[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


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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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