[Senate Hearing 108-534]
[From the U.S. Government Publishing Office]
S. Hrg. 108-534
FEDERAL ACKNOWLEDGMENT PROCESS REFORM ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
S. 297
TO PROVIDE REFORMS AND RESOURCES TO THE BUREAU OF INDIAN AFFAIRS TO
IMPROVE THE FEDERAL ACKNOWLEDGMENT PROCESS
__________
APRIL 21, 2004
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
93-280 WASHINGTON : DC
____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
----------
Page
S. 297, text of.................................................. 3
Statements:
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
chairman, Committee on Indian Affairs...................... 1
Fleming, Lee, director, Office of Federal Acknowledgement,
BIA, Department of the Interior............................ 48
Gover, Kevin, professor of law, Arizona State University
College of Law............................................. 54
Martin, Aurene, principal deputy assistant secretary-Indian
Affairs, Department of the Interior........................ 48
McCaleb, Neal, board member, Chickasaw Nation Industries..... 52
Roybal, Edward, chairman, Piro Manso Tiwa Tribe, New Mexico.. 51
Appendix
Prepared statements:
Gover, Kevin................................................. 68
Hawk, Chief Quiet, Golden Hill Indians, Paugussett Nation
(with attachment).......................................... 85
Martin, Aurene (with attachment)............................. 72
McCaleb, Neal................................................ 67
Mullane, II, Nicholas H., first selectman, Town of North
Stonington, CT (with attachment)........................... 95
Roybal, II, Edward (with attachment)......................... 127
Additional material submitted for the record:
Letter from Senators Dodd and Lieberman...................... 139
CRS Report for Congress, M. Maureen Murphy, legislative
attorney, American Law Division............................ 141
Summary Status of Acknowledgment Cases....................... 146
Memorandum, Roger Walke, specialist, American National
Government, Domestic Social Policy Division (with
attachment)................................................ 161
FEDERAL ACKNOWLEDGMENT PROCESS REFORM ACT
----------
WEDNESDAY, APRIL 21, 2004
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 9:34 a.m. in room
106, Dirksen Senate Building, Hon. Ben Nighthorse Campbell
(chairman of the committee) presiding.
Present: Senators Campbell, Akaka, Inouye, and Thomas.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.
SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON
INDIAN AFFAIRS
The Chairman. The meeting is called on S. 297, a bill I
introduced in February 2003 to reform the Federal
acknowledgment process. That is the process by which the United
States formally recognizes an Indian group to be an Indian
tribe.
Over the past 8 years I have introduced several reform
bills. In fact, I have had a great deal of input not only from
tribes, but from the Administration, too, on the complicated
system that we now have and the inequities of it, too. We have
had numerous oversight and legislative hearings in an effort to
fix what most people admit is badly broken.
The bill before us does not liberalize the criteria that
Indian petitioners must meet. The bill creates an independent
review and advisory board to advise the Assistant Secretary in
his consideration of a petition for recognition. Second, it
creates a Federal acknowledgment research pilot project to
bring badly needed research resources to the backlog of
petitions and stops the ``document-churning'' by making the
Freedom of Information Act inapplicable until a fully
documented petition has been submitted by the petitioner.
Before we start, I would like to say that I find the
Department's testimony on this bill unhelpful and not very
responsive to the main initiatives that were contained in it,
but we will be hearing from them shortly.
I introduced S. 297 to try to find new and creative ways to
help the BAR and the Department do what we all agree is a very,
very difficult task. We have heard that from a number of
Secretaries and Assistant Secretaries, too, over the years. In
fact, it has always put them in a very difficult position, too.
The Department has not responded very well so far, and I find
that somewhat disappointing.
Senator Thomas, did you have any comments on this?
Senator Thomas. I do not have comments, Mr. Chairman.
[Text of S. 297 follows:]
The Chairman. We will begin with our witnesses: Aurene
Martin, the deputy assistant secretary; Ed Roybal, chairman of
the Piro Manso Tiwa Tribe of New Mexico; Neal McCaleb, board
member of the Chickasaw Nation, and former assistant secretary;
and Kevin Gover, professor of law at Arizona State University,
who also is a former assistant secretary.
I am sure with this panel we will have a very enlightened
dialog.
We will go ahead and start with Ms. Martin. You may
abbreviate, if you want. Your complete written testimony will
be included in the record.
STATEMENT OF AURENE MARTIN, PRINCIPAL DEPUTY ASSISTANT
SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR,
ACCOMPANIED BY LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL
ACKNOWLEDGMENT, BIA
Ms. Martin. Thank you, Mr. Chairman.
Good morning, sir, and members of the committee. I would
like to thank you for the opportunity to appear before you
today and present the Administration's views on S. 297, the
Federal Acknowledgment Process Reform Act of 2003.
While the Department agrees with the stated purposes of S.
297, we believe there are a number of issues that merit some
discussion regarding the practical ramifications of the
legislation if it were enacted. Unfortunately, we cannot
support the bill as drafted.
I would like to provide some general comments this morning
regarding the practical effects of the bill and some of the
concerns that I have with that. I would also like to state that
the purpose of the current regulations and the stated purposes
of S. 297 are to provide a framework for recognizing sovereign
entities who have functioned from historical times until the
present. This recognition is not a grant of powers, but simply
an acknowledgment that the sovereign has existed from
historical times until now.
There have been numerous statements that the process is
broken, but we at the Department do not believe that is true,
although we do recognize that improvements can and should be
made to the process.
One of the main concerns I had in going over the
legislation was the lack of definite timelines for the
completion of different steps in the process. For instance,
there is no requirement that a petitioner document its petition
within a specific time period. Not the only reason, but one of
the main reasons that it takes so long for the recognition
process to be completed is the length of time between the
submission of a letter of intent, that is the letter that the
group sends us stating that they are going to seek
acknowledgment, and the full documentation of its petition.
I recognize that historically, groups have been too
financially strapped to complete the petition in a more timely
manner, but there is another innovation in the bill which I
think will greatly assist groups in being able to document
their petitions and could provide us some assistance which
would help them get the petitions done more timely.
Also, section 4(c)(2) requires the Assistant Secretary to
establish a schedule for the review of a documented petition
and publication of the proposed finding within 60 days of its
receipt of that documented petition, but it does not provide
any guidance as to the appropriate timelines to guide the
process. This leaves the Assistant Secretary with total
discretion to set the timeline for the review of a petition and
presentation of the proposed finding, and this could be an
extremely lengthy period of time.
Finally, with respect to the independent review and
advisory board, there are no timelines established, although
the board must review every final determination and may review
proposed findings. This could add a significant amount of time
to the review process.
S. 297 provides that petitioners also document their
activities from 1900 to the present. Establishing 1900 as a
baseline presents a problem as it is set out in the
legislation. One of the areas of S. 297 that caused some
concern for me was the requirement that the membership only be
defined during the historical period, that is from 1900 to the
present. Our current regulations require that the petitioner's
membership document that they are descended from a historical
tribe that has existed from first contact until the present. I
am not exactly sure what the reasoning was for the date of 1900
in S. 297. There is also some language that seems to not
require that they are descended from one tribe, but maybe from
different tribes, which may be meant to address the California
situation. I think that section needs a little bit of
clarification.
I also believe that the purpose for using 1900 baseline was
meant to assist petitioners who would otherwise have difficulty
documenting their petition. But the main problem as I have seen
it is not the ability to document events in the 19th century,
but to fill gaps which occur throughout the petitioner's
existence.
One of the most common types of problems that we see in
petitions is a gap in information for a 10- or 20-year period.
A group might have information regarding its political
continuity, its political autonomy up to a period like 1910,
and then they will have a gap for 10 to 20 years, and then it
will start showing activity again. That is usually where these
petitioners run into problems. That can occur in any time
period: The 19th century, the turn of the century especially
seems to be a problem time period, and even in the 1940's and
1950's. It is addressing those gaps which might be more helpful
to petitioners.
There are a number of other issues we would like to discuss
with the committee, but there are also a number of positive
innovations that we see included in the bill. One of those is
the ability to have an evidentiary hearing to be able to
question witnesses and have a back-and-forth dialog between the
decisionmaker, the petitioners, and other interested parties.
Petitioners have requested this in the past, but we currently
do not have any mechanism to conduct hearings. It seems like a
very good idea to allow the decisionmaker to be able to gauge
evidence, especially that of an elder or a person who is giving
evidence on a petition, and to be able to assess that. But
providing a hearing, again, will or could lengthen the process
it would take to review a petition.
Also, the assistance program outlined in the bill for
petitioners and interested parties is an excellent idea. As I
said earlier, one of the problems that petitioners face is the
lengthy period it takes them to document a petition because
they do not have the resources to hire historians, to go out
and do all of the reviews and the travel needed to collect
documents. This assistance program could be a great help to
them, help us fund those kind of activities, and document their
petition more quickly.
Additionally, the pilot project does sound promising. The
use of academic institutions has been discussed in the past at
the Department, but we have always had practical considerations
that have hindered implementation. One of those is the amount
of time it takes someone to get up to speed on the history of a
particular group or a particular area. It has been difficult
for us to guarantee funding for more than 1 year to provide to
an academic institution to begin that kind of research and
amass that kind of information.
Finally, the limitation on the use of FOIA to the period
after the issuance of the proposed finding is a good idea. FOIA
continues to remain a significant part of the Office of Federal
Acknowledgment staff time. It was at one time reported to be at
least 40 percent of the work time for staff members there. It
is somewhat less, but it is still considerable. It is still
considerable even when you would limit it to occur past the
proposed finding time, but the limitation is very helpful.
While we are not able to support S. 297 at this time, we
are always willing to work with the committee and its staff to
discuss our concerns, work out any issues that we might have,
clarify our position, and come up with an agreed upon
resolution.
I appreciate the ability to discuss S. 297 with you and I
am able to answer any questions you might have.
[Prepared statement of Ms. Martin appears in appendix.]
The Chairman. Thank you, Ms. Martin. I do have a bunch of
questions. I am going to go ahead and finish the testimony
before I ask them. But I would ask you now, where is Assistant
Secretary Anderson? We have invited him over here a number of
times to testify, by the way, and I believe he has not appeared
more than he has appeared.
Ms. Martin. Mr. Anderson is in Oklahoma visiting Sequoyah
High School today.
The Chairman. What high school?
Ms. Martin. Sequoyah. It is a BIA high school operated by
the Cherokee Nation, under contract. Mr. Anderson has recused
himself from all acknowledgment matters and the Secretary has
delegated those authorities to me. That is why I appear before
you today.
The Chairman. What was his reason for recusing himself?
Ms. Martin. He has recused himself from all matters related
to gaming, and gaming fee to trust applications. The perception
that acknowledgment has a connection to gaming also gave him
cause for concern. Because of his previous activities with
gaming, he did not want that to confuse that issue.
The Chairman. So he has recused himself from gaming, those
questions dealing with trust, and what else?
Ms. Martin. Gaming, gaming related fee to trust
applications, and acknowledgment.
The Chairman. All right. Thank you. It looks to me like he
has recused himself from about one-half of the responsibilities
he was appointed to do. I have to tell you, I have said this
before in committee, too, I am a little disappointed in him. I
went to bat for him, as a lot of the members of the committee
did, and he seems to have taken a hike on us. He is just not
around most of the time when he should be. I do not know why he
wanted the job, frankly, if he was going to recuse himself from
so many of the things that I think his responsibility is to do.
You might pass that one for me, if you would.
We will now go to Ed Roybal. Mr. Chairman, go ahead.
STATEMENT OF EDWARD ROYBAL, CHAIRMAN, PIRO MANSO TIWA TRIBE OF
NEW MEXICO
Mr. Roybal. Good morning, Chairman Campbell, Senator Thomas
and other distinguished members of the Senate Committee on
Indian Affairs. My name is Edward Roybal II and I am Governor
of Piro Manso Tiwa Indian Tribe, Pueblo San Juan de Guadalupe,
Las Cruces, NM. My father is Edward Roybal. My grandfather is
Victor Roybal. My uncle is former Governor Louis Roybal.
First, our people say hello to you and wish you all well
and hope that all your families are doing well. It is a great
honor to represent my tribe here today and submit this
testimony on S. 297, the Federal Acknowledgment Process Reform
Act of 2003.
I want to touch on a few points in my brief time here
today. First is where the recognition process has slowed us
down and bogged down for us. Since January 1997, our tribe has
been in the ready and waiting for active consideration queue,
that is waiting for BAR staff to complete their reviews of
other petitions and begin review of our petition.
If I may offer just one comment which sums up our tribe's
experience in the recognition process, it would be this. When
my uncle, Governor Louis Roybal, testified before this
committee in May 2000, Piro Manso Tiwa was seventh on the ready
and waiting for active consideration list maintained by the
Bureau of Acknowledgment Research. Today, nearly four years to
the day later, we are still seventh on ready and waiting.
The other issue I want to touch upon is tribal traditions.
I am the only non-secretary or past secretary up here. I want
to enlighten the committee about the effects that----
The Chairman. There is still a future, by the way.
[Laughter.]
Mr. Roybal. Thank you, Senator Campbell.
The effects that this has on a tribe like my tribe. While
it is difficult to talk about and disclose some of our tribal
traditions, my people have authorized me to illustrate who we
are. We are a traditional Indian pueblo. We are blue corn clan.
As my uncle Victor has told us in our oral history, we were put
in the Las Cruces area by the Creator. We are from there. Our
oral history tells us that we are the people who came from
under the ice. Our oral history further tells us that we hunted
buffalo in the area.
Present-day anthropologists call us Mogollan or other
names. In fact, archaeologists found human remains at the
nearby Oro Grande site that are thousands of years old. They
also found buffalo bones in our area. Again, oral history
passed those facts down to us long before scientists came to
southern New Mexico. We also have ancestral burial grounds at
present-day White Sands National Monument, where we hold our
autumn ceremonies to honor ancestors and pray for their
journey.
While our tribe has an administrative form of government,
the tribe interacts with its members through our traditional
Cacique structure. My father Edward Roybal, our Cacique, has
been traced to earlier Roybal caciques for the past 300 years.
Our ceremonies, songs and dances coincide with the seasons,
with the seasonal equinox, solstices in the summer, fall,
winter and spring. In fact, each time that you note on your
calendars the day the seasons begin, know that we are dancing
and praying around that time.
To shed some light into what I have mentioned about tribal
traditions, again it is difficult to discuss here. For example,
at winter we journey up to the Tortugas Mountain, one of our
sacred mountains, and spend the night in prayer and sharing our
oral history. The next day, we sing our traditional songs and
dance our dances. Each season we do something similar to thank
the Creator and pray for health and prosperity for our people
and all people.
We seek restoration and recognition of our government-to-
government relationship so we can have a secure place to call
home and perform our ceremonies. Presently, we must have our
dances in tribal members' front and back yards, while
bewildered onlookers query our ceremonies. Our songs, drum,
dances, prayers, and traditions are sacred. Federal recognition
and restoration would afford us ways to protect and maintain
everything that is sacred to our people.
I come before you today as an example of your world. I am
wearing this suit. I am an attorney. I practice law and proudly
work on an Indian reservation for the Fort McDowell Yavapai
Nation of Phoenix, AZ for the last 9 years. First and foremost,
however, I am an indigenous person. I am a member of the Piro
Manso Tiwa Indian Tribe, Pueblo of San Juan Guadalupe in Las
Cruces, NM. As a native person, I cherish, live and maintain my
tribal culture. Through my father, uncles and elders and their
elders, I am an active participant in our tribal culture and
ceremonies. I sing our tribal songs, dance our dances and pray
our tribal prayers.
Mr. Chairman and other distinguished members of the
committee, I come before you today in order to save my tribe's
traditions, culture and people from extinction.
Thank you very much for this opportunity.
[Prepared statement of Mr. Roybal appears in appendix.]
The Chairman. Thank you. We will now go to Neal McCaleb
next. We are just doing that because that is the way it is
listed on the witness sheet, Kevin. We will get to you.
STATEMENT OF NEAL McCALEB, BOARD MEMBER, CHICKASAW NATION
INDUSTRIES
Mr. McCaleb. Thank you very much, Mr. Chairman and members
of the committee. I very much appreciate your providing me this
opportunity to testify on the Federal acknowledgment process
for the recognition of Indian tribes.
During the time that I served as assistant secretary of
Indian Affairs, I had occasion to render determinations on
petitions of several tribal applicants for recognition as
tribal governments. During that process, I was impressed by
three circumstances.
These were, first, the length of time and the level of
research required to ascertain the compliance of the petitioner
with the criteria established for recognition. Second, the
almost exclusive reliance by the Assistant Secretary on the
finding and conclusions reached by the professional staff of
the BIA's Board of Acknowledgment and Research, or BAR. Third,
the extent and frequency of requests to the BIA for copies of
all research, information and documentation submitted or
accumulated by the BIA pursuant to a petition for recognition
under the Freedom of Information Act.
I believe that the above factors operate to marginalize the
credibility and timeliness of the federal recognition process
as it now exists. The provisions of this bill will operate to
improve these circumstances. The required scheduling provisions
of section five should help create the time discipline and
allocation of resources to reduce the delay and result in
timely determinations.
One of the most intractable problems associated with timely
determination is the lack of adequate professional resources
within the BIA to provide the extensive and scholarly research
and documentation necessary for credible determination. The
additional resources provided by the Independent Review and
Advisory Board in section 6 should aid not only in expediting
the process, but more importantly provide the Assistant
Secretary with a peer review or second opinion on controversial
matters of opinion interpretation.
While I believe the technical and professional staff of the
BAR are highly qualified, there is the perception that their
opinions and perhaps predisposition resulting from other
research may influence their findings. The introduction of a
peer review will enhance the credibility of the final
determination.
The creation and funding of a pilot project provided for in
section 6 can help with the timeliness issue and demonstrate
the effectiveness of outsourcing research functions to respond
to the backlog of petitions now pending before the BIA.
I also observed during my tenure that there was a
substantial diversion of BAR staff time in responding to the
extensive and repetitious requests of all manner of research,
documentation and administrative materials. These requests for
information were almost always mandatory under the Freedom of
Information Act, and took precedence over the productive work
of the staff on the petitions. The cumulative effect of these
repetitious FOIA requests was to delay the determination and to
diffuse the focus of the technical and professional staff.
The provisions of section 7 will certainly operate to make
more effective use of the limited staff time and resources and
operate to expedite the completion of the petition evaluation.
In addition to my comments on the contents of the bill
above, I offer my suggestion that this legislation contain a
provision for an end to future petitions for recognition after
some reasonable period of time to provide ample notice to any
potential applicant considering a petition for recognition. The
BIA has spent more than a quarter of a century receiving and
researching petitions for recognition from groups alleging
their tribal government status. There is little doubt in my
mind that all indigenous peoples of this Nation who can
legitimately claim tribal status under the criteria established
for federal recognition are now aware of the acknowledgment
process, the consequences of recognition, or lack of it.
To continue indefinitely with receiving and researching new
petitions will only further diminish the effectiveness of the
limited congressional appropriations in the discharge of the
federal trust responsibility.
I want to thank you for the privilege of making this
statement. I will be happy to try to answer any questions.
[Prepared statement of Mr. McCaleb appears in appendix.]
The Chairman. Thank you.
We will finish with Professor Gover, who even in my tenure
here, 6 or 7 years ago brought that to our attention that we
had a real problem with recognition, and even recommended we
have a moratorium on it for a while until we get it
straightened out. It is nice of you to come back, Kevin, but as
you recognize we are still muddling around trying to get the
thing streamlined with some coherency to it and have not gotten
there yet. Thank you for being here.
STATEMENT OF KEVIN GOVER, PROFESSOR OF LAW, ARIZONA STATE
UNIVERSITY COLLEGE OF LAW
Mr. Gover. Yes, sir; Mr. Chairman. I am very pleased to be
here, and honored both to be before the committee and to be
part of such a distinguished panel. I hope you will not think
it presumptuous, Mr. Chairman, that I thank you as well for
your service to Indian country and to the Nation, and for our
friendship over the years and your many kindnesses.
First of all, let me say I agree completely with former
Assistant Secretary McCaleb and the points that he made. Those
were problems that plagued the program when I was in office as
well. I am pleased that the new Administration has found some
means to begin to deal with this, I believe, by contracting so
that some of these FOIA requests can be met more quickly and
not detract from the work of the BAR. That is certainly a step
in the right direction.
What I find in observing what has gone on both while I was
in office and after is that there is a mythology that has grown
around BAR and about the Federal recognition process. The first
myth is that it seems to be understood that the process is
about gaming, when of course we know that it is not. The
process was established before any of us had thought of
casinos, and yet because of the importance of the decision and
the fact that a newly recognized tribe becomes eligible under
the Indian Gaming Regulatory Act to conduct gaming in
accordance with that act, it is understood to be about gaming.
It really is not, and we have to work very hard in making
policy to make that point and distinguish this process from
gaming.
There are several other approvals that have to take place
before a newly recognized tribe can engage in gaming, and at
every one of those points--the process of compacting, the
process of taking land into--trust, both the local community
and the affected State are deeply involved and their concerns
weigh very heavily in that process in the Department.
The second, and it is closely related to the gaming idea,
is the myth that some group of very powerful lobbyists have an
extraordinary amount of influence over the program. I can only
speak for myself, of course, but I suspect it is also, true of
both Principal Deputy Assistant Secretary Martin and former
Assistant Secretary McCaleb, The truth is that I rarely if ever
saw a lobbyist on these issues. If I did, it was also in the
presence of tribal leadership from the petitioning tribes where
it would be expected. What we do not get is any sort of
backroom, underhanded, undue influence by anybody in the
lobbying business.
The third is again related, and that is the idea that
somehow the Branch of Acknowledgment and Research, or now the
Office of Federal Acknowledgment, possesses some sort of
superior and unassailable expertise about these matters. I do
not want to be understood to be putting them down in any way.
They are expert. They are professional. They are very good at
what they do. But so are the police officers that an assistant
secretary works with; so are the educators; so are the social
workers; so are the many hundreds of other experts and
professionals that are in the BIA, and yet no one suggests that
an assistant secretary should not override a decision by any of
those other experts and professionals. And yet for some reason,
it seems that BAR's work is understood to be entitled to some
sort of special deference.
Well, it is not. Assistant secretaries are also experts in
Indian affairs, and we are asked to bring our expertise and our
broader policy vision to bear on these petitions. That is why
we are nominated by Presidents. That is why we are confirmed by
the Senate. So it should come as no surprise that from time to
time we find ourselves deciding to not follow the
recommendations of the BAR.
The true problems in the program really are structural.
That is what S. 297 goes to. As former Assistant Secretary
McCaleb pointed out, the Assistant Secretary for Indian Affairs
really has few staff resources of his or her own to go through
and really review the work that BAR has done. S. 297 would help
to solve that problem.
Similarly, the pilot project would bring additional
resources to bear, not so much for the petitions immediately
before the Assistant Secretary, but for the petitions in the
queue, like Chairman Roybal's, which could begin to receive
some attention immediately, rather than remaining seventh on
the ready and waiting list for 4 years now, and I suspect for
some years to come.
So both of those are good ideas that really begin to speed
up the process and most importantly give the Assistant
Secretary the needed resources to apply his or her own judgment
to the evidence and to make the decisions that have been
assigned by the regulations to the Assistant Secretary.
So in those respects, Mr. Chairman, I do support this bill.
As you know, we talked both about a moratorium and a commission
when I was in office. I have since concluded that the
moratorium was a terrible idea, so I take full credit for it. I
believe that what would have happened is that the moratorium
would have been put in place and never lifted. So the
committee's judgment on that matter was much wiser than my own,
and I would not at this point support a moratorium.
Finally, I do believe a commission is probably the best
approach if it were fully funded and up and running as soon as
possible. But I understand the difficulty of such a major
change in the BAR process, so I do commend the Chairman for
introducing S. 297 and offer my support.
Thank you.
[Prepared statement of Mr. Gover appears in appendix.]
The Chairman. Thank you.
With time running out, it is 50/50 if we will be able to
get this passed this year. Since this is my last year as
chairman and Senator Inouye's last year, too, it will be
somebody else's problem next year, but it will go on, that is
for sure, if we do not do something.
Let me start with a few questions of each of you. We will
start with Ms. Martin first. Your testimony is that you oppose
the bill because it lowers the standards for acknowledgment and
thereby creates a process that is not open, transparent, timely
or equitable, as I understand it. But transparency and
timeliness relate to the actions of the BAR staff, not the
acknowledgment criteria. Can you inform the committee what
effect lowering or raising the standards, for that matter, has
on the transparency and timeliness of the process?
Ms. Martin. First of all, I would just like to clarify that
we are not supporting S. 297 as it is written, and we are
willing to work with you on language so that we might be able
to change that, but we are not opposing the bill.
The Chairman. I appreciate that.
Ms. Martin. With regard to the standards that are included
in the bill, actually the criteria that are laid out are very
similar to the standards that we use now under the current
regulations. The concern we have, and I talked a little bit
about this during my testimony, is that the bill itself states
that the documentation need to be made from 1900 until the
present. And then there are some exceptions where there has
been some recognition of the tribe by federal agencies during
that time period.
The issue, as I have encountered it, is not so much the
period from 1900 to the present, and there is a lack of
information from before that. It is actually the gaps in 1820
to 1830, 1910 to 1920, those are where the issues are and that
is what we need to look at addressing. I think that Mr. Gover
addressed the 10-year rule in his testimony. Those are some of
the areas where I think that we really need to look and seek
some clarification, not so much from the 1900 period to the
present.
The Chairman. Okay. Thank you.
Would you tell the committee the average length of time it
now takes for a petitioner that is on the ready and waiting for
active status, to have their petition considered? We talk about
timeliness. What does that mean?
Ms. Martin. I am not sure what the average amount of time
is. We do have petitions where the letters of intent were
submitted in 1978 when the regulations were established
The Chairman. I understand the Tiwas had a letter even in
1971. Is that correct? Maybe I should have asked Mr. Roybal
there, 1971, even before the establishment of the process.
As I understand your testimony, too, it criticizes the
lowering of standards set out in S. 297, particularly those
provisions regarding evidence of a community, the autonomous
nature of a petitioner since 1900. But don't the current
regulations also require identification as a group from 1900?
Ms. Martin. They do. However, they require the showing that
the petitioners show their political autonomy from historical
times to the present; their community from historical times to
the presence; their connection to a historical tribe through
the present, but only identification as an American Indian
entity since 1900. It is just one of the criteria.
The Chairman. What is the magic number about 1900? Why do
the current regulations require identification as an entity
since 1900?
Ms. Martin. That I am not sure of. I was not part of the
original drafting of the 1978 regulations.
The Chairman. Do you have someone there who would like to
speak? If you would like to just identify yourself for the
record.
Mr. Fleming. My name is Lee Fleming. I am the Director of
the Office of Federal Acknowledgment.
In 1994, the regulations went through some revisions and
there is language that can be provided to the committee as to
the explanation for 1900 to the present. Basically, it is to
prevent a group that just suddenly pops up and claims whatever
they are claiming. Whereas, in 83.7(b) and (c), the group has
to demonstrate from historical times to the present.
The Chairman. I see. In that case, let me go back to Ms.
Martin. Which criteria do you believe to be more important in
establishing a continuing political existence for a tribe:
identification by outside political entities, which I assume is
part of the regulations that we are talking about going back to
1900; or the internal decisions made by the Indian community
themselves?
Ms. Martin. For purposes of recognition and the basis for
our recognition regulations and the reason we do recognition,
we are recognizing a sovereign that has existed from the time
prior to contacts with non-Indians to the present. In order to
do that, we require documentation over that period of time that
they have existed as a political entity. So with regard to
recognition, I think that that is probably the most important
factor.
The Chairman. Okay. I am sorry that I am somewhat confused
on this. When you hear from Indian groups like Mr. Roybal's
group, which traces their ancestry and participates in the same
ceremonies that they have for hundreds of years, literally, it
is confusing to me to say that someone else has to recognize
them as a political entity from any time. It would seem to me
that the internal group should have a stronger voice in
determining how long they have been an entity in their own
tribal government. That is a political entity, too. It might
not have been in the form we think of the Federal Government,
but they had a political entity.
Let me ask another question. We have a problem now, it
seems, with the Freedom of Information Act. Literally every
step of the way, somebody can ask for all kinds of
documentation. That is what we call the churning of the paper.
In this particular bill, basically what we tried to do was have
it go through, finish all the research, and then be open to the
Freedom of Information Act so people could look at it in its
entirety, rather than just every little step of the way, which
simply holds things up and confuses things. Can you explain to
the committee, is that process used by the Department now? How
do you determine who is an interested party and who is an
informed party? And what rights to participate in the process
do each have when they are using the Freedom of Information Act
to get information?
Ms. Martin. I think that for purposes of the Freedom of
Information Act, any citizen of the United States can gain
access to that documentation, subject to our review of the
information for privacy information and other information that
might not be appropriate to send out to the public. We identify
interested parties as the local communities and around where a
petitioner is located; other tribes that might be affected by
their recognition; the State in which they are located.
The Chairman. Who is an ``informed'' party?
Ms. Martin. That is anybody else, basically.
The Chairman. That is anybody else. Okay. So basically you
are saying anybody can file. Well, if I understand, S. 297
basically, it says what we need to do to stop this every step
of the way of being nitpicked when we are going through the
recognition process, that we ought to finish the whole thing
and then open it to the Freedom of Information Act so they can
see it in its entirety. But the Department has a problem with
that?
Ms. Martin. No; That that is one of the excellent
innovations that is included in S. 297. We also see a
significant amount of FOIA activity after the petition has been
documented. I would just use an example of some of the
Northeastern cases. We see constant FOIA requests even after a
petition is documented and maybe a party has already received
some FOIA information, there are continuing requests for more
and more information after that point as well. As it is written
in the bill now, I believe that is a good innovation.
The Chairman. This bill also proposes the creation of an
independent review and advisory board to assist the Assistant
Secretary in making the recognition decisions. In your capacity
as an Assistant Secretary, you have been called on to make
recognition decisions. Would you have found the involvement and
existence of an independent review and advisory board to be
helpful to you when you made those decisions?
Ms. Martin. I think that might be helpful. One of the
challenges that I experienced first as counselor for Mr.
McCaleb and then as acting Assistant Secretary was the lack of
time to get my arms around all of the documentation with regard
to a petition and to have a third party be able to look those
things over, conducting a type of peer review as would have
been helpful. My only concern with the independent review board
is the length of time that such a board might take to review a
petition, but overall it is a good idea.
The Chairman. Okay. Well, we will look forward to having
staff work with you a little further to see if we cannot get
this bill right that would get support from the Administration.
Thank you for being here. I have several other questions. I
will submit those in writing. If you will answer those in
writing for the benefit of the complete committee, I would
appreciate it.
Ms. Martin. Thank you.
The Chairman. Governor Roybal, why is it that your Pueblo
is not recognized? As I see your testimony, your tribe received
a land grant from the Federal Government in the 1800's. It also
appears that children from your community were sent to Indian
boarding schools. You mentioned you participated in many tribal
ceremonies, from literally time immemorial. You have no land
base, though, is that correct?
Mr. Roybal. Correct.
The Chairman. You have no land base now. Why is it that you
are not recognized through all these years?
Mr. Roybal. This was just an issue where over the period of
populating Southern New Mexico, it was mostly the tribes.
The Chairman. Did you tribe move back and forth across what
is now the border of Mexico and the United States in the olden
times?
Mr. Roybal. Before there was a border, right, tribes
historically moved. But after the Pueblo revolt of 1680, our
tribe moved back up to the Messilla Valley.
The Chairman. Why don't you go ahead and finish why you are
not recognized.
Mr. Roybal. Historically, what happened was you just had
Indian groups and Mexican or Spanish or Hispanic groups down
there. When the United States came in at the beginning of the
1900's, pressure started to build for some sort of tribal
autonomy. It was really just an issue where we were left alone
and did some interaction and that was fine for decades. But as
more and more people came into Southern New Mexico, our tribe
was squeezed and pushed out and marginalized. That is kind of
what happened along the way.
The Chairman. Where do most of your tribal members live
now?
Mr. Roybal. Almost three-quarters live within a 6-mile
radius of our old Pueblo in downtown Las Cruces.
The Chairman. Las Cruces.
Mr. Roybal. Right.
The Chairman. And what is the number of tribal members?
Mr. Roybal. Approximately 225.
The Chairman. In your testimony, you mentioned the tribe
originally filed a petition in 1976, but apparently there was a
letter as early as 1971 seeking recognition. Is that correct?
Mr. Roybal. Correct.
The Chairman. Over the years since you have been trying to
get your tribe recognized, can you give the committee an
estimate on how many documents you have had to file or the
volume required since that 1971 letter your wrote, and perhaps
also the expense you have gone to to try to get recognized.
Mr. Roybal. Sure, Senator Campbell, other members of the
committee, we first started out with letters, and then we would
go through the process in the late 1980's, and then the
regulations changed again in the 1990's. Every time there was a
change, we had to change and file more documentation. I think
to date we have filed 15 boxes or more than that of historical
and present information.
In terms of costs, I know a lot of people have said that
the process could take millions of dollars. We have operated
with grants of approximately $400,000 in the last 16 years.
Most of our work has been by pro bono efforts and donations of
time and money.
The Chairman. That has been the estimated cost to try to
get recognized?
Mr. Roybal. That is what I have heard, a few million
dollars, from other people.
The Chairman. I also understand that there is some
difference tension created by the BAR's need for documentation
and its sensitivity to your traditions and ceremonies. Is that
true or not?
Mr. Roybal. It has been a major problem, Senator. It is
hard enough to disclose who we are and what we do to prove who
we are. The major problem has been several years ago in FOIA
reviews other people have tried to hijack our petition. When
they have to disclose where our ancestral burial sites are,
where our sacred ceremonies are, that causes our people real
consternation.
The Chairman. I understand that. Yes. I am a member of the
Northern Cheyenne, and I know from a tribal perspective they
feel the same way. There are some things they just do not want
to reveal. They just feel it is somewhat risky to let those
things get out into the public domain.
Mr. Roybal. Right.
The Chairman. Including where some of their sacred sites
are, and some where their burial grounds are, too. We have been
through, as all tribal groups have, a period in history when
there were raids on those things, and we found a lot of things
ended up in museums when they should have been where they were
put by people.
Mr. Roybal. It was our fear that that raid would continue
and could continue.
The Chairman. But you have not been able to reach any
mutual agreement or satisfactory agreement with the BAR staff
concerning those things?
Mr. Roybal. No; we have. Thankfully, we did meet with Mr.
Fleming and BAR staff and went over our concerns, and reached a
resolution on those issues.
The Chairman. I commend you for having the determination
for having to spend all that money and all those years in
trying to get recognized. If you were given a choice of
resources, do you think the tribe would choose to obtain the
assistance of a university or other institution? Or would they
rather sign up with a developer or somebody of that nature?
Mr. Roybal. Could you clarify ``developer''? You mean it is
some type of promoter?
The Chairman. Yes.
Mr. Roybal. We have assistance now with the University of
Texas-El Paso. We have tried to work with New Mexico State
University, which is in our backyard. For whatever reason over
time, they have not been as responsive as you would think.
The Chairman. The university has not?
Mr. Roybal. They have not, no. So we have had to rely on
others.
The Chairman. Did they give you help pro bono, whatever
help you did get from them?
The Chairman. New Mexico State? No.
The Chairman. You had to pay for that?
Mr. Roybal. Correct. No; we have not received any
assistance from New Mexico State.
The Chairman. I see. Thank you.
Former Assistant Secretary McCaleb, let's just go on down
the line with you, please. Nice to have you here visiting
again.
Mr. McCaleb. Thank you very much, Mr. Chairman.
The Chairman. I know that you are doing good work back in
the private sector again, and I do not get to see you as much
as I used to, but I certainly enjoyed our personal friendship
while you were here. I am sure the Chickasaws are happy to have
you home and working for them again, and that is great.
During your tenure with the BIA, you oversaw a major review
and restructuring of the BAR process. Keeping in mind the
changes that Mr. Gover made before you were there, former
Assistant Secretary Gover, in the format of BAR
recommendations, were there any additional changes in the
format of the recommendations that you thought would be helpful
while you were in your tenure, or even now as you look back on
it?
Mr. McCaleb. One of the events that occurred while I was
there is the General Accounting Office made an assessment of
the operation of the federal acknowledgment process as it was
conducted, and had some criticisms in some specific areas. We
did some reorganization to try to deal specifically with those
criticisms that were contained in the GAO report. Most had to
do with the transparency of the process and the timeliness of
the process. I do not think that we have achieved a lot of
progress in expediting the timeliness of the process.
The Chairman. Looking back on your tenure, do you think
there is more that the Department or the staff or even our
committee could have done to address the concerns of those
years?
Mr. McCaleb. One of the weaknesses----
The Chairman. It is okay. We can take it. [Laughter.]
Mr. McCaleb [continuing]. One of the weaknesses, of course,
is what is I think kind of like the elephant in the front room,
is the lack of money to fully operate and staff and provide the
resources to deal with this gigantic backlog of petitions that,
as Governor Roybal tribe has experienced, is just lying there
with nothing happening on it. That is not a matter of
indifference on the part of the BAR staff. I think it is part
of the limited amount of resources that they have.
I was severely criticized and chastised in the House
committee about why didn't the Administration come and ask for
more money?
The Chairman. Because we probably would not have given it
to you anyway.
Mr. McCaleb. Well, the reality is that we have inadequate
finances, at least as it is viewed by the tribal board
assisting the BIA on the needs versus the resources that are
available. We have a kind of a fixed-sum pie to deal with, with
very small incremental increases. So the additional money for
recognition has historically come at the expense of the other
functional programs operated by the BIA for their already-
federally recognized tribes. That is a real tension.
So that is one of the reasons that I make the
recommendation that we need to put an end on this sometime in
the future by saying, well, there is going to be a cutoff date
on petitions, because let's just assume that there was a
significant increase in the appropriations for the BAR staff
and the recognition process. I think the perception in Indian
country was that that would come at the expense of these other
functional programs.
The Chairman. In S. 297, we have a 10-year limitation on
appropriations, which would trigger discussion then about the
need for continuing funding. That is a sunset provision of
sorts. Do you consider that would be a wise alternative?
Mr. McCaleb. Indeed, I do.
The Chairman. And one last question, S. 297 provides an
opportunity for outside peer review into the process. Of
course, there is also a cost to that, too, but it would perhaps
lend additional credibility to the process. Do you believe that
access to outside experts would have been helpful to your
deliberations when you were in office?
Mr. McCaleb. Yes; it would have. I think it would have
given me a better comfort level. I am sure, I know in my own
experience, there are times that I would have liked to have had
resources outside of the Bureau to assist me in making a
determination or evaluating some specific task, not because I
lacked confidence in the BAR staff, but because there are so
few of them and their processes are developed over a fairly
long period of time.
Most of those people are long-time employees. It is my
experience in any professional process you develop a mindset or
a limitation on your scope that may be detrimental to more
objective consideration. I am trying to say, I would have liked
a second opinion in some areas, in some instances.
The Chairman. You would think that was helpful.
Let me go to Professor Gover. Your testimony is that while
you were at the Bureau, you saw no evidence of improper
influence exerted on the BAR process. That corroborates the
findings of both the GAO and the Interior Inspector General, as
I understand it, yet we still get opponents of the process
saying that it has been manipulated, or maybe sometimes they
have vested interest in it. But in your opinion, having worked
both in the Bureau and outside of the BIA, do you think a
professional lobbyist can have more influence over the BIA
staff or the legislative recognition process and their internal
workings?
Mr. Gover. That is a tough question because I have never
given lobbyists all of the credit that they seem to take for
the progress of matters in Washington.
The Chairman. We sometimes give them more than they want.
[Laughter.]
Mr. Gover. I say that as a lobbyist myself, so I do not
want to be too hard on the profession.
I believe that clearly the process of congressional
recognition is by definition more political than the process
that is undertaken at the BIA. So it should be. Congress is
perfectly entitled to make its judgments on those grounds. The
problem is that the BIA is not. Because the BIA has really in
essence borrowed some authority from the Congress and from the
courts in order to conduct this recognition program, it is
extremely important that the process not be affected by what we
would think of as partisan or unseemly political influence. In
my experience, it was not. Neither the BAR staff nor the
Assistant Secretary's office was really troubled by lobbyists
and certainly not influenced by them.
The Chairman. You heard Governor Roybal talk about what
they think might have been the cost they have gone through,
maybe $400,000 so far. It could be very expensive getting
through the recognition process. Sometimes I think groups have
had to turn to outside investors because they simply do not
have the money to hire the research that is needed done.
With more and more requests from the Freedom of Information
Act and the litigation by states, local communities and others
that might not want to see the petition go through, it seems to
me that some tribes are being forced more and more to rely on
outside resources whether they like it or not. To me, that is a
form of mortgaging their future.
In your opinion, would it assist the process for the
petitioners to bring in outside resources from universities or
other groups, and perhaps stay away from the ones that they
have to hire so much?
Mr. Gover. Absolutely, if for no other reason than it gives
these tribes a meaningful choice. You are right. Quite often
they find themselves in a position where they have to accept
the resources of a developer. Of course, those resources come
with strings attached, and as you say, they do mortgage their
future, at least in the short term.
Were such expertise and resources available from
universities, that would, as I say, give the tribes a
meaningful choice and allow them to maintain their distance
from developers and pursue the petition on their own, and then
when they are done if they want to deal with developers, they
deal with them from a position of strength, rather than
weakness.
The Chairman. While you were at the Bureau, you hired some
outside contractors to assist you in reviewing petitions. Can
you give us some background on how that worked, how you picked
the outside contractors, and if you believe that the portion of
S. 297, which I call the independent review and advisory
committee, would that address the concerns that you had in
having to hire outside assistance?
Mr. Gover. It would indeed. As I recall, we hired a single
outside consultant, an attorney who had worked on other
petitions on behalf of petitioning tribes. I have to say, it
did not work well at all. First of all, the relationship
between the consultant and the BAR staff was not particularly
good. I do not assign blame there. It just did not work out.
Second, it did not solve the primary problem, which is that
you need a lot of people, a lot of different kinds of
expertise, to review the work of the BAR if it is to have any
effect. So we made what ultimately was a failed effort to try
to bring in that outside expertise.
I do think that the resources available under S. 297 could
make a serious impact and have the desired effect of giving the
Assistant Secretary the staff capabilities to conduct a
meaningful review of BAR's work. That is why I support the
bill.
The Chairman. Thank you.
You mentioned the standard of review for petitions and the
concern that the BAR has over a period of time developed ``de
facto rules'' that are not in regulations. If petitioners are
required to meet rules that are not in the regulations or in
statute, should the petitioners be able to challenge those
rules in court?
Mr. Gover. I believe that they should. I gave a couple of
examples, but the one that troubled me the most was the idea
that, if BAR were unable to find convincing evidence within
each 10-year period of the tribe's historical existence, that
represented a break in continuity. And yet if you look at the
regulations, it says nothing of the sort. I was willing to say
that if, for example, and this is not a real example, but if we
had evidence that the tribe was there in 1889, and we found
evidence the tribe was there in 1905, I was willing to assume
that between 1889 and 1905, they were still there. They were
there the whole time.
Again, I think that BAR's analysis is driven by their
professional training. I do not object to what they say, that a
historian would be troubled by that gap and by the absence of
conclusive evidence, and so would an anthropologist. Again,
bringing a broader perspective to it, and frankly the
perspective of an Indian person, it is very easy for me to see
how evidence sort of falls off the table. Let's face it, we ran
an agency that had a great deal of difficulty with
recordkeeping in the best of times, and so it is unsurprising
that records would be absent for these tribes for varying
periods, as Principal Deputy Assistant Secretary Martin pointed
out.
The Chairman. You noted the single most consistent
complaint about the process was the inability of parties to
receive reasonably prompt decisions. What do you think is
perhaps the single greatest obstacle preventing the agency from
acting with reasonable promptness? Would it be that they needed
that absolute proof between the analogy you just gave, between
1890 and modern times? Is that the thing that holds it up the
most, not finding that absolute link-to-link chain?
Mr. Gover. I think there were two things. The first was the
absence of resources, that the program simply needed more
resources. Former Assistant Secretary McCaleb is right that
when the tribal advisory committees that consult with the
Bureau on the budget are making their recommendations, needless
to say the recognition program is low priority for them, and
that makes it very difficult for the Bureau to divert resources
from those critical programs to this one.
The second was, yes, I believe that BAR got into far too
much depth in its research. They treated each petition as
ultimately a research project, and it seemed that they were in
search for some historical truth, which may well be elusive. I
do not believe that is what the regulations call for. I believe
they call for an evaluation of the petition, the application of
a standard of proof that is included in the regulations, and
then move on.
The Chairman. One of the problems from a broader sense I
have always had with this business about recognition is that
tribes are being told that they have to document certain
things, and yet you know as well as I do, being an Indian
person, the history has been there was a time in this country
when you were not too sure you wanted to document anything or
you might be gathered up and moved by force somewhere you did
not want to be moved to.
So we had people hiding out in the woods for years and
years and years, and hiding their identity and doing different
things simply because they were afraid of what might happen to
them if they did come forward. And now we have a federal agency
saying, well, you did not document where you have been for the
last 50 years, therefore you must not be Indian.
There is something wrong with that thinking, in my view.
Mr. Gover. Mr. Chairman.
The Chairman. Yes, go ahead.
Mr. Gover. In mine as well. I think that the primary
conflict that I had with the BAR staff was that in that period,
I mark it from 1870 to 1930, there was no reason for an Indian
group to want to come to the attention of the United States.
The fact that they did not meant that their strategy worked, or
it may have meant that their strategy worked. That is certainly
a reasonable interpretation of the phenomenon.
I felt, as you did, Mr. Chairman, that the absence of a lot
of proof during that time really did not tell us very much
about whether that tribe was there or not.
The Chairman. Certainly not.
I appreciate the testimony from all of the witnesses this
morning. I think there might be some additional questions from
other members who had to leave or did not attend today, but
thank you so much for all of your views.
With that, this hearing is adjourned.
[Whereupon, at 10:50 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Neal McCaleb, Board Member, Chickasaw Nation
Industries
Mr. Chairman, I want to thank you and the members of this committee
for providing me with this opportunity to testify on the ``Federal
Acknowledgment Process'' for the recognition of Indian Tribes.
During the time I served as the Assistant Secretary of Indian
Affairs I had the occasion to render ``Determinations'' on the
petitions of several tribal applicants for recognition as tribal
governments. During this process I was impressed by three
circumstances. These were:
No. 1. The length of time and level of research required to
ascertain the compliance of the petitioner with the criteria
established for ``Recognition''.
No. 2. The almost exclusive reliance of the Assistant Secretary on
the findings and conclusions reached by the professional staff of the
BIA's ``Board of Acknowledgement and Research''.
No. 3. The extent and frequency of requests to the BIA for copies
of all research, information and documentation submitted or accumulated
by the BIA pursuant to a petition for recognition under the ``Freedom
of Information Act''.
I believe that the above factors operate to marginalize the
credibility and timeliness of the Federal Recognition Process as it now
exists.
The provisions of this bill will operate to improve these
circumstances. The required scheduling provisions of section 5 should
help create the time discipline and allocation of resources to reduce
delay result in timely determinations.
One of the most intractable problems associated with the timely
determination is the lack of adequate professional resources within the
BIA to provide the extensive and scholarly research and documentation
necessary for credible determination. The ``Additional Resources''
provided by the ``Independent Review and Advisory Board''in section 6
should aid not only in expediting the process but more importantly
provide the Assistant Secretary with a peer review or ``second
opinion'' on controversial matters of opinion and interpretation. While
I believe the technical and professional staff of the BAR is highly
qualified there is the perception that their opinions and perhaps
predisposition resulting from other research may influence their
findings. The introduction of a peer review will enhance the
credibility of the final determination.
The creation and funding of ``Pilot Project'' provided for in
section 6 can help with the timeliness issue and demonstrate the
effectiveness of outsourcing research functions to respond to the
backlog of petitions now pending before the BIA.
I observed during my tenure that there was a substantial diversion
of BAR staff time in responding to the extensive and repetitious
requests for all manner of research documentation and administrative
materials. These requests for information were almost always mandatory
under the ``Freedom of information Act'' and took precedence over the
productive work of the staff on the petitions. The cumulative effect of
these repetitious FOIA requests was to delay the final determination
and diffuse the focus of the technical and professional staff.
The provisions of section 7 will certainly operate to make more
effective use of limited staff time and resources and operate to
expedite the completion of the petition evaluation.
In addition to my comments on the contents of this bill I would
also offer my suggestion that this legislation contain a provision for
an end to future petitions for recognition after some reasonable period
of time to provide ample notice to any potential applicant considering
a petition for recognition. The BIA has spent more than a quarter of a
century receiving and researching petitions for recognition from groups
alleging their tribal governmental status. There is little doubt in my
mind that all indigenous peoples of this Nation who can legitimately
claim tribal status under the criteria established for Federal
recognition are now aware of the acknowledgement process and the
consequences of recognition or lack of it. To continue indefinitely
with receiving and researching new petitions will only further diminish
the effectiveness of the limited congressional appropriations in the
discharge of the Federal trust responsibility.
Thank you for the privilege of making this statement. I will be
happy to try and answer any questions you may have of me.
______
Prepared Statement of Kevin Gover, Professor of Law, Arizona State
University College of Law
Mr. Chairman and members of the committee, my name is Kevin Gover.
I am a Professor of Law at the Arizona State University College of Law
in Tempe, AZ. I appear before you as an individual, and my testimony
does not necessarily represent the views of Arizona State University or
the College of Law. I am honored to appear before the Committee today,
and I thank the chairman for his introduction of S. 297 and for calling
this hearing today.
The Federal Recognition Process as you know, I served as the
Assistant Secretary for Indian Affairs at the Department of the
Interior from November 1997 until January 2001. The Department and the
Bureau of Indian Affairs face a number of vexing problems in their
administration of the laws of the United States concerning Indian
tribes. Aside from trust reform, perhaps the most visible of these
problems is the administration of the process for determining whether
an Indian group qualifies as an Indian tribe deserving of a government-
to-government relationship with the United States.
The committee's attention to this matter is extremely important.
For too long, the program has relied entirely on the administrative
authorities of the Department for both its process and substance. while
I believe the Department has, in general, established the correct
criteria for Federal recognition and afforded due process in their
application, clearly these are subjects that require the attention and
authority of the Congress if the program is to have the legal and
political credibility that we desire.
Moreover, the program's recent notoriety in the eastern press
requires that the Congress set the record straight. Far too much of the
reporting on the matter is ill informed and just plain wrong. The New
York Times, for example, recently reported that investigations of the
program revealed that decisionmaking is politically influenced. That is
simply untrue. Neither the General Accounting Office nor the Inspector
General of the Interior Department found that decisions were influenced
by political pressure, partisan or otherwise.
Contrary to the thrust of these reports, the Federal recognition
program is not about gaming. Most of the currently noteworthy petitions
were filed well before the Indian Gaming Regulatory Act was passed. I
have come to view the program as being primarily about justice.
Those of us who are or have been in positions of authority in
Indian affairs have few real opportunities to correct historic wrongs
and make lasting improvements in the quality of life for tribal
communities. The Federal recognition program is one of the few
undertakings in which the United States can definitively correct
grievous historic wrongs and begin in an immediate way to undo the
legacy of the genocidal policies of the past.
I must admit that when I entered government service in 1997, reform
of the Federal recognition process was not among my priorities. The
Federal recognition program is, after all, a minor undertaking of the
Bureau of Indian Affairs in terms of the budget and personnel assigned
to it. However, it soon became clear to me that the Assistant
Secretary's decisions on these petitions are a crucial aspect of the
overall responsibility of the Department for the execution of Federal
relations with Indian tribes. Moreover, because of the impact a newly
recognized tribe can have in its home region-that is to say, the impact
that casinos can have on communities near the tribes-the Federal
recognition program had grown into one the most controversial
activities of the Bureau.
From the petitioning tribes' perspective, the program is deeply
troubled. It is a dense program, requiring an extraordinary amount of
research, paperwork, and expense. It is an intrusive program, with its
inquiry into, quite literally, the parentage and family backgrounds of
hundreds or thousands of members of the petitioning tribes. And above
all, it is a very, very slow program. Too many tribes have had
petitions pending for more than 20 years. While accuracy and
thoroughness are qualities that we all want in government work, I soon
concluded that the pace of decisionmaking in the program was
indefensible and unacceptable. For petitioners qualifying as tribes,
the program's delays deprive them of services and benefits that improve
the lives of Indian people. Moreover, even petitioners that do not
qualify for recognition deserve as much promptness as possible.
From the perspective of communities potentially affected by the
recognition of a tribe in their region, the process allegedly offered
too little opportunity for their concerns to be heard. I believe this
concern to be somewhat overstated, because those non-Indians who seek
to participate in the process and can demonstrate that the decision
would affect them are allowed to participate. They are able to meet
with staff, both formally and informally; they receive from the
Department large amounts of information concerning the petitions; they
are perfectly free to file their submissions and present their views;
they are given extensions for the preparation of their submissions in
opposition to recognition; they can appeal the Assistant Secretary's
decisions to the Interior Board of Indian Appeals and the Secretary;
and they are able to appeal the Department's final decision to Federal
court. They receive far more than due process demands.
Still, I believe that some of these non-Indian communities, like
the tribal petitioners, have a valid point when they object to the
expense of pursuing all of these procedural rights. There is no
question that the phenomenon of developers funding tribal petitioners
for recognition provides the tribes with resources that the creators of
the Federal recognition process never anticipated. I wish to be clear
that I do not subscribe to the idea that gaming money has led to the
recognition of undeserving petitioners. As to the allegations that
expensive lobbyists exercise undue influence in the process, my
experience was that lobbyists play no meaningful role in the process of
acknowledgment. However, there is little question that the resources
that a small minority of petitioning tribes can now devote to the
process can seem overwhelming to members of the public who are affected
by the recognition process.
These factors led me to take a much deeper interest in the
recognition process than I thought that I would when I assumed office.
What I found was a deeply problematic and fundamentally flawed program.
It was distrusted by its constituent petitioners. It was underfunded
and overwhelmed by the broad research tasks it had undertaken and by
the need to respond to Freedom of Information Act requests. It was
under fire, in several Federal courts for the delays in the process. It
was missing one regulatory deadline after another and making little
progress in reducing the large backlog of pending petitions.
On the other hand, I found that some of the accusations against the
Branch of Acknowledgment and Research (now the Office of Federal
Acknowledgment) were untrue. As mentioned above, I saw no evidence of
improper lobbyist influence in BAR or in the office of the Assistant
Secretary in the processing of petitions. Further, I saw nothing to
indicate that BAR staff harbored any particular hostility or prejudice
toward or in favor of any of the petitioners that came before me. And
never, not once, did I hear BAR staff express concern about the budget
implications for the BIA of recognizing additional tribes. I do not
doubt that the work performed by BAR represented the staff's best
efforts and honest judgments about the petitions.
As has been well documented, I did not always agree with the
judgments and opinions of BAR researchers and the attorneys from the
Solicitor's office who advised the BAR. I came to believe that the BAR
and its attorneys had been essentially unsupervised for many years and
that the Assistant Secretary's office had become little more than a
rubber stamp for their recommendations. It is easy to see why this had
happened. The length and complexity of the research that BAR conducted
can easily overwhelm an Assistant Secretary, who inevitably has many
other issues with which he or she must contend. When I first asked to
see the technical reports supporting a proposed determination that came
before me, BAR supplied nearly 1,000 pages of research that it had
produced. These ``summaries'' of the petition were alone overwhelming.
There was simply no chance that an Assistant Secretary or his/her staff
could or would actually review the several boxes of primary research
materials accumulated by BAR to prepare those summaries.
By creating an avalanche of paper, the BAR effectively overwhelmed
the office of the Assistant Secretary, and in so doing assumed an
inappropriate degree of control over the program. The scholarly
literature in Administrative Law refers to this phenomenon as ``staff
capture,'' meaning that agency staff essentially defies supervision by
political appointees by overwhelming policymakers with information,
while the public's access to the policymaker is severely limited. In
this respect, the rule in 25 C.F.R. Part 83 that limits access to the
Assistant Secretary for agency outsiders during final consideration of
the petition gives OFA staff extraordinary power to control the
outcome. The Assistant Secretary and his or her staff, personally
unable to plow through thousands of pages of research materials, has no
one to turn to for help in discerning which are the key policy and
factual issues in any given petition. That being the case, the urge is
strong simply to sign off on the OFA recommendation. I grew well
acquainted with this problem as proposed and final decisions on
petitions were brought to me. To address this problem, I revised the
part 83 regulations to require BAR to present its review of the
petition in a format that is more helpful to the Assistant Secretary.
While I believe that was a worthwhile effort, more needs to be done.
Another troubling aspect of the program was the phenomenon of
analytical tools employed by BAR hardening into rules of law. Two
examples make the point. First, when applying the requirement that a
tribe demonstrate the ``continuous'' existence of political influence
of tribal leadership over the members, OFA looks to see that such
influence existed in each 10-year increment of the tribe's existence.
This is unobjectionable as an analytical approach, but it is in my
opinion wrong and illegal to apply the ``10-year'' approach as a rule
of law. BAR maintained that if conclusive proof of political influence
was absent during any 10-year period, continuity was broken and the
petition had to be denied. I believe that, while the absence of such
proof during any given decade might be some evidence of a break in
continuity, it is not conclusive and it cannot fairly give rise to a
presumption of a break in continuity. It may, for example, only reflect
a gap in effective news reporting, recordkeeping, or record retention,
not any actual gap in tribal existence. In my view, for the ``10-year''
approach to be hardened into a rule of law, or even permitted to
establish a presumption, it must go through notice-and comment
rulemaking under the Administrative Procedures Act, which it did not.
Similarly, BAR had developed a specific approach to evaluating
whether the petitioner's membership consists of individuals who descend
from a historical Indian tribe.'' BAR essentially asked whether 85
percent of a petitioning tribe's membership could prove descendancy.
This 85 percent rule cannot be found in the regulations. While it may
be a reasonable means of analysis, it cannot be administered as a rule
of law without being subjected to notice-and-comment rulemaking.
Finally, the role of the office of the Solicitor presents
difficulty. Certain individuals in the Solicitor's office were drafters
of the part 83 rules; participate in OFA's consideration of the
petition; participate in OFA's drafting of recommendations to the
Assistant Secretary, compile the administrative record behind each
decision; advise the Assistant Secretary directly during his or her
review of the petition; help to draft the decisions of the Assistant
Secretary; litigate before the IBIA concerning the decision; advise the
Secretary during reconsideration of decisions of the Assistant
Secretary; and assist in the litigation in Federal court that results
from the Department's final actions. These individuals have an
inappropriate degree of control, direction, and influence in the
process. I believe that the work of these attorneys is essentially
unsupervised in the Solicitor's office for the same reason that work of
the BAR is essentially unsupervised by the Assistant Secretary: The
Solicitor and his or her immediate advisers simply do not have the time
to master the intricacies of the evidence because of its volume.
S. 297 recognizes the problems I describe and contains a number of
good ideas to address these problems. I strongly endorse S. 297 and the
committee's ongoing efforts to improve the Federal recognition process.
I believe that the ultimate weighing of the evidence is the job of the
Assistant Secretary, not the OFA. The OFA, to be sure, has a critical
role in the process, but it does not have the role of decisionmaker.
Nor is the subject matter of the OFA's work so conceptually difficult
that it cannot be questioned by an Assistant Secretary, even one whose
primary expertise is outside the social sciences. Indeed, I argue that
an Assistant Secretary who happens to be an attorney is better
qualified than the OFA to apply the law in part 83 to the evidence
submitted by the petitioner. I believe it is no coincidence that the
only Assistant Secretaries who have disagreed with and overruled a BAR/
OFA recommendation have all been attorneys.
Moreover, the job of the Assistant Secretary is to bring a broader
policy perspective to all of the agency's decisionmaking. Those of us
who have served in the office may fairly be called experts in Indian
affairs, and most of us had devoted many years of study and
professional work to Indian history, Indian culture, Indian politics,
and Indian law before assuming office. Thus, there is absolutely no
reason why the work of the historians and anthropologists in the OFA
should receive any more deference from the Assistant Secretary than
does the work of the educators, social workers, peace officers, et
cetera who advise the Assistant Secretary on other important policy
matters.
To be sure that the Assistant Secretary has the resources necessary
to review OFA's work, S. 297 would establish an Independent Review and
Advisory Board. I believe this to be an excellent solution to the
problem of ``staff capture'' that I described. This independent
expertise will go far in helping the Assistant Secretary identify the
key factual, legal, and policy issues raised by any given petition and
ensure that, with the advice provided by the Board and by comparing the
Board's analysis to that of the OFA, the Assistant Secretary will be
personally engaged in making those key decisions in each case.
My primary disagreement with BAR staff related specifically to the
assignment of weight to specific evidence, the inferences that could
fairly be drawn from the evidence, and the degree of certainty about
historical facts required by the regulations. I believe that BAR staff,
being trained as historians, anthropologists, and genealogists, applied
too difficult a standard. I believe they sought near certainty of the
facts asserted by petitioners. They dismissed relevant evidence as
inconclusive, even though conclusive proof is not required by the
regulations. Moreover, BAR staff seemed thoroughly unwilling to give
evidence any cumulative effect. While any given piece of evidence might
be characterized as weak, for example, many pieces of weak evidence,
when considered cumulatively, can make a sound case. I do not believe
that the BAR staff were dishonest in their analysis. I do believe that,
in accordance with their training, they applied a burden of proof far
beyond what is appropriate and far beyond what is permitted by the
regulations. The creation of the Board will improve the process by
permitting the Assistant Secretary to review the evidence effectively
and apply the appropriate standard of review.
The authorization for grants to petitioning tribes and affected
communities also will address important problems. Tribes often turn to
developers for resources to pursue their petitions because they have
little choice. If a tribe declines help from developers, it runs the
risk that its resources in pursuing the petition will be inadequate. My
experience indicates that the quality of technical assistance and
representation provided to petitioning tribes by their consultants and
lawyers is uneven. With the additional resources that would become
available under this grant program, perhaps the quality of that
assistance will improve. Moreover, the grant program will provide a
petitioning tribe with a meaningful choice as to whether to seek the
assistance of a developer. [I note that such grants are conditioned on
a showing of need, and I assume from this that a tribe supported by a
developer would be unable to make a showing of need.] While the grant
program will not eliminate entirely the influence of developer
resources on the process, it will help.
As for grants to affected communities, my support is more
reluctant. I understand the need for fairness in the process, and I
realize the need for political compromise on legislation of this sort,
but I am troubled by the precedent of permitting scarce funds
appropriated to the BIA, generally for Indian purposes, to be awarded
to non-Indian communities. To the tribes, such a ``raid'' on BIA
funding might be seen as yet another non-Indian misappropriation of
resources intended for Indians--the essence of the colonialism that
this Congress has decried. However, given that the grants are
conditioned on a demonstration of need by the affected community, I
believe that the grants may help the process to be more accessible to
communities potentially affected by the recognition of tribes.
Another important idea in S. 297 is the definition of the
``historical period'' for determining the continuity of tribal
existence as running from 1900 to the filing of the petition. My
experience in evaluating petitions revealed that tribes very often
could not provide the kind of documentary evidence BAR wanted for the
period from roughly 1870 to 1930. As an Indian person and a scholar of
Indian history, I found this unsurprising. As the chairman well knows,
this period was a bleak one for Indians. The United States sought a
final solution for the ``Indian problem,'' and that solution was
assimilation, a deliberate assault on Indian tribalism. The United
States sought to withdraw from its responsibilities to Indian tribes in
many circumstances; other tribes suffered from benign neglect or were
simply left for the States to deal with. Still other tribes, I believe,
adopted a strategy of anonymity, believing it better not to be noticed
than to come to the attention of Federal and State authorities. Small
wonder, then, that documentary evidence of some tribes in this period
is sparse.
I believe that the date of 1934 well may be a better starting
point. As you know, Federal policy shifted radically at that point, and
a number of tribal groups re-emerged at that time. Their re-emergence
cannot fairly be described as the re-constitution of a community once
scattered to the wind. Rather, communities that had long been
underground were willing once more to reveal themselves to the light
when Federal policy toward tribalism became friendlier. BAR's
interpretation of evidence in this period was consistently rigid and
formalistic, taking little or no account of the larger historical
context. I took a more generous approach, refusing to give new life and
effect to the policies of an era that can only be called unenlightened.
As I have indicated, I would support the enactment of S. 297 in its
current form. I would like to propose, however, three possible
amendments that would further improve the process.
First, I strongly believe that certain petitioners, which already
have been denied recognition, should be permitted another opportunity
under the revised process established by this bill. I adopted a policy
when I was Assistant Secretary that I would not revisit final
determinations of my predecessors in office. While I believe that this
was the right policy, I remain troubled to this day that justice was
denied to certain tribes, particularly the Miami Tribe. Even some of
the petitions I personally acted upon leave me wishing that this
revised process had been in effect when I was in office. Into this
category I would place the Mowa Choctaw. Finally, I remain convinced
that the Chinook Tribe is deserving of Federal recognition, and I
believe that, if Assistant Secretary McCaleb had the resources provided
by this bill available to him when he addressed the Chinook petition,
the outcome well may have been different. There may be other tribes,
such as the Duwamish and the Muwekma who should be eligible for
reconsideration as well.
Second, I believe that fairness in the process will be enhanced by
limiting the role of the Division of Indian Affairs in the Office of
the Solicitor. I described above the pervasive influence of that
division. I believe that such pervasive influence is pernicious to the
process. I note that the Independent Review and Advisory Board will
have two attorney members, and I believe that is wise. I urge that the
Congress go a step further, however, and provide that, when a matter is
assigned by the Assistant Secretary to the Board, no attorney from the
Division of Indian Affairs be permitted to communicate with the Board.
Further, to the extent the Board requires legal assistance from the
Department, as it well may, that assistance should come from another
division of the Solicitor's office. I suggest that the Division of
General Law have this responsibility. Similarly, after the OFA has made
its recommendation to the Assistant Secretary on the final
determination of a petition, neither OFA nor the Division of Indian
Affairs should have any further contact with the Assistant Secretary
regarding the petition. In the alternative, Congress should provide
that a petitioner must receive notice of the OFA's recommendation to
the Assistant Secretary and have one last opportunity to appear before
the Assistant Secretary and offer any rebuttal evidence it might wish.
These suggestions are offered in order to further reduce the historic
inappropriate influence that BAR and the Division of Indian Affairs
have asserted over the process.
Third and finally, I suggest that the committee more broadly
address the issue of the significan6e of continuous state recognition
of Indian tribes. While the existing regulations and the bill before
the Committee indicate the significance of state recognition as
evidence of historic identification of the tribe, I agree
wholeheartedly with the Department's position that such continuous
State recognition is also evidence of continuity of political
influence. In its recent decision on the petition of the Schaghticoke
Tribal Nation, the Department held that ``the historically continuous
existence of a community recognized throughout its history as a
political community by the state and occupying a distinct territory set
aside by the State, provides sufficient evidence for continuity of
political influence within the community.'' The proposition is
unremarkable; indeed, it is obvious. When a State has maintained a
relationship with an Indian group throughout the State's history, and
when the group has occupied a state-recognized reservation throughout
that time, these facts are evidence of ongoing political organization
in the tribe. I support this holding concerning the evidentiary value
of State recognition. Indeed, I believe it is the only sensible
interpretation of the fact of continuous State recognition.
Mr. Chairman, thank you again for this opportunity to appear before
you. I would be pleased to answer any questions the committee might
have.
______
Prepared Statement of Aurene Martin, Principal Deputy Assistant
Secretary--Indian Affairs, Department of the Interior
Good morning, Mr. Chairman and members of the committee. My name is
Aurene Martin, principal deputy assistant secretary--Indian affairs at
the Department of the Interior. I am here today to provide the
Administration's testimony on S. 297, the ``Federal Acknowledgment
Process Reform Act of 2003.'' The stated purposes of S. 297 include
ensuring that when the United States acknowledges a group as an Indian
tribe, that it does so with a consistent legal, factual and historical
basis, using clear and consistent standards. Another purpose is to
provide clear and consistent standards for the review of documented
petitions for acknowledgment. Finally it attempts to clarify
evidentiary standards and expedite the administrative review process
for petitions through establishing deadlines for decisions and
providing adequate resources to process petitions.
While we agree with these goals, we do not believe S. 297 achieves
them. The Department therefore, does not support S. 297. We are
concerned that S. 297 would lower the standards for acknowledgment and
not allow interested entities the opportunity to be involved in the
process. We recognize the interest of the Congress in the
acknowledgment process, and are willing to work with the Congress on
legislative approaches to the Federal acknowledgment process. We
believe that any legislation created should have standards at least as
high as those currently in effect so that the process is open,
transparent, timely, and equitable.
The Federal acknowledgment regulations, known as ``Procedures for
Establishing that an American Indian Group Exists as an Indian Tribe,''
25 C.F.R. Part 83, govern the Department's administrative process for
determining which groups are ``Indian tribes'' within the meaning of
Federal law. We believe these regulations provide a rigorous and
thorough process.
The Department's regulations are intended to apply to groups that
can establish a substantially continuous tribal existence and, which
have functioned as autonomous entities throughout history until the
present. See 25 C.F.R. Sections 83.3(a) and 83.7. When the Department
acknowledges an Indian tribe, it is acknowledging that an inherent
sovereign continues to exist. The Department is not ``granting''
sovereign status or powers to the group, nor creating a tribe made up
of Indian descendants. We believe this standard as provided in 25
C.F.R. Part 83.3(a) needs to be maintained.
Under the Department's regulations, in order to meet this standard
petitioning groups must demonstrate that they meet each of seven
mandatory criteria. The petitioner must:
(1) demonstrate that it has been identified as an American Indian
entity on a substantially continuous basis since 1900; (2) show that a
predominant portion of the petitioning group comprises a distinct
community and has existed as a community from historical times until
the present; (3) demonstrate that it has maintained political influence
or authority over its members as an autonomous entity from historical
times until the present; (4) provide a copy of the group's present
governing document including its membership criteria; (5) demonstrate
that its membership consists of individuals who descend from the
historical Indian tribe or from historical Indian tribes that combined
and functioned as a single autonomous political entity and provide a
current membership list; (6) show that the membership of the
petitioning group is composed principally of persons who are not
members of any acknowledged North American Indian tribe; and (7)
demonstrate that neither the petitioner nor its members are the subject
of congressional legislation that has expressly terminated or forbidden
the Federal relationship.
A criterion is considered met if the available evidence establishes
a reasonable likelihood of the validity of the facts relating to that
criterion.
S. 297 would reduce the standards for acknowledgment by requiring a
showing of continued tribal existence only from 1900 to the present,
rather than from first sustained contact with Europeans as provided for
in 83.7(b) and (c). Other changes from the current regulatory standards
would reduce the standard for demonstrating tribal existence even after
1900. This reduction in the standard deviates significantly from the
position of the Department, as stated in the regulations, that the
legal basis of Indian sovereignty is continuous political and social
existence pre-dating European settlement of the territory that now
constitutes the U.S. and extends without break to the present. The
standard set out in S. 297 makes it more likely that groups without
demonstrated tribal ancestry or historical tribal connection may be
acknowledged.
The bill also reduces the burden of producing evidence to
demonstrate continuous existence by creating an extensive list of
exceptions delineated in section 5(g) of S. 297. Section 5(g) would
provide that if an Indian group demonstrates by a reasonable likelihood
that the group was, or is a successor in interest to a party to one or
more treaties, that group would only have to show their continual
existence from when the government expressly denied them services, even
if this notification occurred only in the recent past. Under the
Department's regulations, the burden rests with the petitioning group
to show continuous existence; the bill shifts that burden to the
Department. For example, if a group requested services from the
government in 2000 and was denied those services, under this scheme,
the group would only have to submit documentation from 2000 to the
present. The Department would then have to demonstrate the group did
not exist as a tribe prior to 2000.
The Department supports a more timely decisionmaking process, but
does not believe that the factual basis of the decisions should be
sacrificed to issue more decisions. The bill seeks to speed the process
by narrowing the role of interested parties in the administrative
process and by permitting only the petitioner to respond to proposed
findings. These limits on outside party involvement, however, lessen
the evidentiary basis of the decisions by not allowing interested
parties the opportunity to submit arguments and evidence to rebut or
support the proposed finding. Interested parties that believe that
their views and concerns are not being given due consideration in the
administrative process will likely challenge the decisions in court,
which makes the process more costly and time consuming. The bill,
however, appears to limit these challenges by permitting only
petitioners to sue over the decisions. Specifically, the bill would
provide for an appeal of the final determination by the petitioner
within 60 days in the U.S. District Court for DC; however, it is
unclear if this bill precludes an appeal by interested parties under
the Administrative Procedure Act. Since Federal acknowledgment
decisions impact the groups seeking tribal status, the local
communities, States, and federally recognized tribes, the process must
be equitable.
With respect to deadlines and time lines, the Department is
interested in exploring some type of sunset provision. In fact, in
response to a November 2001, General Accounting Office [GAO] report on
the ``effectiveness and consistency of the tribal recognition
process'', the Department stated that we would support a legislative
sunset rule that would establish a clear timeframe in which petitioners
must submit final documented petitions and supporting evidence.
The September 30, 2002, strategic plan and needs assessment of the
Assistant Secretary in response to the GAO report outlined a number of
changes that the Department is implementing, and changes that Congress
can implement, to speed the process and to make it more equitable and
transparent--without changing the standard of continuous tribal
existence. The Secretary in April 2004 requested from the Assistant
Secretary--Indian Affairs a report outlining the progress on the
implementation of the strategic plan.
A number of changes have been made at the Department to implement
the strategies identified in the Department's response to the GAO.
First, previous acknowledgment decisions have been scanned on CD-ROM
and are available to the public. Second, the use of Federal
Acknowledgment Information Resource, or FAIR, has expanded. FAIR is a
data base system linking images of the documents in the record with the
Department researchers' comments. It includes a chronology of events
from the documents submitted and data extracts, and allows the tracking
of persons involved in the group and their activities. FAIR has been
praised by petitioners and interested parties alike for providing
timely access to the record and researchers' analysis. The fact that
this Administration has issued 14 decisions further documents the
success of these efforts. The bill does not address the improvements
that the Department has made.
The Department believes that the acknowledgment of the existence of
an Indian tribe is a serious decision for the Federal Government. It is
of the utmost importance that thorough and deliberate evaluations occur
before the Department acknowledges a group's tribal status, which
carries significant immunities and privileges, or denies a group
Federal acknowledgment as an Indian tribe.
When the Department acknowledges an Indian tribe, it recognizes an
inherent sovereign that has existed continuously from historic times to
the present. These decisions have significant impacts on the
petitioning group as well as on the surrounding community. Therefore,
these decisions must be based on a thorough evaluation of the evidence
using standards generally accepted by the professional disciplines
involved with the process. The process must be open, transparent,
timely, and equitable.
Thank you for the opportunity to testify on S. 297 and the Federal
acknowledgment process. I will be happy to answer any questions you may
have.
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