest citizens. The Commission
identified 133 unrecognized tribes, representing more than a hundred
thousand people, and found that ``the results of `non-recognition' upon
[those] Indian communities and individuals has been devastating.''
6 The Commission's report essentially chastised various
departments of the United States for their neglect of ``non-
recognized'' Indians and made six specific recommendations, including
the establishment of a special office to determine tribal status by
reviewing petitions submitted by unacknowledged Indian groups.
7
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\6\ See ``Lost Tribes: Native Americans and Government
Anthropologists Feud over Indian Identity.'' Lingua Franca. May/June
1999, p. 36.
\7\ AMERICAN INDIAN POLICY REVIEW COMMISSION, FINAL REPORT 480-83.
See also, ``Federal Acknowledgment of American Indian Tribes:
Authority, Judicial Interposition, and 25 C.F.R. Sec. 83.'' William W.
Quinn, Jr. American Indian Law Review. V.17 No.1, 1992 at 51.
---------------------------------------------------------------------------
Three court cases made the creation of a formal acknowledgment
process even more urgent since the determination of tribal status stood
as the threshold issue in each. The first, United States v. Washington,
held that Indian tribes exercising treaty fishing rights were entitled
to half the commercial fish catch in the State of Washington, but
limited eligibility to treaty signatories and federally recognized
tribes. In the second, Joint Tribal Council of the Passamaquoddy Tribe
v. Morton, two unacknowledged tribes claimed hundreds of thousands of
acres of land in Maine which had been illegally ceded to the state.
Following these two court cases, the Department of Interior (DOI)
instituted an unofficial moratorium on acknowledging tribes until a
system could be developed. Caught in the middle of this moratorium, the
Stillaguamish Tribe's petition for federal acknowledgment awaited
action by the Secretary until the Tribe sough equitable relief in
federal court. In Stillaguamish Tribe v. Kleppe, the court described
the moratorium as ``arbitrary and capricious'' and ordered the DOI to
decide on the Stillaguamish petition within thirty days. 8
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\8\ See ``Federal Acknowledgment of American Indian Tribes:
Authority, Judicial Interposition, and 25 C.F.R. Sec. 83.'' William W.
Quinn, Jr. American Indian Law Review. V.17 No.1, 1992, p. 41.
---------------------------------------------------------------------------
Regulations governing the administrative process for Federal
acknowledgment first became effective October 2, 1978. The regulations
were designed to provide a uniform process to review acknowledgment
claimants whose character and history varied widely, placing the burden
of proof on the tribal groups themselves. This presumption results in
rigorous research and documentation requirements and contributes to
bureaucratic delays since OFA staff, who are tasked with evaluating
petitions, are aware of the possibility of legal challenges to their
recommendations and findings. 9
---------------------------------------------------------------------------
\9\ See ``The Imprimatur of Recognition: American Indian Tribes and
the Federal Acknowledgment Process.'' Rachael Paschal. Washington Law
Review. V. 66, January, 1991 at 210.
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Average Number of Decisions Per Year is Low
Today, we know that the system that was created in 1978 is not
functioning as intended; that is, the process is not meeting the needs
of the Indian groups still seeking formal recognition and therefore
these groups continue to be denied the chance to prove they should be
receiving critical services. BIA's regulations outline a process for
evaluating a petition that was designed to take about two years.
10 The facts show that the process is inefficient and takes
significantly longer than intended. In the 26 years since 1978, the OFA
has made decisions on only 35 petitions (16 positive and 19 negative),
which amounts to an average of 1.3 decisions per year. Since 1978, 294
Indian groups have submitted letters of intent; 9 are currently on the
active list and 13 petitions are ready, waiting for active
consideration. According to the BIA, under the current resources, it
could take 15 years to resolve all of the currently completed
petitions--those on the active and ready for active lists.
11 And of course a final determination is rarely the last
word today, since lawsuits and appeals are common.
---------------------------------------------------------------------------
\10\ ``More Consistent and Timely Tribal Recognition Process
Needed.'' United States General Accounting Office (GAO). February 7,
2002, p.2.
\11\ Ibid. p.6.
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Reasons Why the Decisions are Slow
There are a host of reasons why the current process takes so long.
For starters, the OFA is woefully underfunded. Significantly more
funding is needed to ensure that the OFA is adequately staffed and
provided with the resources required to address both the petitions
themselves and the related work required by the contemporary political
situation. Former Assistant Secretary for Indian Affairs Kevin Gover
noted that one reason the OFA is consistently underfunded is because
there are so many pressing Indian needs, such as police departments,
schools and a solution to the trust system. 12 With so many
competing priorities among existing federally recognized tribes, it is
a difficult decision for the DOI to allocate scarce resources to this
process.
---------------------------------------------------------------------------
\12\ See Statement of Hon. Kevin Gover, Assistant Secretary, Indian
Affairs, Department of the Interior, at the Hearing Before the Senate
Committee on Indian Affairs on S. 611, The Indian Federal Recognition
Administrative Procedures Act of 1999. May 24, 2000.
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The bigger problem is that there is no real constituency for
unrecognized tribes. While the National Congress of American Indians
(NCAI) does have a task force dedicated to the issues raised by the
FAP, there is little incentive among federal agencies or Congress to
address the needs of unrecognized Indian groups since they have no
formal relationship with the federal government.
In addition to being seriously underfunded, the Bureau of Indian
Affairs (BIA) has acknowledged the OFA staff is also overburdened.
Currently, the OFA has only eleven full-time staff, who estimate that
they spend between 40%-60% of their time fulfilling administrative
responsibilities. 13 In addition, the process itself has
become overly cumbersome, essentially drowning the staff in paperwork.
For example, OFA staff is taxed with having to review and make
recommendations on existing and incoming petitions, which is their
task, while also undertaking many additional and distracting tasks,
such as responding to information requests in connection with
independent review and appeals of official determinations by the
Interior Board of Indian Appeals (IBIA), with pending lawsuits and with
responding to growing numbers of Freedom of Information Act (FOIA)
requests. For example, both negative and positive findings now generate
appeals and lawsuits, whether from the petitioners themselves or other
interested parties. This growing burden also results from increased
interest and participation in the process by local governments and
states. Some of these parties have indicated that they view these FOIA
requests as a means to deliberately slow down the process.
---------------------------------------------------------------------------
\13\ ``More Consistent and Timely Tribal Recognition Process
Needed.'' United States General Accounting Office (GAO). February 7,
2002, p.6. See also ``Strategic Plan: Department of the Interior Bureau
of Indian Affairs, Office of Tribal Services, Brand of Acknowledgment
and Research: Response to the November, 2001 General Accounting Office
Report.'' September 2002. p. 9.
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Suggestions for Improving the Process
Given the range of challenges involved in streamlining the process,
my suggestions fall into three general categories: increased
appropriations, supplemental human resources and changes in the current
regulations to make it more efficient.
1) Increased appropriations
A recent report by the Bureau of Indian Affairs found that the OFA
would need to triple the size of its current staff in order to meet the
increased demands associated with petitions and follow-up requests.
14 As of September 2002, the BAR consists of eleven staff
members ($1,100,000 FY2003 President's Budget). The staff members
include: one (1) branch chief, one (1) secretary, three (3) cultural
anthropologists, three (3) genealogical researchers and three (3)
historians. Meanwhile, the DOI's analysis and response to a November
2001 GAO Report recommends a total of 33 staff members ($3,184,000) to
eliminate the current workload in three to four years. 15 As
I mentioned, at current funding levels, it could take 15 years to
resolve only those petitions on the active and ready for active lists.
16
---------------------------------------------------------------------------
\14\ ``Strategic Plan: Department of the Interior Bureau of Indian
Affairs, Office of Tribal Services, Brand of Acknowledgment and
Research: Response to the November 2001 General Accounting Office
Report.'' September, 2002. p. 9.
\15\ Ibid. p., 10.
\16\ Ibid. p., 6.
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2) More outside resources
With adequate funding, OFA could hire additional staff to assist in
responding to information requests, enabling OFA professional staff to
focus on reviewing petitions. In short, professional staff with
expertise on tribal history and genealogy should be focused exclusively
on reviewing petitions, not spending their time making photocopies or
preparing the administrative records for litigation in Federal Court.
One additional alternative may be to contract with outside experts on
particular petitions. Qualified historians, applied anthropologists and
genealogists from academic institutions could be called upon as a
resource, providing technical assistance and additional context for
petitions, potentially saving time. OFA staff could be encouraged to
utilize the expertise of scholars of the local region, which could be
enormously helpful in providing critical historical context to the
petitions themselves. In addition, BIA's Regional Offices could be
encouraged to provide the OFA with access to critical information, both
before and during field visits to petitioning Indian groups in that
region.
3) Changes to current regulations
Reduce paper work Once funding and staffing needs are met, the
process itself could be streamlined by reducing the paperwork
associated with each petition. In some cases, the OFA staff is a victim
of its own success. By turning out more final determinations annually
(both positive and negative), they generate more FOIA requests and more
appeals, resulting in additional administrative duties and generating
more paperwork. There are a couple of ways to reduce the paperwork
associated with each petition. First, the regulations could be adjusted
to address when and how often interested parties could participate in
the process. Currently, interested parties are allowed to comment on
nearly each step of the petition process. The regulations were
originally written to provide the maximum opportunity for comment in
order to collect as much information as possible during the process and
make the decisions defensible as possible. Under current political
conditions, the comment and response process appears to be too involved
and could be re-visited. By limiting the comment opportunities for
outside parties, the paperwork and response times would both be
reduced. It seems reasonable that interested parties would be notified
when a letter of intent is filed, then allowed to comment only after
OFA completes its work on the petition.
A second recommendation for reducing paperwork would be to re-visit
and narrow the definition of who is eligible for ``interested party''
status. Following the 1994 regulations, some ``interested parties''
(i.e., scholars) were redefined as ``informed parties'' with diminished
rights of comment and response. Of course, this change was intended to
streamline the process and reduce paperwork. It seems reasonable to
consider narrowing the definition even further at this time by defining
``interested parties'' as those who have a legal or property interest
in the final decision, such as other tribes or states.
Expedite Positive Findings
Under the current regulations, the Assistant-Secretary, Indian
Affairs (AS-IA) has the authority to expedite a proposed negative
finding after the technical assistance review. What this means is that
the AS-IA can issue a proposed negative finding before allowing the
petition to enter the active consideration phase of the process. This
expedited negative finding is based upon three of the required criteria
(e-g.) I would recommend exploring a grant of authority to the AS-IA to
expedite a proposed positive finding in the same way. If the AS-IA,
after the technical assistance review, finds that the tribal group has
an obviously strong case for recognition, then the DOI could recommend
that Congress legislatively recognize the group based on the research
and findings of the OFA and the AS-IA. This process would give Congress
the opportunity of exercising its constitutional authority with regard
to Indian tribes and while also reducing the challenges of litigation.
Thank you for the opportunity to present my ideas with you today.
______
The Chairman. Thank you.
Miss Spilde, to begin with you, you testified that placing
the burden of proof on tribes results in bureaucratic delays,
since the BIA staff has to thoroughly examine those petitions.
How is this problematic and do you think the burden of proof
should be shifted, and how?
Ms. Spilde. That is a great question. I believe, as we have
heard today, many of the tribes are coming into the process and
there is the assumption that they do not have a relationship
with the Federal Government and, of course, each tribe has very
unique histories and challenges in trying to document the
relationship that they believe they do have, hence their
application.
So I believe that I am not sure how the burden of proof
could be shifted but certainly I think the presumption that
petitioning groups are not tribal groups makes that case very
difficult to make.
The Chairman. Mr. Martin, you recommended insulating the
Federal acknowledgment staff from outside third-party
influence. How would we do that? What do you recommend on that?
Mr. Martin. I think the internal procedures of the BIA
could be written and their manuals could be rewritten to
isolate or give confidence to the BAR process that their
decisions will not be tainted or influenced by third parties.
As it stands right now, for Freedom of Information requests,
answering OSHA requests, it puts a slant on the information
that they are receiving. As we have heard testimony before, now
that the onslaught of gaming has come in, the tribes who are in
the petitioning process put together elaborate petitions and
continually go into the BIA on a regular basis and tie up that
staff's time. They should be isolated to be able to do their
work, make their recommendations, and go to the next petition.
The Chairman. Let me ask both of you, and I wanted to ask
the previous panel this question, should there come a point in
time where the Federal government says this is it, that all of
the tribes that are seeking recognition, to reinstitute
recognition, that we are going to draw a line and say this is
all of them? Or should the process just continually remain open
the way it is right now? Is there ever a point in time where
you would foresee that this is everybody?
Mr. Martin. I would say, Mr. Chairman, that tribes are not
made overnight, that they had to have existed. I think the
Congress can issue notification across this country that says
if you want to be considered, you have this date certain to get
your stuff together. You do not just develop tribes. They had
to have existed. The criteria shows that you had to, as my
tribe, have a definite link back to historical times.
The Chairman. Miss Spilde, did you want to answer that?
Ms. Spilde. Are you asking about whether or not there
should be some sort of sunset clause with regard to adding
additional letters of intention?
The Chairman. Yes, just as Mr. Martin said, just a date
certain. Just tell everybody you have to have it in within the
next 3 years or 10 years or something.
Ms. Spilde. I believe there are a couple of ways to look at
that question, the first being that right now certainly there
is no timeframe, which I understand contributes in some cases
to the delay. But there is also imbedded in that the assumption
that this is a one-shot deal, so there is no incentive to rush
them because this is the one chance that each tribe has once
they do apply.
But I guess if there were a sunset clause inserted in the
process I would then want to also have an additional clause
saying that there should then be no termination of tribes that
already exist.
The Chairman. Well, thank you.
Mr. Kildee. Mr. Chairman, I will submit some questions in
writing.
I welcome both of you here. It is always good to see Tim
Martin and I will give you some questions in writing. Thank you
very much.
The Chairman. The bell has gone off. We have just been
called for a vote on the House Floor, so we are going to
temporarily recess the Committee. I am told we only have one
vote, so it should just be a few minutes and we will be back.
So the Committee is going to stand in recess.
[Recess.]
The Chairman. The Committee will come to order. I apologize
to the witnesses. Sometimes we have no control over when they
call votes but thank you for your patience.
Mr. Pallone?
Mr. Pallone. Thank you, Mr. Chairman.
I just want to say to the two panelists that your testimony
is pretty much along the lines of my concerns because I think
both of you made it quite clear that you think that the
existing process could work and I guess in Ms. Spilde's case
you made some recommendations but they did not involve
legislation. I still have this great fear that if we try to
open this up legislatively that I think you actually mentioned
at one point that those who want to reform the BIA process
legislatively seem more interested in a moratorium or making it
more difficult than they do in making it easier or to expedite
it.
But Tim, you mentioned that the BIA--actually, both of you
mentioned the BIA needing more resources and I had two
questions. One is the same question I asked the previous panel,
which is, would you be in favor or could you foresee a
procedure where the Federal Government actually gave money to
tribes to defray the cost of their going through the process?
And second, which is really another issue that you brought
up, which is if the BIA needs more money, which I definitely
think it does, how are we going to go about that? We could talk
about tripling the staff but if you get the money from general
revenue it is probably not going to be there, given the deficit
and all the problems that we have with that. So is there some
other way to do it? I mean I assume that tribes that are
already recognized would probably be reluctant to pay for a
process to recognize new tribes but is there some way to
finance the additional resources for the BIA without just
coming up with general revenues?
And second, would you be in favor of actually having the
Federal Government provide some funding for tribes so they do
not have to rely on these outside sources?
Mr. Martin. Thank you, Congressman. As you look at my
testimony, one of the bullet points for recommendations was TA,
technical assistance. As the earlier testifiers mentioned, the
tribes did get at one time grants from ANA, Administration for
Native Americans, for tribes that were going through the FAB
process. Our tribe was fortunate to get one of those grants,
also, and it was a tremendous help for us to be able to
purchase the outside resources of the historians, the
genealogists, to come in and to be able to do fact-finding on
what you were telling the government. It almost acted as one
professional checking another professional's work. I think a
mechanism where one, we could expedite petitioners before they
get to the active consideration, make sure the information is
in there, and there is a host of professionals that exist that
could help petitioners in there to make sure that they have
correct petitions, and that would expedite it.
You mentioned also about the BIA staffing. As Miss Spilde
alluded to, 40 percent of the time is taken in administrative
requests for the Freedom of Information Act. When I talk about
insulating the staff, it should be segmented. There should be a
component of the BIA that does nothing but concentrate on the
review of the petitioners' application. Then there could be
different staff that could then answer the FOIA requests and
other requests or administrative duties to free them up to
maximize on nothing but the review of a petition.
Mr. Pallone. OK. Miss Spilde, if you wanted to comment?
Ms. Spilde. I would also be in support of funding for
tribes. Partly I think this would also address the political
question. When we hear those who are not in favor of the
process who do have concerns about perhaps gaming interests
funding tribal groups who are petitioning, that this could
alleviate some of those concerns and give tribes another
option. So I think it would be both an economic and possibility
even a political answer.
Mr. Pallone. And what about the BIA? Do you foresee any of
funding this? It is easy to say--not that it is easy but I
appreciate your saying we need three times as much money and
all that, but I can almost guarantee you if I went before
Appropriations and asked for three times the funding they would
say well, we cannot do it.
Is there any other way to fund it maybe so the BIA has more
money?
Ms. Spilde. Well, as I did mention, I do think that there
are so many competing priorities and it is a difficult decision
to appear to be allocating money from federally recognized
tribes to the process, but I think if there is true concern to
get through a number of petitions quickly and possibly get
closure to a lot of these petitions, if there is a short-term
solution where there is an understanding that there would be a
big allocation just for a new three to 5 years or something--I
know that has been proposed--perhaps that would make it more
palatable.
Mr. Pallone. Mr. Chairman, I know the time has run out but
I just wanted to say to you because I heard what you said today
about maybe having some sort of sunset clause on tribes to
achieve recognition in some way, I just wanted to say I do not
like that, only because I think the problem historically is
that a lot of tribes, in some cases because of government
action, have been terminated or have lost their existence and
you can always think about the fact that in the future there
might be some new scientific way to achieve recognition and
show that there was continuity.
So the idea of completely saying here is the deadline and
if you do not apply by such-and-such a date bothers me only
because I think as time goes on, there may be more ways for
tribes that maybe would not have met the test to prove that
they existed or that they had ancestors, maybe through new
forms of DNA analysis or whatever.
I do not even know if you were expressing your opinion on
that as much as asking the question but that is the only
problem I would have with it.
Ms. Spilde. Can I add something to that? In response to the
sunset clause, I think also something I wanted to note was I
think that the idea of sort of closing the door assumes that
there are going to be increasing numbers of petitions because
there is this perception that Indian groups are going to be
pursuing gaming and therefore there are going to be more and
more groups coming out.
I just wanted to put some of those concerns to rest by
mentioning that the average number of petitions filed has
remained constant since 1978. In fact, the average number of
petitions filed between 1978 and 1988 when IGRA was passed was
10 per year and between 1988 and now there have been an average
of 10.9 petitions filed per year.
So I think that the concern that somehow there are going to
be more and more petitions filed because gaming is one of the
opportunities for federally recognized tribes, if that is
weighing into this decision, I just wanted to put those facts
out there.
Mr. Martin. Mr. Chairman, I would also like to add clarity
to the point I made to the Congressman earlier about technical
assistance grants to the tribes. I did not want it to be
construed that because you give a technical assistance grant to
a tribe that State and local governments should be able to get
technical assistance grants.
Technical assistance to the tribes is because they do not
have the resources. Local governments would have then their
State resources that they could apply to to get technical
assistance if they were concerned. It is because tribes do not
have the revenue or the resources to be able to do the petition
that I believe technical assistance is needed for them, not for
the States or local governments.
The Chairman. Just to respond to Mr. Pallone, when I talk
about having some kind of a sunset clause, I have not made up
my mind on that whether or not that is a good idea but I do
think it is worthy of discussion. I think that it is something
that we need to throw out on the table and talk to a number of
people about as we move forward with this.
I have had a couple of tribes that have approached me with
that and said that in order to speed up this process and at
some point come to finality on this, that that may be something
that we have to do in order to clear the deck, so to speak, of
all these people that are waiting. And I am willing to listen
to that. I am willing to pursue that.
But in terms of what happens if at some point in the future
someone else comes out, I think that you would always have to
leave the ability for Congress to make a decision on something
like that if it does happen because it is ultimately the
authority of Congress to make that decision and we would always
have the ability to do it, as we have in the past when we may
have disagreed with decisions that were made by the BIA or when
we felt that it was taking too long to come up with the
decision. This Committee has acted in the past; Congress has
acted in the past in terms of recognition. I think that
possibility would always be there.
But I think it is something that we need to talk about. We
need to put that out there and get as much response on that,
along with all of the other suggestions that have been made
today.
I want to thank you both and again I apologize for the
recess, for the delay. I appreciate both of you making the
effort to be here and sharing your knowledge and your views
with us. Thank you.
The final witness in our next panel is the Administration
witness, R. Lee Fleming, director of the Office of Federal
Acknowledgment of the BIA. I wanted the Administration to
testify last so that he may provide information and responses
to the Committee in light of the testimony we heard from
previous panels of witnesses.
Thank you for joining us. If I could have you raise your
right hand?
[The witness was duly sworn.]
The Chairman. Let the record show he answered in the
affirmative. Thank you very much for being here. Again I
apologize to you for the delay in the hearing but it is an
extremely important topic, as I am sure you are well aware, and
we look to your testimony and the opportunity to discuss this
with you. So Mr. Fleming?
STATEMENT OF R. LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL
ACKNOWLEDGMENT, BUREAU OF INDIAN AFFAIRS
Mr. Fleming. Good morning, Mr. Chairman and members of the
Committee. I am pleased to be here today to speak on behalf of
the Department of the Interior about the Federal acknowledgment
process.
My name is Lee Fleming, Director of the Office of Federal
Acknowledgment, which is within the Department's Office of the
Assistant Secretary, Indian Affairs. I am also a member of the
Cherokee Nation, which is located in Oklahoma.
The purpose of my testimony is to address what reforms are
being made to improve the Department's Federal acknowledgment
process, specifically what is being done to improve the
consistency and the reliability of the process and decision, as
recommended by the General Accounting Office.
The Federal acknowledgment process regulations at 25 C.F.R.
Part 83 govern the Department's administrative process for
determining which groups are Indian tribes within the meaning
of Federal law. A final determination that a group is an Indian
tribe means, among other things, that it has continuously
existed as a tribe, has inherent sovereignty, and is entitled
to a government-to-government relationship with the United
States. Tribal status is a political, not racial,
classification. Whether to acknowledge tribal status is a
decision taken seriously by the Department.
In recent years legislation has been introduced almost
annually to modify the criteria for acknowledgment of tribes or
to remove the process from the Department. While some parties
seek to change the administrative process by speeding it up,
others believe that doing so will undermine the factual basis
for the decision.
The Office of Federal Acknowledgment has a high volume of
work. The current workload consists of nine petitions on active
consideration and 13 fully documented petitions that are ready,
waiting for active consideration. The administrative records
for some of these documented petitions range between 10,000 to
30,000 pages. There are also 213 groups that have submitted
only letters of intent or partial documentation. These groups
are not ready for evaluation and will require technical
assistance. There is only one determination under review at the
Interior Board of Indian Appeals.
In addition, there are currently four lawsuits directly
involving the Federal acknowledgment process or the Freedom of
Information Act related to Federal acknowledgment.
The GAO investigated the effectiveness and consistency of
the tribal recognition process and issued its report in
November of 2001. The GAO report recommended that
acknowledgment decisions be made more transparent and more
timely. The GAO noted that the workload of the staff assigned
to evaluate recognition decisions has increased while resources
have declined.
In response to the GAO report, the Assistant Secretary
provided a strategic plan and a needs assessment dated
September 30, 2002 to the GAO, OMB, and the pertinent Senate
and House Committees. The Assistant Secretary's response to the
GAO report is based on a commitment to the principle that
acknowledgment decisions should continue to be based on fully
documented records that have been carefully reviewed in
accordance with the regulatory standards and then made
available to the public in a transparent and timely manner.
In response to the GAO report, all technical assistance
review letters, proposed findings, final determinations, and
reconsidered decisions of completed cases made under the
regulations were electronically scanned and indexed and are now
available on CD-ROM from the Office of Federal Acknowledgment.
This CD will be updated as necessary. Ready access to all prior
decisions addresses both transparency and consistency in the
decisionmaking process.
Two vacancies within the office were filled, resulting in a
professional research team of three cultural anthropologists,
three historians, and three genealogists. The office's full-
time staff consists of one director, one secretary, and these
three professional research teams. A team composed of one
professional from each of the disciplines is assigned to review
and evaluate each petition.
Congressional appropriations for Fiscal Year 2003 and
Fiscal Year 2004 increased funding, allowing the hiring of two
sets of contractors. The first set of contractors included two
FOIA specialists/records managers. The second set of
contractors includes three research assistants who work with a
computer data base, scanning and indexing the documents to help
expedite the professional research staff evaluation of a case.
Both sets of contractors assist in making the process more
accessible to petitioners and interested parties while
increasing the productivity of the professional researchers by
freeing them of these administrative duties.
A significant response by the Department to the GAO report
has been the development of the use of the Federal
Acknowledgment Information Research or FAIR, a computer data
base system that provides on-screen access to all the documents
in the administrative record of a case. These are linked to
entries of information extracted from them by the professional
office researchers. Documents are scanned and then the data is
extracted, linked and indexed to create a searchable
administrative record.
This system allows the OFA or Office of Federal
Acknowledgment researchers to have immediate access to the
records and allows them to make more efficient use of their
time. This system also allows petitioning groups and interested
parties, such as States and local governments, to have the
record on CD and thus have on-screen access to the
administrative record and to any data entries made by the
professional researchers.
We anticipate that the next generation of scanning for FAIR
will allow electronic redaction of privacy information from
documents, which will save the Department a tremendous amount
of time spent photocopying cases for interested parties or FOIA
requests of these voluminously documented petitions. Such steps
will further improve the acknowledgment process.
This concludes my testimony. Thank you for the opportunity
to testify about the Federal acknowledgment process and I will
be happy to answer any questions you may have.
[The prepared statement of Mr. Fleming follows:]
Statement of R. Lee Fleming, Director, Office of Federal
Acknowledgment, Office of the Assistant Secretary--Indian Affairs, U.S.
Department of the Interior
Good morning, Mr. Chairman and Members of the Committee. I am
pleased to be here today to speak on behalf of the Department of the
Interior about the Federal acknowledgment process. My name is Lee
Fleming and I am the Director of the Office of Federal Acknowledgment
(OFA) within the Department's Office of the Assistant Secretary--Indian
Affairs (AS-IA). OFA was formerly the Branch of Acknowledgment and
Research (BAR), which was under the Bureau of Indian Affairs' Office of
Tribal Services. The purpose of my testimony is to address what reforms
are being made to improve the Department's Federal acknowledgment
process, specifically what is being done to improve the consistency and
reliability of the process and decisions, as recommended by the General
Accounting Office (GAO).
Background
The Federal Acknowledgment regulations, known as ``Procedures for
Establishing that an American Indian Group Exists as an Indian Tribe,''
25 C.F.R. Part 83, govern the Department's administrative process for
determining which groups are ``Indian tribes'' within the meaning of
Federal law. A final determination that a group is an Indian tribe
means, among other things, that it has continuously existed as a tribe,
has inherent sovereignty, and is entitled to a government-to-government
relationship with the United States. Tribal status is a political, not
racial, classification. Whether to acknowledge tribal status is a
decision taken seriously by the Department.
In recent years, legislation has been introduced almost annually to
modify the criteria for acknowledgment of tribes or to remove the
process from the Department. While some parties seek to change the
administrative process by speeding it up, others believe that doing so
will undermine the factual basis for the decisions. For example, 20
Attorneys General collectively stated their concern that quality in the
review process should not be sacrificed in the name of expediency and
that ``all parties benefit from a careful and comprehensive review of
the evidence on each petition.''
Workload
OFA has a high volume of work. The current workload consists of
nine petitions on active consideration and 13 fully documented
petitions that are ready, waiting for active consideration. The
administrative records for some of these documented petitions are in
excess of 30,000 pages. There are 213 groups that have submitted only
letters of intent or partial documentation. These groups are not ready
for evaluation and require technical assistance. There is one final
determination under review at the Interior Board of Indian Appeals in
response to a request for reconsideration. In addition, there are
currently four lawsuits directly involving Federal acknowledgment or
the Freedom of Information Act (FOIA) related to Federal
acknowledgment.
GAO Report
The GAO investigated the ``effectiveness and consistency of the
tribal recognition process'' in response to a request from several
members of Congress, and issued its report in November 2001. The GAO
report recommended that acknowledgment decisions be made more
transparent and more timely. The GAO noted that the workload of the
staff assigned to evaluate recognition decisions has increased while
resources have declined.
In response to the GAO report, the AS-IA provided a strategic plan
and needs assessment dated September 30, 2002, to GAO, OMB, and the
pertinent Senate and House Committees under 31 U.S.C. 720. The AS-IA
response to the GAO report is based on a commitment to the principle
that acknowledgment decisions should continue to be based on fully
documented records that have been carefully reviewed in accordance with
regulatory standards and then made available to the public in a
transparent and timely manner.
Current Improvements
In response to the GAO report, all technical assistance review
letters, proposed findings, final determinations, and reconsidered
decisions of completed cases made under the regulations were
electronically scanned and indexed and are now available on CD-ROM from
the OFA. This CD will be updated, as necessary. Ready access to all
prior decisions addresses both transparency and consistency in the
decisionmaking process.
Two vacancies within the OFA were filled, resulting in a
professional research staff of three cultural anthropologists, three
historians, and three genealogists. OFA's full-time staff consists of
one director, one secretary, and three professional research teams. A
team composed of one professional from each of the disciplines is
assigned to review and evaluate each petition. Congressional
appropriations for FY 2003 and FY 2004 increased funding, allowing the
hiring of two sets of contractors. The first set of contractors
includes two FOIA specialists/records managers. The second set of
contractors includes three research assistants who work with a computer
database system; scanning and indexing the documents to help expedite
the professional research staff evaluation of a case. Both sets of
contractors assist in making the process more accessible to petitioners
and interested parties, while increasing the productivity of the OFA
researchers by freeing them of administrative duties.
A significant response by the Department to this GAO report has
been the development and use of the Federal Acknowledgment Information
Resource (FAIR), a computer database system that provides on-screen
access to all the documents in the administrative record of a case.
These are linked to entries of information extracted from them by OFA
researchers. Documents are scanned and then the data is extracted,
linked, and indexed to create a searchable administrative record. This
system allows the OFA researchers to have immediate access to the
records and allows them to make more efficient use of their time. This
system also allows petitioning groups and interested parties, such as
States and local governments, to have the record on CD and thus have
``on screen'' access to the administrative record and to any data
entries made by the OFA researchers. This ready access to the record
addresses both the GAO report's recommendations that the decisions be
made in a more transparent manner and that they be more timely. In
fact, FAIR has been applauded by attorneys working for the towns in
Connecticut related litigation.
We anticipate that the next generation of scanning for FAIR will
allow electronic redaction of privacy information from the documents,
which will save the Department a tremendous amount of time spent
photocopying cases for interested parties or FOIA requests of these
voluminously documented petitions. Such steps will further improve the
acknowledgment process.
Conclusion
Thank you for the opportunity to testify about the Federal
acknowledgment process and I will be happy to answer any questions you
may have.
______
[The Bureau of Indian Affairs' response to questions
submitted for the record follows:
Responses to questions submitted for the record by the
Bureau of Indian Affairs
The Bureau of Indian Affairs requires a petitioner be identified as
an American Indian entity on a substantially continuous basis since
1900.
QUESTION 1: What types of identification are acceptable?
ANSWER: Section 83.7(a) of the Federal acknowledgment regulations
at 25 C.F.R. Part 83 lists the basic types of external identification
that meet that criterion. The regulations state that the petitioner has
been identified as an American Indian entity on a substantially
continuous basis since 1900. Evidence that the group's character as an
Indian entity has from time to time been denied shall not be considered
to be conclusive evidence that this criterion has not been met.
Evidence to be relied upon in determining a group's Indian identity may
include one or a combination of the following, as well as other
evidence of identification by other than the petitioner itself or its
members.
(1) Identification as an Indian entity by Federal authorities.
(2) Relationships with State governments based on identification
of the group as Indian.
(3) Dealings with a county, parish, or other local government in a
relationship based on the group's Indian identity.
(4) Identification as an Indian entity by anthropologists,
historians, and/or other scholars.
(5) Identification as an Indian entity in newspapers and books.
(6) Identification as an Indian entity in relationships with
Indian tribes or with national, regional, or state Indian
organizations.
In addition, Section 83.6(g) provides that other forms of evidence,
not specifically listed, may also be used. Section 83.6 (g) states:
``The specific forms of evidence stated in the criteria in Sec. 83.7
(a) through (c) and Sec. 83.7(e) are not mandatory requirements. The
criteria may be met alternatively by any suitable evidence that
demonstrates that the petitioner meets the requirements of the
criterion statement and related definitions.''
QUESTION 2: How was that year determined?
ANSWER: The original 1978 regulations required external
identification as an Indian entity throughout history until the
present. The 1994 revised regulations shortened this time period to
1900 to the present. The preamble to the 1994 regulations noted there
were strong concerns raised, ``particularly regarding historical
identification of groups in the South, that racial prejudice, poverty,
and isolation have resulted in either a lack of adequate records or
records, which unfairly characterized Indian groups as not being
Indian.''
In response, the preamble further states: ``the criterion for
continued identification has been revised to reduce the burden of
preparing petitions, as well as to address problems in the historical
record in some areas of the country. The requirement for substantially
continuous external identification has been reduced to require that it
only be demonstrated since 1900. This avoids some of the problems with
historical records in earlier periods, while retaining the requirement
for substantially continuous identification as Indian.'' (59 FR 9286)
QUESTION 3: Under current recognition guidelines, when a petitioner
is required to be a distinct community and have authority over its
members since historical times, are historical times defined as ``since
1900?''
ANSWER: The regulations require demonstration of community and
political influence ``from historical times until the present'' (25
C.F.R. Part 83, Sec. 83.7(b) and Sec. 83.7(c)). The regulations in
section 83.1, Definitions, states ``Historically, historical or
history'' as ``dating from first sustained contact with non-Indians.''
In 1846, after two hundred years of documented tribal history, the
Federal government split the Miami tribe into two tribes--the Indiana
Miami (Eastern Miami) and the Oklahoma Miami (Western Miami).
QUESTION 4. Given that the Federal government split the tribe into
two entities, does the requirement that a petitioning group not be part
of any recognized North American Indian tribe, apply to the Indiana
Miami Indians?
ANSWER: The Federal government did not split the Miami tribe into
two entities. At the time of removal, the Federal government, based on
Statute and treaty requirements, allowed portions of the Tribe to
remain in Indiana, and allowed some of the families that moved to
Oklahoma to return to Indiana. See Federal Register, Volume 55, Number
139, pp. 92423-29425, for the proposed finding of the Miami Tribe of
Indiana.
The regulations allow for historical processes where tribes have
divided in the past and do not prevent recognition on this basis. As an
example, see the Snoqualmie and Poarch Band of Creek findings. The
language cited by the question, from 25 C.F.R. Part 83, section
83.3(d), refers to portions of currently recognized tribes that may
seek to separate and be separately acknowledged. Such groups cannot be
recognized under the acknowledgment regulations unless they meet the
requirements of 25 C.F.R. Part 83, section 83.7(f).
In 1897, Assistant Attorney General Willis Van Devanter
administratively terminated Federal recognition of the Indiana Miami
tribe.
QUESTION 5: How many other tribes have been de-recognized through
similar bureaucratic decisions?
ANSWER: The Department did not ``administratively terminate'' the
Indiana portion of the Miami tribe as a result of Vandevanter's legal
opinion. That opinion concluded that the Indiana Miami were no longer
maintaining tribal relations and, therefore, the Department, under the
laws and policies of the time, no longer had a legal responsibility for
the Miamis that remained in Indiana. The decision to decline to
acknowledge the Indiana Miami did not rely on Vandevanter's opinion.
We do not have a list of tribal groups that were at one time
considered Federal responsibilities but subsequently lost that status.
The regulations make specific provision for previously acknowledged
groups, reducing the evidentiary burden on such petitioners (25 C.F.R.
Part 83, section 83.8), but requiring that they demonstrate that they
have continued to exist as a tribe up until the present time. Some
petitioners that have claimed a connection with tribes recognized in
the past have, on examination, been found to have no such connection,
or to be descendants of tribes who have not formed a distinct community
for generations.
QUESTION 6: How many Indian tribes have been recognized
administratively by the Bureau of Indian Affairs?
ANSWER: Since 1978, the year the Federal Acknowledgment Regulations
became effective, the following tribes have been administratively
recognized under 25 C.F.R. Part 83:
1. Grand Traverse Band of Ottawa & Chippewa Indians of Michigan,
Administrative recognition under 25 C.F.R. Part 83 (AR), 5/27/1980
2. Jamestown S'Klallam Tribe of Washington, AR, 2/10/1981
3. Tunica-Biloxi Indian Tribe of Louisiana, AR, 9/25/1981
4. Death Valley Timbi-Sha Shoshone Band of California, AR, 1/3/
1983
5. Narragansett Indian Tribe of Rhode Island, AR, 4/11/1983
6. Poarch Band of Creek Indians of Alabama, AR, 8/10/1984
7. Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts, AR,
4/11/1987
8. San Juan Southern Paiute Tribe of Arizona, AR, 3/28/1990
9. Mohegan Indian Tribe of Connecticut, AR, 5/14/1994
10. Jena Band of Choctaw Indians, Louisiana, AR, 8/29/1995
11. Huron Potawatomi, Inc., Michigan, AR, 5/17/1996
12. Samish Indian Tribe, Washington, AR, 4/26/1996
13. Match-e-be-nash-she-wish Band of Potawatomi Indians of
Michigan, AR, 8/23/1999
14. Snoqualmie Tribe, Washington, AR, 10/6/1999
QUESTION 7: Were any of these recognitions a restoration of
previously withdrawn recognitions?
ANSWER: A number of acknowledgment decisions have recognized
petitioners as tribes, petitioners that at some earlier point in time
had been a Federal responsibility, but through laws, treaties and the
operation of policy were no longer a Federal responsibility. Examples
of groups acknowledged under 25 C.F.R. Part 83 include the San Juan
Southern Paiute, the Cowlitz, Poarch Band of Creeks, the Grand Traverse
Band of Ottawa and Chippewa, the Snoqualmie, the Huron Potawatomi, and
the Jamestown S'Klallam. Congress has legislatively recognized the
Little Traverse, Pokagon Potawatomi and Yavapai Tonto Apache Tribe of
Arizona, among others.
The Miami Indians were exposed to western society as early as the
seventeenth century. Moreover, during the nineteenth century, the
Federal government encouraged the acculturation and assimilation of
native populations.
QUESTION 8: What standards does the BIA use when evaluating an
historically distinct tribal community?
ANSWER: The standards used to evaluate a historically distinct
tribal community are embodied in the acknowledgment regulations,
themselves. The Indiana Miami Proposed Finding and Final Determination
describe in detail the application of those standards. See Federal
Register, Volume 55, Number 139, pp. 92423-29425, and Volume 57, Number
118, pp. 27312-27313, respectively (copies enclosed).
QUESTION 9: Is some latitude given to tribes who maintain some
tribal customs and traditions but who, because of time and government
policy, are largely assimilated and acculturated into the American
populace?
ANSWER: The regulations do not require the maintenance of any
distinct customs or traditions, but do require the maintenance of a
distinct social and political community. The regulations list a variety
of forms of evidence to demonstrate community (see criterion 83.7(b)).
Maintenance of distinct culture is one form of evidence to demonstrate
community, but is not a required form. 25 C.F.R. Part 83,
Sec. 83.7(b)(1)(vii) and Sec. 83.7(b)(2)(iii)
A delineated parcel of land (i.e., reservation or tribal land)
seems to be an important component in acquiring Federal recognition. In
1873, the Federal government forced the privatization of the Indiana
Miami tribal lands, and by 1887 the lands of other tribes, thus
effectively eliminating the reservation and tribal governments as
coherent entities.
QUESTION 10: Are there any provisions or considerations given to
tribes that lack tribal lands, due to government action, when those
tribes apply for federal recognition?
ANSWER: The acknowledgment regulations do not require that a
petitioning group have retained land owned in common by the tribe, or
reserved by the Federal government or a state government for the tribe.
The retention of a common land base is both an aid to preservation of a
tribal community, and an indicator of the group's community and
political processes which have aided it in retaining a land base.
Tribes recognized which did not maintain or have maintained for them a
common land base include the Snoqualmie, Jena Choctaw, Mohegan and the
Cowlitz, as well as others. Among the decisions where a group has
maintained or had maintained for them a common land base upon which at
least a portion of the tribe has continued to reside up until the
present are the Death Valley Timbi-sha Shoshone, San Juan Southern
Paiute, Tunica-Biloxi, and Jamestown S'Klallam.
The regulations allow for many different, alternative, forms of
demonstration of community and political processes and do not require a
demonstration of tribal political functions that could only be
exercised with the maintenance of a common land base.
The Miami of Indiana, although no longer federally recognized,
continue to receive payments from the Federal government under various
treaties and agreements, including the 1795 Treaty of Greenville.
QUESTION 11: How many similarly unrecognized tribes receive money
from the U.S. Government through such treaties?
ANSWER: We are not aware of any payments currently received by the
Indiana Miami under Federal treaties and agreements. The Indiana Miami
did not submit evidence during the petitioning process that
demonstrated such payments.
supplemental questions submitted by representative rahall
QUESTION 1: Please explain the process the Office of the Federal
Acknowledgment goes through once a FOIA request is received. Who
handles the request and how are the research teams' anthropologists,
genealogists, and historians involved?
ANSWER: When a FOIA request is received by the Office of Federal
Acknowledgment (OFA) to prepare a response, a FOIA specialist/records
manager handles the majority of the tasks. The tasks involved in
responding to a FOIA request include searching and compiling of
documents, estimating the time it will take to complete the tasks,
reviewing the documents, copying the documents once found, redacting
the documents following the Privacy Act guidance, withholding documents
that fit FOIA exemptions or fall under Privacy Act information,
releasing and preparing responses concerning the FOIA requested
documents, reviewing responses with the Office of the Solicitor,
maintaining copies of all documents released to meet the FOIA request,
assisting in FOIA appeals, and reporting. OFA follows the March 28,
1991, Freedom of Information Act Handbook, which is a ``supplement to
the requirements prescribed by Title 383 of the Departmental Manual 15
and 43 C.F.R. Part 2, Subparts A and B. OFA anthropologists,
genealogists, and historians (professionals) have performed most of the
tasks cited above, however, with additional appropriations within the
Interior Appropriations Act for the past two fiscal years, the OFA has
been able to hire outside contractors to handle these requests. On
occasion, the professionals may assist with minor searches and reviews;
however, under most circumstances, the hiring of contractors has
allowed them time to focus on their reviews and evaluations of the
documented petitions.
QUESTION 2: The OFA is no longer part of the BIA--it is under the
Office of the Assistant Secretary for Indian Affairs. How has this
change brought better services to the petitioning tribes?
ANSWER: Effective July 27, 2003, the Department began to implement
the reorganization for most of the Office of the Assistant Secretary--
Indian Affairs. The staff of the Branch of Acknowledgment and Research
(BAR) was realigned to the new Office of Federal Acknowledgment (OFA).
OFA reports directly to the Principal Deputy Assistant Secretary--
Indian Affairs. Prior to the change, staff reported first, to the
Director, Office of Tribal Services, second, to the Director, Bureau of
Indian Affairs, and then to the Assistant Secretary-Indian Affairs. The
change eliminates two layers of review and provides more direct and
efficient policy guidance. Currently, there is no assessment available
on whether the change provides better services to the petitioners.
QUESTION 3: In response to a question from Chairman Pombo about
whether changes that have been made at OFA have increased the Office's
efficiency in the processing of petitions, you responded that
productivity has increased from July 2002, to the present. You told the
Committee that from July 2002, to the present, your office has issued
14 decisions. Does this number include decisions beside Proposed
Findings and Final Determinations? Please explain what other decisions
have been issued. A list of the 14 would be helpful.
ANSWER: Since July 2001 to the present, the Department has issued
14 decisions: six were proposed findings, six were final
determinations, and two were reconsidered final determinations. These
decisions are provided in the enclosed table.
[GRAPHIC] [TIFF OMITTED] T2827.005
______
The Chairman. Thank you. Mr. Fleming, in reviewing your
testimony is it your contention that the changes that you are
making in the process are making it more efficient and timely
in the decisionmaking process?
Mr. Fleming. It is my contention and I will give you an
example. Our productivity for July 4 to the present, which also
takes into our new contracting, we have issued 14 decisions in
that 3-year period--six proposed findings, six final
determinations, and two reconsidered final determinations. If
you divide three into 14, you get a tremendously higher number
than the average that was expressed earlier in one of the
individual's testimony, which I think was 1.3 per year, which
is a tremendous increase in our productivity.
The Chairman. In terms of the objectivity of those in the
decisionmaking process, it appears from looking at it that when
a petition is denied, a lawsuit is filed, that those that are
defending that lawsuit or who originally made a decision end up
being the ones that they appeal to and there is a possibility
that they may not be as objective in making those
determinations. How do you respond to that?
Mr. Fleming. The regulations allow for due process
throughout. One period immediately available to the petitioner
and interested parties is after a proposed finding to
acknowledge or not to acknowledge opens up a public comment
period of 180 days and this allows a petitioner or interested
party to provide evidence, argumentation to support or rebut
the proposed finding.
After the final determination is issued there is another
opportunity for due process, which is called reconsideration
before the Interior Board of Indian Appeals and under the
regulation of 83.11, this is the Department's independent
review board that would look into the decision. So if the
petitioner or interested party is not satisfied with the final
determination, they have that opportunity of due process, of
putting a request in for reconsideration.
Then if the final decision is final and effective for the
Department, then the next avenue for a petitioner or interested
party is to sue the Department under the Administrative
Procedures Act in Federal court.
The Chairman. And what about the situation where a decision
is not made, where someone comes in and petitions for
recognition and, just to pull a number out of the air, spends
29 years waiting for an answer?
Mr. Fleming. The process begins with a letter of intent and
when the process began in 1978 after the promulgation of the
regulation, we had 40 petitioning groups at that juncture.
Some groups take part of the time working on documenting
their petitions and there is no limitation as to how many years
they can put together a petition. So if a group is working for
20 years developing their petition and then they submit the
petition, the regulations then require us to review all that
information. We are sometimes blamed for that 20-year time span
when indeed the evidence comes before us under the regulations
we are then required to do a technical assistance review letter
for any obvious deficiencies or significant omissions. This
allows the petitioning group to supplement their petition in
any areas that need to be supplemented. Then that may take a
short period of time or it may take four or 5 years for the
group to come back with additional documentation and then we
move forward under the regulatory timeframes.
The regulatory timeframes in and of themselves require a
minimum of at least 25 months or a little over 2 years. Once
they begin those regulated timeframes, then we are under a
clock generally. Those timeframes, as I said, are at a minimum.
There are opportunities for the petitioner to request
extensions for good cause. They may have come up with a source
of evidence that they were not aware of and they would need
time to consider researching out those records and sometimes
they ask for extensions and they are granted.
But any time you have one extension for one group, it may
mean that there is a delay with the other groups that are under
the active consideration stage of the process.
The Chairman. Once a petition is filed, it's complete, all
of the information requested has been given to you, they should
have an answer within 2 years?
Mr. Fleming. The regulatory timeframe allows a minimum of
at least 25 months.
The Chairman. And a maximum?
Mr. Fleming. That I would need to research on.
The Chairman. Why is there a minimum and not a maximum?
Mr. Fleming. The regulation allows for extensions to allow
the petitioner or interested party or even the Department if it
needs----
The Chairman. But let me just stop you there. That is not
your fault. If they ask for an extension, that is their
decision to ask for an extension.
Mr. Fleming. Correct.
The Chairman. Why is there not a maximum on how long it
takes you to give them an answer? If someone comes in to you
and says we are requesting an extension, we need to do more
research for whatever reason, then I understand that. That is
not your fault. That is not you that is asking to delay it.
But it seems to me and in my experience in dealing with
most Federal agencies is that when we pass a law, we tell them
you have 2 years to give them an answer and if that person asks
for an extension, they waive their statutory deadline when they
ask for an extension. In this one it seems like it is opposite
of that and I am not sure why.
Mr. Fleming. Well, let me clarify. Under the regulation,
the first regulatory timeframe is what is known as active
consideration. It is designed to allow the Department at least
12 months to review all of the evidence. So you have a deadline
right there. At the end of 12 months there ought to be an
answer called a proposed finding.
Then when the decision is made on the proposed finding, it
is published in the Federal Register, which then starts the
next regulatory timeframe called the public comment period. So
there is a deadline or an end to that public comment period.
If the evidence is voluminous the petitioner or a town or
state may ask for an extension. So that is their ability to add
more time if needed. At the end of that period, then begins a
response period for the petitioner to respond to any comments
that came in during the comment period. Let us say comments
were made by an interested party and they put a particular spin
on that evidence but when you review that evidence, then the
petitioner has the opportunity to say that is not what we see,
that is not what our professionals see. So they have an
opportunity to address any comments. That has an end period.
That has an end date and that is in the regulation.
Then the Department has 60 days at a minimum to review all
of the evidence, all of the comments, all of the responses, and
come up with a recommendation for a final determination. So you
do have in the regulation an end date for and answer.
The Chairman. And if you add all those periods up, where do
you end up? What is that timeframe?
Mr. Fleming. At that point 25 minus three, 22 months.
The Chairman. Twenty-two months to give them a decision?
Mr. Fleming. At a minimum. And that is under the
regulations.
The Chairman. I guess what I am having difficulty with is
it is not 22 months at a minimum. It is just kind of 22 months
if everything fits.
Mr. Fleming. That is how it is designed and as the practice
has been, the Department has asked for extensions due to the
complexity of the case or the voluminous nature of the evidence
or the petitioners may have asked for an extension or an
interested party may need more time, as well. So if you have
those extension requests, then the Department has to consider
whether to grant them and has to take a look as to how it is
going to affect the process.
The Chairman. Maybe you can answer this for the record for
me. How would the Department feel if we said you have 36 months
plus whatever time the petitioner requests in extensions to
give them an answer and give you a drop-dead date to give them
an answer? If they ask for a year extension, you add a year to
it and you have 48 months to give them an answer, but give you
a deadline to give them an answer.
Mr. Fleming. I think it would be something considered.
Everyone likes to have a deadline, a beginning point and an end
point. I think what has assisted us over the past 3 years is
that these decisions, after recommendations were made, even the
decisions were made in a timely manner and nothing was delayed
in that aspect. So if there are definite dates, that could be
useful.
The Chairman. Thank you.
Mr. Pallone?
Mr. Pallone. But following up on that, Mr. Chairman, the
only way that would be effective is if at the end of the period
if they did not act, then the recognition was granted.
Otherwise there would not be any club, really.
What would you think of that?
Mr. Fleming. Well, if there is inaction and then there is a
provision in that statute, I just know there would be
tremendous pressure felt by all concerned.
Mr. Pallone. All right. I am going to try to get through a
few questions quickly because I know I do not have a lot of
time.
I am very concerned about the state's pressure. I will use
Connecticut. I should not pick on them but they are the obvious
one to pick on in this case. We have the Eastern Pequots, we
have the other tribe that was more recently granted preliminary
recognition from Connecticut, and now we understand that
Connecticut is appealing that.
When mention here was made of interested parties and the
input of interested parties, is one of the reasons why the
process is taking so long and becoming more expensive because
states are now appealing? And what is the likelihood of if a
state like Connecticut does object in these two tribes' cases,
the Eastern Pequot and the others, what do you do? I mean do
you have the power to specifically--I mean do you actually do
research to specifically refute or support an interested party
like Connecticut's objections? Has any interested party ever
succeeded?
I mean I am just concerned that now that a state like
Connecticut is putting so much pressure against and appealing,
for example, those two tribes, what is going to happen? Just
comment on that if you could.
Mr. Fleming. I believe that the regulation itself offers
the opportunity for interested parties to participate and right
now some of the decisions are ripe for requests for
reconsideration before the Interior Board of Indian Appeals. So
in the regulations there are opportunities for interested
parties to participate. And even if a petitioner or interested
party is still not satisfied with what the final outcome may
be, be it positive or negative, they still can have a remedy
through the Administrative Procedures Act and that would be the
proper time for the petitioner or interested party to then
follow up.
Mr. Pallone. Now the other thing is we talk about the
budget. Your office's annual budget, I guess, is $1.7 million,
but in response to the pleas about understaffing in Fiscal Year
2003, Congress appropriated an additional $500,000. This was
followed by an additional $250,000 in Fiscal Year 2004.
However, it is my understanding there has not been any new
hiring of full-time anthropologists, genealogists or
historians, the professional staff.
How is it that an infusion of funds, nearly half of the
office's budget, has not resulted in speeding up the process?
My understanding, same question, is that the BIA's
strategic plan in 2002 called for hiring 18 anthropologists,
genealogists and historians to establish six teams of three
persons but, as we heard from the previous panel, we only have
three teams of three persons now. So what happened? Why has not
this funding made a difference and why are we still at the
three instead of the six that you supposedly were trying to
accomplish?
Mr. Fleming. In the Department's response to the GAO report
we provided at their recommendation a needs assessment and an
analysis of the workload and based on expectations, if the
expectation was to eliminate the current workload in 3 years,
then this is what it would take. If the expectation was to
eliminate the workload in four, five, or 6 years, then this is
what it would take.
And our response, and I would be happy to provide the
Committee with the response, it was a way to convey what our
needs indeed were based on the analysis of the workload.
Mr. Pallone. But Mr. Fleming, what happened to this extra
money and when are you going to be able to double these teams?
You said you would like to go from three to six. It has not
happened. What happened to the money and when is that going to
happen? And how much more do you need? What do you want us to
do?
Mr. Fleming. The appropriations were indeed very helpful.
It allowed us to do the contracting that I described, the two
sets of contractors. We were able to take on the two FOIA
specialists, records managers, and the three research
assistants.
Because these were one fiscal year appropriations, we were
not able to use that resource, those funds, to hire full-time
employees because if they only were available to us just on an
annual basis, it would not be helpful to hire somebody and then
fire them because of the lack of funds, should we not have been
able to get another appropriation.
Mr. Pallone. I know the time is running out but did the
money lapse? Was it used?
Mr. Fleming. Yes, the money was used. The appropriation was
used and as a result, we were able to make use of the
contractors in reducing the administrative work that would
normally fall on the professional staff and the professional
staff was then able to focus on the cases at hand. And as I
indicated, at least from the time the contractors came on
board, we were able to issue eight decisions out of the 14 that
I described that had been issued since the first of this
Administration.
Mr. Pallone. Thank you.
Thank you, Mr. Chairman.
Mr. Chairman, could I just ask that members have the right
to submit written questions to the witnesses?
The Chairman. Yes. I was going to say both to this witness,
I have a series of questions that I will submit in writing to
this witness and any other witnesses who appeared today, you
have the right to submit questions in writing. And to those
witnesses that are still here, if you could answer those in a
timely manner so that they can be included in the hearing
record, I would appreciate it. Thank you.
Before I adjourn this hearing I want to thank all of our
witnesses, including the Administration witness. This is
obviously an extremely important issue that I do believe we
need to make progress on and I will look forward to working
with everybody, including the Administration, to try to move
forward in a positive way with trying to deal with this in a
much more timely fashion and a fair and transparent system. I
think that is what all of us want out of this and that is what
this Committee will word toward.
So thank you very much. Thank you to all our witnesses for
being here and the hearing is adjourned.
[Whereupon, at 12:05 p.m., the Committee was adjourned.]
The following information was submitted for the record:
Benedict, Jeff, President, Connecticut Alliance
Against Casino Expansion, Inc., Statement submitted for the
record
Blumenthal, Hon. Richard, Attorney General, State
of Connecticut, Statement submitted for the record
Charley, Benjamin, Tribal Chairman, Dunlap Band
of Mono Indians, Letter submitted for the record
Jones, Laura, Ph.D., Campus Archaeologist,
Stanford University, Senior Scholar, The Carnegie Foundation,
Letter submitted for the record
Mullane, Nicholas H., First Selectman, Town of
North Stonington, Connecticut, Statement submitted for the
record
Towns of Ledyard, North Stonington, and Preston,
Connecticut, Letter submitted for the record
[A statement submitted for the record by Jeff Benedict,
President, Connecticut Alliance Against Casino Expansion, Inc.,
follows:]
Statement of Jeff Benedict, President,
Connecticut Alliance Against Casino Expansion, Inc.
The State of Connecticut is serving as an unwilling witness to one
of the most remarkable breakdowns in federalism--the relationship
between the federal and state governments--in the history of the United
States. The likely consequence is the complete transformation of the
economic vitality, quality-of-life, and governmental structure of the
State. All these changes would be for the worse, and they are being
forced upon the State by the federal government.
The tool being used for this purpose is the so-called
``acknowledgment process,'' by which the Bureau of Indian Affairs (BIA)
bestows the status of ``federal Indian tribe'' on groups of individuals
who claim descent from tribes that existed during colonial times. The
people and towns of Connecticut are rightfully outraged over what is
happening, and dramatic and immediate action is needed to protect the
State's interests.
How can tribal acknowledgment have such a significant effect? And
isn't acknowledgment little more than the symbolic act of according
federal status to Indian groups long ago recognized as tribes by the
State? The answers to these questions demonstrate why the future of the
State of Connecticut is at risk. They also show how the actions of a
few federal bureaucrats, combined with the investment of tens of
millions of dollars by gambling financiers, have manipulated federal
law to strip away Connecticut's inherent right to determine its own
future.
What Does Tribal Acknowledgment Mean?
Once a group obtains status as an Indian tribe under federal law it
becomes, in effect, a sovereign governmental entity. The new tribe, its
members, and its businesses, are exempt from virtually all state and
local laws, including taxation. Their lands are open to any kind of
development. The tribe and its businesses do not need to comply with
state and local environmental, land use, health and safety, labor and
other laws. They cannot be sued. For many purposes, they act as foreign
governments.
In Connecticut, there are two acknowledged tribes and twelve groups
that are seeking tribal status. The two acknowledged tribes are the
Mashantucket Pequot, who were acknowledged by Congress in 1983, and the
Mohegans, who achieved tribal designation from the BIA in 1994. Of the
twelve additional groups trying to become tribes under the BIA
acknowledgment process, four are well-advanced in the process: the
Eastern Pequot/Paucatuck Eastern Pequot, the Schaghticoke, the Golden
Hill Paugussetts, and the Nipmuc, who are actually located in
Massachusetts, but they assert land rights in Connecticut.
These groups claim that land belonging to their historical
ancestors was unlawfully taken away 200 years ago and that they are
entitled to get it back regardless of its current ownership. As much as
one-third of the State is potentially subject to these land claims. The
Schaghticokes and Golden Hill Paugussetts have already filed lawsuits
against innocent landowners for this purpose.
But these tribal acknowledgment efforts have less to do with land
and more to do with gambling. Each of the four groups that are furthest
along in seeking recognition is bankrolled by casino moguls or
developers. These groups hope to secure recognition in order to take
advantage of the federal Indian Gaming Act that permits federal tribes
to open massive new casinos and earn over one billion dollars a year,
as the Mashantucket Pequots and Mohegan do at their existing casinos.
The biggest winners in these casino ventures are not the tribes, but
the wealthy non-Indian moneymen who provide the financial, legal, and
political muscle to help these groups get acknowledged.
What does all of this have to do with Connecticut? Thanks to the
BIA's artificially propagated and arbitrarily applied acknowledgment
process, the State faces a serious risk of being transformed into a
gambling hub with as many as six separate sovereign nations within its
boundaries, each one of which will pursue large tracts of land to carve
out from state and local control for purposes of opening new casinos.
Make no mistake about it; life in Connecticut will never be the
same if this corruption is not stopped and corrected. Otherwise, the
BIA will transform Connecticut from the ``Constitution State'' to the
``Casino State.'' The two largest gambling halls in the world are
already here. With potentially four more, already jammed highways will
go into gridlock with the cars of casino patrons. The local tax base
will be devastated. Land use control and planning will become a thing
of the past. Environmental quality will decline due to air pollution
from cars and other impacts. Crime will increase, and societal values
will shift, as they always do in gambling centers. The labor base will
change. Affordable housing will dissipate in towns around the casinos.
Corporations and large businesses will flee the State to be replaced
with low-paying, unskilled jobs, bringing attendant demographic shifts
in Connecticut's population. Within a decade or so, Connecticut as we
know it today will no longer exist.
For about twelve years, the small towns in southeastern Connecticut
have struggled with the consequences of reservation lands, tribal
sovereign immunity and Indian casinos. They have lived with the many
adverse impacts of the Mashantucket Pequot Foxwoods and Mohegan Sun
resorts, and they are now confronted with a third possible mega-casino
on lands of the Eastern Pequot Indian group, which BIA is proposing to
acknowledge as a tribe.
The problems that resulted in southeastern Connecticut have not
been fully understood in other more populous and politically powerful
parts of the State. Then, on January 29, 2004, the BIA issued a
decision that seeks to acknowledge the Schaghticoke Tribe. Now there is
the prospect for land claims throughout southwestern and western
Connecticut, and the specter of a new casino resort along the already
overburdened I-84 and I-95 corridors has risen.
The BIA's decision to drop yet another sovereign nation in
Connecticut has finally turned a spotlight on the flawed acknowledgment
process. Much of the illumination has been triggered by the BIA's own
conduct. Right after the BIA announced its decision in the Schaghticoke
matter, an internal BIA memorandum dated January 12, 2004, and titled
``Schaghticoke Briefing Paper,'' surfaced. In it, the staffer from the
Office of Federal Acknowledgment responsible for reviewing the
Schaghticoke petition notified the Assistant Secretary that the
petitioner's ``evidence of political influence and authority is absent
or insufficient for two substantial historical periods.'' The memo also
acknowledged that the petitioner's ``membership list does not include a
substantial portion of the actual social and political community.''
Despite these gaping holes in evidence, ones which the BIA does not
have authority to arbitrarily fill with substitutes for the mandatory
criterion, the agency nonetheless granted acknowledgment. The BIA's
brazen internal memo is a glaring illustration of how badly this
process needs legal and political reform. This agency is absolutely
unaccountable and by its own words acting outside its authority.
BIA's Acknowledgment Process
Much has been made recently of the role that wealthy financial
backers play in helping petitioner groups obtain tribal acknowledgment.
High-powered lobbyists wired to the Bush Administration have been paid
huge amounts of money to lobby for the Eastern Pequots and the
Schaghticokes. The sources of money paying for those lobbyists, and the
numerous lawyers, consultants, and public relations firms supporting
these efforts, are not fully known. Nor is the amount of money spent.
It is known, however, that massive sums have been invested by the likes
of Donald Trump, Fred DeLuca (the Subway sandwich shop entrepreneur),
David Rosow (a Fairfield-based ski resort developer), Bill Koch (the
Texas oil magnate and America's Cup racing tycoon), and Thomas Wilmot,
a New York mall developer, who has spent in excess of $10 million
backing the Paugussetts. The role played by big money and big-time
lobbying in tribal acknowledgment is an outrage, and undoubtedly has a
corrupting influence on the process. Full investigation and immediate
reform is needed.
As important as it is to get casino entrepreneurs out of the
acknowledgment process, there is an equally important reform that is
needed on an even more basic level. Simply put, the BIA should not have
this power in the first place. The Eastern Pequot and Schaghticoke
decisions have now revealed clearly the biased, result-oriented, and
arbitrary manner in which BIA makes these decisions. The outrage
Connecticut feels toward the lobbyists and multimillionaire financial
backers should pale compared to the anger that should be directed at
BIA and the political appointees who are approving these decisions.
As a starting point, it must be understood that the BIA has never
been granted the power to acknowledge Indian tribes. Obviously,
creating a sovereign Indian tribe is a very significant decision. The
power to take such action is vested by the Constitution exclusively in
the Congress. Under the U.S. Constitution, federal agencies cannot take
legislative actions of this nature unless Congress expressly grants the
power to do so and sets standards to govern how the agency exercises
that authority. Congress has never taken either step to allow BIA to
make the fundamentally political decision of whether to create new
sovereign tribal entities. For years, the BIA has glossed over this
problem, trying to hang its acknowledgment hat on the weakest and most
general of its Indian affairs powers.
The Schaghticoke Decision
The recent Schaghticoke decision illustrates the problems of
letting BIA run free to make acknowledgment decisions in the absence of
tight standards set by Congress. BIA is making up the rules as it goes
along, and applying its self-proclaimed tribal acknowledgment power to
rule in favor of Connecticut petitioner groups.
A close look at the Schaghticoke decision reveals how BIA plays
this game. One of the abiding principles of BIA acknowledgment
decisions has been the need for the Indian group to prove that it has
existed as a functioning political entity following identifiable
leaders and as an intact social community from colonial times to the
present without any significant gap in time. A break in continuity of
even a generation is fatal to an acknowledgment petition.
For the Schaghticoke, the gaps in its historical record should have
been insurmountable. In 1993, the Schaghticoke's own expert, a leading
pro-tribal advocate, said it was ``probably impossible'' for the
Schaghticoke to meet this test for virtually all of the 1800s and the
first half of the twentieth century. In 1999, Ann McMullen, another
expert hired by the Schaghticoke, agreed. In 2001, the BIA's top
official Neil McCaleb reached the same conclusion when he ruled in the
proposed finding against granting acknowledgment to the Schaghticoke
group. McCaleb said the group failed to meet this test for a total of
over 150 years.
In response to that ruling, the Schaghticoke's own ``chief'' during
the 1960's, Irving Harris, testified that the BIA's negative proposed
decision was correct because there was no tribal government in effect
for most of his lifetime. That conclusion was borne out by the research
conducted by the State of Connecticut, numerous local governments, and
the private landowners whose property is at risk because of
Schaghticoke land claims. But the BIA ignored Chief Harris's testimony
and supporting research submitted by other interested parties.
All of this information and expert opinion was in front of BIA, yet
it did not matter. On January 29, 2004, the BIA reversed its 2001
negative decision and concluded that the Schaghticoke should be granted
federal recognition. How did BIA reach this result? Quite simply, it
made up new rules, selectively considered the evidence that would
support the desired result of tribal creation, and ignored everything
else.
The gimmicks used by BIA to push the Schaghticoke group over the
acknowledgment finish line are too numerous and complex to describe
here. They entail practices such as shifting the burden of proof from
the tribal petitioner to the opposing parties, selective use of
interview evidence, selective use of documentary evidence, retreat from
the requirements of the 2001 negative proposed finding, and the
incredible conclusion that the longstanding rift between rival
Schaghticoke factions that tore the group into pieces was actually
evidence of political unity and continuity.
While the specifics of the 200-page BIA decision defy simple
explanation, it is possible to gain insight into the manipulative
decisionmaking employed by BIA by focusing on a few aspects of the
agency's final determination.
Beginning with the Eastern Pequot decision, BIA has developed a new
principle of tribal acknowledgment unique to Connecticut. Because
Connecticut had historically set aside small tracts of land for
Indians, BIA has established the assumption that gaps in tribal
continuity can be filled by the mere existence of such a land base. In
other words, because Connecticut set aside land for Indians in the
past, the BIA decided that it is appropriate to infer that functioning
political entities and social communities must have existed at the same
time.
The BIA invokes this ``state recognition'' assumption to fill gaps
in the history of a tribal petitioner in Connecticut whenever it is
necessary to do so to make up for a lack of evidence. This principle,
one that BIA never developed through its rulemaking or public review
processes, has thus become a kind of evidentiary silly putty to be used
to plug any holes in a tribal petitioner's case. In Connecticut, BIA
has transformed the requirement for evidence of continuous tribal
governmental authority under identified leaders and social community
into one that allows for only partial evidence, so long as the
petitioner group traces to a tribe for which a State reservation
existed and on which some individuals lived during the period of the
missing evidence.
Even with this artificial assumption, BIA had to play additional
games to reach a positive result for the Schaghticokes. For example,
there was no evidence of a politically functioning tribe for the period
1801 to 1876. BIA invoked one of the rules it made up under its
regulations to help the Schaghticokes fill this gap. Under this rule,
if fifty percent of the marriages in a group during a period of time
are between tribal members, then the BIA assumes the existence of
tribal political activity.
This rule, equating marriage rates with tribal political activity,
is a big stretch on its own. But the BIA didn't stop there. To help the
Schaghticokes fill the 1801 to 1876 gap, first the BIA changed its
approach to defining who counts in defining the marriage rate. In the
past, BIA looked only to ancestors of the petitioner group. For this
decision, the BIA counted any individual associated with the
Schaghticoke, thereby greatly expanding the universe of marriages to
consider.
Second, BIA abandoned its own fifty percent rule. Even by expanding
the group of people considered for intermarriage, the BIA equaled that
rate for certain periods of time. Third, even after giving all of these
breaks to the Schaghticokes, BIA could not fill in the entire 1801 to
1876 period. A one-generation gap still existed between 1820 and 1841.
Under the BIA's previous interpretations, this gap in political
authority alone should have resulted in a negative decision.
The BIA got around this problem by pulling out its ``state
recognition'' silly putty. Because a Schaghticoke reservation existed
during this time, BIA ruled it would allow this assumption of political
activity to make up for the below-fifty percent marriage rate and the
absence of any other evidence of tribal political activity during this
extended period. Thus, by these tricks and gimmicks, the BIA found a
way to make a 75-year gap in tribal political authority disappear
without a shred of evidence.
Similar games were played in the Eastern Pequot decision. In that
case, the BIA also used the state recognition assumption to fill major
holes. In addition, BIA took the incredible step of forcibly joining
two distinct Pequot groups into a single tribe, over the strong
objections of the smaller group. Only by doing so was the BIA able to
find enough evidence to create a new tribe. In taking that step, the
BIA allowed its tribal creationism to reach an ultimate extreme. Not
only did the BIA assume power never granted to it by Congress to
develop its own rules for establishing sovereign nations, it slipped
into the role of making new law by deciding when and how groups of
individuals claiming Indian descent should be forced to affiliate with
each and form a common tribe. How arrogant, and how fundamentally at
odds with the most basic principles of the U.S. Constitution.
Even more troubling is that these decisions are being made by an
agency with an admitted bias in favor of Indians. The bureaucrats who
make these decisions are trained in Indian anthropology, history and
similar disciplines. They have a clear bias in favor of Indians, and
they wear it on their sleeves. That is why they are in this profession,
and that is why they work for an agency that has a duty to advance the
interests of Indians and tribes.
The bottom line is that the BIA staff has made up their minds on
Indians in Connecticut. The agency will not allow the facts, or lack
thereof, to get in the way of their determination to establish new
federal tribes in Connecticut. The same BIA official's are involved in
the Nipmuc decision, so we can expect more of the same in May when that
final determination is issued. The Nipmucs, like the Eastern Pequot,
consist of two groups who oppose each other. They both received
negative proposed findings, but the writing is on the BIA wall. The
agency staff who invented the theories that achieved positive results
for the Eastern Pequots and Schaghticokes can be expected to achieve
the same result by combining the Nipmuc groups and devising new rules
to allow them to fill their evidentiary gaps.
While the BIA staff that are at the bottom of these decisions are
easy to blame, in some ways their actions are predictable. After all,
they are not specialists in Indian history and anthropology because
they are disinterested or objective. They are set in their ways and
will do anything to protect their bureaucratic turf. We need to look
elsewhere for the solution.
What Should Be Done?
The real problem here is with a political system that gives the BIA
this much power in the first place. While decisions on the existence of
tribes should be based on sound factual research, the consequences of
those decisions are inherently political. There is no law or regulation
that leads to the result BIA has now decreed for Connecticut. It is
based on assumptions and leaps of faith that transparently lead to a
prescribed result. The decision to rely upon these presumptions and, in
so doing, create new tribal governments and change the face of
Connecticut should not be left to BIA staff, or even its political
appointees. One need only think back to the blatantly political acts of
the Clinton appointees to BIA to realize that there is no comfort to be
found in the agency leadership either.
Equipped with the facts, Congress should decide whether to
recognize new tribes. While the legislative branch may not be suited to
the task of fact-finding, it certainly has the prerogative and the
ability to analyze the results of such reviews and make final
decisions. We in Connecticut have seen how Congress can misapply this
power when it is uninformed, as it did in recognizing the Mashantucket
Pequot Tribe in 1983. That ``tribe'' now has a very dubious claim to
acknowledged status. Had Congress been adequately informed of the
facts, however, it could have made an educated decision as to whether
to exercise the political power vested in it by the Constitution to
recognize such a tribe.
In doing so, it also could have taken the appropriate actions to
address the social and economic consequences such an act would have for
the entire state. When BIA acknowledges a tribe, it does nothing more
than give the group legal status as a federal tribe. This, in turn,
leads to the horrendous results now confronting Connecticut. If
Congress were in command of this issue, however, such adverse effects
could be addressed at the same time that deserving Indian groups which
meet strict standards are recognized as tribes.
Even if Congress believes it should not be in the acknowledgment
business, it has the duty to constrain the power of the Executive
Branch to make such decisions. Congress should set forth very clear
standards under which the Executive Branch at the highest levels would
make acknowledgment determinations. Those standards would need to
instill objectivity into the process, remove decisions from career
staff, and avoid situations where gimmicks and games can be played to
meet the tests for tribal acknowledgment. Alternatively, Congress could
follow Connecticut Attorney General Richard Blumenthal's recommendation
and create a new decisionmaking body that would be truly objective and
beyond pro-Indian bias and the influence of lobbyists.
______
[A statement submitted for the record by The Honorable
Richard Blumenthal, Attorney General, State of Connecticut,
follows:]
Statement submitted for the record The Honorable Richard Blumenthal,
Attorney General, State of Connecticut
I appreciate the opportunity to comment on the issue of federal
recognition of Indian
Critically and immediately, Congress should enact a moratorium on
any BIA decisions or appeals and initiate a full and far-reaching
investigation of the BIA's actions in these petitions.
Congress should then enact reform creating an independent agency
insulated from politics or lobbying to make recognition decisions. It
must have nonpartisan members, staggered terms, and ample resources.
There is compelling precedent for such an independent agency the
Securities and Exchange Commission, for example, or the Federal
Communications Commission, and the Federal Trade Commission. which deal
professionally and promptly with topics that require extraordinary
expertise, impartiality, and fairness.
Even before permanent reform -- and especially until the
investigation is complete -- the Secretary of Interior should impose a
moratorium or stay on all tribal recognition decisions involving
Connecticut and other similar states. The need for a moratorium is
demonstrated dramatically by an internal confidential BIA memorandum
discovered during review of documents for our administrative appeal in
the Schaghticoke decision which provides a blueprint for BIA senior
officials to disregard and distort the law. This pattern and practice
cannot be permitted to continue.
Far-reaching, fundamental form is critical to restoring the
integrity and credibility of the present system. Indeed, the argument
may be made that the Department of Interior currently has an
unavoidable conflict of interest responsible for advocating for and
protecting Native American interests as trustee, and at the same time
deciding objectively among different tribes which ones merit
recognition.
Congress should also adopt the tribal recognition criteria in
statute, reducing the likelihood that the BIA will stretch or sandbag
criteria in an effort to recognize an undeserving petitioner. It should
also enact measures to ensure meaningful participation by the entities
and people directly impacted by a recognition decision. One of the most
frustrating and startling consequences of the current review process is
the potential for manipulation and disregard of the seven mandatory
criteria for recognition--a potential that the GAO and Inspector
General reports found has been realized in recent petitions.
Finally, Congress should provide additional much needed, well
deserved resources and authority for towns, cities and Indian groups
alike in an effort to reduce the increasing role of gaming money in the
recognition process. Federal assistance is necessary and appropriate,
in light of the increasing burdens that towns, cities and the state,
must bear in retaining experts in archeology, genealogy, history and
other areas all necessary to participate meaningfully in the
recognition process. Because recognition has such critical, irrevocable
consequences, it is. essential that all involved petitioning groups,
the public, local communities, states have confidence in the fairness
and impartiality of the process. That confidence has been severely
compromised in recent times. I urge the committee to approve these
bills and begin the process of overhauling the system so that public
faith can be restored.
The central principle of this reform should be: Tribes that meet
the seven legally established criteria deserve federal recognition and
should receive it. Groups that do not meet the criteria should not be
accorded this sovereign status.
The present system for recognizing Indian tribes is fatally and
fundamentally flawed. It is in serious need of reform to ensure that
such decisions which have such profound ramifications are lawful, fair,
objective and timely. After more than a dozen years of experience with
tribal recognition issues, I strongly and firmly believe that
fundamental, far-reaching reform is necessary.
The current recognition process has proven to be susceptible to
improper influences of power, money and politics, documented by both
the General Accounting Office (GAO), the Department of Interior's
Inspector General and our own experience in Connecticut.
In a December, 2003 ruling involving the State of Connecticut, the
BIA inexplicably reversed its preliminary decision to deny federal
recognition to the Schaghticoke petitioner, . finding that the
petitioner had met the seven criteria, despite the lack of any evidence
to establish that the group met two of the mandatory criteria political
autonomy and social community. This decision remained a mystery until
several weeks ago, when an internal staff briefing paper was released
publicly. The briefing paper created a road map as close to a smoking
gun as we've seen for the agency to reverse its prior finding despite
the lack of credible evidence meeting the seven standards for Indian
recognition. I have attached that briefing paper to my testimony.
The briefing paper sets forth options and seeks guidance from the
Acting Assistant Secretary with respect to how to address two issues
staff acknowledged were potentially fatal to the Schaghticoke petition:
(1) little or no evidence of the petitioner's political influence and
authority, one of the mandatory regulatory criteria, for two
substantial historical periods; and (2) serious problems associated
with the internal fighting among the two factions of the group.
With respect to the lack of evidence, the Office of Federal
Acknowledgement (OFA) shows, by its owns words and analysis, its
disregard for the legal standards and precedents as demonstrated by one
of the four options posited by the OFA. OFA posits that one of the
options is to: ``Decline to acknowledge the Schaghticoke, based on the
regulations , and existing precedent.'' In. explaining this option,
which the OFA and the Assistant Secretary rejected, the OFA explained:
``Option 2 [declining to acknowledge the group] maintains the current
interpretation of the regulations and established precedents concerning
how continuous tribal existence is demonstrated.'' In other words,
declining to acknowledge the group means following the law. Yet,
despite this clearly correct legal path, the BIA chose option 1, and
acknowledged the petitioner by substituting state recognition in lieu
of actual evidence for large periods of time. The BIA chose this option
despite its own concession that it would create a ``lesser standard.''
This OFA briefing paper confirms that recognition of Schaghticoke
petitioner required the BIA to disregard its own regulations and long
accepted precedents, and to ``revise,'' yet again, its recent
pronouncements on the meaning and import of the State's relationship
with the group, as well as ignore substantial gaps in the evidence. The
BIA has now revised its view of the legal import of state recognition
no less than four times in only two years. It has completely,
unashamedly reversed the longstanding view that federal recognition
could not be based on state recognition alone, moving to its present
view that it alone can actually replace or substitute for evidence on
critical and mandatory criteria.
This deception is mirrored in our experience with other
acknowledgment petitions. In the Eastern Pequot and Paucatuck Eastern
petitions, the former head of the BIA unilaterally overturned staff
findings that two Indian groups failed to provide evidence sufficient
to meet several of the seven mandatory regulatory criteria. He also
issued an illegal directive barring staff from conducting necessary
independent research and prohibiting the BIA from considering
information submitted after an arbitrary date regardless of whether the
BIA's review had begun without notice to interested parties in pending
recognition cases.
In June, 2002, the BIA issued a Final Determination recognizing a
single Eastern Pequot tribe in Connecticut comprised of the Eastern
Pequot and the Paucatuck Eastern Pequot groups, despite the fact that
these groups had filed separate conflicting petitions for recognition.
The two petitions were pending for years and contradicted each other. ,
In fact, in one of their last submissions, the Paucatuck Eastems argued
vigorously that the Eastern Pequots did not submit adequate proof that
they were an Indian Tribe. The Final Determination reflected
substantial gaps in evidence in both tribal petitions, but the BIA
distorted the relationship between the State of Connecticut and the
Eastern Pequot group to bridge these gaps, contrary to the BIA's own
regulations.
To make matters worse, shortly after the recognition decision was
released and before the appeal could even be filed, top BIA officials
held a private (ex parte) meeting with representatives of the Paucatuck
Eastern and Eastern Pequot groups a secret session that seems improper
under the rules. At the very least, the private meeting reinforces
public perception that the recognition process is unfair and biased
toward petitioning groups.
In theory, present legal rules require any tribal group seeking
federal recognition to meet seven distinct criteria aimed at proving
the petitioning tribe's continuous existence as a distinct community,
ruled by a formal government, and descent from a historical tribe,
among others. In practice, as the OFA briefing paper clearly
demonstrates, the BIA's political leaders have routinely distorted and
disregarded these standards, misapplied evidence, and denied state and
local governments a fair opportunity to be heard.
Connecticut's experience is not unique. In 2002, the GAO issued a
report documenting significant flaws in the present system, including
uncertainty and inconsistency in recent BIA recognition decisions and
lack of adherence to the seven mandatory criteria. The GAO report also
cited lengthy delays in the recognition process including inexcusable
delays by the BIA in providing critical petition documents to
interested parties like the states and surrounding towns.
The United States Department of the Interior's Office of the
Inspector General also found numerous irregularities with the way in
which the Bureau of Indian Affairs handled federal recognition
decisions involving six petitioners. The report documents that the
Assistant Secretary and Deputy Assistant Secretary either rewrote civil
servant research staff reports or ordered the rewrite by the research
staff so that petitioners that were recommended to be denied would be
approved. The former Assistant Secretary himself admitted that
``acknowledgment decisions are political'' and later expressed concern
that the huge amount of gaming money that is financially backing some
petitions would lead to petitions being approved that should not be
approved. Interestingly, he also advocated for reform of the current
system.
To date, the BIA has done nothing to cure these dramatic defects in
the recognition process..
The impacts of federal recognition of an Indian tribe cannot be
understated underscoring the urgent need for reform. A decision to
acknowledge an Indian tribe has profound and irreversible effects on
tribes, states, local communities and the public and in Connecticut's
experience greatly affects the quality of life in those communities
living in close proximity to Indian reservations. Federal recognition
creates a government-to-government relationship between the tribe and
the federal government and makes the tribe a quasi-sovereign nation. A
federally recognized tribe is entitled to certain privileges and
immunities under federal law. They are exempt from most state and local
laws and land use and environmental regulations. They enjoy immunity
from suit. They may seek to expand their land base by pursuing land
claims against private landowners, or seeking to place land into trust
under the Indian Reorganization Act. They are insulated from many
worker protection statutes relating, for example, to the minimum wage
or collective bargaining protections as well as health and safety
codes.
Since the enactment of the Indian Gaming Regulatory Act (IGRA) more
than a decade ago, federally recognized tribes may operate commercial
gaming operations. This law has vastly increased the financial stakes
involved in federal recognition. Several of the petitioning groups in
Connecticut are reported to have been funded by gaming interests such
as Lakes Gaming of Minnesota and some of the wealthiest businessmen in
America.
Connecticut has been particularly impacted by the federal
recognition process. Although geographically one of the smallest
states, Connecticut is home to two of the world's largest and most
profitable casinos within 15 miles of each other. We also have 12 other
groups seeking recognition as federally recognized Indian tribes, most
of whom have already indicated their intention to own and operate
commercial gaming establishments.
The enormity of the interests at stake make public confidence in
the integrity and efficacy of recognition decisions all the more
essential. Unfortunately, public respect and trust in the current
process have completely evaporated.
In addition, the BIA is admittedly overworked and understaffed,
leading inevitably to lengthy delays in processing petitions and in
providing essential documents to interested parties. Connecticut was
forced to sue the BIA to obtain critical information necessary to
respond to petitions--information, including petition documents the
state was clearly entitled to under the FOIA. In some cases, the
documents have not been provided until after the BIA has issued
proposed findings in favor of recognition.
Congress must act swiftly and strongly to reform the system and
restore its credibility and public confidence.
I wish to thank the committee for allowing me this opportunity to
address this important issue and urge the committee's further
consideration of these proposals.
______
[A letter submitted for the record by Benjamin Charley,
Tribal Chairman, Dunlap Band of Mono Indians, follows:]
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[A letter submitted for the record by Laura Jones, Ph.D.,
Campus Archaeologist, Stanford University, Senior Scholar, The
Carnegie Foundation, follows:]
Representative Richard Pombo, Chair
U.S. House of Representatives
Committee on Resources
Washington, DC 20515
March 30, 2004
Dear Sir,
It has been my privilege to work with California Indian Tribes over
the past twenty years in my career as a professional anthropologist. I
support the equitable application of rigorous criteria for recognition
and acknowledgment. I also believe in the rule of reason - when tribes
invest years of effort producing substantial documentation they deserve
a timely decision based on the facts of the case. What I have observed
in my many years supporting the petition of the Muwekma Ohlone Tribe
cannot be characterized as equitable, reasonable or timely review.
As a scientist specializing in this area I can assure you that
there is no doubt of the authenticity of this California Indian
community, indeed they have received confirmation from the Bureau that
they have demonstrated that they are a previously recognized tribe (the
Verona Band). Stanford University has enjoyed a relationship with this
community since our founding in 1891, and I know that many San
Francisco Bay Area schools and colleges have benefited from the support
of this community in our educational, research and cultural programs.
It saddens me to witness the poor treatment of this California Indian
Tribe by the acknowledgment process. The Muwekma Ohlone Tribe deserve
federal acknowledgment without further bureaucratic delay.
The Bureau of Indian Affairs has failed to act responsibly on this
matter. While I congratulate on your efforts to reform the
administrative process, justice requires a more speedy solution. I urge
you to support the California Indian Bill as proposed by the Advisory
Council on California Indian Policy. It is time to end the 100 year
legacy of discrimination against California Indians by the Bureau of
Indian Affairs.
Sincerely,
Laura Jones, Ph.D.
Campus Archaeologist, Stanford University
Senior Scholar, The Carnegie Foundation
______
[A statement submitted for the record by Nicholas H.
Mullane, First Selectman, Town of North Stonington,
Connecticut, follows:]
Statement submitted for the record by Nicholas H. Mullane, II,
First Selectman, Town of North Stonington, Connecticut
Introduction
Mr. Chairman and Members of the Committee, I am pleased to submit
this testimony for your hearing today on the tribal acknowledgment
process. I am Nicholas Mullane, First Selectman of North Stonington,
Connecticut. I testify today also on behalf of Susan Mendenhall, Mayor
of Ledyard, and Robert Congdon, First Selectman of Preston.
As the First Selectman of North Stonington, a small town in
Connecticut with a population of less than 5,000, I have experienced
first-hand the problems presented by Federal Indian policy for local
governments and communities. Although these problems arise under
various issues, including trust land acquisition and Indian gaming,
this testimony addresses only the tribal acknowledgment process.
Reform of the federal acknowledgment process must occur if valid
decisions are to be made. Acknowledgment decisions that are not the
result of an objective and respected process will not have the
credibility required for tribal and community interests to interact
without conflict. In this regard, I want to commend Senators Dodd and
Lieberman and Representatives Simmons, Shays, and Congresswoman
Johnson, and our Attorney General, Richard Blumenthal, for their
diligent efforts to achieve the necessary reforms. As the bipartisan
nature of this political response demonstrates, the problems inherent
in tribal acknowledgment and Indian gaming are serious and transcend
political interests. Problems of this magnitude need to be addressed by
Congress, and I ask for your Committee to support the efforts of our
elected leaders to bring fairness, objectivity, and balance to the
acknowledgment process.
Acknowledgment and Indian Gaming
Federal tribal acknowledgment, in too many cases, has become merely
a front for wealthy financial backers motivated by the desire to build
massive casino resorts or undertake other development in a way that
would not be possible under State and local law. The New York Times
featured this problem in a front-page article published just two days
ago. Our Town is dealing with precisely this problem. Both of the
petitioning groups in North Stonington--the Eastern Pequots and the
Paucatuck Eastern Pequots--have backers who are interested in resort
gaming. One of the backers is Donald Trump. These financiers have
invested millions, actually tens of millions, of dollars in the effort
to get these groups acknowledged so casinos can be opened, and they
will stop at nothing to succeed. In fact, they have even resorted to
suing each other out of the desire to control the profits that would
result from a new Indian casino.
The State of Connecticut has become fair game for Indian casinos,
and the acknowledgment process has become the vehicle to advance this
goal. For example, three other tribal groups (Golden Hill Paugussett,
Nipmuc, Schaghticoke) with big financial backers have their eyes on
Connecticut. Their petitions are under active acknowledgment review and
the Schaghticoke have joined the two Pequot groups (now merged into one
by BIA) in achieving a favorable decision from BIA. As many as ten
other groups are in line. While it is unfortunate that the
acknowledgment process and the understandable desire of these groups to
achieve acknowledgment for personal and cultural reasons has been
distorted by the pursuit of gaming wealth by non-Indian financiers, the
reality remains that tribal recognition now, in many cases, equates
with casino development. This development, in turn, has devastating
impacts on states and local communities. Thus, the stakes are raised
for every one.
North Stonington has first-hand experience with the problems that
result. In 1983, the Mashantucket Pequot Tribe achieved recognition
through an Act of Congress. This law, combined with the 1988 Indian
Gaming Regulatory Act, ultimately produced the largest casino in the
world. That casino has, in turn, caused serious negative impacts on our
Towns, and the Tribe has not come forward to cooperate with us to
address those problems. Having experienced the many adverse casino
impacts, and understanding the debate over the legitimacy of the
Mashantucket Pequot Tribe under the acknowledgment criteria, our Town
wanted to assure ourselves that the recognition requests on behalf of
the Eastern Pequot and Paucatuck Eastern Pequot groups were legitimate.
As a result, we decided to conduct our own independent review of the
petitions and participate in the acknowledgment process. It is worth
noting that at no time has either petitioner come forward to present to
Town leaders any constructive proposal on how they will deal with our
concerns if acknowledgment is conferred. Thus, the concerns that
motivated our participation have been validated.
The Eastern Pequot Acknowledgment Process
The Towns of North Stonington, Ledyard, and Preston obtained
interested party status in the BIA acknowledgment process. We
participated in good faith to ensure that the Federal requirements are
adhered to. Our involvement provides lessons that should inform federal
reform initiatives.
The issue of cost for local governments needs to be addressed. Our
role cost our small rural towns over $600,000 in total over a seven-
year period. This is a small fraction of the tens of millions of
dollars invested by the backers of these groups, but a large sum for
small local governments. The amount would have been much higher if Town
citizens, and our consultants and attorneys had not generously donated
much of their time. It has been said that the Eastern Pequot group
alone has spent millions on their recognition, and that they spent
$500,000 on one lobbyist for one year to provide them knowledge on
``how Washington, D.C. operates.'' This disparity in resources between
interested parties and petitioners with gaming backers skews the
process and must be addressed.
The fairness of the process is another problem. We discovered that
achieving interested party status was only the tip of the iceberg. One
of our biggest problems in participating was simply getting the
documents. Our Freedom of Information Act requests to BIA for the
information necessary to comment on the petitions were not answered for
2 1/2 years. Only through the filing of a successful federal lawsuit
were we able to obtain the basic information from BIA when they agreed
to release the information and provide adequate time for us to respond.
The other claims in that lawsuit remain pending. Thus, it was necessary
for us to spend even more money just to get the Federal government to
meet its clear duties. I trust you will agree with me that taxpayers
should not have to pay money and go to court simply to participate in a
federal process.
We experienced many other problems. A pervasive problem has been
the failure of the process to ensure adequate public review of the
evidence and BIA's findings.
During the review of the Pequot petitions, the BIA experts
initially recommended negative proposed findings on both groups. One of
the reasons for the negative finding was that no determination could be
made regarding the groups' existence as tribes for the critical period
of 1973 through the present. Under past BIA decisions, this deficiency
alone should have resulted in negative findings. Despite this lack of
evidence, the negative findings were simply overruled by the then BIA
Assistant Secretary, Kevin Gover. Because BIA did not rule on the post-
1973 period, interested parties never had an opportunity to comment.
This was part of a pattern under the last Administration of reversing
BIA staff to approve tribal acknowledgment petitions and shortchanging
the public and interested parties. Moreover, with no notice to us, or
opportunity to respond, BIA arbitrarily set a cut-off date for evidence
that excluded 60% of the documents we submitted from ever being
considered for the critical proposed finding. BIA never even told us
about this deadline, although they did inform the petitioner groups.
This problem occurred again with the final determination. In the
final ruling, BIA concluded, in effect, that neither petitioner
qualified under all of the seven criteria. Our independent analysis
confirmed this conclusion.
Nevertheless, after combining the two petitioners (over the
petitioners' own objections), considering new information submitted by
the Eastern Pequot petitioning group, and improperly using State
recognition to fill the gaps in the petitioners' political and social
continuity, BIA decided to acknowledge a single ``Historical Pequot
Tribe.'' The Towns had no opportunity to comment on this ``combined
petitioner;'' we had no opportunity to comment on the additional
information provided by the Eastern Pequot petitioners; and we had no
opportunity to comment on the critical post-1973 period. Thus, the key
assumptions and findings that were the linchpin of the BIA finding
never received critical review or comment. These types of calculated
actions have left it virtually impossible for the Towns to be
constructively involved in these petitions, and they have caused great
concern and distrust over the fairness and objectivity of the process.
Another problem is bias and political interference. Throughout the
acknowledgment review, we have continually found that politically-
motivated judgment was being injected into fact-based decisions, past
precedents were being disregarded, and rules were being instituted and
retroactively applied, all without the Towns and State being properly
notified and without proper opportunity for comment. A perfect example
is the so-called ``directive'' issued by Mr. Gover on February 11,
2000, that fundamentally changed the rules of the acknowledgment
process, including the rights of interested parties. BIA never even
solicited public input on this important rule; it simply issued it as
an edict. This action is the subject of a lawsuit that will be argued
by Attorney General Blumenthal in the near future. Yet another example
is Mr. Gover's overruling of BIA staff to issue positive proposed
findings. The massive political interference in the acknowledgment
process is discussed in the recent Department of the Interior Inspector
General's report, which I submit for the record.
With the recent actions of the BIA, it is questionable that this
agency can be an advocate for Native Americans and also an impartial
judge for recognition petitions. An example is the action by Secretary
McCaleb in his recent ``private meeting'' with representatives of the
Eastern Pequot and Paucatuck Eastern Pequot petitioners to discuss the
tribal merger BIA forced upon them. This ex parte meeting with the
petitioners is highly inappropriate at a time when the 90-day
regulatory period to file a request for reconsideration was still in
effect. How can BIA be expected to rule objectively on an appeal that
contests the existence of a single tribe when the decisionmaker is
actively promoting that very result?
Still another problem is the manner in which BIA addresses evidence
and comment from interested parties. Simply put, BIA pays little
attention to submissions from third parties. The Eastern Pequot
findings are evidence of this. Rather than responding to comments from
the State and the Towns, BIA just ruled that it disagrees, without
explanation.
Another example is the BIA cut-off date for evidence. BIA set this
date for the proposed finding arbitrarily and told the petitioners. It
never informed the Towns or the State. As a result, we continued to
submit evidence and analyses, only to have it ignored because of this
unannounced deadline. BIA said it would consider all of this evidence,
but it did not. The final determination makes clear that important
evidence submitted by the Towns never got considered for this reason.
Thus, rather than our Town's involvement being embraced by the
federal government, we were rebuffed. The very fact of our involvement
in the process, we feel, may have even prejudiced the final decision
against us. The petitioning groups attacked us and sought to intimidate
our researchers. The petitioning groups called us anti-Indian, racists,
and accused us of committing genocide. The petitioners publicly accused
me of ``Nazism'' just because our Town was playing its legally defined
role as an interested party. At various times throughout the process,
the tribal groups withheld documents from us or encouraged BIA to do
so. Obviously, part of this strategy was that the petitioners just
wanted to make it more expensive to participate, to intimidate us, and
to drive the Towns out of the process. They took this approach, even
though our only purpose for being involved was to ensure a fair and
objective review, and to understand how a final decision was to be
made.
Finally, I would like to address the substance of the BIA finding
on the Eastern Pequot petitions. Based upon an incorrect understanding
of Connecticut history, BIA allowed the petitioners to fill huge gaps
in evidence of tribal community and political authority, prerequisites
for acknowledgment, by relying on the fact that Connecticut had set
aside land for the Pequots and provided welfare services. These acts by
the State of Connecticut, according to BIA, were sufficient to
compensate for the major lack of evidence on community and political
authority. By this artifice, along with the forced combination of two
petitioners, BIA transformed negative findings into positive ones, with
no basis in fact or law.
Clearly, the past actions by Connecticut toward the later residents
of the Pequot reservation did nothing to prove the existence of
internal tribal community or political authority. These actions simply
demonstrated actions by the State in the form of a welfare function. If
BIA does not reject this principle now, it will give an unfair
advantage not only to the Pequot petitioners but possibly to other
Connecticut petitioning groups as well.
BIA's seriously flawed decision on the two Pequot petitions is now
on appeal. Hopefully, the Interior Board of Indian Appeals will lend
some semblance of objectivity and credibility to BIA's acknowledgment
process. Along with the State, we have provided compelling grounds to
reverse the BIA final determination.
Even under the appeal, the petitioners continue to try and bend the
rules. They recently wrote to the IBIA asking for expedited treatment
of these appeals. They made the astonishing claim that its members were
being subjected to human misery, poor education, and inadequate housing
while waiting for a decision. In the height of hypocrisy, they made no
mention of one of the true motivations behind the push for tribal
acknowledgment: the desire to promptly open another massive casino and
generate huge sums of money for the financial backers. I can tell you
that members of these groups attend the same schools as other children
in our town, that some members are paid salaries by financial backers,
and that the standard of living the experience, by and large, is
comparable to that of many other residents of our small town.
The Schaghticoke Decision
Recently, BIA issued a positive final determination for the
Schaghticoke petitioner. This decision is another example of how biased
and unfair the BIA acknowledgment process is. In this case, BIA even
determined that the petitioner failed to meet the criteria. It issued
an internal memorandum admitting this fact, which I attach to my
testimony. Despite this obvious failure, BIA still issued a favorable
result. To do so, it again invoked the same state reservation principle
it used to push the two Pequot groups over the acknowledgment finish
line. BIA made another flawed finding and assumption to further support
the positive finding. It also misrepresented facts to interested
parties and even went so far as to suggest that it could change the
appeal rights of interested parties established by rule and against
their wishes if a different process had been agreed to in negotiation
in a Schaghticoke land claim lawsuit.
While BIA was not successful in this effort, its track record of
being prepared to violate its own regulations just to achieve results
favorable to its own goals is now clear. Simply put, the acknowledgment
process is in need of more than reform. It is time to start all over
again, and to put all tribal acknowledgment requests on hold in the
interim.
Principles for Reform
Based upon years of experience with the acknowledgment process, our
Towns now have recommendations to make to Congress.
As an initial matter, it is clear that Congress needs to define
BIA's role. Congress has plenary power over Indian affairs. Congress
alone has the power to acknowledge tribes. That power has never been
granted to BIA. The general authority BIA relies upon for this purpose
is insufficient under our constitutional system. In addition, Congress
has never articulated standards under which BIA can exercise
acknowledgment power. Thus, BIA lacks the power to acknowledge tribes
until Congress acts to delegate such authority properly and fully. Up
until now, no party has had the need to challenge the constitutional
underpinnings of BIA's acknowledgment process, but we may be forced to
do so because of the Eastern Pequot decisions.
Second, the acknowledgment procedures are defective. They do not
allow for an adequate role for interested parties, nor do they do
ensure objective results. The process is inherently biased in favor of
petitioners, especially those with financial backers.
Third, the acknowledgment criteria are not rigorous enough. If the
Eastern Pequot, Paucatuck Eastern Pequot, and Schaghticoke petitioner
groups qualify for acknowledgment, then the criteria need to be
strengthened. The bar has been set too low.
Fourth, acknowledgment decisions cannot be entrusted to BIA. The
agency's actions are subject to political manipulation, as demonstrated
by the report of the Department's Inspector General detailing the
abuses of the last Administration. Also, BAR itself will, in close
cases, lean to favor the petitioner. The result-oriented Pequot and
Schaghticoke final determinations are proof of this fact. For years we
supported BAR and had faith in its integrity. Now that we have studied
the Pequot and Schaghticoke decisions, we have come to see the bias
inherent in having an agency charged with advancing the interests of
Indian tribes make acknowledgment decisions. The Office of Federal
Acknowledgment no longer has any credibility. Similar problems are
likely to arise under an independent commission created for this
purpose, unless checks and balances are imposed that ensure
objectivity, fairness, full participation by interested parties, and
the absence of political manipulation.
Finally, because of all of these problems, it is clear that a
moratorium on the review of acknowledgment petitions is needed. It
makes no sense to allow such a defective procedure to continue to
operate while major reform is underway.
Conclusion
Our Towns respectfully request that this Committee make solving the
problems with the acknowledgment process one of its top priorities. A
moratorium on processing petitions should be imposed while you do so.
In taking this action, we urge you to solicit the views of interested
parties, such as our Towns and State, and to incorporate our concerns
into your reform efforts. Tribal acknowledgment affects all citizens of
this country; it is not just an issue for Indian interests.
We are confident that such a dialogue ultimately will result in a
constitutionally valid, procedurally fair, objective, and substantively
sound system for acknowledging the existence of legitimate Indian
tribes under federal law. With the stakes so high for petitioners,
existing tribes, state and local governments, and non-Indian residents
of surrounding communities, it is necessary for all parties with an
interest in Indian policy to pursue this end result constructively.
Ledyard, North Stonington, and Preston look forward to the opportunity
to participate in such a process.
Thank you for considering this testimony.
[NOTE: Attachments to Mr. Mullane's statement have been retained in
the Committee's official files.]
______
[A letter submitted for the record by the Towns of Ledyard,
North Stonington, and Preston, Connecticut, follows:
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