[House Hearing, 108 Congress]
[From the U.S. Government Printing Office]




                               before the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION


                              MAY 5, 2004


                           Serial No. 108-198


       Printed for the use of the Committee on Government Reform

  Available via the World Wide Web: http://www.gpo.gov/congress/house


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                     TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana                  HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut       TOM LANTOS, California
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana              CAROLYN B. MALONEY, New York
DOUG OSE, California                 DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky                  DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia               JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania    WM. LACY CLAY, Missouri
CHRIS CANNON, Utah                   DIANE E. WATSON, California
ADAM H. PUTNAM, Florida              STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia          CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee       LINDA T. SANCHEZ, California
NATHAN DEAL, Georgia                 C.A. ``DUTCH'' RUPPERSBERGER, 
CANDICE S. MILLER, Michigan              Maryland
TIM MURPHY, Pennsylvania             ELEANOR HOLMES NORTON, District of 
MICHAEL R. TURNER, Ohio                  Columbia
JOHN R. CARTER, Texas                JIM COOPER, Tennessee
MARSHA BLACKBURN, Tennessee          ------ ------
PATRICK J. TIBERI, Ohio                          ------
KATHERINE HARRIS, Florida            BERNARD SANDERS, Vermont 

                    Melissa Wojciak, Staff Director
       David Marin, Deputy Staff Director/Communications Director
                      Rob Borden, Parliamentarian
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel

                            C O N T E N T S

Hearing held on May 5, 2004......................................     1
Statement of:
    Blumenthal, Richard, attorney general, State of Connecticut; 
      Theresa Rosier, counselor to the Assistant Secretary for 
      Indian Affairs, Department of the Interior, accompanied by 
      Lee Fleming, Director, Office of Federal Acknowledgment, 
      Bureau of Indian Affairs; and Earl E. Devaney, inspector 
      general, Department of the Interior........................    27
    Boughton, Mark D., mayor, city of Danbury, CT; Rudy Marconi, 
      first selectman, town of Ridgefield, CT; Nicholas H. 
      Mullane II, first selectman, town of North Stonington, CT; 
      and Jeffrey R. Benedict, Connecticut Alliance Against 
      Casino Expansion...........................................    94
    Flowers, Marcia, chairwoman, Tribal Council, Historical 
      Eastern Pequot Tribal Nation, accompanied by Mark 
      Sebastian, former chairman.................................    72
Letters, statements, etc., submitted for the record by:
    Benedict, Jeffrey R., Connecticut Alliance Against Casino 
      Expansion, prepared statement of...........................   137
    Blumenthal, Richard, attorney general, State of Connecticut, 
      prepared statement of......................................    30
    Boughton, Mark D., mayor, city of Danbury, CT, prepared 
      statement of...............................................    97
    Davis, Chairman Tom, a Representative in Congress from the 
      State of Virginia, prepared statement of...................     4
    Devaney, Earl E., inspector general, Department of the 
      Interior, prepared statement of............................    45
    Flowers, Marcia, chairwoman, Tribal Council, Historical 
      Eastern Pequot Tribal Nation, prepared statement of........    78
    Marconi, Rudy, first selectman, town of Ridgefield, CT, 
      prepared statement of......................................   103
    Mullane, Nicholas H., II, first selectman, town of North 
      Stonington, CT, prepared statement of......................   125
    Ose, Hon. Doug, a Representative in Congress from the State 
      of California, prepared statement of.......................    23
    Rosier, Theresa, counselor to the Assistant Secretary for 
      Indian Affairs, Department of the Interior, prepared 
      statement of...............................................    39
    Sebastian, Mark, former chairman, information concerning a 
      resolution.................................................    83
    Shays, Hon. Christopher, a Representative in Congress from 
      the State of Connecticut, prepared statement of............     9
    Simmons, Hon. Rob, a Representative in Congress from the 
      State of Connecticut, prepared statement of................    18



                         WEDNESDAY, MAY 5, 2004

                          House of Representatives,
                            Committee on Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:04 a.m., in 
room 2154, Rayburn House Office Building, Hon. Tom Davis of 
Virginia (chairman of the committee) presiding.
    Present: Representatives Tom Davis of Virginia, Shays, Ose, 
Duncan, Maloney, Cummings, Kucinich, Watson, and Norton.
    Also present: Representatives Johnson of Connecticut, 
Simmons, and Wolf.
    Staff present: David Marin, deputy staff director/director 
of communications; Keith Ausbrook, chief counsel; John Hunter, 
counsel; Robert Borden, counsel/parliamentarian; Drew Crockett, 
deputy director of communications; Teresa Austin, chief clerk; 
Brien Beattie, deputy clerk; Shalley Kim, professional staff 
member; Robert White, press secretary; Michael Yeager, minority 
deputy chief counsel; Earley Green, minority chief clerk; and 
Jean Gosa, minority assistant clerk.
    Chairman Tom Davis. Good morning. The quorum will come to 
order, and I want to welcome everybody to today's hearing on 
the process for recognition by the Federal Government of 
American Indian tribes as sovereign Indian nations. The 
committee will focus on the integrity, transparency, and 
accountability of tribal recognition decisions made by the 
Interior Department's Bureau of Indian Affairs.
    Federal recognition of a particular Indian tribe can have a 
profound effect on the tribe, the surrounding communities, the 
State, and the Federal Government. For example, recognition is 
a prerequisite for a tribe to receive Federal assistance and 
obtain other rights. Recognized tribes receive exclusive 
Federal funding for health, education, and other social 
programs. Also, tribal lands are eligible to be taken into 
trust for a tribe or its members by the Federal Government. 
Today, over 45 million acres nationwide are held in trust, 
basically creating a nation within a nation.
    This is particularly critical because tribal lands held in 
trust are exempt from most State and local laws, such as sales 
tax and gambling regulations. A tribe must meet additional 
requirements before it can exercise other rights. For instance, 
before a recognized tribe can operate a casino on tribal land 
held in trust, the tribe must comply with the requirements set 
forth in the Indian Gaming Regulatory Act of 1988.
    Today, the Secretary of the Interior has authority to 
recognize American Indian tribes under regulations administered 
by the BIA. Congress may also recognize a tribe through 
legislation. Congress terminated recognition by treaty in 1871.
    Until 1978, the Interior Department made tribal recognition 
decisions on a case-by-case basis. Then, Interior established a 
formal regulatory process for recognizing tribes and adopted 
seven criteria that a petitioning tribe must meet to receive 
Federal recognition. Before Interior implemented the current 
recognition regulations in 1978, BIA received 40 petitions from 
groups seeking formal tribal recognition. Since 1978, BIA has 
received an additional 254 petitions. As of February 2004, a 
total of 57 petitions have been resolved, 13 petitions are 
ready for dispensation, 9 petitions are in active status, 2 are 
in post-final decision appeals, 1 is in litigation, and 213 are 
not ready yet for evaluation.
    The Connecticut congressional delegation recently brought 
to my attention two BIA recognition petitions filed by 
Connecticut tribes and asked the committee to hold a hearing to 
explore questions about the objectivity and transparency of the 
BIA recognition process in connection with the decisions to 
recognize the Historical Eastern Pequot and the Schaghticoke 
    I readily agreed to hold this hearing because I think it is 
imperative that the integrity of the BIA process be preserved. 
Interested parties and the public have a right to be assured 
that a critical procedure such as this one administered by an 
agency of the Federal Government is completely fair, unbiased, 
transparent and in accordance with the law. That mission fits 
squarely within the jurisdiction of this committee.
    Both the Schaghticoke and the Historical Eastern Pequot 
decisions are being challenged on various grounds by the 
Connecticut attorney general, municipalities subject to Indian 
land claims, and other interested parties. In both cases, final 
recognition was granted by the Assistant Secretary for Indian 
Affairs despite proposed findings by BIA that the tribes did 
not meet one or more of the seven mandatory criteria for status 
as a sovereign Indian nation.
    Our goal today is to look at these decisions as a case 
study of the overall recognition process. Are these cases 
unique, or are they symptomatic of a larger problem that calls 
into question the integrity and fairness of the process? Do 
these cases demonstrate that the ground rules underlying the 
process are ever changing?
    The committee will hear from witnesses who can help us 
evaluate the fairness and efficiency of the BIA recognition 
process, both generally and in the context of the two 
Connecticut tribal recognition decisions. We will hear from the 
Office of the Assistant Secretary for Indian Affairs of the 
Department of the Interior about the recognition process, as 
well as from the Interior inspector general. The committee will 
also hear from the Connecticut attorney general, several 
Connecticut municipalities affected by the decisions, and the 
Historic Eastern Pequot Tribal Nation. We invited the 
Schaghticoke Tribal Nation to testify, but they declined the 
committee's invitation. Other witnesses will discuss their 
assessment of and recommendations to improve the BIA 
recognition process.
    I want to thank all of our witnesses for appearing before 
the committee, and I look forward to your testimony.
    I also would ask unanimous consent that Nancy Johnson and 
Rob Simmons from Connecticut, and Frank Wolf from Virginia be 
allowed to join today's hearing. Without objection, so ordered. 
And I welcome them to the committee this morning and invite 
them to participate in today's hearing.
    I now yield to the vice chairman of the committee, Mr. 
Shays, for an opening statement.
    [The prepared statement of Chairman Tom Davis follows:]

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    Mr. Shays. Thank you. And thank you, Chairman Davis, on 
behalf of the Connecticut delegation, for agreeing to hold this 
    While the need to reform American Indian tribal recognition 
procedures at the Department of the Interior is acutely felt in 
our State today, the flawed system has a truly national impact, 
affecting the sovereignty, social policy, and fiscal health of 
every State.
    What was once a purely historical, anthropological, and 
genealogical inquiry has been transformed by the lure of casino 
revenues into a high-stakes, winner-take-all political campaign 
to possess a Federal gaming franchise. An academic 
investigation designed to acknowledge cultural continuity and 
restore political sovereignty is being overwhelmed and too 
often overturned by the intense pressures and voluminous 
submissions of tribal petitioners and their wealthy backers.
    Two years ago, this committee's Regulatory Affairs 
Subcommittee examined tribal recognition standards and 
procedures. At that time, the General Accounting Office [GAO] 
found serious weaknesses in the process, including a lack of 
clear guidance on critical aspects of the mandatory recognition 
criteria. Even on the quality and quantity of evidence needed 
to demonstrate continuous existence, the criteria at the heart 
of tribal sovereignty, GAO found a lack of consistency and 
    About the same time, the Interior Department inspector 
general discovered inconsistencies and a determination by 
decisionmakers to recognize certain petitioners despite expert 
conclusions they did not meet mandatory criteria.
    Today we know the procedural irregularities and murky 
standards that the Bureau of Indian Affairs [BIA] survive from 
administration to administration, Republican and Democrat, as 
the potent power of undisclosed gaming investors drives the 
process to a predetermined outcome.
    Just how far the BIA had strayed from legal and factual 
reality was made starkly obvious last January. In an internal 
briefing on recognition of the Schaghticoke Tribal Nation of 
Connecticut, the staff offered guidance on how to recognize the 
tribe ``even though evidence of political influence and 
authority is absent or insufficient for two substantial 
historical periods of time.'' The options presented: recognize 
the tribe anyway by using State law recognition as an 
unprecedented surrogate for required evidence, or decline to 
recognize based on the regulations and BIA precedent, or 
acknowledge the Schaghticokes outside of the regulations.
    That the BIA even considered the first or third option is a 
scandal. That they chose the first proves the process is 
irreparably skewed, adrift in a sea of guilt, paternalism, and 
greed. Substituting indirect evidence, such as State 
recognition, for one or more of the mandatory criteria means 
the process is utterly without objective standards. Arbitrary, 
outcome-driven sophistry injected into final decisions puts BIA 
procedures beyond the view of interested parties and 
communities whose rights hinge on the opportunity to 
participate meaningfully in a transparent, fair process.
    Any lack of transparency denies the public the fundamental 
right to know with whom their government is really doing 
business. As we will hear in testimony today, casino backers 
have spent many millions of dollars on experts and lobbyists to 
gain Federal recognition and the substantial rights and 
privileges that come with it, but neither the BIA nor the 
Indian Gaming Regulatory Commission has any power to compel 
disclosure of the real parties at interest before them until it 
is too late to detect improper or corrupting influences.
    We look forward to our witnesses' recommendations on how to 
ensure the integrity, objectivity, transparency, and timeliness 
of the tribal recognition process. They are here today because 
they believe in the value of open discussion and honest dialog, 
and we appreciate their being here. For reasons of their own, 
some other invited witnesses declined our invitation to 
    I ask unanimous consent to insert into the record letters 
from Mr. Thomas C. Wilmot, Sr., who is reported to have spent 
$10 million supporting a tribal recognition application; 
Attorney Robert Reardon, Jr., representing Mr. Donald Trump in 
litigation to recover more than $9 million from a tribe and its 
new backers; and Chief Richard Velky of the Schaghticoke Tribal 
Nation, who initially agreed to attend but withdrew only late 
    If the committee concludes these individuals have 
information essential to oversight, I know they will be invited 
or, if necessary, compelled to provide that evidence in the 
    Thank you, Mr. Chairman. I appreciate this hearing.
    [The prepared statement of Hon. Christopher Shays follows:]

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    Chairman Tom Davis. Well, thank you very much. That is the 
correct statement, and I agree with it. Thank you very much, 
Mr. Shays.
    Ms. Watson, any opening statement?
    All right, Mr. Simmons.
    Mr. Simmons. Thank you, Mr. Chairman, and in particular for 
the courtesy of including me. And on the basis of that 
courtesy, I will ask that my full statement be entered into the 
record, and I will make a brief summary, if that is OK.
    First of all, I notice on the panel and in the audience 
friends and constituents from Connecticut, Attorney General 
Richard Blumenthal, who has been working these issues for many 
years. I first started working with Dick on these issues when I 
was a State representative, and it is good to see you here 
today. We look forward to your testimony.
    I also see Nick Mullane, first selectman from the town of 
North Stonington, who is my constituent as a State 
representative and as a Member of Congress, and as somebody who 
has been very involved in the impacts of Indian casinos on our 
small municipalities.
    Mark Boughton, who is the mayor of Danbury. We served 
together in the legislature. I see Marcia Flowers, who is a 
friend and a constituent, who will be part of, I think, the 
second or the third panel. And I also see Jeff Benedict, who is 
a constituent and a friend, and who wrote a book called 
``Without Reservation,'' which is a very complete summary of 
these issues.
    Among these friends and neighbors there will be 
disagreement, but I think we all agree that the issue is very 
significant and has great impact on the State of Connecticut. 
The advent of Indian casinos to Connecticut comes as a mixed 
blessing. We have two of the largest casinos in the world in my 
district. Two of the largest casinos in the world. And they 
bring revenue to the State, they provide jobs, especially at a 
time when defense contracting and other types of manufacturing 
are in decline. And members of tribes have been personally 
generous in the community and in the State, and we welcome 
    At the same time, there is considerable negative impact. 
Local municipalities have no taxing authority, they have no 
zoning authority. State and town roads which are used to 
provide transportation to these facilities are maintained at 
the cost of the local municipalities. Emergency services, in 
many cases provided by volunteers, are overwhelmed and in some 
cases have closed. So these are very real municipal impacts 
that we face.
    And the process itself, I believe, is corrupt and unfair: 
corrupt in the sense of broken; unfair in the sense that it 
does not deliver a fair product either to the petitioners or to 
those who have to deal with the impacts of the petitions. And I 
think probably the reason for that is because the promise of 
money that comes with a Federal recognition and a casino is 
what has distorted the process.
    As a member of the Connecticut delegation, I met recently 
with the Secretary of Interior and reiterated again to her my 
concern that the seven mandatory regulatory criteria for 
recognition be placed in statute, something that the delegation 
has been trying to do for several years. Her response to us at 
the time was ``she had no immediate objection to it.'' No 
immediate objection to it.
    I also expressed my concern about the revolving door, which 
means officials of the Bureau of Indian Affairs can make 
decisions that affect tribes, petitioning tribes, and then 
leave the Bureau of Indian Affairs and, with no cooling off 
period, go to work to represent or be employed by some of those 
very same people who are affected by those decisions.
    Both of those recommendations have been placed in a piece 
of legislation that I introduced with the full delegation a few 
weeks ago. We want more control over the process. We want more 
transparency in the process. And we want relief provided to our 
localities for what can be a very expensive battle on a very 
uneven playing field.
    And for those members who are not familiar with the 
political organization of Connecticut, we do not have county 
government in Connecticut. We have 169 small towns, and then we 
have the State, and those small towns are not equipped and are 
not resourced to deal with the lengthy legal battles that often 
occur when the petitioning groups have multimillionaires 
supporting them and the towns simply have the working citizens 
and a small tax base.
    It is time for Congress to step in and solve this problem 
by reforming the system by statute and closing the revolving 
    And with that, Mr. Chairman, I thank you again and look 
forward to hearing from the witnesses. I will conclude by 
saying that I do have a bill on the floor today, probably 
around 11, the Alternative Minimum Tax. So I apologize if I 
have to leave in the middle of the testimony.
    [The prepared statement of Hon. Rob Simmons follows:]

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    Chairman Tom Davis. It is an important bill, we understand, 
and thank you again for helping call this issue to the 
committee's attention.
    Any other members wish to make opening statements?
    Mr. Cummings. Just a very brief statement, Mr. Chairman.
    Chairman Tom Davis. Yes, Mr. Cummings.
    Mr. Cummings. Mr. Chairman, I want to also thank you for 
holding this hearing to assess the legal sufficiency and 
procedural fairness of the American Indian tribal recognition 
process administered by the Interior Department's Bureau of 
Indian Affairs. Recognized tribes receive exclusive Federal 
Government funding for health, education, and other social 
programs. As such, tribal lands are eligible to be taken into 
trust by the Federal Government. The integrity of the BIA 
process is very important.
    Recently, the Assistant Secretary for Indian Affairs acted 
on acknowledgment petitions filed by two Connecticut tribes, 
the Eastern Pequot and the Schaghticoke tribes. These actions 
raise questions about the tribal recognition process, since, 
under BIA findings, these tribes did not meet any of the 
mandatory criteria for status as a sovereign Indian nation. The 
Assistant Secretary of Indian Affairs granted final recognition 
to the tribes.
    Federal recognition of an Indian tribe acknowledges that 
the tribe is a sovereign entity which establishes a government-
to-government with the United States and makes the tribe 
eligible for Federal programs through the Interior Department's 
Bureau of Indian Affairs and the Indian Health Service. More 
importantly, it allows gaming on Indian lands under the Indian 
Gaming Regulatory Act.
    Mr. Speaker, the potential for profit through gaming is 
extremely high. In fact, Indian gaming is a $15 billion a year 
business, and, as such, many existing Indian tribes, as well as 
would-be tribes, are spending millions of dollars on political 
campaigns, lobbying, and State ballot initiatives to preserve 
the tax-free status of casinos, expand gaming operations, and 
protect their sovereign immunity. Two-thirds of the groups 
currently awaiting determinations on their applications are 
reportedly financed by outside casino investors.
    In order to maintain the accuracy and legitimacy of the 
tribal recognition process, there must be a clear basis for 
determining tribal status. The potential for exploitation of 
the BIA process or tribal communities that might be linked to 
the gaming industry must be avoided.
    And with that, Mr. Speaker, I look forward to hearing from 
all of our witnesses today, and, Mr. Chairman, I yield back.
    Chairman Tom Davis. Thank you very much.
    We have a distinguished panel today.
    Mr. Ose. Mr. Chairman?
    Chairman Tom Davis. Mr. Ose, you want to make a statement?
    Mr. Ose. Yes, please.
    Chairman Tom Davis. The gentleman is recognized.
    Mr. Ose. Thank you, Mr. Chairman. First of all, let me 
thank you for calling this hearing. We have been struggling 
with this issue of tribal recognition for many decades. It has 
been brought to my attention in previous Congresses by Mr. 
Shays. We had a number of hearings on that. We are faced with a 
diverse array of existing tribes numbering over 550, I believe, 
already federally recognized tribes, and the task of 
acknowledging a new group as a sovereign entity remains one of 
our most difficult and complicated tasks.
    As you heard from the other Members here, the recognition 
of a tribe has a significant effect not only the tribe, but on 
the surrounding communities. In my district, we have had some 
very successful recognitions in which the tribes have gone on 
to significant progress. We have also had some difficulty in 
terms of tribes or groups of folks who have filed for 
recognition who have been unsuccessful in getting that.
    We have a process in place that has seven tests for 
identifying groups who would otherwise quality as tribes. It is 
not an easy test or an easy series of tests to accomplish. I do 
think it is important that we review that periodically. I am 
hopeful that this hearing will eventually lead to that.
    In California, one of the overwhelming aspects that is on 
the table, so to speak, from tribal recognition is the issue of 
gaming and how many tribes wish to use that as the economic 
vehicle for progress. It has had remarkably positive effects 
for many tribes. There are many communities in which the tribes 
are located which might otherwise suggest that the ancillary 
impacts of that gaming have not been all that positive.
    In that context, Mr. Chairman, I am pleased that you called 
this hearing to examine this issue, and look forward to the 
testimony of the witnesses.
    [The prepared statement of Hon. Doug Ose follows:]

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    Chairman Tom Davis. Thank you very much.
    We are now ready for our first panel. We are very pleased 
to have a very distinguished panel. We start with the Honorable 
Richard Blumenthal, who is the attorney general of the State of 
Connecticut; the Honorable Theresa Rosier, who is the Counselor 
to the Assistant Secretary for Indian Affairs at the Department 
of the Interior. I understand you are accompanied by Lee 
Fleming, so we will swear Lee in, who is the Director of the 
Office of Federal Acknowledgment, Bureau of Indian Affairs; and 
the Honorable Earl E. Devaney, the inspector general for the 
Department of the Interior.
    Thank you all for being here. It is the policy of this 
committee that we swear all witnesses, so if you would rise 
with me and raise your right hands.
    [Witnesses sworn.]
    Chairman Tom Davis. Thank you very much.
    We have lights in front. Your total statements are in the 
record. After 4 minutes the light will turn from green to 
orange; in 5 minutes it will turn red. If you could try to move 
to summary as soon as it turns red, we can move ahead to 
    Before we start, Mr. Shays?
    Mr. Shays. Thank you, Mr. Chairman. I should have mentioned 
this in my opening statement, and I appreciate your indulgence. 
I just, first, wanted to welcome the attorney general. I served 
with him in the State House and while he was in the Senate, and 
he has truly been a leader in this effort and just has been 
both very strong, but very bipartisan and, frankly, nonpartisan 
on this issue. He has confronted the previous administration in 
a very real way, and so I just have immense respect for him. 
And I do want to thank the Department of the Interior and 
welcome our witness there and acknowledge, as well, the good 
work of the Inspector General's Office.
    I also want to say to our second panelists, that I have 
tremendous respect for Marcia Flowers, the chairwoman, and want 
her to know, as she hears these strong statements, that we 
understand your role and will be very respectful of that.
    And also Mark Sebastian, welcome. You have a wonderful 
reputation. You are both wonderful people, terrific people, and 
we thank you for coming to testify.
    And let me just conclude by saying that we will have three 
mayors, really, a mayor and two first selectmen. They are all 
distinguished leaders in their community, and particularly 
those nearest my community, Mr. Boughton, the mayor, as well as 
First Selectman Marconi. They have bipartisan support, 
overwhelming support in their communities because they have 
done wonderful jobs, and it is very important that they 
participate, and I thank them.
    And just end by saying that Jeffrey Benedict has been 
extraordinarily informed and has been leading this effort. We 
will learn a lot from him.
    So we have a wonderful three panels, and thank you for 
giving me the opportunity just to express my appreciation to 
all of them.
    Chairman Tom Davis. Thank you. And before I start, Mr. Wolf 
just came in. He has been a leader in terms of the gaming issue 
in the Congress. I just want to allow him to make a statement, 
and then, General Blumenthal, we will move to you.
    Mr. Wolf. Thank you, Chairman Davis. I spent some time last 
night putting this together, and I appreciate your giving me 
this opportunity. And I want to thank you and Mr. Shays for 
having this hearing. I feel very strongly about this, and I 
just want to get this on the record.
    As the author of the legislation which created the National 
Gambling Impact Study, I have long had serious concerns about 
the harmful effects of gambling on society and on Native 
American tribes. If you look at a snapshot of what is happening 
today, 80 percent of Native Americans live in poverty, poor 
schools, inadequate infrastructure, and abysmal health care, 
and the Congress and the administration can and should do more 
to help Native Americans.
    Consider the snapshot: a broken--it is so broken--broken 
tribal recognition process subject to severe abuses, wealthy 
investors and lobbyists, and this town is becoming full of 
lobbyists in a way that is fundamentally corrupt, and yet 
nobody seems to do anything about it; making money from 
exploiting Native Americans while trying to get them recognized 
and eventually engaged in gambling, and no one says anything 
about it. Have the standards changed in this town and in this 
Congress and in society? Money being made at the expense of 
Native American tribes while few Native Americans ever, ever 
see a dime from gambling and continue to suffer in poor 
    This is the state of tribal recognition and Native American 
gambling today. And I thank Mr. Davis for having this 
opportunity where people can say something. The tribal 
recognition process is broken. If this administration doesn't 
realize it, then there ought to be changes at Interior where 
they are willing to allow these things to exist. Congress and 
the administration should take steps in light of the mounting 
    When Time Magazine published a two-part cover story about 
the many problems, no action was taken. Two parts, feature, 
cover story, Time Magazine; Interior takes no action. Nothing 
was done. There are countless news reports. My goodness, just 
look at the news reports. Day after day of questions and 
unethical, immoral, and maybe fundamental illegal activity is 
taking place.
    With all the evidence there is about the problems with 
Native American gambling, Congress and the administration has 
to take some proper steps. This process is supposed to be 
marked by integrity--and I worked at Interior under Secretary 
Roger C.B. Morton for 5 years when there was integrity there. 
Now the Congress and the administration are not using the 
opportunity to institute the needed reforms.
    I have written the administration time after time after 
time, and you almost never get a response from the Department 
of the Interior. When there is a response it is not adequate. 
This is a bipartisan failure. Both the Clinton administration 
and the Bush administration and their respective Secretaries of 
the Interior, Bruce Babbitt and Gail Norton, have stood by and 
allowed Native Americans to continue to be exploited by 
gambling interests.
    Nearly 80 percent of Native Americans receive nothing from 
gambling. Most tribes remain mired in poverty. Just go onto the 
Indian reservations, and many are in areas whereby they cannot 
take advantage of gambling because people are not going to go 
to those areas to gamble, and tribes that are questionable are 
reaping all the benefits, and the Native American community in 
this country, 80 percent are living in abject poverty.
    Congress has to act to turn around the tribal recognition 
process. It is filled with abuses. They are stunning. In the 
last administration, the Clinton administration, two officials 
reversed the opinions of Interior Department staffers to 
recognize three groups as Indian tribes, allowing them to open 
casinos. The decision was made in the last days in office, 
against the recommendation of the professional staff. Then the 
two officials who decided to recognize the tribes took 
positions representing Indian tribes. Clearly the seven 
criteria that BIA applies to recognize tribes are being 
skirted, and those making the decisions impacting tribes can 
leave the Interior Department through a revolving door and then 
represent tribes in the private sector. And, frankly, some of 
these law firms that hire these people, these were law firms 
that were distinguished firms, and now to be involved in this 
type of activity is shocking.
    In March, a Connecticut newspaper reported that Bureau of 
Indian Affairs documents revealed that the BIA knew--knew--that 
the tribe didn't meet the BIA rules for recognition, but the 
staff in the BIA Office of Federal Acknowledgment wrote a memo 
to the agency's director showing how to recognize the tribe 
    Lobbyists and investors have exploited Native Americans in 
order to use them. Frankly, those who may be with those law 
firms, those of you who may have left the administration at 
different times, how can you live with yourselves knowing the 
exploitation that is taking place with regard to the poverty on 
the Indian reservations?
    The Government has walked away from its obligation to 
Native Americans and, instead, relied on gambling as the 
panacea for the problems. In fact, almost every administration 
in Congress has said, well, if there is a problem, let them 
have gambling. That is why you have seen the BIA budget has not 
been increased and the programs for Indians have not been 
increased. This approach has resulted in a Federal recognition 
process with standards that are unevenly and unpredictably 
applied, influenced by big money and harmful to the tribes and 
those petitioning for recognition.
    I am not going to get into the Connecticut situation, you 
have Connecticut Members, but imagine if you lived in a 
community in your State, in your region that was going through 
what some of these Connecticut towns are going through. To all 
of the big lobbyists out there, let us put a tribal operation 
where you live and see how you would respond if you saw the 
corruption and the abuse that was taking place.
    Today, Mr. Chairman, I think there ought to be a 
moratorium. The representatives of the Interior Department 
ought to announce today they are going to have a moratorium. 
The Bush administration ought to say we are going to have a 1-
year moratorium on the recognition process so there is time for 
the Congress--because now there is enough information--and the 
administration to review and fix the many problems. You have to 
get the money interests out of the picture, do what is right 
for the Native Americans, and really change, change this 
    I will end by just quoting a 2002 GAO report: ``Weakness in 
the process have created uncertainty about the basis for 
recognition decisions, calling into question the objectivity of 
the process.'' And for anyone who wonders about it, the 
National Indian Gaming Commission, where there are 330 Indian 
gambling tribes, reported at the end of fiscal year 2002 in 28 
States with revenue of $14.5 billion and 67 people at the 
National Indian Gaming Commission to carry out Federal 
oversight, 67 people; and that may have changed, maybe there is 
69, maybe there is 75. But in Atlantic City, for 12 casinos, 
they have over 700 with oversight.
    I have much more I would say. I will just submit the full 
statement for the record. I appreciate the chairman having this 
    I don't know who from the administration is there, but you 
all have to change this. If you don't change it, there will be 
major corruption scandals on this, and it will come back to 
wash up on the shores. I implore this administration. Frankly, 
the Clinton administration did nothing. They watched things go 
on that were horrible. I happen to be a Republican who supports 
this administration. I call on this administration. I call on 
Secretary Gail Norton to do the right thing. They should say 
how they feel if this were taking place in their own community.
    And, last, to the administration, you should be more 
aggressive in representing the interests of the Native 
Americans. You think you are helping the Native Americans by 
doing this. You are allowing them to be exploited by powerful 
money interests and lobbyists in this town, and, frankly, this 
administration is failing on that issue.
    With that, Mr. Chairman, I yield back the balance of my 
    Chairman Tom Davis. Thank you very much.
    Mr. Blumenthal, thank you very much for your statement and 
your continued interest in this. Your reputation precedes you. 
We are honored to have you here today. Thank you very much for 
being with us.


    Mr. Blumenthal. Thank you very much. Thank you, Mr. 
Chairman. I am honored to be back with you. Thank you for the 
invitation, and I want to thank you for your leadership, most 
especially Representative Shays for his continuing courage and 
conviction on this issue, and Representative Simmons, who has 
shown great determination and vision, as well as other members 
of the panel who will probably be joining us.
    And I want to join in thanking you for the Department of 
the Interior being here, most especially Inspector General 
Devaney, whose staff has recently visited Connecticut and is 
doing excellent work; and the local officials who are joining 
us today from Connecticut, as well as Chairman Flowers, because 
she has shown great determination to be here as well, and I 
thank her for her leadership.
    I am not going to give in depth or detail my testimony, I 
assume it will be in the record, but the comments--very 
eloquent and articulate comments--made so far lead me to say 
that we are at a historic turning point. I sense from the 
comments that have been made so far this morning that there is 
a clear recognition that reform is vital, that we have a unique 
and historic opportunity, and really a window of opportunity to 
make these changes before we do further damage to my State and 
to the Nation, and not just in specific decisions that may be 
incorrect or illegal, but further damage to the credibility and 
trust of the entire recognition process.
    Reform is no longer a luxury, it is a necessity, and Vice 
Chairman Shays used a word, scandal, to describe the present 
process. That is exactly the word that Senator Daniel Inouye 
used to describe this process. Senator Ben Nighthorse Campbell 
said that it is driven by money and politics. There is a 
bipartisan consensus now that we need fundamental, far-reaching 
    I have described this agency as being lawless. I did so 
most recently before the U.S. Court of Appeals for the Second 
Circuit when I argued last week. It is an agency that is 
lawless, out of control, arbitrary, capricious, and we need to 
impose standards that assure the rule of law. In the 
Schaghticoke decision, for example, my view is that the outcome 
is as unprincipled as it is unprecedented. Never before has the 
BIA recognized a tribe that is admitted by the agency itself to 
completely lack evidence on two key required standards over 
decades, seven decades for one of them. Never before has the 
BIA combined in this way two such hostile factions, neither 
accepting the other's legitimacy. And never before has the BIA 
so twisted and distorted State recognition to cover its 
deliberate disregard for absent evidence.
    I must say, Mr. Chairman, that I am also very, very deeply 
troubled by an order that was issued literally within the past 
few days by the Secretary of the Interior that completely 
delegates authority over all recognition and gaming decisions 
within the BIA to the principal deputy, delegates that 
decisionmaking power from the Assistant Secretary, who was 
confirmed by the U.S. Senate to fulfill these responsibilities, 
and who has recused himself, apparently, from all 
decisionmaking relating to recognition or gaming activities. In 
my view, that across-the-board general, complete delegation, 
not a specific recusal on a case-by-case basis where there may 
be a conflict of interest based on the facts, but a complete 
delegation raises very, very profound and serious questions of 
law. For example, the over-breadth of delegation, the lack of 
oversight and accountability to the U.S. Congress which 
confirmed this official to fulfill those responsibilities I 
think merits immediate and urgent scrutiny, and I intend to 
give it, and I know Members of Congress will be interested in 
these issues as well.
    I agree that there ought to be a moratorium on Bureau of 
Indian Affairs tribal acknowledgment decisions or appeals 
affecting Connecticut, and probably the United States, and 
there ought to be a full and far-reaching investigation, 
perhaps by this committee, but at the very least by the U.S. 
Congress, of the BIA's actions. And I would join Congressman 
Shays in urging that certain of the parties be invited again to 
appear. If they are unable or unwilling to do so, they ought to 
be subpoenaed to appear. We have used the subpoena as attorneys 
general, as have other law enforcement agencies. This issue 
raises profound issues of integrity and lawfulness that I think 
go to the heart of the credibility and integrity of the 
    I have proposed a number of reforms, and I will just repeat 
them very briefly. I believe that one of those fundamental 
reforms has to be creating an independent agency that is 
insulated from politics and lobbying and personal agendas to 
make these tribal recognition decisions, out of respect, a 
profound respect that I share, for the sovereignty of tribes 
that are recognized. The tribal groups that meet the criteria, 
and they are sound criteria, in the law now ought to be 
recognized. Those that fail to meet those criteria should not 
be accorded this sovereign status. And an independent agency 
much like, perhaps, the Federal Communications Commission or 
the Federal Trade Commission, should be appointed to exercise 
those powers.
    Those criteria ought to be embodied in statute so there is 
no question about how rigorously and faithfully they should be 
applied, and resources ought to be provided to interested 
parties, towns, cities, States, as well as the tribes 
themselves, so that they can participate meaningfully in this 
    And may I just summarize by saying that this issue really 
is one that is bipartisan. It is not about party, it is not 
about geography, or about interest group allegiance one way or 
the other; it is about a common interest, which is the public 
interest, and most importantly a public trust in the integrity 
of these decisions that affect our Nation so vitally and so 
irreversibly once they are made. And I believe, again, that we 
are at a turning point when we can save ourselves from going 
into a thicket of irreversible and mistaken decisions that 
ultimately harm the Nation. We still have time to turn from 
that thicket and avoid continued mistakes.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Blumenthal follows:]

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    Chairman Tom Davis. Thank you very much, Mr. Blumenthal.
    Ms. Rosier, thanks for being with us.
    Ms. Rosier. Good morning, Mr. Chairman and members of the 
committee. My name is Theresa Rosier, and I am Counselor to the 
Assistant Secretary for Indian Affairs. I would like to submit 
my full testimony for the record, but will abbreviate my 
statement here today. In addition, I would like to recognize 
Lee Fleming, who is the Director of the Office of Federal 
Acknowledgment, who is here with me today.
    I am pleased to be here on behalf of the Department of the 
Interior to discuss the Federal acknowledgment process, recent 
improvements to this process and proposed potential 
improvements to provide a more transparent, clear, and 
efficient acknowledgment process. I understand this issue is of 
importance to this committee, as Vice Chairman Shays and others 
who are here today cosponsored H.R. 4213, which is a bill that 
codifies the criteria established at 25 C.F.R. Part 83, and 
which also repeals certain exemptions for formal Federal 
officials and employees representing Indian tribes.
    Although the Department supports it's current Federal 
acknowledgment process, we do recognize that improvements can 
be made. The Department is generally supportive of legislation 
that maintains the criteria at 25 C.F.R. Part 83, but that also 
promotes increased transparency, integrity, and time 
sensitivity to the process.
    When the current administration came into office, Federal 
acknowledgment quickly became a high priority. In November 
2001, the General Accounting Office issued a report entitled 
``Indian Issues: Improvements Needed in the Federal Recognition 
Process.'' The two primary findings of this report was that the 
process was not timely and that the decisionmaking was not 
transparent to others.
    In response to this GAO report, the Assistant Secretary 
developed and implemented a strategic plan to provide 
strategies to communicate more clearly the acknowledgment 
decisionmaking process and also to improve the timeliness of 
this process. Today I would like to discuss some of the 
accomplishments the Department has made in implementing its 
strategic plan.
    First, to provide for more increased clarity and 
transparency in the process, all technical assistance review 
letters, proposed findings, final determinations, and 
reconsider petitions have been put on a CD-ROM such as this. 
The CD-ROM has been made available to the general public and to 
interested parties. We are hopeful that this information will 
be available on the Internet once the BIA is able to access the 
    No. 2, to increase the ability of the Office of Federal 
Acknowledgment in reviewing petitions and accompanying 
documentation in a more time-sensitive manner, resources have 
been provided to fill two professional staff vacancies. These 
additional staff members have resulted in the formation of 
three professional research teams. As you know, each team has a 
member that represents who can talk about the history, the 
genealogy, and the anthropology behind each petition.
    Third, to increase the productivity of the office, we have 
hired two sets of independent contractors. The first set of 
contractors are two Freedom of Information Act specialists. As 
you can tell from our two petitions I brought today, many of 
our records are quite voluminous, and FOIA requests often tie 
down our staff, so we have hired independent contractors to 
help us with our FOIA requests. The second set of contractors 
helps with our FAIR system, which I will discuss in a minute, 
which is a computer data base system which scans and indexes 
documents. Having the FAIR system has helped expedite the 
process as petitioners and interested parties may access the 
information on CD-ROM.
    Let me talk a little bit more about our FAIR system. The 
BIA has implemented the Federal Acknowledgment Information 
Resource system. This is a computer data base system which 
provides on-screen access to all documents in the 
administrative record. The system allows researchers to have 
immediate access to the records and also allows petitioning 
groups, interested parties such as State and local governments, 
to have the entire administrative record on CD-ROM. In 
addition, all data entries made by our researchers are included 
on the FAIR system.
    Another significant improvement made to the Federal 
acknowledgment process was in the realignment of the Bureau of 
Indian Affairs. The former branch of Acknowledgment and 
Research has been entitled now the Office of Federal 
Acknowledgment, which now reports directly to the Principal 
Deputy Assistant Secretary for Indian Affairs.
    Due to the above-mentioned improvements to the Federal 
recognition process, the Office of Federal Acknowledgment has 
completed 14 major decisions since January 2001. We have 
completed six proposed findings, six final determinations, and 
two reconsidered final determinations.
    On April 1, 2004, Secretary Norton requested Indian Affairs 
to review our strategic plan and ensure that all appropriate 
steps are being taken to implement the plan. As we have 
discussed, the Department has completed many of these action 
items; however, we have some more long-term action items which 
are underway. We plan on completing most tasks by the fall of 
this year; however, there are some items that may require 
statutory or regulatory amendments or access to the Internet, 
which may not be done or accomplished by this fall.
    In addition, we are also planning to formalize an already 
internal policy of the Assistant Secretary's office that 
prohibits the Federal acknowledgment decisionmaker from having 
contact or communications with a petitioner or interested party 
within 60 days of an acknowledgment decision. Formalization of 
this process will ensure that all parties are aware of the 60-
day period and protect the integrity of the process.
    In conclusion, the Department believes that the 
acknowledgment and existence of an Indian tribe is a serious 
decision for the Federal Government. When the Government 
acknowledges a tribe, it recognizes that an inherent sovereign 
has continued to exist from historical times until present. 
These decisions have significant impacts on the surrounding 
community; therefore, these decisions should be made with a 
thorough evaluation of the evidence in an open, transparent, 
and timely manner.
    I thank you for the opportunity to be here today. I will 
answer any questions you have.
    [The prepared statement of Ms. Rosier follows:]

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    Chairman Tom Davis. Thank you.
    Mr. Devaney, thanks for being with us.
    Mr. Devaney. Mr. Chairman and members of the committee, I 
want to thank you for the opportunity to address the committee 
this morning on issues----
    Chairman Tom Davis. Is your mic on?
    Mr. Devaney [continuing]. On issues attendant to the tribal 
recognition process. I have submitted my full statement for the 
record and would now like to make some brief remarks and then 
answer any questions the committee has for me today.
    Mr. Chairman, I am here today to testify about my office's 
oversight activities concerning the tribal recognition process 
administered by the Department of the Interior. As you know, 
tribal recognition, or the acknowledgment process of the 
Department, has been severely criticized by GAO and others for 
its lack of transparency. I don't disagree with that criticism, 
and I am an advocate for more of it. However, relatively 
speaking, it is actually one of the more transparent processes 
at the Interior, especially after the recent changes noted 
earlier. As a point of fact, the process generally follows the 
due process requirements of the Administrative Procedures Act, 
which includes giving notice, providing an opportunity to 
comment, and an appeal mechanism.
    When conducting an investigation of a program such as 
tribal recognition, we naturally identify all the key players 
and then interview them. This includes not only DOI personnel, 
but individuals outside of the Department. In tribal 
recognition matters, this may include individuals identified by 
our own investigators, by the Office of Federal Acknowledgment, 
or simply parties who have specifically signaled an interest in 
the acknowledgment process, such as a State attorney general. 
Accordingly, when we conduct interviews in a given tribal 
recognition matter, we always begin with those OFA team members 
who are charged with the petition review process. Based on our 
experience, these are the most likely sources to provide 
evidence of any inappropriate influence of the process.
    In our 2001 investigation, which included the Eastern 
Pequot Indian petition, we quickly heard from these folks about 
some rather disturbing deviations from the established 
processes that occurred at the end of the previous 
administration. Several recognition decisions, including the 
Eastern Pequot petition, had been made by the acting Assistant 
Secretary for Indian Affairs which were contrary to the 
recommendations of the acknowledgment review team. In fact, we 
even found one of these decisions was signed and back-dated by 
the former acting Assistant Secretary after he had left office.
    Mr. Shays. Who was that?
    Mr. Devaney. I believe that was Mr. Anderson.
    We were only recently asked to investigate the Schaghticoke 
tribal acknowledgment decision. Unfortunately, our 
investigation of the Schaghticoke decision is not yet complete; 
therefore, I can't comment on its outcome. I can, however, 
assure you that we are conducting a thorough investigation to 
determine whether there was any deviation from the established 
process in the consideration of this petition. We are, of 
course, interviewing OFA staff, acknowledgment review team 
members, and senior Department officials to determine if any 
undue pressure may have been exerted. We have also spoken to 
Attorney General Blumenthal and members of his staff, as well 
as tribal representatives and officials from the Town of Kent 
to better understand their concerns. Their perspective is very 
important to us, and several investigative leads were developed 
out of those discussions.
    Given the recent media reports of alleged improper lobbying 
influences relating to Indian gaming, my office now routinely 
includes in its scope of investigation inquiries into any 
lobbying influences that might bear on a particular Indian 
issue or program with a view toward targeting improper lobbying 
influences on any employee of the Department. In the end, I am 
confident that we will be able to present a thorough and 
complete report regarding the way this petition was 
    Finally, Mr. Chairman, I recently sent Congressman Wolf a 
list of issues which we consider to be impediments to good 
oversight and enforcement. One of those issues is the statute 
which permits recently departed DOI employees to go out and 
immediately represent recognized Indian tribes in connection 
with matters pending before the Federal Government. This 
exemption was created in part because Indian tribes, at the 
time of its enactment in 1975, had little or no access to 
persons with expertise in Indian matters. Today, that dynamic 
has obviously changed. We simply believe that this statute has 
outlived its original intent and that this exemption now 
perpetuates the proverbial revolving door. Without this 
exception to the normal cooling-off period that all other 
departing executive branch employees must adhere to, this would 
obviously be a violation of the criminal conflict of interest 
    Recently, in a prosecution stemming from one of our 
investigations, the U.S. Attorney's Office in the Northern 
District of New York secured a guilty plea by an individual who 
had submitted fraudulent documents in an effort to obtain 
Federal recognition for the Western Mohegan tribe and nation. 
Evidence presented at trial demonstrated that this fraudulent 
application was made in the hope of initiating gaming and 
casino operations in upstate New York. We are hopeful that this 
conviction will send a clear message to others who would 
attempt to corrupt the tribal acknowledgment process.
    Finally, Mr. Chairman, we have recently increased our 
investigative efforts and have now joined forces with the FBI 
in several matters to leverage our limited mutual resources. In 
some cases we are operating in a task force setting where one 
of our agents is always paired up with one of theirs. Coupled 
with a strong commitment recently made to us by the 26 U.S. 
attorneys who prosecute cases in Indian Country, I am confident 
that you will begin to see the results of our labors in the 
near future.
    Mr. Chairman and members of the committee, this concludes 
my remarks, and I would be happy to answer any questions.
    [The prepared statement of Mr. Devaney follows:]

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    Chairman Tom Davis. Thank you all very much.
    Let me start with a question. This will not be our last 
hearing on this, and we probably will issue some subpoenas, 
particularly the unwillingness of one of the tribes to come 
forward today, I think, raises some additional issues for us. 
Do you know if legislatively or administratively there is a way 
to decertify a tribe if something was amiss in the original 
certification, if fraud could be proved and the like? Does 
anybody have any thoughts on that?
    Ms. Rosier. Congress has the authority to terminate Indian 
tribes, and they did that during the termination era, so 
Congress could do that.
    Chairman Tom Davis. We could do it by act? Could you do it 
    Ms. Rosier. Well, at this point, if they are at the IBIA, 
once the decision is issued by the IBIA, then it becomes a 
final agency action, and then it goes to Federal District 
    Mr. Blumenthal. If I may supplement and agree with the 
statement that has just been made. Recognition, in effect, is 
an act of Congress, and one of the points that I have made in 
challenging a number of the decisions on recognition is that 
right now that delegation is over-broad. And I have urged that 
Congress, in effect, reassume or take back some of the 
authority that it seems to have delegated, and I agree that 
Congress could reverse a decision to recognize a tribe because, 
ultimately, the authority stays with Congress.
    Administratively, these decisions are irreversible, and 
that is one of the very profoundly important facts here. And if 
I may just again draw the analogy, you know, when the U.S. 
Government makes a decision to issue a broadcast license or 
approve a corporate merger or permit a stock offering, it goes 
to an independent agency that has rules and standards. The same 
is not true of recognition decisions whose consequences are 
even more profoundly far-reaching and important to the Nation.
    Chairman Tom Davis. One of the things that is most 
disturbing to me as an outsider, somebody who represents the 
Washington suburbs where this has not been an issue, is the 
vast amounts of money that go into these things, money spread 
across the political spectrum in a bipartisan way, huge money 
to lobbyist insiders, very disturbing, and it raises just a 
host of issues that I think somebody needs to pursue. This 
committee has that authority; we are the major investigative 
arm. We don't have the legislative authority of the Resources 
Committee on some of these other Indian matters, but we do have 
broad investigative authorities and subpoena power. Maybe that 
is where it needs to begin, because everyone else has kind of 
walked away from this gingerly, and yet Members come up to me 
on the floor and express concerns about some of the money they 
see changing hands on this and the like. So we intend to pursue 
this. I just want to make that clear.
    I appreciate everybody being here.
    Mr. Blumenthal. And if I may just add, the financial stakes 
here and the money involved is the elephant in the room that no 
one wants to acknowledge. It is driving the process, and the 
reason is quite simply that the stakes have become so enormous. 
It is the reason that the financial backer of the 
Schaghticokes, Fred DeLuca, has acknowledged he has already 
spent $10 million. The amounts of money for other tribes, each 
of them $10 million or more, acknowledged and on the record, 
and they are not even nearly complete with the process. So I 
think that the presence of gambling interests and the stakes 
involved have enormously raised the stakes in the lobbying game 
as well, Mr. Chairman.
    Chairman Tom Davis. Well, when you take a look at the 
membership of some of these tribes and the revenue, it doesn't 
pass the smell test to a lot of us. I think we just need to 
understand it a little better, and nobody has gone beyond the 
first or second layer of questions to delve down. That is why 
we are interested in what the IG comes forward with in terms of 
some of the procedures, but we intend to ask more.
    I appreciate your leadership, too, Mr. Blumenthal, on this.
    Mr. Blumenthal. Thank you.
    Chairman Tom Davis. Ms. Rosier, let me ask you. Most of the 
improvements to the Federal acknowledgment process you 
discussed are procedural, but major criticisms of the current 
process concern lack of objectivity or susceptibility to undue 
influence. What measures are being taken to overcome those 
    Ms. Rosier. Well, for example, in my testimony I stated 
that we have imposed an informal 60-day period that when a 
petition is either going for the proposed finding or a final 
determination, that the decisionmaker does not speak to 
interested parties or to the petitioning group. We are going to 
formalize that policy. I can say that in every Federal 
recognition decision that I have been involved in at the 
Department, I have not seen the type of impropriety that has 
been alleged here. I have seen a collaborative process where 
the staff has come with recommendations, the solicitor's office 
has talked to us about the law and the spirit and intent of the 
law, we have made decisions that we found to be good public 
    Chairman Tom Davis. You know, if I were to write a letter 
to the FCC on behalf of an application for somebody in my 
district, every letter, every phone call from the 
administration is all logged in at the FCC. Does that happen at 
Interior? If somebody else in the administration calls over, if 
somebody calls from the White House or somebody says this is 
important, is that logged in? Is that transparent for the 
public? And do your regulations and informal procedures take 
that into account?
    Ms. Rosier. That is not in our regulations at this time.
    Chairman Tom Davis. I would submit that is where a lot of 
this occurs. And it is not transparent. None of these procedure 
touch that, and yet a lot of times, when you are doing 
political influence, it usually doesn't go to the Deputy 
Secretary level or sometimes even to the decisionmaker. It goes 
above them, and the pressure comes down. If someone wants to 
make a recommendation that a status be granted, that is fine. 
People are free to do that; they are free to state their 
opinion. But there ought to be a record of that and we ought to 
know where it is coming from, because some of the decisions 
that have come out here don't seem to meet the criteria, at 
least the way the testimony before us today has shown and from 
the information that this committee has.
    Why were they granted? I think there were clearly 
communications in this case that were not appropriately logged, 
and any kind of procedure that you have ought to take those 
into account. We have those in other Federal agencies, and I 
hope you will consider this.
    Let me ask this. How do you explain the Assistant 
Secretary's reversal of the Branch of Acknowledgment's 
recommendation to deny both of these tribes' recognition 
applications consistent with BIA procedural requirements?
    Ms. Rosier. We have actually in the past, I think, with the 
Wampanoag Gay Head Band, and I think it was in the 1980's, we 
had actually had a proposed finding that was a negative and the 
final determination was a positive. Also, in the Mohegan 
situation in Connecticut, the proposed finding was also a 
negative and the final determination was a positive.
    The proposed finding is simply like a draft environmental 
impact statement, it is a chance to point out deficiencies and 
the petitioners have an opportunity to cure those deficiencies. 
And in both these situations the petitioners cured the 
    Chairman Tom Davis. But my questions don't go to those two 
tribes. My question goes in this case to the other tribes.
    Ms. Rosier. Schaghticoke and Eastern Historical Pequot?
    Chairman Tom Davis. Correct, the two Connecticut tribes.
    Ms. Rosier. Although I can't talk about the specifics of 
those situations, since they are both at IBIA appeal and 
Schaghticoke is under an inspector general investigation, I can 
talk to the generalities. We feel that our petitions speak for 
themselves, and that the proposed finding gave them an 
opportunity to cure their deficiencies, and they did that.
    Chairman Tom Davis. So, in your opinion, they cured the 
    Ms. Rosier. The staff's recommendation was that they cured 
those deficiencies, and that was the decision that was made.
    Chairman Tom Davis. And that was driven completely by the 
    Ms. Rosier. It was driven by the anthropological history 
and genealogical research that was done by my staff.
    Chairman Tom Davis. Mr. Blumenthal, you proposed several 
specific proposals for reforming the recognition process, 
including the creation of an independent agency adopting 
recognition criteria, providing assistance for municipalities. 
That is what you propose?
    Let me just ask Mr. Devaney, do you have any reaction to 
those proposals?
    Mr. Devaney. Could I address one of the questions you asked 
earlier about lobbyists registering?
    Chairman Tom Davis. Yes, please.
    Mr. Devaney. I think that is a terrific idea for a number 
of reasons. First of all, it obviously adds to the 
transparency. To have somebody that wants to come in and get 
involved in this process to be in the administrative record of 
having done so. It also protects people that work at the 
Department from unfounded allegations later on. And, finally, 
it is obviously a good starting point for us when we do one of 
these investigations that comes our way, either by our own 
volition or maybe a congressional request. So I think that 
would have an enormous benefit.
    Chairman Tom Davis. Mr. Devaney, you stated that you found 
some rather disturbing deviation from the established process 
of processing Indian recognition decisions that were made in 
the previous administration. When the inspector general finds a 
serious violation that was committed by a government official 
who is no longer in his or her position, what authority do you 
have at that point?
    Mr. Devaney. Well, we have authority there, and we took 
that to the U.S. Attorney's Office, and they declined 
    Chairman Tom Davis. All right. This committee has 
authority, of course, too.
    Mr. Devaney. Yes.
    Chairman Tom Davis. We have subpoena power as well.
    Mr. Devaney. Yes.
    Chairman Tom Davis. OK. Thank you very much.
    Mr. Shays.
    Mr. Shays. Thank you, Mr. Chairman. With your indulgence, I 
would like to defer and let Mr. Simmons ask questions, and I 
will follow.
    Chairman Tom Davis. Great. He has to get over to the floor 
on an important bill, so, Mr. Simmons, you are recognized.
    Mr. Simmons. I thank the distinguished gentleman from 
Connecticut's Fourth District.
    Two questions. First to Mr. Devaney. Pages 4 and 5 of your 
testimony refer to the revolving door and the fact that the 
revolving door at the Bureau of Indian Affairs derives from a 
decision that was made in the mid-1970's. And I gather from 
your testimony that you now feel that this exemption is no 
longer a good exemption, it should be changed. You stated that 
the statute has outlived its original intent and the exemption 
now perpetuates a revolving door.
    Am I to understand, then, that the official position of the 
Department of the Interior is to support the elimination of the 
revolving door provision for BIA officials?
    Mr. Devaney. Congressman, I don't speak for the Department. 
Inspector generals are independent entities. Yes, we work for 
the administration. We also work for Congress. We also work for 
you. That is my personal view, and I think it would be 
enormously helpful to the process if that became enacted, but I 
don't speak for the Department.
    Mr. Simmons. Well, I guess earlier today the chairman swore 
you and others have testimony here in your name as inspector 
general of the Department of the Interior which states very 
clearly that you believe this revolving door exemption has 
outlived its original intent, and that without the exemption of 
the normal cooling-off period that all other departing 
executive branch employees must adhere to, this would be a 
violation of the criminal conflict of interest laws that apply. 
That is a pretty strong statement. And one of the problems that 
we have had over the last several years, and I have to say it 
is very frustrating, is we hear the nice words and we hear the 
nice intentions, and then nothing is done.
    We have had legislation over the last 3 years to try to 
close the revolving door, which is such an obvious thing to do, 
and yet that legislation goes nowhere. And as far as I can 
tell, the administration, the Department of the Interior takes 
no ownership of that sort of thing. It is such a simple thing. 
And even the Secretary of Interior says that she has concerns 
about it, it has troubled her, and yet we cannot seem to get a 
concrete statement out of the Department of the Interior even 
on something this simple.
    You testify that it is your personal view.
    That is not good enough, Mr. Chairman. We swear witnesses, 
we ask for written testimony, we try to assess what they are 
saying in the context of what other people are concerned about, 
and it can't be personal anymore; it has to be the position of 
the administration, it has to be the position of the 
Department. So my question really I guess is going to go 
unanswered. We are not getting a solid answer, a policy answer 
from the Department of the Interior, and it is so frustrating.
    But let me just stop and shift my focus.
    Mr. Devaney. Can I try one more time?
    Mr. Shays [presiding]. Let me just interrupt a second.
    When it comes to the inspector general and the GAO, they 
are going beyond, I think, their requirements to express an 
opinion about a law. So we want you to do findings and then we 
will evaluate. So I think the Chair cuts you a little slack on 
    Mr. Devaney. Thank you.
    Mr. Shays. Not so true of the Department of the Interior, 
    Ms. Rosier. Would you like me to answer the question?
    Mr. Simmons. Yes.
    Ms. Rosier. I cannot give the official position on your 
legislation here today, but I can say, as my testimony did, 
that we would be supportive and would be willing to work with 
you on this situation.
    Mr. Simmons. I thank you for that.
    Now I have a second question regarding the first page of 
your testimony. You refer to the seven mandatory criteria. 
Mandatory conveys to me that they are required, that they must 
be done, they must be followed. There are seven. All seven must 
be followed. And yet there is factual evidence and we have 
received testimony even this morning that there is evidence 
that they are not being followed in a mandatory way, that 
people adjudicating these decisions can pick or choose. That is 
why the Connecticut delegation has sponsored legislation to 
place the seven mandatory criteria in statute.
    What is your understanding of what these mandatory criteria 
are? Must they all be followed? And, two, does the Department 
of the Interior support placing them in statute?
    Ms. Rosier. I will answer the latter half first. As my 
testimony stated, although I cannot give an official position 
on H.R. 4219, I believe, we would be supportive of legislation 
that was consistent with 25 C.F.R. Part 83 and that kept our 
seven mandatory criteria. In the Schaghticoke decision--and I 
know we are going to disagree on this--we believe that the 
seven mandatory criteria were fulfilled. That was our 
    Mr. Simmons. Is there any case that has come to the 
attention of any of the witnesses, Mr. Blumenthal, where you 
feel that the seven mandatory criteria were not met?
    Mr. Blumenthal. With all due respect, I know you may have 
to leave shortly. In the Schaghticoke decision, as well as the 
Eastern Pequot decision, those seven criteria have not been 
met, very clearly and unequivocally by the admission of the BIA 
itself. And it uses evidence that is clearly improper about 
State dealings to compensate for the acknowledged lack of 
evidence on those seven criteria. For example, it admits a 
seven decade gap, 1801 to 1875, on the existence of political 
authority, which is one of the key criteria, a gap that simply 
cannot be overcome by supposed State recognition that was not 
begun until 1973, even if it were proper to use that fact, 
which we contend it is not.
    And I just want to say, in response to your point, which I 
think is a very, very central one, where is the Department of 
the Interior today? Why are they not here? Without any 
disrespect to the two representatives, where is the Assistant 
Secretary for Indian Affairs today? And why is he not speaking 
for the Department of the Interior on the two core questions 
that he was confirmed by the U.S. Congress to decide and 
deliberate and, presumably in the public interest, speak to the 
U.S. Congress and the American people? I don't mean any 
disrespect to Ms. Rosier or Mr. Devaney; their roles are 
limited. But this Congress deserves answers from the Assistant 
Secretary for Indian Affairs on these central questions.
    Mr. Simmons. Mr. Chairman, let me extend my apologies to 
the two witnesses if I got a little hot. I am Irish. But I will 
tell you, as the attorney general and others know, I have been 
punching this pillow for a decade, and as the attorney general 
has pointed out, whenever it comes time to get concrete answers 
on the record, it just doesn't come to pass. So it is very 
    Mr. Shays. I thank the gentleman. We are going to have some 
votes. I know that Mr. Wolf just wants to make a comment, and 
then I am going to recognize Mr. Duncan.
    Mr. Wolf. Thank you, Mr. Chairman. I am not going to have 
any questions. I appreciate Attorney General Blumenthal's 
comments. I want to thank Mr. Davis and you, Mr. Shays, and Mr. 
    To the Department, having worked there for 5 years under 
Secretary Roger C.B. Morton, if he could see what you are 
doing, all previous Secretaries, you would be held in disgrace. 
I ask you as a Republican Member of the Congress who supports 
this administration on most issues, go back and clean up your 
house. As the attorney general said, it is the elephant in the 
room. This whole town, and now the whole country, knows about 
the corrupt process with regard to money. You have an 
opportunity, and I ask you to one, have a 1-year moratorium and 
two, follow--and I want to commend the IG, he has done nice 
work, and I understand you can't be making policy, but follow 
the recommendation of your IG. Listen to Attorney General 
Blumenthal. Be for Mr. Shays' and Mr. Simmons' bill. Show us 
over the next couple of months that you can--you know, maybe 
you missed it. We all make mistakes. But now that the whole 
world knows, this is your opportunity. And, at a minimum, you 
really need a 1-year moratorium whereby this Congress and this 
committee and others can come back and make a difference. 
Otherwise, as the attorney general said, this is a key time. If 
we fail now, the fault will lie at the steps of Secretary Gail 
Norton and this administration.
    With that, Mr. Speaker, I yield.
    Mr. Shays. Mr. Duncan, you have time, and I am going to 
hold the panel in recess afterwards, because I have about 15 
minutes of questions.
    Mr. Duncan. Well, just let me say I agree with Mr. Wolf. 
You know, I will go back to Mr. Blumenthal's comment about 
people not being willing to acknowledge the elephant in the 
room. I can tell you it is obvious to everybody that this is 
all about money. This is all about big money. And the most 
interesting thing is in the briefing memorandum that we were 
given, it says prior to the implementation of the current 
recognition regulations in 1978, BIA had received 40 petitions 
from groups seeking formal tribal recognition. Since 1978, BIA 
has received an additional 254 petitions. I mean, it is 
    So I ask when was the first Indian casino opened? And they 
told me in 1979 the Seminole Tribe opened a high-stakes bingo 
parlor. If this isn't all about gambling and big money, then 
ask these tribes that are seeking recognition will they sign a 
waiver of their right to open up a casino. I think it is also, 
in addition, to some extent about all the benefits they receive 
from the BIA and the Indian Health Service, because there are 
billions involved in that too. But it is all about the 
gambling, and I think everybody has been shocked by the huge, 
huge, huge money that has been spent on the lobbying. And then 
we have been given this book, ``Without Reservation'' by Jeff 
Benedict, who is on the third panel, and it says in 1973 an old 
American Indian woman dies with nothing left of her tribe but a 
214 acre tract of abandoned forest. And it seems to be about 
the end of the tribe, but it is just the beginning, and then it 
exploded because of the gambling.
    I mean, this is getting totally out of hand, it is getting 
ridiculous. I am from Knoxville, TN. I even had a man who came 
to see me in my office, a couple men who came to see me in my 
office in 1990 in Knoxville because they wanted to get involved 
in the casino business up in Connecticut with this tribe. I 
mean, this is getting totally out of hand.
    And I appreciate the interest of Mr. Shays in calling this 
hearing, and I agree with the comment that was just made that 
there needs to be a moratorium. And once again I will say if it 
is not about gambling and it is not about big money, ask them 
will they sign a waiver and give up their right to open up a 
casino in return for recognition, and I think you will see how 
fast this is all about big money and all about gambling.
    Thank you, Mr. Chairman.
    Mr. Shays. I thank the gentleman.
    We will be in a brief recess, just, I think, one vote, and 
then we will be right back. Thank you.
    Mr. Shays. We are back on the record.
    I will start by asking Department of the Interior the 
reason why Gail Norton's secretary, Gail Norton of Interior, 
wrote on April 12th, ``As you requested I have completed the 
attached order delegating authority for gaming-related matters 
to Principal Deputy Assistant Secretary Aurene Martin. Thank 
you for initiating this action to avoid any appearance of 
conflict.'' And then there is the order.
    I would like an explanation of this.
    Ms. Rosier. The recusal of Mr. Anderson, Assistant 
Secretary for Indian Affairs, off of gaming, Federal 
recognition, and land into trust for gaming is very personal to 
his background before he became Assistant Secretary for Indian 
Affairs, and he wanted to avoid any appearances of impropriety 
and just asked to recuse himself from those issues.
    Mr. Shays. But he didn't ask to recuse himself from one 
particular tribal application. He is basically asking for a 
blanket exemption from ruling on any Indian gaming?
    Ms. Rosier. It is a blanket recusal to avoid appearance of 
    Mr. Shays. And he is in charge of the Bureau of Indian 
    Ms. Rosier. Yes. He is Assistant Secretary.
    Mr. Shays. So we have the Assistant Secretary for Indian 
Affairs saying that he wants to have no responsibility for the 
very job he was assigned to do. Doesn't that strike you as 
being a little strange?
    Ms. Rosier. Actually, we have a responsibility on a number 
of matters, not just gaming and Federal recognition and land 
into trust. We have land into trust that is non-gaming related. 
Half of our employees and half of our budget is for our Bureau 
of Indian Affairs school system.
    Mr. Shays. So he can do part of his job; he just can't do 
all of his job.
    Ms. Rosier. He can do a vast majority of his job. He has 
just recused himself from three issues.
    Mr. Shays. That involve the recognition of Indian tribes, 
which is a huge, essential part of the Department. Wouldn't you 
agree this is an important element?
    Ms. Rosier. It is a very serious responsibility.
    Mr. Shays. Now, this delegation of power, was it delegated 
to someone that has to come before Congress, the Senate?
    Ms. Rosier. No. It was delegated to our Principal Deputy 
Assistant Secretary. She is not Senate confirmed.
    Mr. Shays. So you have taken a Senate confirmed person and 
you have delegated that power to someone who is not Senate 
confirmed. Does that seem appropriate to you?
    Ms. Rosier. It has been reviewed within the Department, and 
the Department, before the Secretary signed it, it has been 
    Mr. Shays. I would invite the inspector general to maybe 
respond about this, and then I will ask the attorney general.
    Mr. Devaney. Well, I really don't know the circumstances 
under which the Assistant Secretary made his recusals. My 
understanding is the same as just stated, that he needed to 
recuse himself from three issues principally because he used to 
be in the gaming business.
    Mr. Shays. Which makes me question whether he should have 
ever gotten the appointment, if you can't do a significant part 
of your job. But that is obviously we will talk to the 
Secretary about.
    Mr. Blumenthal.
    Mr. Blumenthal. Yes. Mr. Chairman, as I have stated, my 
office discovered this fact when we were reviewing testimony 
that the Principal Deputy, Aurene Martin, offered to one of the 
congressional committees that was reported off-handedly, well 
down in a story, on the substantive testimony. And we followed 
up, we pursued it with the Secretary of the Interior's Office 
and, in fact, I have with me and I have submitted to this 
committee a copy of the order which is unprecedented, I 
believe. It is the equivalent of appointing the administrator 
of the Food and Drug Administration and then saying that 
administrator will have nothing to do with drugs, period, and 
instead will delegate those decisions to deputies who are not 
confirmed by the U.S. Senate and are not accountable to the 
U.S. Congress for powers that this body delegates to that 
    The issue of accountability is front and center, and the 
lack of accountability is certainly profoundly troubling, if 
not illegal. In fact, I think there are very great legal 
questions raised by this delegation and also by the testimony 
that was offered by Assistant Secretary Dave Anderson during 
his confirmation proceedings when he said that he would recuse 
himself only on specific decisions, as I understand it.
    So I think that there are lots of different analogies that 
could be drawn, but fundamentally this subject matter is at the 
core of the responsibility of the Assistant Secretary for 
Indian Affairs and cannot ethically and legally be delegated in 
this way.
    Mr. Shays. We, the Connecticut delegation, Nancy Johnson, 
Rob Simmons, and myself, as well as Frank Wolf, met with the 
Secretary. We also then, as a full delegation from Connecticut, 
met with the Secretary. I don't recall this issue coming up for 
discussion. Do you have any information that this was provided 
to us? Who was notified about this?
    Ms. Rosier. I am sorry, I was not at the meeting.
    Mr. Shays. Let me go through a number of different 
questions, but I am unclear as to the Department's position on 
    Ms. Rosier. I can take that recommendation back to the 
    Mr. Shays. And our recommendation is, obviously, that there 
be a 1-year moratorium, in part for this very fact here. You 
basically have someone who has a responsibility dealing with 
tribal recognition who basically can't fulfill his statutory 
    I am unclear as to the Department's position on the 
legislation that Mr. Simmons and Mrs. Johnson and others are 
promoting. As my daughter would say, one time when I agreed 
with her position and she kept trying to convince me about it, 
and I started to say, sweetie, you know, when you have made a 
sale, you don't have to keep making the sale; and she said to 
me, but, dad, you don't believe passionately enough.
    And I don't feel your passion. And ``working with'' does 
not describe to me the position of the administration on this. 
Do you support this proposal or are you going to simply work 
with us?
    Ms. Rosier. Because this is not a legislative hearing and 
this is an oversight hearing, I am unable to give the official 
position of the Department on the legislation. I think our 
written testimony and my oral testimony has alluded that we 
would like to work with you on this.
    Mr. Shays. Thank you.
    I am going to go through a series of questions.
    Mrs. Johnson, do you have a little bit of time to stay or 
would you like to be recognized next?
    I am going to go through a few and then turn to Mrs. 
Johnson to ask some questions. And we have written these down 
because I want to make sure we cover them. And these are to 
you, Mr. Blumenthal.
    With regard to both Pequot and Schaghticoke petitions, the 
BIA staff issued proposed findings that the tribes had failed 
to demonstrate they met one or more of the mandatory regulatory 
criteria for recognition. Is this correct?
    Mr. Blumenthal. Correct.
    Mr. Shays. In the case of the Pequots, what new evidence 
was submitted and reviewed by all interested parties that 
justified the final determination of Federal tribal status?
    Mr. Blumenthal. In our view, there was insufficient 
evidence on two key criteria: continuous community existence 
and continuous political authority. There were gaps during 
critical periods of time that were admitted by the BIA. Instead 
of the evidence that was required, the BIA submitted that 
recognition should be granted because of State dealings with 
the supposed tribe. The nature of the dealings was with 
individuals, if any. They may have been individuals who were 
decendents of tribal members. But the key question is whether a 
tribe existed continuously as a community and with political 
authority, and there was insufficient evidence, in fact, key 
gaps of evidence, that was not corrected in the final 
recognition either as to the Eastern Pequots or the Paucatuck 
Easterns or the Schaghticokes.
    In the case of the Schaghticokes, the Department did one 
other thing that I think is unprecedented and ought to be 
brought to the committee's attention. It combined two groups, 
as it did with the Eastern Pequots and the Paucatuck Easterns, 
but did not consider the petition of one of those groups. So 
that if you go down this slope, and it is an extraordinarily 
slippery slope, at some point the BIA could simply bring into a 
petitioning group anyone that it wanted to do and say that 
those individuals or that petitioning group, regardless of its 
merits, should be made part of the petitioning group.
    And so I think on that score and many others we have 
appealed. The appeal is a very lengthy and voluminous one, and 
I don't want to exhaust the time or the patience of this 
    Mr. Shays. In your testimony you say that the BIA has 
changed its view on the significance of State recognition four 
times in the past 2 years. Would you describe for the committee 
how the BIA has assessed the evidentiary weight of tribal 
designation and reservation lands under State law?
    Mr. Blumenthal. The existence of reservations under State 
law has been one of the factors that the BIA considered in 
applying State recognition to overcome the gaps of evidence. 
The fact is, as you well know, Mr. Chairman, State recognition 
of a reservation and Federal recognition of a tribe are like 
apples and oranges; all they have in common is the use of the 
word recognition; and the meaning of definition for those two 
purposes is completely different.
    So the answer is that State recognition has been morphed in 
the BIA's use of it over this period of years to overcome gaps 
of evidence, in some cases to apply to the recognition of a 
reservation, in other cases to benefits that are provided to 
individuals who live on the reservation, in other cases to the 
fact that overseers had dealings with members or decendents of 
the tribe over some period of time. The State recognition 
factor has been a moving target.
    Mr. Shays. Let me say that a previous administrator of BIA 
secretary, Mr. Gover, he had a close relationship with the 
Golden Hill Paugussetts, who was a petitioning tribe in the 
fourth congressional district. They also have huge land claims. 
Those land claims become more valid if they are federally 
recognized. That is a concern that we have. Maybe not valid 
enough, but more valid. And he said he would not in any way 
decide on the Golden Hill Paugussetts, but he made a decision 
in another State that State recognition would be a factor in 
Federal recognition.
    Now, let me just tell you the impact of what that decision 
had on the Golden Hill Paugussetts, and then I want a comment 
from you. They are State recognized, but the State recognizes a 
reservation. There may be a house on that reservation, there 
may be some residents, or there may not be. They still 
recognize that State tribe's reservation. And what Mr. Gover 
basically did was give a huge benefit to a tribe that he was 
recognizing, because, in fact, they could be State recognized, 
have no political, social, or economic continuity pre-colonial 
times, and then that is the back door in which they then get 
Federal recognition.
    Is there anything that I have said that you would disagree 
    Mr. Blumenthal. I don't disagree at all with the point that 
you are making, and I think it is a very, very important and 
valid one, that the use of State recognition in a case that 
seems to be unrelated may establish a precedent that then can 
be expanded, and it has been vastly expanded, in other cases. 
And I think that point is very well taken.
    You know, part of the problem here, Mr. Chairman, is that 
this agency is legally rudderless. And I respect the 
suggestions that have been made or the changes that have been 
made and enumerated for the committee in some of the 
procedures, but they are a little bit like rearranging the 
chairs on the deck when the ship needs to be reconstructed. And 
Mr. Devaney makes a very important point which I think comes 
back to the one you have just made, and that is that this 
agency does not have the basic rules that the FCC or the FTC or 
the SEC would have and would rigorously follow: the logging of 
contacts, the transparency of correspondence, the registration 
of lobbyists, the prohibition against revolving door 
    Those kinds of requirements are a first basic minimal tier 
of requirements that are necessary for integrity in the 
decisionmaking process. There is a second tier which deals with 
the standards and the criteria that should be statutory. But 
your point comes back to the sort of ad hoc, make it up as we 
go along, let us make a deal, nature of many of the decisions 
that are made without anticipating what the long-run precedent-
making consequences will be.
    Mr. Shays. Thank you.
    I have three more questions, Mrs. Johnson, and then I am 
going to recognize you.
    I would like, Ms. Rosier, to ask you the following 
question. Do you believe that it is an absolute requirement 
that a Indian tribe demonstrate social and economic and 
political continuity pre-colonial times, in other words, they 
never stopped? Do you believe that is a requirement in 
    Ms. Rosier. I believe the requirement and recommendation as 
outlined in 25 C.F.R. Part 83 is that all seven mandatory 
criteria must be met, and the burden of proof is that it is the 
reasonable likelihood of the validity of the facts. That is my 
job and the staff's job, to ensure that of those seven 
criteria, this burden of proof has been met.
    Mr. Shays. So in this room, if I turned out the light 
switch for a little bit of time and then turned it back on, 
even though you saw the lights on, that wouldn't be good 
enough, correct? The light has to be on the whole time.
    Ms. Rosier. What we are recognizing at the Department of 
the Interior is a continuous political entity as a tribe, and 
we look at the community and we look at----
    Mr. Shays. Without interruption, correct?
    Ms. Rosier. We are looking at continuity.
    Mr. Shays. Continuity means without interruption, correct?
    Ms. Rosier. We are looking at a continuous relationship.
    Mr. Shays. Continuous relationship means it never stopped.
    Ms. Rosier. A continuous relationship that meets the seven 
mandatory criteria.
    Mr. Shays. Well, I don't want you to be evasive here. You 
are here to testify before the committee, and the bottom line 
is doesn't the tribe have to prove that they were always a 
tribe, socially, politically, economically, and that they never 
stopped being a tribe? Isn't that correct?
    Ms. Rosier. Yes, that is correct.
    Mr. Shays. OK. And do you understand that in the State of 
Connecticut we can recognize a State tribe where they actually 
had interruption? Are you aware of that?
    Ms. Rosier. Not specifically, no.
    Mr. Shays. Well, it is a fact. The fact is that State 
tribes in Connecticut don't have to show continuity.
    Ms. Rosier. Congress can do that also, too. Congress can 
recognize a tribe too.
    Mr. Shays. I understand that, but we are not talking about 
Congress recognizing a tribe. I am just trying to have you 
understand something, because I am under the impression you 
want to do the right thing, and the right thing requires that 
there be continuity. Mr. Gover made a huge decision that is 
impacting improperly, and you heard the testimony from Mr. 
Blumenthal. The bottom line is we are telling you in the State 
of Connecticut we may recognize a State tribe that doesn't 
exist except in land. They may not have political, social, or 
economic continuity. There may just be one person living on 
that reservation. That doesn't meet the Federal standard, but 
it meets the State standard. And that is what is so outrageous 
about Mr. Gover and this Department continuing with the process 
of State recognition.
    Just three more questions to you, Mr. Blumenthal.
    Would you explain the legal and political significance of 
Indian land claims in this process?
    Mr. Blumenthal. Well, the legal significance is that 
various of the tribal groups have made land claims. We are in 
litigation right now with the Schaghticokes over 2,100 acres in 
the Kent area. The first selectwoman of Kent is here today, and 
her town is one of the defendants. So is the Kent School, one 
of our major utilities, Northeast Utilities, and the State of 
Connecticut. So we have litigated with the tribes against land 
claims that we believe are unfounded, especially when they have 
made them against individual property owners, as the Golden 
Hill Paugussetts did some years ago, and we were successful in 
dismissing them, the State was, in representing the interests 
of the landowners when they were brought at that time.
    Certainly, as you have said, those land claims have 
additional force and credibility when they are accompanied by 
recognition or when they are made by a federally recognized 
tribe. And in Federal court, under Federal law, they can have 
additional legal force because of the impact of the Non-
Intercourse Act on the litigation.
    This area is enormously complex, and I apologize to the 
committee that I am not able to summarize it in a couple of 
sentences, but the answer is these land claims are a big deal, 
and they become bigger when there is Federal recognition.
    Mr. Shays. You could have a circumstance when a tribe is 
federally recognized, that it gives more credence to the land 
claims, and even though the State of Connecticut has passed 
legislation no longer allowing charity gambling, if they are 
then given Federal recognition and they have land claims that 
are valid under the eyes of the court, then the only recourse 
to the community is to settle; and the settlement is clear: 
they will want land for an Indian gaming facility.
    Why did the U.S. District Court in Connecticut enter an 
order requiring notice of all interested parties before the 
Schaghticokes or any other non-Federal party could contact the 
Department of the Interior?
    Mr. Blumenthal. Well, I am grateful for that question. The 
reason is very simply that we sued the Department of the 
Interior. The State of Connecticut sued the Department of the 
Interior because we were denied documents--basic materials like 
the petition itself--submitted by the Eastern Pequot and 
Paucatuck Eastern petitioning groups, and we claimed that there 
were ex parte contacts, secret meetings, and other 
correspondence that was being kept out of the public realm.
    Mr. Shays. By the Department of the Interior?
    Mr. Blumenthal. Correct.
    Mr. Shays. Why is that happening?
    Ms. Rosier. Actually, in the Schaghticoke situation, we 
worked quite well with Mr. Blumenthal, and the interested 
parties in that situation were treated almost similar to the 
petitioners; everybody had equal access, petitioners and 
interested parties shared documents directly with one another.
    I was not at the Department at that time, but I know right 
now, and we continue, and the regulations have always had the 
attorney general and the Governor as interested parties, so 
that is how we operate.
    Mr. Shays. Has the cooperation gotten better, Mr. 
    Mr. Blumenthal. In fairness to Ms. Rosier, the court orders 
entered in the Schaghticoke and Eastern Pequot cases followed 
our legal action. She may not have been there when we took that 
action to compel the kinds of scheduling orders and other 
cooperation, which has proceeded now; we are interested 
    Mr. Shays. So your bottom line is that has been corrected, 
but it took a court order to do it, and it preceded your time, 
I gather.
    Mr. Blumenthal. And it goes back, I think, to the point 
that Mr. Devaney was making about the APA process. We have been 
obliged to go to court to enforce the APA process. We sought 
these documents under the Freedom of Information Act. The 
sovereign State of Connecticut had to go to court under the 
Freedom of Information Act to obtain petitions so that we would 
be adequately informed about what would happen within our own 
    Mr. Shays. Let me just take the last question, and that is 
what would be the significance of putting the recognition 
criteria into statute, as opposed to leaving them as purely 
regulatory standards? I will ask both of you.
    Ms. Rosier, what would be the significance of that?
    Ms. Rosier. Without seeing language right in front of me, I 
don't think that there would be much change in how we continue 
to do Federal recognition.
    Mr. Shays. Basically, what we are trying to do is codify.
    And, Mr. Blumenthal, what would be the value of that?
    Mr. Blumenthal. Well, let me state the obvious. It would 
give those criterion standards the full force of congressional 
support. It would define them clearly, unequivocally, and 
irrevocably, so that, for example, the Department of the 
Interior could not disregard them, as it does now in many 
instances, skirt or subvert them; and it would also eliminate 
any possibility of rulemaking changes in those regulations, 
which emanate, by the way, from 30 years of precedent beginning 
with U.S. Supreme Court cases that first articulated them.
    So we would contend that right now they have the force of 
law, but it would make sure that legal action brought based on 
them would have even greater force than it does now when we are 
obliged to do so. And so I think it would send a very strong 
and important message.
    Mr. Shays. Thank you.
    Mrs. Johnson, thank you for your patience. And let me say 
that the chairman welcomed you to this hearing and has asked 
unanimous consent, so you are a full participant. Welcome. It 
is wonderful to have you here.
    Mrs. Johnson. Thank you very much, Mr. Chairman. And thank 
you very much for the thoroughness of your questions and, to 
Mr. Blumenthal, for the thoroughness of his testimony. And I 
thank the Department for being with us today too. This is an 
extremely important matter. If Mr. Blumenthal's comments about 
being in litigation over 2,100 acres doesn't grab your 
attention, let me tell you that many of the people who live on 
those acres have tilled those acres for more than 150 years, 
and they are being told now by your decision that they belong 
to someone else, who may or may not have tilled them before or 
after, where there is no continuity of existence. This is an 
extremely serious matter in the part of the country that is far 
older in its settlement roots than any other part of the 
country. So the implications of recognition decisions in New 
England, and particularly in Connecticut, are far different 
from the implications of those decisions in the West, a younger 
part of the country, a more open part of the country, and a 
part of the country where reservations became part of the very 
early history of those States.
    So I want to ask you a couple of sets of questions. First 
of all, the Department of the Interior is responsible for our 
most important programs that encourage historic preservation, 
are you not? The historic preservation tax credit and things 
like that.
    Ms. Rosier. We have historic preservation activities at the 
    Mrs. Johnson. Yes. And I have worked through your 
Department and got many very important buildings and areas 
preserved through working with your Department. The criteria 
for historic preservation is that a building or a site must be 
of historic significance. For instance, you have helped us 
preserve the early iron mines out in this very part of the 
State, one Beckley furnace right in Connecticut. So you have 
been, as an agency, interested in the preservation of the 
history of America through the homes of famous people and the 
sites of historic importance economically and politically in 
terms of wars and battlegrounds and so on.
    The definition of historic preservation and the criteria 
for what is worthy of historic preservation is entirely 
different than the criteria for tribal recognition, would you 
not agree with that?
    Ms. Rosier. Yes, it is entirely different.
    Mrs. Johnson. The State reservation criteria is a historic 
preservation criteria, it is not a tribal recognition criteria.
    Ms. Rosier. For tribal recognition, actually, for the first 
element, 83.7(a), State recognition is explicitly stated for 
    Mrs. Johnson. Right. But what I am saying is that the 
existence of a reservation is a historic preservation type 
decision, it is not a tribal recognition decision, and it 
doesn't meet tribal recognition criteria, and that is why you 
are using that now, when you can't demonstrate continuous 
political continuity and you can't meet the other important 
criteria that are associated with continuity of tribal 
existence and continuity of influence, is a real travesty of 
both the concept of historic preservation and of the underlying 
demand of the recognition process.
    I just wanted to point that out and put that clearly on the 
record. The Department of the Interior knows the difference and 
they are mixing that difference in the tribal recognition 
process, and that mixing is going to have an extraordinary 
impact on the lives of millions of citizens in the district 
that I represent and other members of the congressional 
delegation from both parties represent, and that is why our 
attorney general is so extremely concerned with your actions.
    The tribes are not allowed to take land once they have been 
recognized, but they lien property. Are you familiar with that 
    Ms. Rosier. I don't know what you mean by tribes are not 
allowed to take land once they are recognized.
    Mrs. Johnson. Well, I am told that they can't just take 
land, they have to buy it. Then they can take it into their 
reservation. That they can't just expand their reservation 
    Ms. Rosier. When a tribe acquires new land in a trust----
    Mrs. Johnson. But they have to buy it, correct?
    Ms. Rosier. Well, it is fee to trust, yes.
    Mrs. Johnson. That is right. And so I was assured, don't 
worry about this recognition; they would have to buy any land 
they want to expand. You don't understand. They put a lien on 
it because they claim it. You can't sell the property. The town 
can't fund its schools, because our schools are funded through 
local property taxes, primarily. Elderly people can't sell 
their property and use the money to support themselves. Small 
businesses can't sell their property and move to a larger site. 
So it paralyzes the life of the community and the economic base 
necessary to support public education, the repair of roads and 
bridges, and all the other things that local governments do.
    So this isn't just about the one decision. It is about the 
fallout, it is about the power. The attorney general has talked 
about the impact on the suits around the 2,100--was it 1,000 
acres or 100 acres?
    Mr. Blumenthal. 2,100.
    Mrs. Johnson. So the Department needs to look at this 
liening issue. And you need to begin to make some very clear 
rules about that kind of activity. If we give recognition, we 
have to be clear about what it is for and we have to be clear 
about prohibiting practices that are the equivalent of forcing 
purchase because they paralyze a community. And that is our 
obligation if we are going to recognize. So there are some 
additional issues that the Department of the Interior needs to 
look at and needs to take a stand on, and if we need to clarify 
the law, we will do that. I am told we don't need to clarify 
the law, but I don't see exactly how that is true. I hope you 
will begin to take into account the unique consequences of 
recognition in the densely populated eastern States of the 
country, and to understand how using a teeny tiny web to get to 
that definition is not right.
    Now, I understand that there are two petitioning groups, 
and you responded to the petition of one but not the petition 
of the other. Are you aware that now one group of Schaghticokes 
is suing the other group of Schaghticokes?
    Ms. Rosier. Well, they have appealed the decision to the 
Interior Board of Indian Appeals.
    Mrs. Johnson. No. This is in addition. They are suing the 
other part of the tribe for not recognizing the tribe's 
interest and for taking the interests of others, that is, the 
big money-backers, to undermine the tribe's interest. Are you 
aware of that?
    Ms. Rosier. I was not aware of that.
    Mrs. Johnson. Well, I will send you those materials, and I 
want your experts to notice that. I want them to stop papering 
over this disagreement amongst the ``members of the tribe,'' 
because it is by overwriting those disagreements, by ignoring 
what people are saying about the tribe, or who are the tribal 
members or its continuity, that you can override your own 
criteria about continuity. So one subversion or distortion of a 
piece of evidence is leading to a ladder of distortion that is 
leading to a decision that is extremely destructive of the 
public interest.
    You will hear in the testimony of the panel that follows 
the extremely negative consequences that will follow from this 
recognition, because this isn't a recognition about tribal 
history. This is about casinos; it is about big, big money; it 
is about gambling. It is a David and Goliath battle, and David 
is losing. Big money is winning. And you are not looking at 
your system to see whether that is true.
    And I appreciate the hard work of our attorney general and 
of the local people. I am very glad that Lori Shishel is here, 
I didn't realize she was going to be down here. Oh, there she 
is. She has come down before to testify on this issue. It has 
taken us a long time to get attention to it. Our Senators in 
the Senate, where you have a little different set of rules, 
have brought it to the floor to get more attention to it. We 
will continue to do that, but you have a variety of first 
selectmen and mayors and others today who for years at the 
local level have studied this, and I hope you will listen to 
the facts that they have and make sure that in the review, as 
you respond to the appeal, that you have an open mind for what 
your top people in Washington did not pay attention to, 
because, in the end, the law is about all of us.
    So I appreciate your being here, and I appreciate the time 
of the attorney general and his leadership on this issue, and 
the acumen with which he and his staff have pursued every 
avenue, and I particularly appreciate the local first 
selectmen, selectwomen, and mayors for the testimony they are 
going to give; and I am not going to try to summarize it 
because it will be very fresh from their mouths, but it is very 
powerful. And I think the Department has to look at this issue 
of liening, because it completely undermines and circumvents 
aspects of our laws and of our concept of recognition in a 
modern world. So thank you very much. I look forward to working 
with you on this issue.
    And thank you, Mr. Chairman, for your indulgence.
    Mr. Shays. Thank you.
    I am going to have two questions after you, Mr. Ose, to the 
IG, and then we will get to the next panel. But you have the 
    Mr. Ose. Thank you, Mr. Chairman.
    I want to followup on something that Congresswoman Johnson 
brought up. I am not familiar with this and, Ms. Rosier, I 
guess it would be directed at you. If a tribe is established, 
they have trust lands, then they seek to add to their holdings, 
they can go out and buy in fee property adjacent thereto and 
then apply to have that property taken into trust status, is 
that correct?
    Ms. Rosier. Yes, they can apply to have that property taken 
into trust status.
    Mr. Ose. The aspect that Mrs. Johnson mentioned that 
intrigues me is this issue of placing a lien on properties that 
a tribe may wish to take into trust. Does that happen?
    Ms. Rosier. I am a little unfamiliar with that, and I would 
have to----
    Mr. Ose. A little or completely?
    Ms. Rosier. I am unfamiliar with that. I would have to get 
back to you on that matter.
    Mr. Ose. Mr. Blumenthal, do you know anything about that?
    Mr. Blumenthal. Could you repeat the question, please?
    Mr. Ose. The question relates to a tribe's interest in 
taking land into trust prior to fee ownership. Mrs. Johnson 
indicated that they were placing liens, perhaps, on adjacent 
properties, thereby encumbering those properties in terms of 
the interests of the adjacent landowner. Does that occur under 
current BIA regulation or law?
    Mr. Blumenthal. Well, it has occurred in the State of 
Connecticut, I suspect elsewhere in the country too, done by 
petitioning groups at various stages of the recognition 
process. For example----
    Mr. Ose. That is what I want to examine. Let us say I own a 
piece of property in Sacramento, CA, and a tribe seeks to 
establish aboriginal claim to a certain piece of property right 
next door. They can establish their claim, perfect it through 
the BIA, establish their reservation, then turn around and file 
a petition saying that the property next door is also 
aboriginal in nature and thereby encumber my property?
    Mr. Blumenthal. I am not sure that they could simply take 
the property. They would need to present evidence that it was 
in fact aboriginal. Under some circumstances if they were 
recognized as a tribe and could meet the criteria under a 
Federal law called the Non-Intercourse Act, they could take 
title to that property. The Non-Intercourse Act, as you may 
know, says essentially that a federally recognized tribe can't 
sell or divest itself or transfer property without the approval 
of the Federal Government, and so if there were no Federal 
approval and there had been a transfer at some point, and that 
fact could be established, the answer to your question, I 
believe, is yes, that it could take title to that property. 
And, at the very least, what many of these groups have done is 
to encumber, place liens on property, and thereby interfere 
with the normal lives of landowners in the way that 
Congresswoman Johnson has described.
    Mr. Ose. This is what I want to come at, because a 
fundamental piece of our history is respect for private 
property rights. Are you telling me that the law, as written 
today, allows a third party, in this case Indians, to waltz 
down to the county recorder and put a lien on my property 
without anything more than a claim, somebody's oral history?
    Mr. Blumenthal. Well, if I may answer the question this 
way, sir. Claims can be asserted in court by anyone. The 
courthouse doors are open, and liens may be placed and 
encumbrances by anyone with an interest. We went to court back 
in the mid-1990's when those claims were placed on property and 
succeeded in having them dismissed. So claims can be made, but 
obviously they can be refuted and they can be dismissed, 
whether they are made by petitioning tribes or a tradesman who 
has a claim for work that he says he has done on your property, 
which is typically how a lot of them result.
    Mr. Ose. That one I understand. I can figure that part out. 
But it is just the distant third-party waltzes down to the 
county recorder and slaps a lien on my property, I have to tell 
you I react very negatively to that, having come out of the 
real estate business.
    Mrs. Johnson. If the gentleman would yield.
    Mr. Ose. I would be happy to yield.
    Mrs. Johnson. The very first time this tribe came to see 
me, which was many years ago, I can't quite remember how many, 
but they showed a map. And it may be that the first selectwoman 
of Kent can clarify this more than my memory over that many 
years. They laid claim to all the land in five towns. Now, in 
this part of the State these are rather large land-mass towns 
because Connecticut eliminated our counties' government many 
years ago and merged a lot of little towns into big towns, so 
this is a lot of land mass. And they said that is really what 
we are entitled to, but we aren't going to exert all those 
    Well, in another part of the State they did try to lien all 
the properties in that area to put pressure on the recognition 
process, and we had to go to court. Now they are starting to do 
that, and it has had a very chilling effect on the real estate 
market; values have already suffered an impact. And others know 
more about that than I. I only know it from anecdotal evidence 
of people walking up to me and say, you know, I was going to 
sell my house for this, and as soon as the recognition process 
took place, this happened, and now this is happening.
    So whether they stand up in court isn't the whole issue. It 
is true we have worked hard not to allow them to stand up. 
Whether this group we would be able to step back on it or not, 
I don't know; each one is a different case. But, in the 
meantime, what it does to the ability of that town to raise the 
resources they need to educate their children, which is the 
biggest cost in these town budgets, or maintain their roads, or 
do anything else--they are very interested in land 
preservation, these towns--all those things, it cripples them; 
and it is not fair from the point of view of individual 
property rights.
    So we need to clean up our act here in Washington. We need 
to do all those things Attorney General Blumenthal mentioned 
about transparency and cleaning up the process, but then we 
need to have criteria everybody knows, understands, and agrees 
    Mr. Shays. Let me make sure Mr. Ose gets his time back. We 
need to move the panel.
    Mr. Ose. We have individuals coming forward, seeking tribal 
status. I understand that. I understand that same group coming 
forward, saying this is our aboriginal territory, and we want 
to establish trust lands here. But in that process, if the 
group comes forward and says this is our aboriginal territory, 
and we want to establish trust grounds somewhere in that, does 
the existing law allow the filing of a recordable lien on every 
single piece within that aboriginal range? I have to tell you, 
if that is the case, if that is the law, we are going to have a 
second revolution, because you are not coming to my house or my 
property and taking it on the basis of some speculative 
aboriginal claim. Now, you need to tell me whether or not that 
is the way the law is written today.
    Mr. Blumenthal, you are an AG, you tell me.
    Mr. Blumenthal. Well, I will give you my answer as the 
attorney general of the State of Connecticut. We have actively 
opposed those claims. We believe they are unfounded. We have 
successfully defeated them, and we believe that the law is on 
our side and factually we have the merits. But the claims are 
made, and the claims themselves can often be extraordinarily 
damaging. I just want to emphasize here, to finish the answer, 
the point that both Congressman Johnson and Congressman Shays 
made. In many instances, innocent property owners have been 
taken hostage to bring pressure to bear on you, on them, on 
other elected officials, and the pressure simply hasn't worked; 
the tactics have failed, but the law is there. And any of these 
groups have rights, and those rights have to be respected. The 
problem is the misuse of the process by certain groups.
    Mr. Ose. So, Ms. Rosier, what does Interior or the 
Assistant Secretary for Indian Affairs do to prevent the types 
of situations that Mrs. Johnson has highlighted occurring in 
her district and which I can tell you if ever occur in my 
district will cause a problem?
    Ms. Rosier. We try to work with entities, State and local 
governments, with tribes and petitioners; we try to bring 
parties together. Connecticut, for whatever reason, just has 
been an example of where State and recognized tribes and 
petitioners have not worked well together. We have other 
situations where we have been able to bring groups together and 
try to bring parties who don't normally see eye-to-eye, try to 
bring them together and work together.
    Mr. Shays. If the gentleman would yield, I can explain why 
that happens.
    Mr. Ose. Yes.
    Mr. Shays. This is a real-life story for me. I live in 
Bridgeport, CT. I represent that district. In the early 1990's, 
the Golden Hill Paugussetts took a claim against all the 
property in Ridgefield, in Fairfield, and so on. I live in a 
house that is claimed by the Golden Hill Paugussetts, and I 
think it is still a decision pending. Judge Dorsey wants to 
know if you all are going to recognize them as a Federal tribe.
    Is that correct, Mr. Blumenthal?
    Mr. Blumenthal. That is correct, Congressman Shays. 
Although we succeeded in State court in having those claims 
dismissed, they are still pending in Federal court. The Federal 
claims do involve, I think, 20 acres in Downtown Bridgeport. I 
was unaware that it included your house. But certainly the 
claim is a wise one because your house is a beautiful one and 
they have obviously exercised sound judgment.
    Mr. Shays. Well, it may have been it was just the State, 
but what they did do, though, is they came to my office and 
said we will have these claims disappear; all you have to do is 
submit a bill before Congress giving us Federal recognition. 
That is what they did. And then when that chief left, his 
brother came and did the same thing; and then when he was done, 
the financial backer came and said the claims--and at that time 
I didn't own the property in Bridgeport, but I represented the 
district. So it is one mess.
    Mr. Blumenthal. Can I just interrupt? And I really 
apologize, Mr. Chairman, but I want to make clear whom we are 
talking about here, because we are not talking about the 
Eastern Pequots and we are not talking about the Schaghticokes. 
I believe that you are referring to the Golden Hill 
    Mr. Shays. Correct.
    Mr. Blumenthal. And I want to just correct one point that 
Ms. Rosier made, because she said there is a history of 
hostility or conflict, whatever word you used; I apologize, I 
don't remember exactly. We actually have very cooperative and 
good relationships with the tribes, two of them, that have been 
federally recognized. I want to emphasize--and this point may 
be one of the most important that I make all morning--we never 
opposed the Mohegan recognition in the way that we have the 
Schaghticokes or the Eastern Pequots. We never appealed that 
recognition decision, because it was right on the merits, on 
the law and the facts. And there is not a necessity for this 
kind of disagreement. I think it has to do with the way this 
process has been broken and shows how it needs to be fixed. I 
think it is a disservice to the relationship between States and 
tribes because it aggravates those disagreements.
    Mr. Shays. Let me just quickly ask two questions to the 
inspector general.
    On page 2 of your testimony you say you found pressure had 
been exerted by political decisionmakers in the OFA--Office of 
Federal Acknowledgment--team members responsible for making the 
acknowledgment recommendations on the Connecticut Eastern 
Pequot petition. What kind of pressure?
    Mr. Blumenthal. Congressman, as I recall, there was an 
awful lot of harassment going on at the end of the 
administration. Some of these team members were being told they 
had to do certain things they weren't comfortable doing. The 
delegations were being rushed to judgment at the end of the 
administration. This was perhaps a week before inauguration. So 
there was an awful lot of pressure being put on these OFA team 
    And I might say these are, for the most part, very 
honorable people that work in this office. From my perspective, 
they seem to be caught in this sort of perfect storm of 
emotion, politics, and big money. And I think they do a good 
job, but there is an awful lot swirling around them.
    Mr. Shays. Well, it is important that be made part of the 
    Would you describe the elements and operation of your 
whistleblower protection program? Why didn't the Department of 
the Interior have such a program before?
    Mr. Blumenthal. That is my office's program. I don't know 
why the inspector general before me didn't have it, but I 
certainly believe that people who come forward and want to tell 
the inspector general something should be free from reprisal. 
And I do my very best in each and every case. If I hear that, I 
step forward and address that with the Assistant Secretary or, 
if I have to, go right to the Secretary about it.
    Mr. Shays. Just two questions for you, Ms. Rosier. And I 
apologize, I have been calling you Rossier, and it is Rosier, 
    Ms. Rosier. It's Rosier.
    Mr. Shays. Rosier? OK.
    How do you respond to the argument that the Department 
faces an inherent conflict of interest and the BIA helps 
petitioners meet recognition criteria through technical 
assistance and other means, sits as the judge of what amounts 
to its own work produce, then acts as a regulator of the 
    Ms. Rosier. One example of how the Federal family has tried 
to separate that conflict of interest is potential petitioners 
who are seeking Federal funding for putting together petitions, 
they go to the administration for Native Americans, which is 
outside of the Department of the Interior. So we don't provide 
any funding for the petitions; we give them research, technical 
    Mr. Shays. But you are basically telling them how they can 
become a tribe through helping them, and then you basically are 
passing judgment on whether they meet the criteria. Isn't that 
a bit of a conflict? It is nothing you established, but isn't 
that process a conflict?
    Ms. Rosier. I think our process is very rigorous and 
thorough. Since we have had this process, we have acknowledged 
15 groups.
    Mr. Shays. That is not what I am really asking, though. If 
you care not to respond to it, that is fine. But I am asking 
whether this process, where you are actually helping them 
become a tribe through assistance, and then you are passing 
judgment on whether they meet the standard, is that not a 
potential conflict of interest?
    Ms. Rosier. We provide technical assistance to tribes every 
single day on a number of matters.
    Mr. Shays. But the difference is you are giving them 
something that in Connecticut makes them a billion dollar 
operation: you are giving them sovereignty, you are passing 
judgment on whether they meet the test, and you are helping 
them meet the test.
    So, Mr. Blumenthal, how would you respond to that?
    Mr. Blumenthal. Well, as I have said in my testimony, I do 
believe there is an inherent conflict of interest. It is not 
the result of some purposeful individual corruption, but it is 
inherent in the assignment of two conflicting tasks to a single 
agency, and then having that agency be beyond the normal rules 
of accountability and transparency that would apply to an 
independent agency.
    Mr. Shays. We wrote the law. You didn't write the law, but 
it strikes me as a tremendous conflict.
    This is the last question, Ms. Rosier. How and when do you 
find what financial interests are supporting recognition 
petitioners? Would you like to know sooner? Would you like to 
be able to compel disclosure of all financial interests behind 
a petition?
    Ms. Rosier. Currently, right now, financial disclosure is 
not part of the Federal recognition process. As I have 
discussed, it is an anthropological history and genealogical 
look at the entity. So, as of right now we do not look at 
financial information unless it has been voluntarily disclosed.
    As for in the future, whether we would seek language or we 
could be supportive of language that asks for financial 
disclosure, I could not give official comment on that, but I 
will take that back to the Department.
    Mr. Shays. Thank you.
    Is there anything that you all maybe spent last night 
thinking about that we needed to ask that you want to put on 
the record? Is there anything you don't want to put on the 
record that we should have asked?
    Mr. Blumenthal. If I may take that invitation, Mr. 
Chairman. I didn't start thinking about this last night, I have 
thought about it for a long time, as you have too. But it 
follows the question that you just raised. If this committee 
does nothing more than impose rules of disclosure, it will have 
made a tremendous contribution. And those rules of disclosure 
wouldn't be novel or unprecedented. They would simply require 
the kinds of information that are absolutely mandatory when 
dealing with other independent agencies showing the kinds of 
financial details that are elemental and profoundly significant 
to this process.
    You will hear, later, testimony about numbers of dollars 
that have been invested by individual financial backers. That 
information comes from disclosures they have made themselves, 
not required by any government agency. And it doesn't indicate 
second and third and fourth levels of information about where 
they obtained that money, including other financial investors, 
and it doesn't relate to lobbyists. And so going back to Mr. 
Devaney's point, I think there, at the very least, ought to be 
clear, irrefutable consensus that this kind of information, 
whether you call it registration or disclosure, clearly should 
be required.
    Mr. Shays. Mr. Delaney, anything we need to put on the 
record that isn't put on the record? Anything you need to point 
out before we go to our next panel?
    Mr. Delaney. No, sir.
    Mr. Shays. Ms. Rosier, any comments?
    Ms. Rosier. No, sir.
    Mr. Shays. We thank all three panelists for their 
cooperation. It has been a longer morning, but I think we have 
learned a lot. Thank you so much.
    At this time, we will call Ms. Marcia Flowers, invite her 
to come and testify. I would also invite Mark Sebastian to come 
and be sworn in, as well, in case you want to respond to any 
question, even though you don't have a statement. I think that 
might make sense, if you would like to.
    If you would both stand, we will swear you in. And welcome 
to both of you.
    [Witnesses sworn.]
    Mr. Shays. I will note for the record that both of our 
witnesses have responded in the affirmative.
    We may not have as many questions. I want you to feel, 
Chairman Flowers--and, Mr. Sebastian, you were former chairman, 
is that correct? We are going to allow you to make your 
testimony, and feel free to go over the 5-minute limit. I want 
to make sure that you put on the record everything you want to 
put on the record. And let us just see how that mic picks you 
up. If you would lower it a little bit. Just tap it, I just 
want to see if it is on. No, it is not on. OK.
    Welcome. Thank you for being here. I want to say, again, 
you are here, and we invited another tribe who decided not to 
be here. I wish they followed your good example.


    Ms. Flowers. Thank you. Thank you, Mr. Chairman, members of 
the committee, and especially our Congressman from Connecticut, 
Chris Shays, for inviting us to testify today on behalf of our 
tribe, the Eastern Pequot Tribal Nation.
    Before I begin, I would like to just, for the record, the 
Eastern Pequot Tribal Nation has never filed a land claim. 
Another issue that I have to bring up before I begin, the 
attorney general for the State of Connecticut made a comment 
that the State did not appeal the Mohegan decision. I have to 
point out, and I and Chairman Brown speak of this often, the 
Mohegan tribe was detribalized in the 1700's, and when the 
tribes came back together in the 1970's under the Connecticut 
Indian Affairs Commission, all the five tribes were in the five 
State recognized tribes. And I have to make that point because 
the Eastern Pequot tribe never was detribalized. And thank you 
for that statement.
    I am here today to tell you about one tribe's experience 
with the recognition process. Our opponents try to keep the 
focus on casinos and their impact, but my tribe is suffering a 
different impact: the impact of unwarranted delays in the 
process. I don't think anyone here will claim the recognition 
process is working properly. When the regulations were 
implemented in 1978, the process was to operate within 3 to 5 
years. The Eastern Pequot Tribal Nation filed its original 
letter of intent to seek recognition in 1978, 26 years ago. We 
have traveled the path to recognition through five Presidential 
administrations, seven Secretaries of the Interior, nine 
Assistant Secretaries of the Interior for Indian Affairs, four 
State Governors, and four State attorneys general. We have 
followed every step prescribed by the regulations, and we are 
still not done yet.
    In your invitation to me to address this committee, you 
asked about transparency. This process could not have been more 
transparent. Just look at our procedural history. After 3 years 
of active review by the Bureau of Acknowledgment and Research, 
in March 2000, our petition received a positive preliminary 
    Mr. Chairman, I must note, to clear for the record, that on 
the Web site the tribe noticed that it was noted that we 
received a negative preliminary finding. This is incorrect. The 
Eastern Pequots' petition received a preliminary positive and a 
positive on final, and we would like that corrected. Thank you.
    Mr. Shays. On the Web page of? I may have missed it. You 
said on the Web page. On the committee's Web page?
    Ms. Flowers. Noted for this hearing on the resource.
    Mr. Shays. OK. Thank you.
    Ms. Flowers. Yes.
    And I brought a copy of the Federal Register of our final 
determination. It does go over that. And I think Mark has a 
    In a detailed 152-page decision of over 500 pages of 
exhibits, BAR provided its analysis of our petition strengths 
and weaknesses. The regulations allow for a comment period for 
tribes and all interested parties to respond to the preliminary 
finding. In our case, the usual 6-month period was extended to 
18 months. That was because of a request filed by the 
Connecticut attorney general and his demands through a Freedom 
of Information Act lawsuit. During the comment period, the 
States and towns had open access to the BAR staff and 
participated in a 2-day marathon technical assistance hearing. 
They grilled the staff about the process, our evidence, the 
BAR's view of the evidence, and the grounds for the preliminary 
decision. Without exception, they received every document they 
requested. Nothing has been hidden.
    The tribe ultimately submitted 566 pages of additional 
material and nine boxes of exhibits in response to BAR's 
comments. The attorney general and towns submitted a total of 
879 pages of material.
    After months of analyzing this information, BAR issued a 
positive final determination in 2002. We are the only tribe to 
receive a positive preliminary and a positive final decision in 
the State of Connecticut. As allowed by the regulations, the 
Connecticut attorney general appealed to the Interior Board of 
Indian Appeals. All briefs in the appeal were completed in 
March 2003, and after 13 months we are still waiting for a 
judge to be assigned to our case.
    You asked about integrity. Our opponents claim we have used 
inappropriate political influence in the recognition process. 
The Eastern Pequot Tribal Nation employs one lobbying firm in 
Washington, DC, whose principal role is to track legislation 
that might affect us. We pay our lobbyist $120,000 per year. We 
began our relationship with this firm during the Clinton 
administration, and it continues today under the Bush 
administration. At no time have we ever asked any lobbyist to 
try to influence the outcome of any decision regarding 
recognition, and at no time has any lobbyist represented to us 
that they have any ability to do so.
    We have met approximately once each year with the 
Connecticut delegation and other leaders in Washington, such as 
Senator Inouye and Campbell. These meetings have been arranged 
well in advance and appear in public records. The only meeting 
we have had with any Department of the Interior official in the 
past 2 years was with then Assistant Secretary McCaleb, at his 
invitation, not ours. At no time during any of these meetings 
have we asked any elected or appointed official to influence 
the outcome of any recognition decision.
    Political influence is at work here, but it is not being 
exercised by our tribe. Rather, incredible influence is being 
brought to bear by a small group of people whose real goal is 
to stop Indian gaming in Connecticut. Mr. Benedict, for 
example, is representing a group called Connecticut Alliance 
Against Casino Expansion. He has raised millions of dollars and 
stages frequent public rallies against casinos. In fact, Mr. 
Benedict himself, I believe, is a registered lobbyist. Elected 
officials in our State, paid by taxpayers' dollars, have 
appeared regularly at his rallies, claiming they oppose 
recognition of our tribe, but really what they oppose is 
gaming. Elected officials here in Washington have used their 
political influence and taxpayers' dollars to introduce 
legislation that would halt recognition decisions and stop us, 
even though we have faithfully followed the regulations for 26 
years. A recent example is the Connecticut attorney general's 
unscheduled ex parte meeting with the Secretary of the Interior 
on March 17th, where he specifically asked her to stop 
recognizing tribes.
    Our opponents have tried to delay us every step of the way. 
They attack our recognition decision, most often using three 
arguments: the so-called merger of two tribes, the claim that 
the Assistant Secretary overruled his staff's recommendation, 
and the supposed reliance on State recognition used by the BAR 
in reaching our decision.
    On the first issue, this is what the final determination 
actually said, ``This determination does not merge two tribes, 
but determines that a single tribe exists which is represented 
by two petitioners.''
    Regarding the second issue, the staff at the BAR simply has 
no decisionmaking authority in this process. The Assistant 
Secretary makes the decisions to issue a positive preliminary 
decision. In our case, Mr. Gover's decision in the Clinton 
administration was ultimately confirmed in the positive final 
determination in the Bush administration. I am sure each of you 
has on occasion disagreed with your staff.
    Third, again quoting from the decision: ``The continuous 
State recognition is not a substitute for direct evidence. 
Instead, this longstanding State relationship and reservation 
are additional evidence which, when added to the existing 
evidence''--and I will stress that, the existing evidence, 
which we submitted--``demonstrates that the criteria are met at 
specific periods in time.''
    You asked about accountability. We have had to account for 
every day of our history since 1614, to the BIA and the 
interested parties. We have provided tens of thousands of pages 
of information documenting our petition. Many of these 
documents came right out of the State archives and files. The 
interested parties received each piece of our evidence and had 
the right to comment on them. All that material, including the 
comments, has been reviewed and analyzed by a team of highly 
qualified professionals to reach a final decision of almost 200 
pages detailing the evidence that demonstrates our tribe meets 
the seven criteria. We have been accountable for every 
professional we have hired and every source of information we 
have used. The very nature of the recognition process mandates 
accountability, especially for tribes whose first contact dates 
back into the 1600's.
    Unlike many of the western tribes, the eastern tribes never 
entered into treaties with the United States, so they do not 
have automatic access to Federal programs. Instead, they had 
relationships with the colonies before this country was even 
formed. The colony of Connecticut established the Eastern 
Pequot Reservation in 1683, and it remains one of the oldest 
continuously occupied reservations in the country. The State 
took over the relationship with our tribe in 1784, and that 
protected relationship continues to today. The recognition 
process adopted in 1978 was designed to give tribes like ours 
the opportunity to gain access to Federal, social, health, and 
educational programs that were established for our benefit.
    When we started this process in 1978, there was no Indian 
gaming. The Indian Gaming Regulatory Act was not passed until 
    Mr. Shays. I am going to let you finish your statement, 
even though we are going on. But I want you to read a little 
    Ms. Flowers. OK.
    Mr. Shays. I don't usually do that; I usually tell people 
to slow down. I want your entire statement. You want to deliver 
it; I want it delivered. I want it quicker. Just read a little 
more quickly.
    Ms. Flowers. OK.
    The Indian Gaming Regulatory Act was not passed until 1988, 
10 years after we first applied for recognition. In 1978, our 
tribe had no money, no expertise, and no access to the 
professionals who could help us. We did the work ourselves, 
holding bake sales, car washes, and selling our crafts to 
scrape together the money to file our first petition. We 
learned quickly that we needed substantial professional 
assistance to get through the process.
    With the introduction of Indian gaming in Connecticut, and 
the opening of the first casino in 1993, the landscape changed 
completely. IGRA allowed an investor to get a realistic return 
on the very high-risk funds tribes need to hire a team of 
professionals to help them with the recognition process. 
Whether we wanted a casino or not, we had no other way to find 
the funding to hire the best historians, genealogists, 
anthropologists, and lawyers.
    You asked about the cost. Beginning in 1993, our tribe 
entered into a series of arrangements with investors who agreed 
to finance our recognition efforts in return for future casino 
management fees as provided by IGRA. Through 2000, this 
financing totaled approximately $5 million. In 2000, we entered 
into our current development agreement with Eastern Capital 
Development of Southport, CT, a group of private investors, 
none of whom have any ties to the gaming industry.
    Mr. Shays. But just happen to live in my district.
    Ms. Flowers. I confirm to you that they do not employ any 
other lobbying firms.
    To date, they have loaned our tribe about $11 million. 
Approximately 70 percent went directly to our effort to meet 
the recognition criteria. The professional team includes a set 
of lawyers to coordinate the research on our petition and 
ensure regulatory compliance, other lawyers to represent us in 
court suits filed by the attorney general, and a third group of 
lawyers to coordinate the attorney general's IBIA appeal. The 
team that helped us compile our petition includes six senior 
researchers in anthropology, history, and law--four Ph.D.s, two 
LLDs--two research assistants, two genealogists, and an 
archivist. This team has worked continually since 1997 to meet 
the challenges, requirements, and scope of the recognition 
process and accounts for most of the expense.
    In all this time, with all their rhetoric, our opponents 
have not submitted one shred of evidence that disproves our 
right to recognition. Without such evidence to stop our 
recognition, those who want to stop us from building a casino 
have no tactics left other than delays, confusion, and 
distortion. Years ago, our opponents received one piece of 
advice from their lawyers that they have taken to heart: the 
best way to stop a casino and land claims is to stop a tribe's 
recognition; and the best way to stop recognition is to derail 
the process. Recognition does not automatically create a 
casino. There are many steps along the way where the State's 
and towns' concerns about gaming will be properly addressed. We 
have to go through a rigorous approval process before we can 
even dream about a casino. We must take land into trust and 
negotiate a gaming compact, which in our State requires the 
ratification of the full legislature. Both of these also 
mandate extensive public participation.
    I don't think a wholesale restructuring of the process 
needs to take place. The process is thorough, transparent, and 
has provisions for adequate accountability. What must happen is 
that the BIA must be given additional funding to increase its 
staff so they can deal with the tremendous backlog of 
recognition decisions. The IBIA needs similar resources to help 
them deal with the many complicated cases they review.
    This committee should not confuse opposition to gaming with 
the need to improve the recognition process. Congress should 
not take away any tribe's right to Federal programs to satisfy 
a small group of people fundamentally opposed to gaming. After 
all, the two casinos in Connecticut employ over 20,000 people 
and pay the State over $400 million per year.
    Many people have complained that this process is not fair. 
Please focus on these statistics: since September 2002, when 
the Connecticut attorney general filed the appeal against our 
final determination, 154 decisions have been issued by the 
Interior Board of Indian Appeals. Of those 154 cases, 95 were 
filed after ours. Once again, 95 of the 154 decisions were for 
cases filed after ours. And we are still waiting.
    Again, thank you for giving me the opportunity to speak to 
you today, and I would be happy to answer your questions.
    [The prepared statement of Ms. Flowers follows:]

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    Chairman Tom Davis. I want to thank you. Your statement is 
pretty comprehensive. I think you make a very strong argument 
for your case. I might disagree with a number of points. I do 
want to say, though, that I think you have put on the record 
what you wanted to put on the record. Is there anything else 
before we go to the other panel that we have?
    Is there anything, Mr. Sebastian, that you would like to 
just say for the record? Not a statement, but any general 
comments? A statement would be fine, but not a long statement.
    Mr. Sebastian. We have some documents we would like to 
submit for the record, a resolution from the National Congress 
of American Indians in support of the Eastern Pequot Tribal 
Nation and a State of Connecticut General Assembly report from 
David Leff, a senior attorney to Honorable John Thompson in 
regard to the dispute between the tribe and the ruling that the 
State of Connecticut General Assembly that there was one tribe 
in 1989.
    Mr. Shays. Well, we will put those in the record, if you 
would like. Any other document for the record?
    Mr. Sebastian. And just a list of the cases that were 
assigned after our IBIA appeal and that have been resolved.
    [The information referred to follows:]

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    Mr. Shays. Let me just suggest this to you so we are fair 
to you as well. We are going to go to the next panel, but if 
you would like to, after they have testified, if you would like 
to come up and respond to something you have heard, then we can 
question you about that particular issue. So I don't want you 
to interpret our lack of questions as being a lack of respect. 
We want you to participate in our process. You said you would 
like to testify separately, and we respected that. So what I 
will do is I will swear in the next panel. If there is 
something, after they have made their statements and we have 
asked questions, that you want to insert or respond to what you 
have heard, then we will question you about that. Does that 
seem to fit your need as well?
    Ms. Flowers. That will be fine.
    Mr. Shays. That will be our need, because we are going to 
have a vote at 2, and we are going to really try to get to this 
next panel.
    Ms. Flowers. OK, thank you.
    Mr. Shays. Thank you so much.
    At this time, the Chair would recognize our next panel. It 
is the Honorable Mark Boughton, mayor, city of Danbury, CT; the 
Honorable Rudy Marconi, first selectman, town of Ridgefield, 
CT; the Honorable Nicholas H. Mullane II, first selectman, town 
of North Stonington, CT; and Mr. Jeffrey R. Benedict, 
Connecticut Alliance Against Casino Expansion.
    Gentleman, we will invite you to stay standing and I would 
like to swear you in. Raise your right hands.
    [Witnesses sworn.]
    Mr. Shays. Note for the record our witnesses have responded 
in the affirmative.
    First Selectman, is it Mullane? I want to make sure I am 
pronouncing your name correctly. Is it Mullane?
    Mr. Mullane. Mullane.
    Mr. Shays. Mullane. And I want to say to you that we have 
had many contacts, and I introduced and spoke well of the two 
elected officials closest to the Fourth Congressional District, 
but I do need to put on the record you are probably the most 
knowledgeable of anyone at the table about these issues; you 
have been fighting them for so many years, as I think both Mark 
and Rudy would agree. And so you do honor the committee as 
well, and I should have certainly recognized your incredible 
contribution over so many years. You have been fighting a long 
and lonely battle, and I think our two mayors on your right are 
hoping they don't have to go through the same process.
    So, with that, Mayor Boughton, welcome.
    I am going to ask that your testimonies be 5 minutes. If 
you trip over a little bit, we can live with that, but it would 
be nice if we could stay within the 5-minute area. Thank you.


    Mayor Boughton. Thank you, Mr. Chairman. Let me just thank 
you for inviting us down here to testify today on a very 
important issue, and, on a personal note, we have often talked 
and I don't know if you remember that I was your intern, when I 
was in high school, in the legislature. You did a great job 
then; you are doing a great job down here.
    Mr. Shays. Well, you did a great job then and you are doing 
a great job now.
    Mayor Boughton. I learned from the master.
    Mr. Ose. Is this for the record?
    Mr. Shays. This is definitely for the record. He is under 
    Mayor Boughton. That is right.
    In addition, Congressman Simmons and I have worked together 
closely when I was in the legislature as well in Connecticut, 
and it is ironic that, today, the closing day of the 
legislature, we are no longer having this debate regarding 
Indian recognition in Hartford, we are now having it here in 
Washington, DC.
    I want to just address one quick comment that Ms. Rosier 
made when she was here. It is unfortunate she couldn't stay, 
but she made the comment about how, in other communities in 
other States, the Native American tribes and the States and the 
local municipalities are working together to address some of 
those issues, and I think that really is the underlying 
fundamental flaw of this process. It really underscores the 
challenge that we face, because, in Connecticut, we are a 
geographically small region, and because of that the 
recognition of a tribe has a much greater impact when you have 
more tribes in a small region. So we are not talking about the 
west or the southwest, where there are literally hundreds of 
thousands of acres in various States and it is not a big deal. 
In Connecticut it is a big deal because this State, my State is 
rapidly approaching the point where we will be four or five 
sovereign nations in a very tight geographical area that will 
ultimately run every aspect of our lives: our culture, our 
politics, our industry, ultimately our sense of identity of who 
we are as a community. And that is really the problem for us, 
is how do we juxtapose the right of the Native American peoples 
to right a wrong that they have had over history, along with 
the huge forces that are engaged here in the gaming and 
gambling industry, and, of course, that is your problem that 
you have to deal with here.
    Briefly, I want to mention just two issues. My testimony is 
on the record and everybody has had an opportunity to read it, 
but two issues that strike me as being somewhat challenging for 
all of us. The first is the issue of curing the deficiencies 
mentioned again by Ms. Rosier when she was here earlier in the 
day. This, to me, is mind-boggling and baffling the way the 
process works. And being an ex-history teacher and somebody who 
taught high school, the only way I can really look at this is 
that it is analogous to giving a test to a student, in this 
case recognition. You get back the test with a failing grade, 
you say you didn't make it, you failed. You then go give the 
tribe the answers to the test. They turn the test back in and 
they fail again. Then you go to your colleagues, your fellow 
teachers and you say, hey, how do I give these people a passing 
grade? Tell me how to get there from here.
    And that is ultimately what happened within the BIA. And we 
know that because of that internal memo that was circulated 
throughout the State and ultimately down here. They admit, the 
BIA admits this tribe does not meet the seven criteria. And in 
other cases of recognition, not meeting those two standards has 
been fatal to an application process. Those tribes were not 
recognized. And so for us to now turn around and do a 180 and 
say now you do become a tribe clearly is troubling for all of 
us. So the process in itself is absurd, and this issue of being 
able to cure the deficiencies, in my estimation, is absurd as 
    I think the other issue that we have to look at is what 
prompted the sudden change of heart by the BIA. Why would an 
organization ignore the very rules that has promulgated to 
arrive at a conclusion in its final determination that was 
different than one that was articulated in the preliminary 
determination? And for municipalities, we have to ask the 
question what is the point of having rules if we are not going 
to follow them? The rules become a moving target. We have 
talked about transparency today. There is no transparency 
because we have nothing to look at because the rules change 
every time we try to address them. So for my municipality and 
other municipalities dealing with this issue, the challenge for 
us is that, amongst all the other things we have to deal with, 
we now have to deal with a process that is undefined, open-
ended, and in some cases has been in unchartered territories.
    The other issue I think that merits discussion a little bit 
today is the post-recognition period. In the case of the 
Eastern Pequots, we are in a twilight zone, as a previous 
speaker has mentioned. We are not quite sure where we are 
because nobody has ever appealed the recognition of a tribe 
before. But the post-recognition of a tribe that proceeds to 
open a casino is really where the dollars are generated. Once 
the gaming operations have begun, as I mentioned in my opening 
comments, that is when life changes as we know it. And, in 
Connecticut, because, again, of our small geographic region, 
there will be a totally different way of life throughout the 
State of Connecticut if these tribes are allowed to go forward 
and open casinos. So I think it is critical that discussion 
    I know it is important to talk about people like Fred 
DeLuca of Subway Sandwich Shops, or Donald Trump of the recent 
Apprentice fame, or Thomas Wilmot, a New York mall developer 
who has bankrolled these tribes, but ultimately it is the 
fallout of the tribes that we have to deal with in our 
municipality; and what do we do with issues like annexation, 
that we talked about earlier.
    So those are some things that I think we should be 
discussing today, and I ask that you consider legislation that 
would gain control of this process. We mentioned some thoughts 
already today.
Take the seven criteria, make them Federal law so that we don't 
have a moving target any longer, and then certainly ask to help 
us participate in the recognition process by making these 
    Thank you.
    [The prepared statement of Mr. Boughton follows:]

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    Mr. Shays. Thank you.
    The Chair would now recognize the first selectman of 
Ridgefield, Rudy Marconi, who happens to be one of my 600,000 
    Mr. Marconi. And we represent a lot of people here today 
collectively. And thank you, Mr. Chairman, for inviting me here 
today to submit the following testimony on the Bureau of Indian 
Affairs Federal recognition process.
    As the first selectman of Ridgefield, CT, a town of 24,000 
people, I sit here today to ask you to consider a reform to the 
Federal recognition process. Over the past 2 years, our 
municipality, along with many others in the State of 
Connecticut, has spent considerable amounts of money in an 
effort to be heard in an otherwise broken process. I ask all of 
you why? Why isn't a city or a town notified and asked to 
participate in what I thought was an open and honest process, 
especially a decision that can have as serious and as long-term 
consequences as the BIA's recognition of the Schaghticoke 
Tribal Nation.
    State and local governments work diligently to solve 
problems such as traffic, housing, education, and other quality 
of life issues that seriously impact our budgets. In one 
unjustified, ill-advised decision, the BIA has laid the 
foundation to destroy the quality of life that we have worked 
every day to preserve, without even asking for our thoughts. 
How can this system be permitted to continue without a serious 
    In Chairman Davis' cover letter, he asked that I focus my 
comments on the integrity, transparency, and accountability of 
the recognition determinations. On integrity, there is no 
integrity in the system. Call it what you want, unimpaired, 
sound, honest, moral, trustworthy. It just doesn't exist. When 
the decision was made to recognize the Schaghticoke Tribal 
Nation, even though, ``evidence of political influence and 
authority is absent or insufficient,'' and even though a 
substantial and important part of its present day social and 
political community are not on the current membership list, the 
decision lacks integrity.
    On transparency, under no circumstances can anyone believe 
the Schaghticoke decision to be clear, obvious, or easily 
understood. At no time did the petitioner satisfy in total the 
seven mandatory criteria for recognition that should be 
enforced and relied on in the process. Instead, the decision 
was made to be, ``consistent with the intent of the 
acknowledgment regulations.'' However, the regulations provide 
that a petitioner shall be denied if there is insufficient 
evidence that it meets one or more of the criteria. As a 
result, one must conclude that this decision is fraught with 
confusion and contradictions.
    Accountability, a word that has been used by all of us 
during campaigns and promises to the people who elect us. The 
BIA must be held accountable for their decisions. As it exists 
now, they are accountable to no one. We now, as interested 
parties, must spend precious taxpayer dollars to protect our 
rights and to protect our quality of life. We must exhaust 
every appeal and whatever other legal remedy may exist to 
prevent the occurrence of another casino in Connecticut.
    In previous testimony, an internal BIA memo has been cited, 
``acknowledged the Schaghticoke under the regulations, despite 
the two historical periods with little or no political 
evidence.'' Ladies and gentlemen, this is exactly what has been 
done, and I ask you who will be held accountable for this 
decision, an action that is in direct violation of the 
regulations and can set a precedent for future petitions. The 
people who elect us expect and, in fact, demand that we, as 
elected officials, place integrity foremost in our 
responsibilities to them. They ask that we at all times be 
honest and clear with our decisions and open to the public. 
And, finally, we are required to be accountable to them, the 
residents and the taxpayers, so why is it unusual to expect 
this of any other government agency? Thank you.
    [The prepared statement of Mr. Marconi follows:]

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    Chairman Tom Davis. Thank you very much. You ask some very 
important questions that we need answers for.
    First Selectman Mullane, thank you.
    Mr. Mullane. Thank you for having me here today. I really 
appreciate this opportunity. Mr. Shays, I want to thank you, 
Rob Simmons. Mr. Ose, I want to thank you. I made a few 
comments in front of your hearing 2 years ago, and I appreciate 
the effort you are making today to hear a subject that is very 
important to all of us.
    There is talk about casinos, there is talk about impacts. 
My first issue with this subject is in regard to creating a 
tribe and a sovereign nation and granting land claims. There is 
nothing more important and significant to me and my town than 
    I testify also today on behalf of Susan Mendenhall, mayor 
of Ledyard, and Bob Congdon, first selectman of Preston.
    I am going to try to jump around and not repeat some of the 
things that have already been said, and I want to talk about 
the tribal recognition that is under appeal, the Historic 
Pequot Tribe. And of yesterday there was an appeal filed for 
the Schaghticoke.
    The historic eastern acknowledgment is a combination of 
petitioners from two groups, both of whom are longstanding 
rivals of each other. This is an unprecedented and unwarranted 
acknowledgment. If I look at the decision, I have to go back to 
comments that were made in the Department of the Interior 
Office of Inspector General, and this is some comments by Mr. 
Gover. The relationship between Gover and the BAR staff was 
strained from the beginning. Shortly after being appointed, 
Gover held a meeting with the BAR staff in which he said 
acknowledgment decisions are political. Our staff considered 
this an indication of how the Assistant Secretary would rule on 
findings. BAR and the solicitor who advises them were convinced 
that Gover did not like the regulatory process set forth and, 
as a result, would base his acknowledgment decisions on his 
personal interpretation of the regulations.
    When Gover did issue his decisions regarding the Eastern 
Pequot, the Paucatuck Eastern Pequot, the Little Shell Chinook, 
contrary to the recommendations of BAR, the BAR staff issued a 
memoranda of nonconcurrence for each of the four decisions. BAR 
had never before documented its disagreement with an Assistant 
    His additional comments, I will skip those, but what I want 
to do is go on and say how do we fix it. True reform must be 
more meaningful than streamlining. This committee is 
considering a series of measures, some of which have been 
introduced by members of the Connecticut delegation to address 
the shortcomings in the process. Few doubt the need for reform, 
but the details of actual reform remain in doubt. As a result, 
we offer five principles of reform to the acknowledgment 
    First, it is our position that Congress alone has the power 
to acknowledge tribes. It has never been delegated that power 
to the executive branch, the BIA, nor has it set standards for 
the BIA to apply in carrying out that power. If Congress must 
decide who should make these decisions, they have to set 
rigorous standards, ones that are strict, that cannot be 
violated, manipulated, moved, or changed.
    Second, the acknowledgment process has to be procedures 
which have been invented by the BIA do not provide an adequate 
role for interested parties, nor do they ensure objective 
    Third, the acknowledgment criteria must be rigorously 
    Fourth, if Congress is to delegate the power of 
acknowledgment to the executive branch, it should not delegate 
that authority to BIA. The BIA process has evolved into a 
result-oriented system, at the minimum, which is subject to 
bias inherent by having the same agency charged with advocating 
the interest of Indian tribes, also make acknowledgment 
decisions. The process is also subject to political 
manipulation. An independent commission created for this 
purpose would have the same shortcomings unless checks and 
balances are imposed to ensure objectivity, fairness, full 
participation by all interested parties and the absence of all 
political manipulation.
    Fifth, because of the foregoing problems, it is clear that 
a moratorium is needed to be able to establish a proper 
process. There was a bill, S. 1392, which was a good start. 
There was another one, 1393, which contains some essentials. 
Still, I believe that there has to be an ongoing dialog between 
the towns, the State, the Federal Government that ultimately 
result in a fair and objective and, most important, a credible 
    I want to comment on one aspect, which is the procedure 
itself. I frequently hear the complaint, and I heard it today, 
raised by the petitioners over how long it takes to achieve a 
final decision and how much it costs. My town has spent 
$545,000 over an 8-year period of time. The time and cost of 
government procedures is a legitimate concern; however, I must 
note that the time problem is less than that of the Federal 
Government and more that of the petitioners themselves. These 
petitioners groups take years to develop their argument. For 
example, the Eastern Pequots spent 17 years developing for 
their case of acknowledgment; the Schaghticokes took 19. To a 
large extent, this appears to have been the result of millions 
of dollars spent on researchers, attorneys, lobbying, media 
consultants, and so forth, who are searching high and low for 
every available means to make a deficient tribal acknowledgment 
claim and establish the basis for positive results.
    With the massive infusion of money and resources from 
petitioners' side, voluminous records are produced that are 
almost impossible for other parties to deal with or, for that 
matter, BIA. The petitioners' comments are it's all there, you 
just don't understand. Although I am not a defender of BIA and 
its approach to tribal acknowledgment, we must all recognize 
that a significant part of the problem comes from the 
petitioners. And what is most frustrating is the supposedly 
last piece of necessary evidence to complete an application is 
submitted in the last petitioner's comment period, when no one 
else can challenge the credibility of that evidence.
    [The prepared statement of Mr. Mullane follows:]

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    Chairman Tom Davis. Thank you very much. I know there is a 
lot more you can say; you have such a wealth of experience and 
knowledge. Thank you.
    Mr. Benedict, you are the closer here. Then we will get to 
questions, and we will start with Mr. Ose when you are done.
    Mr. Benedict. Mr. Chairman, thank you. I appreciate the 
opportunity to be here today, to be under oath, and to be part 
of this panel. I want to say at the outset that I also have 
submitted written testimony, and ask that it be added to the 
record. And, Mr. Chairman, I also request the opportunity to 
submit an addendum to that, which would be some source notes to 
go along with it.
    Mr. Shays. We welcome those.
    Mr. Benedict. I have asked for some easels. Is it possible 
to have those?
    Mr. Shays. Sure.
    Mr. Benedict. Thank you.
    Let me just say at the outset that I am an author and a 
lawyer, and I am the head of the Connecticut Alliance Against 
Casino Expansion, which is a nonprofit that was created in 
Connecticut less than 2 years ago. To clarify for the record, 
we have not raised millions of dollars. I wish we had. We are 
nowhere near that. It is public record that we have raised 
about $250,000 in a little less than 2 years.
    However, there are some people in this room that have 
raised millions of dollars, and that is going to be largely the 
subject of my testimony today.
    I have a statement that I prepared last night to read 
today, which I am going to set aside, having made some 
observations in the room today that I think may be more 
pertinent than the remarks that I prepared.
    Mr. Shays. Your statement will be part of the record. And 
it makes sense, you have been here, so why don't you comment on 
what you have seen and heard?
    Mr. Benedict. I appreciate that.
    Observation No. 1 is who is not here today, which I think 
is perhaps more profound than anything that has been said here 
today, which is that, No. 1, there are no investors in tribal 
recognition present. Some were invited; they declined. There 
are many more that could have been invited and weren't.
    No. 2, there are no lobbyists working on behalf of those 
petitioning for tribal acknowledgment present. I was glad to 
hear, at the outset of the hearing today by Chairman Davis, 
that this is the beginning, and not the end, of this 
committee's work, because I think the groundwork has been laid 
here today, and really the answers that ultimately we need to 
get to are in the hearts, minds, and wallets of those who are 
not present today.
    Observation No. 2 is that there has been little or no 
mention today of the Indian Gaming Regulatory Act [IGRA]. There 
has been a lot of discussion about tribal acknowledgment. IGRA 
and tribal acknowledgment are joined at the hip, they are 
inseparable at this point, and it is somewhat wasteful to 
discuss reforming the acknowledgment process without also 
discussing the need to reform the Indian Gaming Regulatory Act. 
And I would like to sort of move in that direction rather 
    The Indian Gaming Regulatory Act was passed in 1988, as we 
all know. At that time there were two States in the country 
that had State-sanctioned casinos, they were Nevada and New 
Jersey. The premise of the Indian Gaming Act was twofold: No. 
1, it was designed to clarify and set standards for gambling on 
Indian lands, simply put; and No. 2 was the premise that tribes 
that existed in States that permit gambling should be provided 
the same opportunity on their lands if they are in those 
States. You could assume from that if you were a tribe that 
lived in Nevada at that time, you would be able to have the 
full gauntlet of gambling offered on your reservation under 
IGRA. You could also presume from that, if you were a tribe in 
Utah at that time, you would be allowed to do no gambling, from 
bingo to lottery to casinos, because none is permitted under 
State law.
    IGRA has become a runaway train. It is the law of 
unintended consequences. It arguably is the worst piece of 
legislation to come out of this Congress in 20 years because 
its drafting has been so vague and created such gaping holes 
that have been left to the courts to interpret that we have 
seen a country go from two States with legalized casinos in 
1988 to a country with 31 States with over 300 casinos now in 
operation. California alone, as Mr. Ose probably well knows, 
has had over 50 casinos go up since IGRA was put into law. The 
State of Connecticut has two casinos that draw over $3 billion 
a year. There is no coincidence that California and Connecticut 
lead the way in tribal recognition petitions per capita. Those 
are the two most lucrative gambling markets in the United 
States today; Wall Street says it and the evidence is therein 
the outcome of those casinos. And now there are over 50 
petitioners in California and a dozen in Connecticut seeking 
the right for recognition, which now carries with it the right 
to build a casino.
    Let me just move to these charts very briefly. I see how 
much time is left, and I don't want to use it up.
    These charts point to four names. They are well known, 
particularly in our State, but nationally. Donald Trump, who we 
know is a casino mogul. In court papers he has confirmed that 
he has invested $9 million in backing the Paucatuck Eastern 
Pequots. The Subway Sandwich founder, Fred DeLuca, has admitted 
publicly that he has invested $10 million in the Schaghticoke 
petition. Developer Thomas Wilmot has said he has spent $10 
million backing the Golden Hill Paugussetts; and now a new 
person, Lyle Berman, who is the CEO of Lakes Gaming, Inc., a 
publicly traded company on Wall Street, has said just in the 
last couple years he has spent $4 million.
    This is a grand sum of $33 million invested in the tribal 
recognition process, just four cases. We have heard evidence 
today that there are close to 300 petitions pending, two-thirds 
of which are backed or bankrolled by gambling interests. This 
is not designed to just say $33 million is a big deal. This is 
to give you a snapshot of just four cases in our State.
    The chairman asked at the outset what can be done, and let 
me close with just a couple of suggestions on reform.
    No. 1, and I don't mean to be glib when I say this, but it 
is time for Congress to tell Donald Trump you are fired from 
the Indian gaming process.
    Mr. Shays. You are a writer, aren't you?
    Mr. Benedict. I am a writer.
    This guy has been busy in more than Connecticut influencing 
this process, and let us recall what he told the U.S. Senate in 
this town just a few years ago. He got up and testified and 
said something about the Mashantucket Pequots not being true 
Indians and operating a very profitable casino. There is one 
thing he and I agree on in this world, and that is that the 
Mashantuckets are not a legitimate tribe. But the rest of what 
he has done since then is adopt an ``if we can't beat them, 
join them'' approach. He pumps $9 million into the State of 
Connecticut hoping to get a casino license that he can't get 
any other way. His lawsuit filed in New London County makes 
very clear there is a deal struck between him and the 
Paucatucks that he would be the developer of this casino and he 
would advance, front the money in hopes of getting that 
    Second, it is, I think, incumbent that we also look at IGRA 
and the need to tighten up this legislation. It is time that we 
look at what was the original intent of this law. Was it 
designed to create a vacuum for guys like Donald Trump and Fred 
DeLuca and Thomas Wilmot to jump into? No. It was designed to 
create an equal footing for the existing Indian tribes that 
were in America in 1988. What we have seen is a gold rush 
literally of applicants and of investors getting behind them.
    Third, it is essential that we know more. There are a lot 
of bright lights here today, and I will tell you quite 
seriously I am glad we are in the light right now. And I mean 
that very candidly. We need lobbyists in the light. I would 
like to know what justifies paying someone like Ronald Kaufman 
$600,000-plus to lobby for the Pequots. I would like to know 
what Mr. Paul Manafort has been doing. He has not registered a 
lobbying report that I am aware of that shows what he has been 
doing for the Schaghticokes. It is time that this committee ask 
those questions. Why does it take $9 million? And don't tell me 
that it takes $9 million to do research. The State of 
Connecticut has been doing it on a dime for 10 years. It 
doesn't take $10 million to hire researchers. But it does take 
$10 million to hire real estate searchers and lawyers and 
lobbyists, and those who work influence. And I think we will 
not have real reform until those men are brought in here, raise 
their arm to the square and under oath ask and answer some very 
serious questions about what they have been doing with their 
money, where it has come from, and what it has been used for.
    Thank you very much.
    [The prepared statement of Mr. Benedict follows:]

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    Chairman Tom Davis. Thank you all very much.
    And with that, I will recognize Mr. Ose for as much time as 
he would like to consume.
    Mr. Ose. Thank you, Mr. Chairman.
    Mr. Marconi, your testimony on page--I don't remember what 
page it is, but you have a couple comments in there. You say 
the system is not sound, it is impaired, it lacks integrity.
    Mr. Marconi. Yes.
    Mr. Ose. What exactly do you mean?
    Mr. Marconi. The way in which the decision was arrived at, 
the fact that despite the fact that the seven criteria were not 
met, that, in fact, a rationale was used to substitute for 
these recognitions. That is what I mean.
    Mr. Ose. And the examples you are citing related to the 
approvals granted at the end of the previous administration or 
have there been other examples you are referring to?
    Mr. Marconi. What I am referring to is the internal memo 
from the OFA that we received a copy of.
    Mr. Ose. Dealing with the recognition process?
    Mr. Marconi. Dealing with the recognition process of the 
Schaghticoke Tribal Nation.
    Mr. Ose. OK. So STN's application, is that one of those 
that was approved in the waning days of the previous 
    Mr. Marconi. Can you repeat that, please, it was approved 
    Mr. Ose. Is that one of the applications that was approved 
in the waning days of the previous administration?
    Mr. Marconi. No.
    Mr. Ose. So this is a problem that is not----
    Mr. Marconi. Today.
    Mr. Ose [continuing]. Administration-based from past 
history, this is something that did exist, it exists now, 
according to your testimony.
    Mr. Marconi. That is my testimony.
    Mr. Ose. So something that is with us now.
    Mr. Marconi. Yes.
    Mr. Ose. All right.
    Mr. Benedict, someone whispered in my ear in your testimony 
you mentioned these four individuals and the legions of 
lobbyists, registered and otherwise, that they use to implement 
their plans. Are you a registered lobbyist?
    Mr. Benedict. I sure am. I am registered under State law in 
Connecticut. In our State, that filing is done with the State 
Ethics Commission. I am the head of a 501(c)(4). We are 
authorized to lobby in our State. And as the only full-time 
paid employee of the organization, I am registered. I am also 
registered here as of just recently.
    Mr. Ose. I would be asking these questions of legions of 
representatives of these people. The name of your 501(c)(4) is?
    Mr. Benedict. The Connecticut Alliance Against Casino 
Expansion, Inc.
    Mr. Ose. The contributors to the Connecticut Alliance 
    Mr. Benedict. Casino Expansion.
    Mr. Ose. Gaming Expansion?
    Mr. Benedict. Casino Expansion.
    Mr. Ose. Casino Expansion. The financial contributors to 
that are whom?
    Mr. Benedict. Excuse me?
    Mr. Ose. Who are the financial contributors to your 
    Mr. Benedict. Sure. It is fairly easy to distinguish who 
they are. No. 1, we are funded by SAICA, the Southeast Area 
Industry and Commerce Association, in Stanford, CT. We have 
received funding from a large number of citizens of 
Connecticut, in the hundreds. Those donations range from $5 to 
the largest was $10,000. We have also received a limited number 
of contributions from chambers of commerce and some other civic 
organizations in the State of Connecticut, the largest being 
    Mr. Ose. Your annual budget for the 501(c)(4) is what, how 
    Mr. Benedict. The annual budget? We have only been in 
existence for 18 months, and we have raised a total of 
$250,000, give or take a few, in that 18-month period. Our 
opening year budget, we didn't hit it, not even close, but we 
were hoping to raise and utilize roughly $250,000 in that first 
year. We didn't raise that much and we didn't spend that much 
because we didn't have it.
    Mr. Ose. This organization you referred to as SOICIA.
    Mr. Benedict. SAICIA, S-A-I-C-A.
    Mr. Ose. S----
    Mr. Benedict. A-I-C-I-A.
    Mr. Ose. Southwest Area----
    Mr. Benedict. Commerce and Industry Association.
    Mr. Ose. Now, that is a Connecticut-based organization?
    Mr. Benedict. It is.
    Mr. Ose. OK. The $250,000 budget over the past 18 months, 
how much of that has come from SAICIA?
    Mr. Benedict. We received an initial installment, a total 
of my memory is $60,000, and those were made in monthly 
increments, I think 10,000 a month. We have recently received 
an additional installment from SAICIA within the last 2 to 3 
months, and I think that total, I would have to check, but I 
think it was $25,000.
    Mr. Ose. I want to compliment you on your willingness to 
put that on the record in this environment. We have a serious 
problem in getting people to disclose who their financial 
backers are, and I can guarantee you, as we pursue this, I am 
going to be asking the same questions of the other parties, and 
it will be interesting to see, at that time, whether or not 
they are as forthcoming as you have just been.
    Mr. Benedict. Well, thank you. And I will go one step 
further. I would be happy to supply this committee with our 
budget and the documents that you want about our organization. 
We would be happy to provide that.
    Mr. Ose. I think, Mr. Chairman, that would be an 
interesting standard to lay down on the table for everybody 
else to comport with.
    So with the chairman's concurrence, we will accept your 
    Mr. Benedict. Thank you.
    Mr. Ose. Now, you mentioned two names. You mentioned a 
Randall Kaufman and a Paul----
    Mr. Benedict. Manafort.
    Mr. Ose. How do you spell that?
    Mr. Benedict. M-A-N-A-F-O-R-T.
    Mr. Ose. Manafort. Is that Charles Manafort? Are Kaufman 
and Manafort lobbyists?
    Mr. Benedict. That is a word you could use, but----
    Mr. Ose. Well, what word would you use?
    Mr. Benedict. Power brokers.
    Mr. Ose. Based here in Washington?
    Mr. Benedict. Based here in Washington.
    Mr. Ose. OK. Now, they are power brokers in what sense?
    Mr. Benedict. Well, I guess in the crudest sense. There are 
reasons that one individual can attract a fee of $600,000 to 
monitor legislation. That is a lot of money to look at what is 
in the pipeline. I do that for our organization, and I get paid 
$75,000 a year, and have many other things. And I think what is 
going on here, Representative Ose, and let us be clear, this is 
not new to this administration.
    Mr. Shays. Could the gentleman just suspend a second?
    But we are really talking about something more than just 
legislation. You are talking about lobbying the administration, 
in other words, what do they do for that money.
    Mr. Benedict. That is right. You know, there has been the 
specter raised here today and prior to today that there is 
influence being brought to bear to influence the outcome of 
these decisions, and I don't dispute that; I am one of the ones 
who has been saying that the most. But I also think in this 
town there doesn't always have to be the overt arm-twisting and 
influence-peddling to get a message across, and there are 
times, and we saw this in the prior administration, in the 
Clinton administration.
    I wrote an entire book about this, which largely looked at 
the Clinton administration and the massive sums of money that 
were contributed to the Clinton administration by the 
Mashantucket Pequot Tribe, the owners of Foxwoods. There was no 
evidence that that tribe or the money that they contributed led 
to a direct quid pro quo, yet it was very obvious that the 
Bureau of Indian Affairs was churning out decisions on your 
question: Can a tribe attempt to attach land to its 
reservation? And the administration did it without any reason 
to do it. And this tribe had given enormous sums of money to 
the Clinton administration. There was a tradeoff.
    I think when you are giving that much money, when you have 
that name, you don't necessarily need to call somebody up and 
tell them what to do; they get the message because the money is 
big enough.
    Mr. Ose. I want to continue my line of questioning, if I 
    So is it your testimony, without sharing or presenting 
empirical evidence, that decisions are being unduly influenced 
in this process by virtue of activities of the lobbying corps 
in this city?
    Mr. Benedict. My testimony would be, Mr. Ose, that I don't 
see how lobbyists like that could not have an influence in the 
process. Do we have direct evidence that they have made 
improper contacts? No. But I think that is one of the biggest 
problems here, is we need to ask what are you doing as a 
lobbyist. Or in Mr. Manafort's case, where he doesn't claim to 
be a lobbyist, well, why was he retained? What is it that he is 
doing specifically for the money he is being paid.
    Mr. Ose. Refresh my memory. Who is it that retained Mr. 
    Mr. Benedict. Mr. Kaufman works for, well it is not called 
the Historic Pequot Tribe, but initially the Eastern Pequot 
Tribe, which is a faction that Mr. Coke and Mr. Rossau are the 
backers of.
    Mr. Ose. Is that the----
    Mr. Shays. Would the gentleman mind suspending one more 
    Mr. Ose. Certainly.
    Mr. Shays. What I would like, Ms. Flowers, I am not going 
to have you come up here and have a debate. I think that is 
very unfair. But when this panel is done, I would like to just 
ask you, and so I thought I would give you time to think about 
it, what does Mr. Kaufman do for the $500,000 to $600,000 that 
you feel what is his deliverable. And that would be helpful to 
put on the record, I think. So if you would just think about 
    I thank the gentleman.
    Mr. Ose. As usual, the chairman is way ahead of me; he 
jumps right to my own question.
    Mr. Shays. I am sorry.
    Mr. Ose. I am going to have to yield back to the chairman 
until I construct my next series of questions.
    Mr. Shays. Well, I would be happy to take the floor, but 
your line of questioning is very important, and it was a 
question that we were going to ask Chairman Flowers, but I 
thought we should get to this panel. And so I would like that 
on the record, because it is an important thing.
    You basically have Mr. Manafort and you have Mr. Kaufman, 
and they are both very powerful political operatives. I know 
Mr. Kaufman well, and I like him a lot, but he is doing his 
job; I am going to do my job. So we need to get that on the 
    I will say that I am a card-carrying member, I think, of 
your organization. I think you got $50 from me.
    Mr. Benedict. You did.
    Mr. Shays. It may have been more if I was trying to impress 
    Mr. Benedict. It was $50.
    Mr. Shays. It was only $50.
    Mr. Benedict. It was $50.
    Mr. Shays. Well, I am a card-carrying member, and it is one 
of the best investments I have made.
    Mr. Benedict. I photocopied your check, Chris.
    Mr. Shays. At any rate, one of the things I have no problem 
accepting is if you are a petitioning State tribe, whatever, 
seeking to be a Federal tribe, you need to document some pretty 
significant stuff, so you are going to want financial help 
there. I have no challenge at all give me a good financial 
backer and help me document that we did have continuity and 
that we do meet all the seven tests. Help me fund the people 
that can do that. Where I have a big disconnect is why you 
spend hundreds of thousands of dollars for someone who is not 
doing that, but just trying to influence the decision.
    Would you all agree that you could understand a tribe would 
want to do that, or would you even take issue with that?
    Mayor Boughton. Well, you know, obviously, coming from the 
legislature and serving in all different types of government, 
that is fairly common, where you would have somebody to 
represent your interests, whether it was the oil interests, 
whether it was commercial interests.
    Mr. Shays. I am not talking about representing your 
interests. I am asking about do you agree or disagree that 
tribes will want to have financial backers who will want to 
help them document, the historians that they have to hire, all 
of that. It seems to me that we would be pretty hypocritical to 
say prove that you are a tribe, but then not give them the 
resource or allow them to have the resource to prove they are a 
tribe. Isn't the dispute here not whether they should have a 
right to prove they are a tribe, but what they do to influence 
the decision? And there are good things they should do and 
there are bad things. I mean, comment and let us go right down 
the line.
    Mayor Boughton. Well, getting back to my original point, I 
don't have a problem with a financial backer helping a tribe 
access information to help prove their validity. I think that 
is fine. And I don't have a problem with a tribe engaging in a 
lobbyist to represent their interests, be it here or in the 
legislature. I think that is fine as well. Where it crosses the 
line is when you have somebody who doesn't report the kind of 
activities they engage in, who is not covered by any of the 
State ethic laws or by the Federal ethics laws, and just sort 
of out there in that twilight zone doing the little things that 
they do to manipulate the situation to get the outcome they 
want. That bothers me. And in this case, with Mr. Manafort, 
that is extremely troubling in the case of the Schaghticoke 
    And so if you want to hire somebody to do the research, if 
you want to get a financial backer to do the research, 
perfectly acceptable. You want to hire a lobbyist to represent 
your interests here? Perfectly acceptable. Do you want to take 
that next leap to be able to engage somebody who knows somebody 
to get the outcome that you want? Then it is completely 
unacceptable. And I think that is really the distinction you 
are trying to draw.
    Mr. Shays. I think you need to take a look at the chart 
again, and I concur entirely with Mr. Benedict's testimony. 
When you look at the amount of money, $9 million, $10 million, 
$10 million, $4, $33 million in total, it doesn't cost that 
much to do the research, as he stated. We have been doing it, 
the State of Connecticut, Attorney General Blumenthal has been 
working on that with a much, much smaller budget. The fact is 
the money is going somewhere, and as Mr. Ose has said, maybe we 
should set a standard with this committee and ask everyone who 
comes before you to divulge where have these millions of 
dollars gone.
    Mr. Mullane. Let us go back----
    Mr. Shays. Let me just say to you, in triggering that, we 
will write a letter to all of these parties and ask for a 
complete breakdown, whether or not they testify before the 
committee or not. We are not just going to do the one that had 
the willingness to come forward, we will ask all of them. It is 
a very important point.
    Mr. Mullane. Let us go back to the basics. If the tribe has 
maintained community, political continuity, and have their 
genealogical records, I am at a loss as to why it would be that 
difficult. OK? So I do not also deny that somebody needs help. 
The problem has been that BIA is a lobbyist for the group. 
Their scenario or routine is to deny them on the preliminary 
determination, lay out a road map for what they have to 
achieve, and then help them get there and, if they have to, 
fabricate it along the way. But we also have to understand that 
we do need professional people to package, to put it in some 
sequence, in some order. That is one of the problems. BIA has 
seven criteria but doesn't tell you how you have to respond. 
They could very easily set standards that say provide your 
genealogical in this format, provide your tribal community in 
this manner, provide this political continuity and who has been 
your leader.
    So, yes, professional help is needed; yes, you have to 
package it; but let us take a look at the problems that have 
happened with the change of rules and how people have revised, 
altered, or BIA has facilitated and broke their own rules. So 
they need help, but there should be standards, and the 
standards should be easily understandable and the data should 
be readily available for everybody.
    Mr. Shays. I was thinking, as you were talking, how much 
you know about this issue. When you grew up as a kid, little 
did you know that you would know so much about tribal 
    Mr. Benedict. Mr. Chairman, I think to simplify what could 
be done on a reform basis, I think there is no place in this 
process for lobbyists, period. Very simply, this is a situation 
where you have an agency with a fiduciary responsibility to 
Indian tribes that has also been entrusted with the massive 
responsibility of determining tribal status for groups that 
have applied to the Bureau. They are not making legislation. 
They are not deciding policy. They are deciding whether these 
applicants have the merits to deserve sovereign status. There 
is no role in that process for a lobbyist, none. It just simply 
shouldn't be there.
    And then you say, well, then what do you do, you tell 
someone like the Eastern Pequots, who are here today, who say 
their lobbyist is just employed to review pending legislation 
that might impact us. Are you telling us they can't have a 
lobbyist at all? I think that is what takes us back to IGRA, 
and that is why IGRA becomes so important. If we merely try to 
fix the acknowledgment process without addressing IGRA, we are 
not going to get there. IGRA is the twin to acknowledgment, and 
it is IGRA that has opened this door for us. It is Pandora's 
box that makes acknowledgment. Whether any of us want to admit 
it or not, acknowledgment has become contaminated by gambling, 
and that is why I think, under IGRA, there is room to get the 
lobbyists out of this process and the financiers, and the way 
to do that is to reclarify what IGRA originally was intended to 
be: a law that applied to tribes that existed when it was 
passed in 1988. It has now become a law of exploitation by guys 
like Donald Trump and the lobbyists who work for them.
    Mr. Shays. Thank you.
    Let me just say that Mr. Ose is going to be chairing a 
committee hearing in this room starting sometime around 2 p.m.
    Do you want the floor back with this panel before?
    Mr. Ose. Mr. Chairman, given your courtesy so far, I think 
I will submit my questions for the record.
    Mr. Shays. OK.
    I would conclude with this panel by saying it is pretty 
clear, based on panel one and panel two and panel three, that 
we have some very clear recommendations from all of you: 
transparency, the whole issue of conflict of interest. The one 
area that I am not as clear about, I don't want to spend a lot 
of time, but I gather you accept the fact that if you are able 
to prove that you are an Indian tribe and you meet all the 
standards, then you get what Indian tribes get, sovereignty and 
everything else that comes with it. It then strikes me that you 
are also saying if that happened, you want the communities to 
have some say in what happens then. Is that correct? I am 
seeing some nodding of heads.
    Mayor Boughton. Absolutely. I think that is really the 
fundamental problem that we are wrestling with here. You know, 
we don't deny the rights of Native Americans to seek 
recognition if they so deserve. I will add an addendum to that, 
that in Connecticut, as Jeff has mentioned, we have 
reservations about these organizations that are calling 
themselves tribes to begin with, in the sense of where exactly, 
how they are cobbling their heritage together to make a tribe, 
or that the BIA is doing it for them. And that is really the 
challenge that we have locally.
    Mr. Shays. Is there anything that any of you want to put on 
the record before we just ask Chairman Flowers to just talk 
    Yes, Mr. Mullane.
    Mr. Mullane. I would like to answer that question also. And 
I a little older than I look. Graduated from high school, went 
in the Navy, worked for Defense Department for 37 years, been a 
selectman for 19 years. And there are two things that have 
always been bread into me: one nation under God and all men are 
created equal. Yes, there is an issue with the Native 
Americans, and I am not going to answer that question. But I 
want you to look at where we are today, what has happened in 
the last 12 years since the Gaming Act was passed, and where we 
are going and how you can envision resolving the problems that 
are being spread across the United States; not just 
Connecticut, throughout the United States, and how business is 
starting to have conflict. The latest one I saw was an Indian 
group filed to be classified as an offshore bank. They are 
already in telecommunications, they are in banking. So we have 
to look at where we are going, and I beg you to have followup 
on this and that we have some results. If you must have a 
process, there must be reforms, it must be given to an 
independent agency, and you cannot streamline it and fix it.
    Mr. Shays. OK.
    Mr. Mullane. Thank you.
    Mr. Shays. I am getting a little nervous staff here who are 
trying to get us to move here. What I am going to do is ask Ms. 
Flowers to submit in writing sometime by next week what your 
lobbyist does for the money he gets, how much he gets and what 
your lobbyist does. We are going to be sending a letter to the 
other organizations as well to do that. And we will make that 
available to the press.
    Would you be able to get that to us by Wednesday of next 
week? Do you want to do it now? If you want to do it now, we 
will do it now, or you can do it in writing. OK, come on up, 
    Thank you all. Excuse me. Have you all put on the record 
everything you want to put on the record?
    Mr. Benedict. I just wanted to say thank you to this 
committee for starting this. I appreciate the opportunity to be 
    Mr. Shays. Good. Thank you both very much, all of you.
    Mr. Mullane. I also want to thank you.
    Mr. Shays. You have been a wonderful panel and you have 
added a lot to the work of this committee.
    Thank you. We are going to be pretty quick on this, but I 
appreciate your wanting to do it now. That is great.
    First on Ronald Kaufman.
    Ms. Flowers. On Ron Kaufman, I had stated the tribe pays 
$120,000 per year, but anything beyond what you need, what he 
does for the tribe, we could submit that.
    Mr. Shays. Well, he submitted information, I thought that 
he made over----
    Ms. Flowers. I believe he is registered lobbyist. But we 
will send, to satisfy the committee, we will send that in.
    Mr. Shays. Unfortunately, you have come in front of us now, 
so I can't be as casual as we are being here. I want to know 
specifically how much the tribe has paid him.
    Ms. Flowers. We pay him $120,000 a year since 5 years.
    Mr. Shays. OK, so it is over 5 years.
    Ms. Flowers. Yes, 5 years.
    Mr. Shays. So he has received about $600,000 plus over a 5-
year period.
    Ms. Flowers. Yes.
    Mr. Shays. OK. And what does he do for that?
    Ms. Flowers. Monitors legislation down here in Washington; 
monitors to make sure there are no riders on any appropriation 
bills that could hurt the tribe; he advises the tribe on any 
kind of political activity that we may not understand or not 
see; he arranges, usually once a year, for us to come down and 
hopefully get to visit the Connecticut delegation.
    Mr. Shays. Does he also provide entre into the 
    Ms. Flowers. Never.
    Mr. Shays. I want to be real clear, because you are under 
    Ms. Flowers. Never.
    Mr. Shays. Listen to the question first.
    Ms. Flowers. OK.
    Mr. Shays. I want to make sure that you are comfortable 
with your answer. You are saying that Ron Kaufman--and I know 
him pretty well, and he knows how to make entre. You are saying 
that he has never provided an entre, not just for you, but for 
your tribe. So you are saying that he has never contacted the 
White House, never contacted the Bureau of Indian Affairs, 
never done those things?
    Ms. Flowers. Not to my knowledge. He has never been 
directed to do that under our tribe.
    Mr. Shays. That is not what my question is. That is not 
what I am asking, though. We are going to be a little--I don't 
want to blind-side you here because I just know him too well. 
To suggest that he has never contacted the administration would 
be almost an impossibility for me to accept, and I want to 
protect you from that question.
    Ms. Flowers. I have never directed anyone, never.
    Mr. Shays. We will leave it at that.
    Mr. Ose. Mr. Chairman, if I might.
    Mr. Shays. Yes.
    Mr. Ose. Have any of Mr. Kaufman's colleagues contacted the 
BIA on your behalf?
    Ms. Flowers. Not to my knowledge. Never been directed by 
our tribe.
    Mr. Ose. Thank you.
    Chairman Tom Davis. How many tribal members are there?
    Ms. Flowers. We have, not including those that have died 
within the last 2 years, 1,131. Almost half of those are 
    Chairman Tom Davis. Are they scattered? They are not all in 
Connecticut, they are scattered all over?
    Ms. Flowers. For the most part in Connecticut. And we had 
to document that in the petition by 10-year increments, 
location of where members are.
    Chairman Tom Davis. Let me just say I appreciate your 
appearing here today voluntarily, and being able to sit here 
and answer questions. The committee appreciates that very much.
    Mr. Shays. Thank you, Mr. Chairman. Mr. Chairman, are we 
all set?
    We are all set. Is there anything else you want to put on 
the record?
    Ms. Flowers. My vice chair pointed out Ron Kaufman also 
helps us write position papers and those kind of things that we 
are not used to doing.
    Mr. Sebastian. And also review press releases and positions 
also. Mr. Chairman, may I just add one more comment?
    Mr. Shays. Yes. And I would say that what I had always 
assumed was that he had made $500,000 or $600,000 in a 1-year 
period, and you are saying it has been over a 5-year period.
    Ms. Flowers. It has been over 5 years.
    Mr. Shays. Yes, sir.
    Mr. Sebastian. We just want to make a brief comment in 
regard to the rotating door, and it is twofold. It is a double-
edged sword because, as you know, it is alleged that the town 
of North Stonington and their attorneys had hired Kay Davis, 
who directly reviewed our petition, and Mr. Larson, the 
anthropologist, who directly worked for the Paucatuck, former 
Paucatuck Eastern Pequot Tribe. So that rotating door is a 
double-edged sword, not just for tribes, but for towns.
    Mr. Shays. Would you agree that a rotating door, whichever 
direction it goes, is wrong? I am sorry, nodding of a head 
doesn't do it. Would you agree, Mr. Sebastian?
    Mr. Sebastian. Yes, absolutely.
    Mr. Shays. Folks, I am sorry.
    Madam Chairwoman, thank you very much. Thank you, Vice 
Chair. I appreciate your taking the dais.
    With that, we are going to adjourn this hearing.
    [Whereupon, at 1:50 p.m., the committee was adjourned, to 
reconvene at the call of the Chair.]
    [Additional information submitted for the hearing record