[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
    H.R. 512, TO REQUIRE THE PROMPT REVIEW BY THE SECRETARY OF THE 
  INTERIOR OF THE LONGSTANDING PETITIONS FOR FEDERAL RECOGNITION OF 
                        CERTAIN INDIAN TRIBES.

=======================================================================

                          LEGISLATIVE HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                      Thursday, February 10, 2005

                               __________

                            Serial No. 109-1

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr., Tennessee       Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming               Donna M. Christensen, Virgin 
  Vice Chair                             Islands
George P. Radanovich, California     Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Grace F. Napolitano, California
    Carolina                         Tom Udall, New Mexico
Chris Cannon, Utah                   Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Jim Costa, California
Greg Walden, Oregon                  Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado         Dan Boren, Oklahoma
J.D. Hayworth, Arizona               George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Rick Renzi, Arizona                  Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico            Jay Inslee, Washington
Devin Nunes, California              Mark Udall, Colorado
Henry Brown, Jr., South Carolina     Dennis Cardoza, California
Thelma Drake, Virginia               Stephanie Herseth, South Dakota
Luis G. Fortuno, Puerto Rico
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Vacancy

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Thursday, February 10, 2005......................     1

Statement of Members:
    Kildee, Hon. Dale, a Representative in Congress from the 
      State of Michigan..........................................     2
        Prepared statement of....................................     3
    Pombo, Hon. Richard W., a Representative in Congress from the 
      State of California........................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Gumbs, Lance A., Tribal Trustee, Shinnecock Indian Nation....    26
        Prepared statement of....................................    28
    Nazzaro, Robin M., Director, Natural Resources and 
      Environment, U.S. Government Accountability Office (GAO)...     8
        Prepared statement of....................................     9
    Olsen, Michael D., Acting Principal Deputy Assistant 
      Secretary--Indian Affairs, U.S. Department of the Interior.     4
        Prepared statement of....................................     6
    Sachse, Harry R., Partner, Sonosky, Chambers, Sachse, 
      Endreson and Perry, LLP....................................    22
        Prepared statement of....................................    24

Additional materials supplied:
    Roybal, Hon. Edward, II, Governor, Piro/Manso/Tiwa Indian 
      Tribe, Pueblo of San Juan de Guadalupe, Las Cruces, New 
      Mexico, Statement submitted for the record.................    35


 LEGISLATIVE HEARING ON H.R. 512, TO REQUIRE THE PROMPT REVIEW BY THE 
  SECRETARY OF THE INTERIOR OF THE LONGSTANDING PETITIONS FOR FEDERAL 
     RECOGNITION OF CERTAIN INDIAN TRIBES, AND FOR OTHER PURPOSES.

                              ----------                              


                      Thursday, February 10, 2005

                     U.S. House of Representatives

                         Committee on Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 1324, Longworth House Office Building, Hon. Richard W. 
Pombo [Chairman of the Committee] presiding.
    Present: Representatives Pombo, Cubin, Hayworth, Renzi, 
Nunes, Brown, Fortuno, Jindal, Kildee, Pallone, Napolitano, Tom 
Udall of New Mexico, Herseth, and Boren.

    STATEMENT OF HON. RICHARD W. POMBO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    The Chairman. The Committee on Resources will come to 
order. The Committee is meeting today to hear testimony on H.R. 
512.
    Under Rule 4(g) of the Committee Rules, any oral opening 
statements at hearings are limited to the Chairman and the 
Ranking Minority Member. This will allow us to hear from our 
witnesses sooner and help Members to keep to their schedules. 
Therefore, if other Members have statements, they can be 
included in the hearing record under unanimous consent.
    The purpose of H.R. 512, which I sponsored, is to clear the 
Interior Department's decks of some longstanding petitions by 
Indian groups seeking Federal recognition.
    Recognition establishes a formal relationship between a 
tribe and the United States. For this reason, recognizing a 
tribe has major implications for the Federal Government, for 
the members of the recognized tribe, and for other tribes, 
States, and communities. Many tribes historically are 
recognized under treaties, statutes, and executive orders.
    In 1978, the modern recognition process was established by 
rule in the Bureau of Indian Affairs. It was supposed to 
provide an objective, rational means of judging whether a group 
is really a tribe that has been in continuous existence since 
the first arrival of European settlers. It was also created in 
order to handle a large number of petitions that were pending 
or expected to be filed.
    The problem addressed by H.R. 512 is the BIA process has 
worked much slower than expected. Many Indian groups have 
waited decades to go through this process and they are still 
waiting. Ten petitions ready to be considered were filed before 
1988. Some of these have languished without a decision for 
years.
    The Committee held an oversight hearing on this problem 
last year and I later introduced H.R. 5134. With the 
cooperation of our Ranking Democrat, Mr. Rahall, the Committee 
quickly reported it.
    H.R. 512 is a reintroduction of that bill. Making a 
decision on these longstanding petitions is a necessary first 
step as the Committee looks into broader reforms of the 
recognition process, which I intend to pursue this year. In 
this vein, I intend to hold more hearings on recognition, 
including a hearing on this bill in Mashpee, Massachusetts, the 
location of a petitioner that has waited many years for a 
decision on his petition.
    With that, I look forward to hearing from today's 
witnesses.
    [The prepared statement of Chairman Pombo follows:]

        Statement of The Honorable Richard W. Pombo, Chairman, 
                         Committee on Resources

    The purpose of H.R. 512, which I've sponsored, is to clear the 
Interior Department's decks of some long-standing petitions by Indian 
groups seeking federal recognition.
    Recognition establishes a formal relationship between a tribe and 
the United States. For this reason, recognizing a tribe has major 
implications for the federal government, for the members of the 
recognized tribe, and for other tribes, states, and communities. Many 
tribes historically are recognized under treaties, statutes, and 
executive orders.
    In 1978, the modern recognition process was established by rule in 
the Bureau of Indian Affairs. It was supposed to provide an objective, 
rational means of judging whether a group is really a tribe that has 
been in continuous existence since the first arrival of European 
settlers. It was also created in order to handle a large number of 
petitions that were pending or expected to be filed.
    The problem addressed by H.R. 512 is the BIA process has worked 
much slower than expected. Many Indian groups have waited decades to go 
through this process...and they're still waiting.
    Ten petitions ready to be considered were filed before 1988. Some 
of these have languished without a decision for nine years.
    The Committee held an oversight hearing on this problem last year, 
and I later introduced H.R. 5134. With the cooperation of our Ranking 
Democrat, Mr. Rahall, the Committee quickly reported it.
    H.R. 512 is a re-introduction of that bill. Making a decision on 
these long-standing petitions is a necessary first step as the 
Committee looks into broader reforms of the recognition process, which 
I intend to pursue this year.
    In this vein, I intend to hold more hearings on recognition 
including a hearing on this bill in Mashpee, Massachusetts, the 
location of a petitioner that has waited many years for a decision on 
its petition.
    With that, I look forward to hearing the testimony of today's 
witnesses.
                                 ______
                                 
    The Chairman. I would now like to recognize Mr. Kildee for 
an opening statement.

  STATEMENT OF HON. DALE KILDEE, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF MICHIGAN

    Mr. Kildee. Thank you, Mr. Chairman. I am pleased that you 
scheduled this hearing today on H.R. 512, a bill that you 
sponsored to expedite the administrative process by which 
Indian tribes can obtain recognition of their sovereignty.
    We have all heard the complaints over the years about the 
current administrative process, that the Office of Federal 
Acknowledgment is underfunded, that the process is too slow as 
it can take decades before a petition is reviewed--I have been 
in Congress 29 years and some of these petitions were here when 
I got here--and that the process is too expensive for tribes 
that have very little resources.
    Previous attempts to revamp the Federal recognition process 
have failed in the past because of concerns raised by some that 
doing so would lead to more Indian gaming. This, I want to 
strongly state, is not a question of gaming. The only question, 
of course, that should be looked at here is does this tribe, 
indeed, have the retained sovereignty that is stated in Article 
1, Section 8 of the Constitution and reaffirmed by the 
decisions of the Supreme Court starting with John Marshall. 
That is the only thing that should be considered and not the 
question of whether this will expand gaming. It is a question 
of whether these tribes have that retained sovereignty.
    So I look forward to hearing from the witnesses today, and 
again, I thank Chairman Pombo for his deep interest and concern 
with this.
    [The prepared statement of Mr. Kildee follows:]

 Statement of The Honorable Dale Kildee, a Representative in Congress 
                       from the State of Michigan

    Mr. Chairman, I am pleased that you scheduled this hearing today on 
H.R. 512, a bill that you sponsored to expedite the administrative 
process by which Indian tribes can obtain Federal recognition.
    We have all heard the complaints over the years about the current 
administrative process--
      that the Office of Federal Acknowledgment is underfunded;
      that the process is too slow as it can take decades 
before a petition is reviewed; and
      that the process is too expensive.
    Previous attempts to revamp the Federal recognition process have 
failed in the past because of concerns raised by some that doing so 
would lead to more Indian gaming.
    But such concern does not remove the fact that the Federal 
recognition process needs to be improved.
    I look forward to hearing from the witnesses today. Thank you.
                                 ______
                                 
    The Chairman. Thank you, Mr. Kildee.
    I would now like to introduce our first panel of witnesses, 
Mr. Michael D. Olsen and Robin Nazzaro.
    Mike is the Acting Principal Deputy Assistant Secretary for 
Indian Affairs of the Interior Department. He is accompanied by 
R. Lee Fleming, Director of the Office of Federal 
Acknowledgment.
    Ms. Nazzaro is a Director with the Natural Resources and 
Environment team of the GAO. She is accompanied by Jeff 
Malcolm, the Assistant Director of the same GAO team.
    Let me take this time to remind all of today's witnesses 
that under our Committee Rules, oral statements are limited to 
5 minutes. Your entire statements will appear in the record.
    If you could join us at the witness table and remain 
standing for a second to take the oath. Please just stand and 
raise your right hand, those that are testifying.
    Do you solemnly swear or affirm under the penalty of 
perjury that the statements made and responses given will be 
the whole truth and nothing but the truth, so help you, God?
    Mr. Olsen. I do.
    Mr. Fleming. I do.
    Ms. Nazzaro. I do.
    Mr. Malcolm. I do.
    The Chairman. Thank you. Please sit down. Let the record 
show they all answered in the affirmative.
    Welcome to the Committee. Mr. Olsen, it is good to see you 
back. We are going to begin with you when you are ready.

 STATEMENT OF MICHAEL OLSEN, ACTING PRINCIPAL DEPUTY ASSISTANT 
SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR; 
  ACCOMPANIED BY R. LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL 
 ACKNOWLEDGMENT, BUREAU OF INDIAN AFFAIRS, U.S. DEPARTMENT OF 
                          THE INTERIOR

    Mr. Olsen. Thank you. Good morning, Mr. Chairman and 
members of the Committee. My name is Mike Olsen. I am the 
Acting Principal Deputy Assistant Secretary for Indian Affairs 
at the Department of the Interior. It is a pleasure to be back 
here before the Committee again.
    I am pleased to be here today to provide the 
administration's position on H.R. 512. We thank the Chairman 
for his interest in Federal acknowledgment and look forward to 
working with the Committee on ways to streamline the process.
    The Federal acknowledgment regulations govern the 
Department's process for determining which groups are Indian 
tribes under Federal law. In order to meet this standard, 
petitioning groups must demonstrate that they meet each of 
seven mandatory criteria listed in the Department's 
regulations, and we have set those out in our written statement 
and I won't go through each one of those.
    The recognition of another sovereign is one of the most 
solemn and important responsibilities delegated to the 
Secretary of the Interior. Federal acknowledgment carries with 
it certain immunities and privileges. It enables tribes to 
participate in Federal programs. And it establishes a 
government-to-government relationship between the United States 
and a tribe.
    These decisions have significant impacts on the petitioning 
group as well as on the surrounding community. Federal 
acknowledgment must, therefore, 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, and timely.
    Congress has in the past considered several bills to modify 
the criteria for groups seeking acknowledgment as Indian tribes 
or to remove the process altogether from the Department. While 
the Department does not support enactment of H.R. 512, we do 
agree that improvements could be made to provide for more 
timely decisions while maintaining integrity and transparency 
in the Federal acknowledgment process.
    We are prepared, for example, to examine whether the 
Department possesses and should use regulatory authority to 
establish deadlines, like for the submission of letters of 
intent or for the submission of fully documented petitions. Any 
rule of timeliness and repose would provide a clear timeframe 
for petitioner submissions as well as help the Department 
better manage and coordinate its available resources.
    Now, if I could, I would just like to describe some of the 
specific concerns that the Department has with H.R. 512.
    The legislation would require the Secretary to publish in 
the Federal Register a proposed finding for each so-called 
eligible tribe, as that term is defined in the legislation, 
within 6 months of enactment of the bill. The bill also 
requires the Secretary to publish a final determination for 
each eligible tribe within 1 year. These requirements, we feel, 
could result in those currently on the active consideration 
list having to move down in the queue so that the eligible 
tribes can move in ahead of them in the process. Moreover, 
because groups have 90 days from the date of enactment to op 
into the expedited process, the timeframe for decisions could 
potentially leave the Department only 3 months to make a 
proposed finding, and then as few as 6 months to make a final 
determination.
    We are concerned that the timeframes established by the 
bill would not allow the Office of Federal Acknowledgment 
adequate time to thoroughly review a petition, thereby lowering 
the acknowledgment standards. The administrative record for an 
acknowledgment petition, as you know, is voluminous. Some 
completed petitions have been in excess of 30,000 pages. One 
year to review ten petitions consisting of thousands of pages, 
coupled with the other responsibilities of the acknowledgment 
staff, is, we feel, unrealistic.
    We are also concerned that the timeframes established by 
the bill may limit the role of interested parties by not 
allowing them the opportunity to review and comment on 
petitions. Acknowledgment decisions impact local communities, 
States, and other federally recognized tribes. We recommend 
extending the deadlines to allow all potentially interested 
parties an opportunity to participate in the acknowledgment 
process.
    Finally, we are concerned about the bill's provision for 
the extensive involvement of the courts in the acknowledgment 
process. Under H.R. 512, if the Department does not comply with 
the required timeframes, a Federal District Court would assume 
the decisionmaking role. The bill proposes to allow the court 
to make its own determination on the merits based on the 
existing criteria rather than review the Department's action.
    We are concerned that diverse courts reviewing assorted 
petitions will result in national inconsistency and turn the 
process into an adversarial one. We believe it is more 
appropriate for the court to review the Department's 
determination, which is based on an evaluation by professional 
anthropologists, genealogists, and historians, rather than take 
on additional fact finding responsibility.
    We are also concerned, I will note, that a judicial 
proceeding would exclude public participation in the 
acknowledgment process.
    Thank you again for the opportunity to testify. We as the 
administration look forward to working with the Committee to 
improve the acknowledgment process and I will be happy to 
answer any of your questions.
    The Chairman. Thank you.
    [The prepared statement of Mr. Olsen follows:]

   Statement of Michael D. Olsen, Acting Principal Deputy Assistant 
 Secretary--Indian Affairs, Office of the Assistant Secretary--Indian 
                Affairs, U.S. Department of the Interior

    Mr. Chairman and members of the Committee, my name is Michael Olsen 
and I am the Acting Principal Deputy Assistant Secretary--Indian 
Affairs. I am pleased to be here today to discuss H.R. 512, a bill 
``[T]o require the prompt review by the Secretary of the Interior of 
the longstanding petitions for Federal recognition of certain Indian 
tribes, and for other purposes.'' We thank the Chairman for his 
interest in this important issue. We recognize Congress has plenary 
authority over this issue and look forward to working with this 
Committee on coming up with solutions on how to better streamline the 
Acknowledgment process.
    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. The Department's regulations are intended to apply to 
groups that can establish a substantially continuous tribal existence 
and that 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.
    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.
    Congress has considered several bills in the past to modify the 
criteria for groups seeking acknowledgment as Indian tribes or to 
remove the process altogether from the Department. While some parties 
seek to change the administrative process by speeding it up, others 
believe that doing so will undermine the factual basis for the 
decision. For example, 20 Attorneys General collectively stated their 
concern that quality in the review process should not be sacrificed in 
the name of expediency and that ``all parties benefit from a careful 
and comprehensive review of the evidence on each petition.'' Although 
the Department supports the current Federal acknowledgment criteria, we 
do recognize that improvements could be made in the acknowledgment 
process to encourage more timeliness and increased transparency of both 
the Department and the applicant. While the Department does not support 
enactment of H.R. 512, the Department agrees that greater time 
sensitivity needs to be added to the principles of integrity and 
transparency in the federal recognition process.
    The Department supports a more timely decision-making 
acknowledgment process, but does not believe that a thorough factual 
review should be forfeited merely to advance longstanding petitions. 
The Department is prepared to examine whether it has and should use 
regulatory authority to institute rules of timeliness and repose which 
could, for example, establish a deadline for a petitioner to submit a 
letter of intent for federal recognition as well as a deadline for 
submitting a fully documented petition. After a group files a letter of 
intent, and the Assistant Secretary acknowledges the receipt of that 
letter (usually within 30 days), it is often the case that the group 
does not come forward with a documented petition for several years, 
some up to 20 years. Currently, there are 71 incomplete petitions where 
a group has only submitted partial documentation. In addition, there 
are 134 letters of intent to petition, some dating back to 1976, that 
have not submitted any documentation. An additional ten groups have 
filed letters of intent and are no longer in contact with OFA. Rules of 
timeliness and repose would provide a clear timeframe for petitioners' 
submissions of final documented petitions with supporting evidence as 
well as help the Department better manage and coordinate its available 
resources.
    The recognition of another sovereign is one of the most solemn and 
important responsibilities delegated to the Secretary of the Interior. 
Federal acknowledgment enables tribes to participate in federal 
programs and establishes a government-to-government relationship 
between the United States and the tribe. Acknowledgment carries with it 
certain immunities and privileges, including exemptions from state and 
local jurisdiction and the ability to undertake casino gaming. The 
Department believes that the Federal acknowledgment process set forth 
in 25 C.F.R. Part 83, ``Procedures for Establishing that an American 
Indian Group Exists as an Indian Tribe,'' allows for the uniform and 
rigorous review necessary to make an informed decision establishing 
this important government-to-government relationship.
    These decisions have significant impacts on the petitioning group 
as well as on the surrounding community. Federal acknowledgment must, 
therefore, 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, and timely.
    Next, I would like to discuss some of the particular concerns the 
Department has with H.R. 512.
    H.R. 512 would require the Secretary to publish in the Federal 
Register a proposed finding for each ``eligible tribe'' within six 
months of enactment of the bill. Eligible tribes are those that have 
made an initial application for recognition to the Department as of 
October 17, 1988 and are listed on the Ready, Waiting for Active 
Consideration list as of July 1, 2004. This may result in those on the 
Active Consideration list, which is a different list, being bypassed by 
these groups. It also requires the Secretary to publish a final 
determination with regard to each eligible Tribe within one year after 
enactment of the legislation. In addition, the Department would have to 
notify groups within 45 days that they may enter into this expedited 
process. The groups would have 90 days from the date of enactment to 
decide if they wanted to opt-in to this process. This timeframe could 
potentially leave the Department one and a half months to make a 
proposed finding and then perhaps only six months to make a final 
determination.
    We are concerned that the timeframes established by the bill would 
not allow the Office of Federal Acknowledgment (OFA) adequate time to 
thoroughly review a petition and, thus, may result in the 
acknowledgment standards being lowered. The administrative record for 
an acknowledgment petition is voluminous. Some completed petitions have 
been in excess of 30,000 pages. One year to review potentially 10 
petitions (the approximate number of those qualifying under the bill) 
consisting of thousands of pages is simply unrealistic. We recognize 
that the acknowledgment process is time consuming. These vast 
applications, coupled with the staff having to respond to FOIA requests 
and litigation needs often lengthens the process considerably. We 
understand this is a frustration for many groups seeking 
acknowledgment, but OFA reviews petitions and responds to FOIA and 
litigation deadlines as expeditiously as it can.
    We are also concerned that the timeframes established by the bill 
may limit the role of interested parties by not allowing them ample 
opportunity to review and comment on petitions. Acknowledgment 
decisions impact not only the groups seeking tribal status, but also 
the local communities, states, and federally recognized tribes. We 
recommend extending the deadlines to allow all potentially interested 
parties an opportunity to participate in the acknowledgment process.
    Finally, we are concerned with acknowledgment decisions being made 
by the courts rather than by Congress or the Department. Under H.R. 
512, if the Department does not make a finding within the timeframe set 
forth, a federal district court would assume that role and make the 
acknowledgment decision. The bill proposes to allow the court to make 
its own determination on the merits, based on the existing criteria, 
rather than review the Department's action. We are concerned that 
various courts reviewing petitions will result in a lack of uniformity 
across the nation and turn the process into an adversarial one. We 
believe it is more appropriate for the court to review the Department's 
determination that is based on an evaluation that is based on an 
evaluation by professional anthropologists, historians, and 
genealogists, rather than take on additional fact-finding 
responsibility. We are also concerned that a judicial proceeding would 
exclude public participation in the acknowledgment process.
    Thank you for the opportunity to testify. While we cannot support 
H.R. 512, we look forward to working with the Committee on ways we can 
improve the Acknowledgment process. I will be happy to answer any 
questions you may have.
                                 ______
                                 
    The Chairman. I now recognize Ms. Nazzaro.

STATEMENT OF ROBIN M. NAZZARO, DIRECTOR, NATURAL RESOURCES AND 
ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; ACCOMPANIED 
  BY JEFF MALCOLM, ASSISTANT DIRECTOR, NATURAL RESOURCES AND 
       ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Ms. Nazzaro. Thank you, Mr. Chairman and members of the 
Committee. I am pleased to be here today to discuss the Bureau 
of Indian Affairs' regulatory process for federally recognizing 
Indian tribes.
    There are currently 562 recognized tribes in the United 
States with about 1.8 million members. In addition, several 
hundred groups are currently seeking recognition.
    BIA's regulatory process for recognizing tribes was 
established in 1978. The process requires groups that are 
petitioning for recognition to submit evidence that they meet 
certain criteria, basically, that the group has continuously 
existed as an Indian tribe since historic tribes. Critics of 
the process claim that it produces inconsistent decisions and 
it takes too long.
    In November 2001, we reported on BIA's regulatory 
recognition process, including the timeliness of the process 
and recommended ways to improvement. My testimony today is 
based on that report and the actions that the Department of the 
Interior's Office of Federal Acknowledgment has taken to 
improve the timeliness of the recognition process.
    In summary, in November 2001, we reported that BIA's tribal 
recognition process was ill-equipped to provide timely 
responses to tribal petitions for Federal recognition. BIA's 
regulations outline a process for evaluating a petition that 
was designed to take about 2 years. However, the process was 
hampered by limited resources, a lack of timeframes, and 
ineffective procedures for providing information to interested 
third parties. As a result, there were a growing number of 
completed petitions waiting to be considered.
    In 2001, BIA officials estimated that it could take up to 
15 years to complete all of the petitions that need to be 
resolved. Compounding this backlog of petitions awaiting 
evaluation was the increased burden of related administrative 
responsibilities that reduced the proportion of time available 
for BIA's technical staff to evaluate petitions.
    To correct these problems, we recommended that BIA develop 
a strategy for improving its responsiveness of the recognition 
process, including an assessment of needed resources. Since 
that time, Interior's Office of Federal Acknowledgment has 
taken a number of important steps to improve the responsiveness 
of the tribal recognition process. For example, two vacancies 
within the Office of Federal Acknowledgment were filled, 
resulting in a professional staff of three research teams. 
However, it still could take four or more years at these 
current staff levels to work through the existing backlog of 
petitions currently under review as well as those that are 
ready and waiting for consideration.
    In addition, in September 2002, a strategic plan issued by 
the Assistant Secretary for Indian Affairs has been almost 
completely implemented. The main impediment to completely 
implementing this strategic plan and to making all the 
information that has been compiled more accessible to the 
public is the fact that BIA continues to be disconnected from 
the Internet because of ongoing computer security concerns 
involving Indian trust funds.
    In conclusion, although Interior's recognition process is 
only one way by which groups can receive Federal recognition, 
it is the only avenue to Federal recognition that has 
established criteria and a public process for determining 
whether groups meet that criteria. However, in the past, 
limited resources, a lack of timeframes, and ineffective 
procedures for providing information to interested third 
parties has resulted in substantial wait times for Indian 
groups seeking Federal recognition. While Interior's Office of 
Federal Acknowledgment has taken a number of actions to improve 
the timeliness of the process, it will still take years to work 
through the existing backlog of tribal recognition petitions.
    Mr. Chairman, this concludes my prepared statement and I 
would be happy to respond to any questions you or members of 
the Committee may have.
    The Chairman. Thank you.
    [The prepared statement of Ms. Nazzaro follows:]

    Statement of Robin M. Nazzaro, Director, Natural Resources and 
           Environment, U.S. Government Accountability Office

    Mr. Chairman and Members of the Committee:
    Thank you for the opportunity to discuss our work on the Bureau of 
Indian Affairs' (BIA) regulatory process for federally recognizing 
Indian tribes. 1 There are currently 562 recognized tribes 
in the Unites States with a total membership of about 1.8 million. In 
addition, several hundred groups are currently seeking recognition. 
Congressional policymakers have struggled with the tribal recognition 
issue for over 27 years. Since 1977, 28 bills have been introduced to 
add a statutory framework for the tribal recognition process. 
Additional bills have also been introduced to recognize specific 
tribes; provide grants to local communities or Indian groups involved 
in the tribal recognition process; or, more recently, address the 
timeliness of the recognition process. H.R. 4933 and H.R. 5134, 
introduced in the 108th Congress, and H.R. 512, which was introduced 
last week, have focused on the timeliness of the recognition process.
---------------------------------------------------------------------------
    \1\ In this statement the term ``Indian tribe'' encompasses all 
Indian tribes, bands, villages, groups, and pueblos, as well as Eskimos 
and Aleuts.
---------------------------------------------------------------------------
    As you know, federal recognition of an Indian tribe can 
dramatically affect economic and social conditions for the tribe and 
the surrounding communities. Federally recognized tribes are eligible 
to participate in federal assistance programs. In Fiscal Year 2004, the 
Congress appropriated about $6 billion for programs and funding almost 
exclusively for recognized tribes. Recognition also establishes a 
formal government-to-government relationship between the United States 
and a tribe. The quasi-sovereign status created by this relationship 
exempts certain tribal lands from most state and local laws and 
regulations. Such exemptions generally apply to lands that the federal 
government has taken in trust for a tribe or its members. Currently, 
about 54 million acres of land are held in trust. 2 The 
exemptions also include, where applicable, laws regulating gaming. The 
Indian Gaming Regulatory Act of 1988, which regulates Indian gaming 
operations, permits a tribe to operate casinos on land in trust if the 
state in which it lies allows casino-like gaming and the tribe has 
entered into a compact with the state regulating its gaming businesses. 
3 In Fiscal Year 2003, federally recognized tribes reported 
an estimated $16.7 billion in gaming revenue.
---------------------------------------------------------------------------
    \2\ Tribal lands not in trust may also be exempt from state and 
local jurisdiction for certain purposes in some instances.
    \3\ 25 U.S.C. Sec. 2701.
---------------------------------------------------------------------------
    BIA's regulatory process for recognizing tribes was established in 
1978. The process requires groups that are petitioning for recognition 
to submit evidence that they meet certain criteria--basically that the 
group has continuously existed as an Indian tribe since historic times. 
Critics of the process claim that it produces inconsistent decisions 
and takes too long. In November 2001, we reported on BIA's regulatory 
recognition process, including the timeliness of the process, and 
recommended ways to improve it. 4 We testified on this issue 
in February 2002 before the House Committee on Government Reform, 
Subcommittee on Energy Policy, Natural Resources and Regulatory 
Affairs, 5 and again in September 2002 before the Senate 
Committee on Indian Affairs. 6 Our testimony today is based 
on our November 2001 report and the actions the Department of the 
Interior's Office of Federal Acknowledgment has taken to improve the 
timeliness of the recognition process. 7
---------------------------------------------------------------------------
    \4\ GAO, Indian Issues: Improvements Needed in Tribal Recognition 
Process, GAO-02-49 (Washington, D.C.: Nov. 2, 2001).
    \5\ GAO, Indian Issues: More Consistent and Timely Tribal 
Recognition Process Needed, GAO-02-415T (Washington, D.C.: Feb. 7, 
2002).
    \6\ GAO, Indian Issues: Basis for BIA's Tribal Recognition 
Decisions Is Not Always Clear, GAO-02-936T (Washington, D.C.: Sept. 17, 
2002).
    \7\ In 2001, the tribal recognition process was administered by 
BIA's Branch of Acknowledgment and Research. In a reorganization, 
effective July 27, 2003, the Branch of Acknowledgment and Research was 
elevated and moved into Interior's Office of the Assistant Secretary 
for Indian Affairs and renamed the Office of Federal Acknowledgment. In 
this statement, when referring to our work from 2001, we will refer to 
the tribal recognition process as a BIA process; in all other cases, we 
will refer to it as a process within Interior's Office of Federal 
Acknowledgment.
---------------------------------------------------------------------------
    In summary,
      In November 2001, we reported that BIA's tribal 
recognition process was ill equipped to provide timely responses to 
tribal petitions for federal recognition. BIA's regulations outline a 
process for evaluating a petition that was designed to take about 2 
years. However, the process was hampered by limited resources, a lack 
of time frames, and ineffective procedures for providing information to 
interested third parties, such as local municipalities and other Indian 
tribes. As a result, there were a growing number of completed petitions 
waiting to be considered. In 2001, BIA officials estimated that it 
could take up to 15 years for all the completed petitions to be 
resolved. To correct these problems, we recommended that BIA develop a 
strategy that identified how to improve the responsiveness of the 
process for federal recognition. Such a strategy was to include a 
systematic assessment of the resources available and needed that could 
lead to the development of a budget commensurate with the workload.
      While Interior's Office of Federal Acknowledgment has 
taken a number of important steps to improve the responsiveness of the 
tribal recognition process it still could take 4 or more years, at 
current staff levels, to work through the existing backlog of petitions 
currently under review, as well as those that are ready and waiting for 
consideration. In response to our 2001 report, two vacancies within the 
Office of Federal Acknowledgment were filled, resulting in a 
professional staff of three research teams, each consisting of a 
cultural anthropologist, historian, and genealogist. In addition, the 
September 2002 Strategic Plan, issued by the Assistant Secretary for 
Indian Affairs in response to our report, has been almost completely 
implemented by the Office of Federal Acknowledgment. The main 
impediment to completely implementing the Strategic Plan and to making 
all of the information that has been compiled more accessible to the 
public is the fact that BIA continues to be disconnected from the 
Internet because of ongoing computer security concerns involving Indian 
trust funds.

Background
    Historically, the U.S. government has granted federal recognition 
through treaties, congressional acts, or administrative decisions 
within the executive branch--principally by the Department of the 
Interior. In a 1977 report to the Congress, the American Indian Policy 
Review Commission criticized the department's tribal recognition 
policy. Specifically, the report stated that the department's criteria 
for assessing whether a group should be recognized as a tribe were not 
clear and concluded that a large part of the department's policy 
depended on which official responded to the group's inquiries. 
Nevertheless, until the 1960s, the limited number of requests for 
federal recognition gave the department the flexibility to assess a 
group's status on a case-by-case basis without formal guidelines. 
However, in response to an increase in the number of requests for 
federal recognition, the department determined that it needed a uniform 
and objective approach to evaluate these requests. In 1978, it 
established a regulatory process for recognizing tribes whose 
relationship with the United States had either lapsed or never been 
established--although tribes may also seek recognition through other 
avenues, such as legislation or Department of the Interior 
administrative decisions, which are unconnected to the regulatory 
process. In addition, not all tribes are eligible for the regulatory 
process. For example, tribes whose political relationship with the 
United States has been terminated by the Congress, or tribes whose 
members are officially part of an already recognized tribe, are 
ineligible to be recognized through the regulatory process and must 
seek recognition through other avenues.
    The 1978 regulations lay out seven criteria that a group must meet 
before it can become a federally recognized tribe. Essentially, these 
criteria require the petitioner to show that it is descended from a 
historic tribe and is a distinct community that has continuously 
existed as a political entity since a time when the federal government 
broadly acknowledged a political relationship with all Indian tribes. 
The burden of proof is on petitioners to provide documentation to 
satisfy the seven criteria. The technical staff within Interior's 
Office of Federal Acknowledgment, consisting of historians, 
anthropologists, and genealogists, reviews the submitted documentation 
and makes recommendations on a proposed finding either for or against 
recognition. Staff recommendations are subject to review by Interior's 
Office of the Solicitor and senior officials within the Office of the 
Assistant Secretary for Indian Affairs. The Assistant Secretary for 
Indian Affairs makes the final decision regarding the proposed finding, 
which is then published in the Federal Register, and a period of public 
comment, document submission, and response is allowed. The technical 
staff reviews the comments, documentation, and responses and makes 
recommendations on a final determination that are subject to the same 
levels of review as a proposed finding. The process culminates in a 
final determination by the Assistant Secretary who, depending on the 
nature of further evidence submitted, may or may not rule the same way 
as the proposed finding. Petitioners and others may file requests for 
reconsideration with the Interior Board of Indian Appeals.
    Congressional policymakers have struggled with the tribal 
recognition issue for decades. Since 1977, 28 bills have been 
introduced to add a statutory framework for the tribal recognition 
process (see table 1).

[GRAPHIC] [TIFF OMITTED] T8700.001


    Of the House bills, only H.R. 4462 from the 103rd Congress was 
passed by the full House (on October 3, 1994). None of the Senate bills 
have been passed by the full Senate. Additional bills have also been 
introduced to recognize specific tribes; provide grants to local 
communities or Indian groups involved in the tribal recognition 
process; or, more recently, address the timeliness of the recognition 
process. For example, H.R. 4933 and H.R. 5134, introduced in the 108th 
Congress, and H.R. 512, which was introduced last week, have focused on 
the timeliness of the recognition process.

In 2001 the Recognition Process Was Ill Equipped to Provide a Timely 
        Response
    BIA's regulations outline a process for active consideration of a 
completed petition that should take about 2 years. However, because of 
limited resources, a lack of time frames, and ineffective procedures 
for providing information to interested third parties, we reported in 
2001 that the length of time needed to rule on tribal petitions for 
federal recognition was substantial. At that time, the workload of the 
BIA staff assigned to evaluate recognition decisions had increased 
while resources had declined. There was a large influx of completed 
petitions ready to be reviewed in the mid-1990s. The chief of the 
branch responsible for evaluating petitions told us that based solely 
on the historic rate at which BIA had issued final determinations, it 
could take 15 years to resolve all the completed petitions then 
awaiting active consideration.
    Compounding the backlog of petitions awaiting evaluation in 2001 
was the increased burden of related administrative responsibilities 
that reduced the proportion of time available to BIA's technical staff 
to evaluate petitions. Although they could not provide precise data, 
members of the staff told us that this burden had increased 
substantially over the years and estimated that they spent up to 40 
percent of their time fulfilling administrative responsibilities. In 
particular, there were substantial numbers of Freedom of Information 
Act (FOIA) requests related to petitions. Also, petitioners and third 
parties frequently filed requests for reconsideration of recognition 
decisions that needed to be reviewed by the Interior Board of Indian 
Appeals, requiring the staff to prepare the record and respond to 
issues referred to the Board. Finally, the regulatory process had been 
subject to an increasing number of lawsuits from dissatisfied parties--
those petitioners who had completed the process and had been denied 
recognition, as well as by petitioners who were dissatisfied with the 
amount of time it was taking to process their petitions.
    Technical staff represented the vast majority of resources used by 
BIA to evaluate petitions and perform related administrative duties. 
Despite the increased workload faced by BIA's technical staff, the 
available staff resources to complete the workload had decreased. The 
number of BIA staff assigned to evaluate petitions peaked in 1993 at 
17. However, from 1996 through 2000, the number of staff averaged less 
than 11, a decrease of more than 35 percent.
    While resources were not keeping pace with workload, the 
recognition process also lacked effective procedures for addressing the 
workload in a timely manner. Although the regulations established 
timelines for processing petitions that, if met, would result in a 
final decision in approximately 2 years, these timelines were routinely 
extended, either because of BIA resource constraints or at the request 
of petitioners and third parties (upon showing good cause). As a 
result, only 12 of the 32 petitions that BIA had finished reviewing by 
2001 were completed within 2 years or less, and all but 2 of the 13 
petitions under review in 2001 had already been under review for more 
than 2 years.
    While BIA could extend the timelines, it had no mechanism to 
balance the need for a thorough review of a petition with the need to 
complete the decision process. As a result, the decision process lacked 
effective timelines that would have created a sense of urgency to 
offset the desire to consider all information from all interested 
parties in the process. In Fiscal Year 2000, BIA dropped its long-term 
goal of reducing the number of petitions actively being considered from 
its annual performance plan because the addition of new petitions would 
have made this goal impossible to achieve.
    We also found that as third parties, such as local municipalities 
and other Indian tribes, became more active in the recognition 
process--for example, initiating inquiries and providing information--
the procedures for responding to their increased interest had not kept 
pace. Third parties told us they wanted more detailed information 
earlier in the process so that they could fully understand a petition 
and effectively comment on its merits. However, in 2001 there were no 
procedures for regularly providing third parties more detailed 
information. For example, while third parties were allowed to comment 
on the merits of a petition before a proposed finding, there was no 
mechanism to provide any information to third parties before the 
proposed finding. As a result, third parties were making FOIA requests 
for information on petitions much earlier in the process and often more 
than once in an attempt to obtain the latest documentation submitted. 
Since BIA had no procedures for efficiently responding to FOIA 
requests, staff members hired as historians, genealogists, and 
anthropologists were pressed into service to copy the voluminous 
records of petitions to respond to FOIA requests.
    In light of these problems, we recommended in our November 2001 
report that the Secretary of the Interior direct BIA to develop a 
strategy to improve the responsiveness of the process for federal 
recognition. Such a strategy was to include a systematic assessment of 
the resources available and needed that could lead to the development 
of a budget commensurate with the workload. The department generally 
agreed with this recommendation.

Timeliness Has Improved, but It Will Still Take Years to Clear the 
        Existing Backlog of Petitions
    In response to our report, Interior's Office of Federal 
Acknowledgment has hired additional staff and taken a number of other 
important steps to improve the responsiveness of the tribal recognition 
process. However, it still could take 4 or more years, at current staff 
levels, to work through the existing backlog of petitions currently 
under review, as well as those ready and waiting for consideration. In 
response to our report, two vacancies within Interior's Office of 
Federal Acknowledgment were filled, resulting in a professional staff 
of three research teams, each consisting of a cultural anthropologist, 
historian, and genealogist. In September 2002, the Assistant Secretary 
for Indian Affairs estimated that three research teams could issue 
three proposed findings and three final determinations per year and 
eliminate the backlog of petitions in approximately 6 years, or by 
September 2008.
    Through additional appropriations in Fiscal Years 2003 and 2004, 
the Office of Federal Acknowledgment was also able to utilize two sets 
of contractors to assist with the tribal recognition process. The first 
set of contractors included two FOIA specialists/record managers. The 
second set of contractors included three research assistants who worked 
with a computer database system scanning and indexing documents to help 
expedite the professional research staff evaluation of a petition. Both 
sets of contractors helped make the process more accessible to 
petitioners and interested parties, while increasing the productivity 
of the professional staff by freeing them of administrative duties.
    In addition, the September 2002 Strategic Plan, issued by the 
Assistant Secretary for Indian Affairs in response to our report, has 
been almost completely implemented by the Office of Federal 
Acknowledgment. Among other things, the Office of Federal 
Acknowledgment has developed a CD-ROM compilation of prior 
acknowledgment decisions and related documents that is a valuable tool 
for petitions and practitioners involved in the tribal recognition 
process. The main impediment to completely implementing the Strategic 
Plan and to making all of the information that has been compiled more 
accessible to the public is the fact that BIA continues to be 
disconnected from the Internet because of ongoing computer security 
concerns involving Indian trust funds.
    Even though Interior's Office of Federal Acknowledgment has 
increased staff resources for processing petitions and taken other 
actions that we recommended, as of February 4, 2005, there were 7 
petitions in active status and 12 petitions in ready and waiting for 
active consideration status. Eight of the 12 petitions have been 
waiting for 7 years or more, while the 4 other petitions have been 
ready and waiting for active consideration since 2003.
    In conclusion, although Interior's recognition process is only one 
way by which groups can receive federal recognition, it is the only 
avenue to federal recognition that has established criteria and a 
public process for determining whether groups meet the criteria. 
However, in the past, limited resources, a lack of time frames, and 
ineffective procedures for providing information to interested third 
parties resulted in substantial wait times for Indian groups seeking 
federal recognition. While Interior's Office of Federal Acknowledgment 
has taken a number of actions during the past 3 years to improve the 
timeliness of the process, it will still take years to work through the 
existing backlog of tribal recognition petitions.
    Mr. Chairman, this completes my prepared statement. I would be 
happy to respond to any questions you or other Members of the Committee 
may have at this time.
Contact and Acknowledgments
    For further information, please contact Robin M. Nazzaro on (202) 
512-3841. Individuals making key contributions to this testimony and 
the report on which it was based are Charles Egan, Mark Gaffigan, and 
Jeffery Malcolm.

[GRAPHIC] [TIFF OMITTED] T8700.002

                                 ______
                                 
    The Chairman. Mr. Olsen, I just had a couple of questions 
based on what some of your concerns were, or the Department's 
concerns were, with the legislation.
    It is my understanding that there would be ten tribes that 
would be considered eligible under this bill and all ten of 
those applied before 1988 and all of their documentation has 
been at the Department since that time. When you talk about the 
statutory timelines and dates within the legislation, it is not 
as if you have 90 days or 45 days to make a decision. The 
Department has had decades, in some cases, and at least 15 
years to look at all of the documentation. It is not as if 
someone is coming into you with brand new documentation, a 
30,000-page brand new documentation that you haven't seen 
before.
    So I am not sure exactly what the concern is with the 
timelines because it is not new information for the Department. 
I know you are relatively new in the job that you are doing 
now, but this information has been at the Department for 
decades.
    Mr. Olsen. May I respond?
    The Chairman. Yes.
    Mr. Olsen. I don't disagree with that. That is true. The 
information has been with the Department. These ten groups that 
would be eligible for this expedited review are currently on 
the ready, waiting for active consideration, list.
    The concern is based on the fact that there are currently 
six groups on the active list now that are under consideration. 
So it is a matter of basically, I think, looking at by moving 
ten up on the active list, we are faced with a situation where 
we are currently considering six, would have specific very 
short timeframes to move those other ten through, and we just 
are concerned about our ability to be able to meet those 
deadlines.
    The Chairman. Well, I would tell you that the intention of 
the legislation is to move these ten groups forward and to get 
these decisions done. I think it is unconscionable that a 
number of these have been waiting decades for a decision. I 
don't care how busy the Department is or lack of money or time 
or personnel. At some point over the last 20 or 30 years, there 
should have been enough time to move forward on these, and that 
was the reason that I introduced the legislation to begin with.
    The intention is to move them ahead, to get them a 
decision. We are not prejudicing the decision at all. It is 
still within the Department's discretion to make that decision. 
But I do want a decision and we need to move forward.
    When you talk about the courts being brought into this, as 
I am sure you are aware, I am not too wild about bringing the 
courts into anything. But they have to have some remedy if a 
decision is not made. They have been sitting there for years 
waiting, and if the Department just ignores this bill, this 
legislation, when it becomes law and doesn't give them a 
decision, there has to be some kind of hammer that follows 
that. There has to be some kind of remedy for these tribes, and 
that is the only thing that we have is to go to court. In that 
case, I do believe that it is warranted to move forward.
    I do understand what some of the concerns are. We have had 
a chance to talk about this in the past. But I do believe that 
this is something that is needed and we should have done it a 
long time ago.
    I appreciate both of your testimony very much.
    I am going to recognize Mr. Kildee for any questions he may 
have.
    Mr. Kildee. Thank you very much, Mr. Chairman.
    When the Bureau of Acknowledgment and Recognition (BAR) 
Office of Federal Acknowledgment (OFA) process is slow, and I 
think everyone would agree it is slow, then the temptation of 
tribes, of course, is to turn to Congress and this Committee 
has enacted legislation, which has been signed into law, 
recognizing tribes, and I think we did it prudently. I think we 
did it with research, also.
    But I think the process should really ordinarily be going 
through the BAR process, and that is why in 2003, we 
appropriated an additional half-million dollars, and then in 
2004 an additional quarter-of-a-million dollars, for $750,000, 
to help you hire a full-time anthropologist, a genealogist, and 
historians. That is about, what, half of the $1.7 million 
budget your office has. Yet I can't find any real effort here 
to bring aboard full-time anthropologists or genealogists and 
historians. Would that not help you in making these decisions?
    Mr. Olsen. It certainly would, and as Ms. Nazzaro pointed 
out, we have filled, I think, two or three of the vacancies 
that we had at the time that the GAO report was originally 
released, and that--
    Mr. Kildee. The plan was to bring about 22 people aboard, I 
believe.
    Mr. Olsen. I am sorry?
    Mr. Kildee. I said the plan was to bring more than that 
aboard, about 22 people aboard.
    Mr. Olsen. We would certainly welcome additional staff, and 
understand that as we talk about this, part of the concern has 
been, part of the discussion has been that resources are 
limited. I don't want to delve too deeply into that.
    But what we have been able to do, in addition to bringing 
on board our own full-time staff, is contract out with five or 
six contractors to handle some of the work that we do, three 
for research assistants as well as two additional for work on 
Freedom of Information Act requests. So although it is not the 
22 that may have been discussed originally, we are attempting 
to fill positions and provide ourselves with the assistance 
that we need to move the process forward.
    Mr. Kildee. I recognize that Congress has the obligation to 
supply you with the amount of money you need, but we did make 
an effort in that and we have not really seen the results of 
that effort to the degree that we had intended.
    I think really every agency of government, when it comes to 
dealing with matters of justice, has to have a sense of 
urgency, and that is very, very important that you have that 
sense of urgency. And when there is not that sense of urgency, 
and I have been here in Congress for 29 years, you might have a 
sense of a concern, and I am not saying--I have met so many 
people over there, they are good people, but the sense of 
urgency to really realize that that tribe's whole future 
depends upon a decision that has not been made, and that is 
very frustrating.
    I have visited some of these tribes. I am not an 
anthropologist. I am not a genealogist. But I do know a great 
deal of the history of Michigan. I helped five tribes get their 
sovereignty reaffirmed, not granted, to retain sovereignty. I 
could tell just from my father's own, who was born in 1883, who 
lived around the Indians around Traverse City, that these 
tribes had kept themselves intact, that their history was 
intact. They had kept good records. And yet, finally, for the 
most part, those tribes in Northern Michigan, we had to use the 
legislative process to reaffirm our recognition of their 
retained sovereignty.
    So I think the executive branch of government has to really 
have this sense of urgency. If you need more money, come to us. 
We will try. It is tight right now, but we did give you some 
more money on that. I know money doesn't solve everything, but 
you really have to reach out to those people who can help you 
make those decisions.
    So I would urge you to have that sense of urgency and 
recognize how they feel. The one tribe, I mean, I knew they 
were a tribe when I was 7 years old. My dad--but clearly, they 
could not get through the BAR process so we finally did the 
Congressional process. I would urge, again, that sense of 
urgency.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Mr. Hayworth?
    Mr. Hayworth. Thank you, Mr. Chairman. Mr. Olsen, Ms. 
Nazzaro, welcome.
    Well, here we are again. The personnel may change but the 
problem seems, sadly, to remain the same.
    I think I have shared in similar proceedings the 
observation of a Navajo elder, when I was honored to represent 
the Navajo Nation, at a town hall meeting when he said, from 
his perspective, that ``Congressman, as far as I am concerned, 
BIA stands for 'Bossing Indians Around.''' And when we have 
these hearings and talk about this situation and the length of 
time involved in recognition, it seems the acronym today stands 
for ``Bureaucratic Inaction Always.''
    My intent is not to indict any personalities. Mr. Olsen, we 
have known you a long time. You have obviously had different 
roles. Now, as part of the administration--it just may be the 
ultimate oxymoron, political science, but I can recall one of 
my instructors speaking of bureaucratic inertia. And when I 
read and I hear your testimony, the intent is not to embarrass 
but actually to try and understand.
    I know there are some good people who work down there, but 
is there just a culture that we have to decide by committee if 
we are going to sharpen pencils in the morning, if we are going 
to carry out any type of workload, because always and forever, 
it is the same answer. The 3-month period, followed by 6 months 
of intense consideration, is just unrealistic. That is the 
human gestation period. A human being is formed and created and 
the miracle of birth occurs, and yet 9 months is too much of a 
fast track. The Chairman pointed out we have gone years in the 
process, a decade and a half.
    Mr. Olsen, again, without indicting personalities, is it 
safe to say that there is a fair amount of bureaucratic inertia 
inculcated into the culture of the Bureau of Indian Affairs and 
that, in essence, is one of the problems we are confronting?
    Mr. Olsen. Well, I don't want to be critical of my own 
agency, but, you know, I guess that may be part of the concern, 
but I think that if some of our concerns that we have with, 
say, for example, this legislation or if we were able to sit 
down with the Committee and work together to work through some 
of our concerns, I think we could move forward with something 
that would be palatable for the Chairman and the Committee as 
well as for the Department.
    I think there are those at the Department who are more than 
willing, as our testimony states, to work together with the 
Committee to accomplish this.
    Mr. Hayworth. Mr. Olsen, there is another political 
admonition. If they feel the heat, they see the light. In 
essence, perhaps one of the provisions Congress might consider 
is sunsetting the recognition procedures of the Bureau of 
Indian Affairs as part of its portfolio. Would this help 
concentrate and perhaps bring some energy and urgency to 
developing a culture of actually finishing work on schedule?
    Mr. Olsen. I think that some sort of sunset provision in 
any context would probably spur the process along. As I said 
before, I think just the fact that the Chairman has introduced 
this legislation certainly has the Department's attention. I 
think, like I said, we are willing to work with the Committee. 
We have supported sunset provisions in the past. I made 
reference to a couple of different examples, perhaps, of sunset 
provisions in my testimony, and certainly we would be more than 
willing to examine that further.
    Mr. Hayworth. Ms. Nazzaro, could Congress authorize an 
independent commission to review the petition that the Office 
of Federal Acknowledgment compiles? Can we do that? I 
understand the irony of this. I am asking the GAO permission to 
do--
    [Laughter.]
    Mr. Hayworth. Let me go ahead and I will just take 
Congressional prerogative. Yes, we can. Let me--
    [Laughter.]
    Ms. Nazzaro. I was going to say, I don't want to be the one 
to say--
    Mr. Hayworth. That is great. You didn't know this was--boy, 
I tell you what. Anyway, I won't ruminate. I know my time is 
short.
    From your vantage point, would this be consistent with the 
GAO recommendations made in 2001 to establish the independent 
commission to accelerate these things?
    Ms. Nazzaro. Well, from my read of what the problem was, 
the problem wasn't the 2-year process. The problem was that 
they did not have staff to handle all the other administrative, 
if you will, requirements, whether they be FOIA requests or 
other activities, that that was distracting the teams from 
actually evaluating and completing their piece of the process.
    Mr. Hayworth. I see my time has expired. Thanks to everyone 
here. Curiouser and curiouser, said Alice. Thank you very much.
    The Chairman. Mrs. Napolitano?
    Mrs. Napolitano. Thank you, Mr. Chair.
    I won't belabor the same questions and I will just ask 
straight out, is there a way to be able to take the oldest 
petitions to the Department of Interior and work on those and 
try to work out on those ten that have been waiting for at 
least a decade and a half, and then report to this Committee 
whether or not you are able to work through them and at what 
pace, or is there a reason for the delay or something that will 
give this body something to understand why the delay?
    Going back to the issue of additional funding for personnel 
in 2001, would it have taken, what was it, 2001 or 2003?
    Ms. Nazzaro. Funding?
    Mrs. Napolitano. Funding.
    Ms. Nazzaro. Two-thousand-three.
    Mrs. Napolitano. Three. Two years--well, a year and a half, 
if you will, to hire personnel, whether it was 4 or 20. Are you 
staffed so that you can do the job? Is the money still there to 
be able to carry that process along and be able to work on 
these tribes that have been waiting for so long?
    Understand that--and I don't have tribes in my area, but I 
have dealt with many of them, and those that have very few 
resources are very open to business coming in and saying, we 
want to do a club, a gambling club, because they can't afford 
to wait that long for the petition. So how do you try to help 
those tribes so that they can be recognized and be able to move 
along, especially when they have been waiting this long? Can 
somebody answer that for me?
    Mr. Olsen. Well, our process is generally, in very simple 
terms, somewhat of a first in, first out process. You 
referenced the ten tribes or groups that would be--that are 
petitioning for acknowledgment that would move up to active 
consideration. We are currently considering--the groups that 
are on the list of active consideration now are, that we are 
currently working on, have petitions that are older than those 
that would be moving up from ready, waiting for active 
consideration, to active consideration. So we try to--we 
approach this process generally as a first in, first ready, 
first out process.
    Mrs. Napolitano. I would hate to think that that is at 
least longer than 20-some-odd years, or 30 years in some 
instances, maybe.
    Mr. Olsen. In some cases, the process is, as we have 
discussed here, is long. We have a petitioner on our active--
let me see, I believe active consideration list that has been 
on that list for somewhere in the neighborhood of seven, 8 
years, for example.
    Mrs. Napolitano. Do you have the staff necessary to do the 
job?
    Mr. Olsen. Well, that is--there are, I guess, a couple of 
ways of answering that. Do we have the staff necessary to be 
able--
    Mrs. Napolitano. Straightforward, can you get the job done?
    Mr. Olsen. Well, to carry out what H.R. 512 requires us to 
do, I am not sure that at this point we do have the staff to do 
that. We have the staff to be able to continue to process 
petitions. We are able to meet and process the petitions that 
come in consistent with our regulations, but it does, because 
of our either limited resources or the staff that we have, we 
cannot--and the other things that simply are required of the 
Office of Federal Acknowledgment, litigation support, 
responding to FOIA requests, we simply can't move through as 
quickly as we would like to.
    We recognize that the process takes longer than, I think, 
than it was intended to, but we are working to try and move 
these petitioners through as expeditiously as we can.
    Mrs. Napolitano. Mr. Chair, I just can't understand the 
reason why. Like you, I am flabbergasted, and J.D. left. I 
agree with his frustration. It is just unthinkable.
    May we request a report to find out what tribes have been 
holding for what years and where their status is and if there 
is a specific area that we can deal with, a hang-up, if you 
will, that we can address it and be able to move forward?
    The Chairman. The Committee has requested that information 
and a lot of that information is what went into the development 
of this particular legislation. We can provide for you the 
status on where all the different tribes are, when they 
originally filed, and how long they have been waiting. These 
ten that we are talking about in this particular legislation 
are all tribes that applied before 1988, and so those were the 
oldest group that applied. That was what drove this legislation 
to begin with.
    Mrs. Napolitano. OK, because he is indicating there are 
some that applied prior to that.
    The Chairman. They did not apply prior to that. I believe 
that they had their--some of them had all of their documents 
completed before these ten did, but these ten are the ones that 
applied first.
    Mrs. Napolitano. Gentlemen, I know I am out of time, but I 
am sure that you have heard the frustration. If there is 
anything that you would want to clarify, whether it is the 
issue of the funding for personnel to finish working on these 
or your regulations need to be revamped to allow for specific 
things that you don't have on the books, I don't know. I don't 
know the issue.
    Mr. Olsen. We are certainly, as I said, we are certainly 
willing to work with the Committee to make improvements to the 
process, whether that is through legislation, whether that is 
through amending our regulations. A revamping, as you refer to 
it is something we would certainly be open to exploring.
    Going back to the--just so that I can kind of go back to 
answer your question about the cost and staffing and so forth, 
I think CBO has indicated that in order for us to meet the 
requirements of this legislation, we would be required to have, 
I believe, somewhere in the neighborhood of 60 additional staff 
and another $12 million. So based on what we have got, it is 
not--it is very difficult to meet those deadlines. Currently, 
we have nine professional staff.
    Mrs. Napolitano. Mr. Chair, maybe that is something we can 
take into consideration. Thank you very much.
    The Chairman. I will acknowledge that in order for us to 
meet what I believe is our obligation and the Department's 
obligation on this, it will require additional staff, and when 
I introduce follow-up legislation to this, that will include 
the authorization of additional staff, because this is just the 
beginning of what we need to do.
    Mr. Fortuno, did you have any questions this morning?
    Mr. Fortuno. No.
    The Chairman. Mr. Nunes?
    Mr. Nunes. Thank you, Mr. Chairman.
    Mr. Olsen, I will keep this very brief, and perhaps you may 
want to just respond in writing. It is about a specific tribe 
in my district that for a long time has been seeking 
recognition. At one time, they were recognized. And I want to 
ask a very specific question. I would like to take this 
opportunity to seek clarification of the Bureau's position on 
whether the Dunlap Band of Mono Indians merits legislative or 
administrative action to confirm its status as a federally 
recognized tribe.
    Now, there seems to be two sides to the equation as they 
have been trying to go through the process. As has been stated 
earlier, I don't want to continue to beat a drum here, but as 
you know, this process seems to be bogged down, and this is a 
tribe, one of the tribes in my district that wants to seek 
recognition amongst many others, but this tribe actually has 
some kind of a precedent that has been set from the Dawes Act 
many years ago, where they were granted land and now they are 
not a recognized tribe.
    I would hope that perhaps you can, if you don't want to 
respond now, because I know it is dealing with a specific 
issue, if you could respond in writing--
    Mr. Olsen. I would be more than happy to do that. I am 
vaguely familiar with the situation, but rather than discuss it 
now, we would be more than happy to respond in writing with a 
fairly comprehensive answer to your question.
    Mr. Nunes. I look forward to it. Thank you, Mr. Chairman.
    The Chairman. Mr. Renzi?
    Mr. Renzi. Thank you, Mr. Chairman. I apologize for not 
being here during your testimony. I was interested in a couple 
of issues that may have already been covered. Forgive me if I 
am overlapping.
    In the last 5 years, how many applications have you been 
able to process, the last five, 6 years? How much success have 
you had?
    Mr. Olsen. Within the last, oh, let me see, within the last 
three--let me see. We have completed 17 decisions on 
acknowledgment since 2001, six proposed findings, nine final 
determinations, and two reconsidered final determinations.
    Mr. Renzi. Anybody rejected at all?
    Mr. Olsen. In the last--I guess since March of 2004, there 
were three, I believe, that were rejected.
    Mr. Renzi. Three rejected? Is there an assumption that some 
of the hold-up is because we are seeing so many applications as 
a result of a perception that many Indian tribes are just 
wanting to be recognized to rush into the gaming operation? Is 
there an institutional bias? That is kind of the skunk in the 
room, isn't it? Is there an institutional bias really that, 
well, hey, let us just hold anyway because this is all about 
gaming?
    Mr. Olsen. I don't think that--I mean, we certainly don't 
look at whether the tribe wants to game as one of the criteria 
for whether they should be federally acknowledged, nor do we 
consider things such as the tribes' or the groups' size or 
enrollment or measurement.
    Mr. Renzi. Not when it comes down to consideration and 
prudence and reason. I am talking about just kind of, well, we 
can hold a little here or we can slow-walk this, just our own 
little--
    Mr. Olsen. Well, I think that certainly there are tribes 
that have--and I can't--I don't know off the top of my head, 
but there are tribes that have gone through the acknowledgment 
process that are gaming tribes and I think--
    Mr. Renzi. I think what I am trying to say is, I represent 
probably more Native Americans than anyone else in Congress 
other than Don Young out of Alaska. We have got a nice little 
tribe up in the borderlands near the Hopis called the Southern 
San Juan Paiute who only want to be recognized so that they can 
have the cultural heritage, the homogeniality, the unity that 
comes with that, not looking to get into gaming. And I think 
that that is a great example when you go back as a leader 
within the Department for those people doing the applications, 
that, hey, a lot of it has to do with just pulling their roots 
together and having their own culture and their own identity.
    I am not here to lecture you, just to say that I wonder how 
much it is all about just slow-walking this thing over people 
looking at where the applications are now compared to what it 
was in the past. So anyway, thanks for coming up.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    I want to thank the panel for their testimony. If there are 
follow-up questions from members of the Committee, they will be 
submitted to you in writing and you can answer them in writing 
so that they may be included in the hearing record. Thank you 
very much for being here.
    I am going to call up our second panel. The Committee 
welcomes Mr. Harry Sachse of the law firm Sonosky, Chambers, 
Sachse, Endreson and Perry, and we welcome Mr. Lance Gumbs, 
Tribal Trustee of the Shinnecock Indian Nation.
    If you could join us at the witness table, remain standing 
to take the oath. If you would raise your right hand.
    Do you solemnly swear or affirm under the penalty of 
perjury that the statements made and the responses given will 
be the whole truth and nothing but the truth, so help you, God?
    Mr. Sachse. I do.
    Mr. Gumbs. I do.
    The Chairman. Thank you very much. You can take a seat. Let 
the record show that they both answered in the affirmative.
    Welcome, gentlemen. It is nice to have you here. We are 
going to begin with Mr. Sachse.

            STATEMENT OF HARRY R. SACHSE, PARTNER, 
         SONOSKY, CHAMBERS, SACHSE, ENDRESON AND PERRY

    Mr. Sachse. Thank you, Mr. Chairman, and thank you for 
inviting me here. I got a call last week that the Committee 
would like to have me here.
    I want to say that I have been representing Indian tribes 
for about 27 years. Our firm does it all around the country and 
in Alaska. Also before that, I was in the Solicitor General's 
Office and argued a number of the cases in the Supreme Court 
that have to do with Indian rights.
    It wasn't until 4 or 5 years ago that I ever got involved 
in this recognition procedure, but I have really been through 
it with this procedure in that time. I think it is awful, and I 
think that your bill is correct and that you have got to do 
something tough with the Department of Interior. Nothing will 
ever happen. You will get excuse after excuse after excuse.
    I think that the unreasonable delay is one of the terrible 
things that is going on, but there are other things. There are 
unreasonable standards that I think were set up to keep tribes 
from being recognized, maybe when fishing rights were the 
issue. But beyond that, there is an entrenched bureaucracy that 
applies those standards in an even more restrictive way than 
the clear language in the standards calls for.
    And also, this culture of making these tribes who don't 
have any money hire anthropologists, prove for every 10-year 
period since they were last recognized that they have 
functioned as a government when it is impossible. You know, the 
1930s, people were striving just to say alive, picking tomatoes 
somewhere. It is a very bad procedure and it needs a lot of 
attention, but this is a good bill that you are doing.
    I want to tell you the story of my client. I think you have 
heard it before and I will be brief about it. I have been 
representing the Muwekma Ohlone Tribe in California, in the San 
Francisco Bay area. They were mission Indians. They worked at 
the Mission San Jose. In the Mexican times, the missions were 
abolished. That left these people without any land at all. They 
then settled somewhere near the Hearst estate and they were 
called the Verona Indians because that was the name of the 
train stop there.
    They were federally recognized through the--the Department 
of Interior has affirmed that they were federally recognized 
through the 1920s. They were on a list where Congress had 
appropriated money to buy land for them, but they never got 
around to buying the land for them. Their kids right through 
the 1940s went to Indian schools and they did their best to 
function as an Indian tribe.
    When the official list was published in 1979, I think it 
was, they were left off. In 1989, they had gotten themselves 
together enough to go to the BIA and say, what do we have to do 
to get on the list? The BIA told them they had to go through 
this whole 25 U.S.C. 89 procedure, even though they had been 
previously recognized, no official action had ever made them 
not recognized, and they were the same people. The same people 
who were there in 1927 were the people going there now, except 
it was the grandparents who were there in those times.
    Well, it took years for them to scrap up the resources to 
hire anthropologists and all that kind of thing. They filed 
their intent to go through the procedure in 1989. They got 
their documents all filed, these thousands of pages that 
everybody talks about, and it shouldn't require thousands of 
pages, but that is what Interior required. They got that in 
1995. They were recognized a year or two later as ready for 
action and nothing happened at all.
    And I should say, this is a group also that had strong 
local support. They had been working with--they preserved an 
Indian cemetery. They had been working with Indian remains. 
They worked with Stanford University. There are letters in here 
of recommendation, a beautiful letter from Condoleezza Rice, 
who was then the Provost of Stanford University, letters from 
the City of San Francisco, from the City of San Jose, from San 
Jose State, et cetera, et cetera, all saying that they should 
be recognized.
    By 1997 or 1998 when they came to us, we looked into the 
rate at which--the same kind of thing you are doing now--we 
looked into the rate of how they are getting to these 
petitions. It would have been 19 years before they would have 
gotten to this petition. So we filed a lawsuit under the 
Administrative Procedure Act that requires--this is Congress 
requiring all Federal agencies, not just the BIA, to decide 
issues in a reasonable time that shall not be unreasonably 
delayed. Decisions shall not be unreasonably delayed. This is 
clearly unreasonably delayed.
    The District Court decided for us and the District Court 
ordered exactly what you are saying in your bill, that it had 
to be--the preliminary within 6 months and final decision in a 
year. The District Court also said, and these are its words, 
that the Department had been glaringly disingenuous in its 
defense of its procedures.
    So the Muwekma petition then has to be considered. Well, 
who is considering it? The very people who we fought against 
for 2 years, the lawyer, Scott Keep, the head, Mr. Fleming, who 
was here, who signed all sorts of affidavits against us in 
that. So it is turned over to them, so they rule against the 
Muwekma Tribe in a 100-some-odd-page thing that looked like an 
antitrust brief, taking every piece of evidence that we had 
done and holding it to a standard that I think is somewhere 
beyond a reasonable doubt. Their own regulations say you have 
to take into account the historical situation, that evidence is 
hard to obtain and sort of thing. So they denied recognition.
    One reason your bill is important is you shouldn't have to 
fight an agency to get them to decide your case and then go to 
the exact same people for the substantive decision where they 
already see you as the enemy. So I support this bill.
    We are now in Federal Court and it will be another two or 3 
years before we get a decision out of the Federal Court, and 
the saddest thing about this is that when this tribe started 
this procedure, there were 15 or 20 or 30 of the tribal members 
still alive who were there from the 1920s, when it was 
recognized. There are now two people, two old, old ladies who 
are there. Everyone else has died off, seen their tribe not get 
recognized. It is pitiful and should be corrected. Thank you.
    The Chairman. Thank you.
    [The prepared statement of Mr. Sachse follows:]

                Statement of Harry R. Sachse, Partner, 
           Sonosky, Chambers, Sachse, Endreson and Perry, LLP

    My name is Harry R. Sachse, I am one of the founding partners of 
Sonosky, Chambers, Sachse, Endreson and Perry, LLP, a law firm that 
specializes in representing Native American Tribes. We have offices in 
Washington, D.C., Alaska, California, and New Mexico. Before that I was 
an Assistant to the Solicitor General of the United States and argued 
several key Indian cases in the Supreme Court, and I have taught Indian 
law at Harvard and the University of Virginia.
    I am pleased to speak in favor of H.R. 512. This bill addresses one 
of the worst abuses inherent in the Department of the Interior's 
handling of tribal recognition: unreasonable delay, and an attitude 
that no one has the right to question it. There are other abuses that 
need to be corrected--unreasonable standards for recognition, and an 
intrenched bureaucracy that functions without any real supervision 
within the Department. See the Testimony of Kevin Gover, former 
Assistant Secretary for Indian Affairs Before the Committee on Indian 
Affairs, United States Senate concerning S. 297, dated April 21, 2004 
attached. This bill is a step in the right direction.
    My experience with this process came from my representation of the 
Muwekma Ohlone tribe of California, in their attempt to become 
recognized. A little of that history will demonstrate the problem.
    The Muwekma Ohlone have lived in the San Francisco Bay area since 
before the Spanish arrived. During the Spanish period, ancestors of the 
Muwekma were forced to live and work at or near the Mission of San Jose 
and were called the Mission San Jose Indian Tribe. Prior to the 
incorporation of California into the United States, the missions were 
abolished, and the tribes who lived there were rendered largely 
landless and destitute. In the late nineteenth century and early 
twentieth century, the Muwekma settled in villages known as Alisal and 
El Molino, located within the Tribe's aboriginal territory in Alameda 
County, California.
    The federal government repeatedly recognized the Tribe in the 
twentieth century. Congress has never enacted legislation terminating 
the trust relationship with the Muwekma Ohlone Tribe. Nor has a court, 
the Department or any division of the Executive Branch terminated the 
Tribe.
    Nevertheless, sometime after 1927 the Department began largely to 
ignore the Tribe. Then when it began publishing a list of federally 
recognized tribes in 1979, the Department failed to include it on the 
list.
    Notwithstanding the Department's neglect, the Tribe's leaders 
organized the tribe to enroll under the California Claims Act, 
repeatedly between 1929 and 1970. Throughout the 1960's, the Tribe 
worked to preserve from destruction the Ohlone Cemetery, an Indian 
cemetery of Mission San Jose, an effort which succeeded. Since the late 
1970's the Tribe has been active in working to preserve and ensure 
proper treatment of archeological resources and ancestral human remains 
uncovered as land development expanded in the San Francisco Bay area. 
In 1989 the Tribe persuaded Stanford University to return Ohlone 
remains stored in its museum to the Tribe for reburial.
    The Tribe has received wonderful local support, with letters in the 
record from the Sacramento Area Office of the Bureau of Indian Affairs, 
from Condoleezza Rice, when she was Provost of Stanford University, 
from Congresswoman Zoe Lofgren, the Tribe's representative, and many, 
many others.
    Given all of that, you would not believe what has happened to this 
tribe in seeking return to the list of recognized tribes.
    In 1989, the Tribe asked advice from the Department of the Interior 
on how it could be returned to the list of recognized tribes. It was 
told that it had to go through the procedures of 25 C.F.R. Part. 83. No 
suggestion was made to it that there was any other way to be returned 
to the list of recognized tribes. The Tribe filed its letter of intent 
to petition for federal acknowledgment in 1989. In 1995 the Tribe 
submitted a documented petition with the extraordinary detail required 
by the Department--which required hiring historians, anthropologists, 
and genealogists. In 1996, the Department concluded that the Tribe had 
been recognized previously. In 1998 the Bureau placed the Muwekma 
petition on the ``ready for active consideration list.''
    The Secretary of Interior in 1994 restored the Ione Band of Miwoks, 
another small California tribe that had been previously recognized then 
ignored, to the list of federally recognized tribes without requiring 
it to go through the procedures of 25 C.F.R. Part 83 at all. Similarly, 
in 2000, the Lower Lake Rancheria, another small California tribe which 
had been previously recognized and then ignored, was restored to the 
list of federally recognized tribes by administrative action without 
being required to go through the 25 C.F.R. Part 83 procedures. In 
addition, two Alaska tribes were similarly restored. Nevertheless, when 
Muwekma in 1992, 1996, 1998 and 2000 requested the Secretary to return 
it to the list of recognized tribes by administrative correction, the 
Department refused or ignored the request, and said wait in line.
    In 1999, although ``ready for active consideration'' the Department 
of the Interior had not yet set a date for consideration of the Muwekma 
petition for recognition, and reviewing the list of tribes ahead of it 
and the rate at which Interior got to the petitions, we determined it 
could be 19 more years before Interior got to its petition. Muwekma 
then brought suit in the Federal District Court for the District of 
Columbia under the Administrative Procedure Act (APA) ``to compel 
agency action unlawfully withheld or unreasonably delayed.'' 5 U.S.C. 
Sec. 706(1). The Court's rulings in that action are published at 
Muwekma Tribe v. Babbitt, 133 F.Supp.2d 30 (D.D.C. 2000) and 133 
F.Supp.2d 42 (D.D.C. 2001).
    The Department vigorously opposed Muwekma, maintaining its right to 
handle these procedures one at a time at its own pace.
    On June 30, 2000, the district court ordered Interior to propose a 
schedule for reaching a final determination on the Tribe's petition. 
The Department, despite the Order, proposed a schedule without any 
definite termination date. In subsequent orders, all initially opposed 
by Interior, the Court set a firm time schedule for Interior to rule on 
the Tribe's petition. See 133 F.Supp.2d at 51. This was the first 
action in which a tribe successfully challenged the Department's slow 
pace of deciding petitions and failure to reduce its backlog. The Court 
held that the fact that the Tribe was previously recognized, that it 
has been required to go through this long procedure when other tribes 
have not, and that, as applied to Muwekma, the procedure may be in 
contravention of an act of Congress, required an expedited decision. 
Id. at 36-42. The Court also found that the Department had been 
``glaringly disingenuous'' in its pleadings before the Court. Id. at 
49. As a result of this decision, other tribes also brought suit 
against the Department for agency action unreasonably delayed, to the 
consternation of the Interior officials.
    On July 30, 2001 the Assistant Secretary for Indian Affairs issued 
a ``Proposed Finding on the Ohlone/Costanoan Muwekma Tribe'' in which 
it proposed to decline recognition of the Tribe. 66 Fed. Reg. 40,712 
(2001). It made no reference to the issues raised by the Court.
    The Tribe submitted comments and substantial new evidence. On 
September 6, 2002, the Department issued its Final Determination 
denying recognition. 67 Fed. Reg. 58,631 (2002). Again, it made no 
reference to issues raised by the Court concerning violations of 
federal law by the Department of the Interior or the lack of equal 
protection in requiring Muwekma to go through this long process while 
administratively correcting the omission of the other tribes. The 
Department findings were like a brief against Muwekma, and the same 
team at Interior that had fought so hard against the Administrative 
Procedure Act suit, were deeply involved in the determination against 
Muwekma.
    We have appealed that decision to the Federal District Court in the 
District of Columbia, and face more years of litigation.
    H.R. 512, which in many ways adopts legislatively what Muwekma had 
to obtain through litigation, will save a great deal of money for the 
United States in not having to defend APA suits based on failure to 
decide cases in a reasonable time. It will also save money for tribes 
applying for recognition the same way. But more than that it will help 
eliminate the bias that occurs when Interior first fights in court to 
defeat a tribal applicant and then has the right to determine whether 
to recognize it or not.

    [NOTE: Testimony of Kevin Gover before the Senate Committee on 
Indian Affairs dated April 21, 2004, submitted for the record by Mr. 
Sachse has been retained in the Committee's official files.]
                                 ______
                                 
    The Chairman. Mr. Gumbs?

         STATEMENT OF LANCE A. GUMBS, TRIBAL TRUSTEE, 
                    SHINNECOCK INDIAN NATION

    Mr. Gumbs. Chairman Pombo, Ranking Member Rahall, members 
of the House Resource Committee, my name is Lance Gumbs and I 
am the current Tribal Chairman of the Shinnecock Indian Nation. 
Thank you for this opportunity to again address the Committee 
on this important issue.
    When I stood before this Committee less than 1 year ago, it 
was the first time a member of the Shinnecock Indian Nation had 
testified before Congress since the 1900s. Nothing would make 
me happier than to be able to report back to you that the 
Department of Interior had made progress on our application, 
which was first filed in 1978, some 27 years ago. So if my 
frustration over the current Federal recognition process is 
evident in my testimony, it is because it was forged by the 
blood, sweat, and tears of too many members of our tribe.
    As I look back in time, it is hard to believe that it was 
1978 when our tribe created the Federal Recognition Committee 
to file our petition. Now, nearly three decades later, it 
merely gathers dust in a file, and regrettably, 13 of those 
original members will never see our tribe attain recognition. 
They have all passed on.
    Our Nation is one of the oldest continuously self-governing 
tribes in the country. Experts in the recognition process tell 
us that we have the most compelling and complete case of any 
tribe, and we are the most documented Indian Nation on record. 
That is because in 1792, the State of New York enacted a law 
taking away our traditional governance, replacing it with a 
trustee form of government. Each April for the past two 
centuries, the Clerk of the Town of Southampton has 
meticulously recorded our elections.
    We have been in our present location on Eastern Long 
Island, land which once stretched from Montauk Point to 
Manhattan, for thousands of years. This land has dwindled over 
the past 365 years, beginning with the early settlers who 
illegally seized these lands in the 17th century. Remarkably, 
we are still fighting every day to protect our land, despite 
the fact that the Shinnecock Indian Nation predates the birth 
of America and that the Shinnecocks have had a formal 
relationship with the State of New York since its inception in 
1788, some 317 years ago.
    In 1974, the New York State Legislature called on Congress 
to grant our tribe Federal recognition. In fact, in a number of 
documents prepared by the Department of Interior, the 
Shinnecock Indian Nation was listed as a tribe in 1941, 1960, 
and 1966. Mr. Chairman, there is no reason that the Department 
cannot acknowledge us immediately.
    The status of our petition sits in what I call the ``black 
hole,'' the ready for active consideration list. I call it the 
black hole because in September 2003, the Shinnecocks were told 
we were number 21 on the current list, and according to BIA, 
and I quote, ``It may take the OFA up to 15 years to decide all 
completed applications,'' end quote.
    Mr. Chairman, it has been nearly a year and a half since 
receiving the information from BIA. We have not heard from them 
since and we are still number 12 in the never-ending queue. It 
is simply a fact that OFA is getting further behind in the 
process of reviewing and acting on pending applications. At 
this rate, without major changes to the process, the Shinnecock 
Nation will languish in an unrecognized status indefinitely.
    We have provided evidence and more evidence to the BIA 
above and beyond what is required, which is because BIA staff 
interprets the results as they see fit. This is not what 
Congress intended.
    To comply with the BIA process, a variety of professional 
services are required--genealogist, anthropologists, legal 
counsel, computer analysts, and the list goes on and on. It has 
cost us nearly $1 million so far, and this is money that could 
have been spent to provide housing or to improve education or 
health care for our people.
    Last year, I witnessed testimony before this Committee 
calling for a moratorium on the Federal recognition of Indian 
tribes. For a tribe like mine who has provided BIA with a 
tremendous amount of documentation and redirected its limited 
resources toward this process, a moratorium would only amount 
to punishing all the tribes that have played by the rules.
    What is needed, Mr. Chairman, is to fix a system that is 
clearly broken and it should start with the immediate 
recognition for tribes like the Shinnecocks, those that have 
languished too long and have done everything asked by the BIA. 
And in our case, we have been recognized by New York for 317 
years. Isn't it ironic that the two tribes who helped the first 
settlers to this land survive, the Shinnecocks and the 
Mashpees, have yet to be formally recognized by the Federal 
Government?
    For thousands of years, we have lived on our native lands. 
Most tribes in this country were moved to so-called 
reservations. We have never moved, and over 600 members of our 
Nation live on our territory. Through the strength of Mother 
Earth and the perseverance of our people, we are still here.
    My mission is to realize the dream of my ancestors and see 
the seventh generation has a better life than the generations 
before it. Now is the time for the U.S. Government to recognize 
the Shinnecock Indian nation.
    Mr. Chairman, thank you for your efforts on Indian issues 
and thank you for this opportunity to speak to this Committee 
and the members.
    The Chairman. Thank you.
    [The prepared statement of Mr. Gumbs follows:]

      Statement of Lance Gumbs, Chairman, Shinnecock Indian Nation

    Chairman Pombo, Ranking Member Rahall and Members of the House 
Resources Committee, my name is Lance Gumbs, and I am the Chairman of 
the Tribal Trustees of the Shinnecock Indian Nation. Thank you for the 
opportunity to again address the committee on this important issue.
    When I stood before this committee less than one year ago, it was 
the first time a member of the Shinnecock Indian Nation had testified 
before Congress since 1900. Nothing would make me happier than to be 
able to report back to you that the Department of Interior had made 
progress on our application which we first filed in 1978, some 27 years 
ago.
    So if my frustration over the current federal recognition process 
is evident in my testimony, it is because it was forged by the blood, 
sweat and tears of too many members of our tribe. As I look back in 
time, it's hard to believe that it was 1978 when our tribe created the 
Shinnecock Federal Recognition Committee to file our petition. Now, 
nearly three decades later it merely gathers dust in a file. And 
regrettably, thirteen of those original members will never see our 
tribe attain recognition--they have all passed on.
    Our Nation is one of the oldest, continuously self-governing tribes 
in the country. Experts in the recognition process tell us that we have 
the most compelling and complete case of any tribe. And, we are the 
most documented Indian Nation on record. That's because in 1792 the 
State of New York enacted a law taking away our traditional governance 
replacing it with a trustee form of government. Each April, for the 
past two centuries, the Clerk of the Town of Southampton has 
meticulously recorded our election.
    We have been in our present location on Eastern Long Island--land 
which once stretched from Montauk Point to Manhattan--for thousands of 
years. This land has dwindled over the past 365 years, beginning with 
the early settlers who illegally seized these lands in the 17th 
century. Remarkably, we are still fighting every day to protect our 
land, despite the fact that the Shinnecock Indian Nation pre-dates the 
birth of America and, that the Shinnecock have had a formal 
relationship with the State of New York since its inception in 1788--
some 317 years ago.
    In 1974 the New York State Legislature called on Congress to grant 
our tribe federal recognition. In fact, in a number of documents 
prepared by the Department of Interior, the Shinnecock Indian Nation 
was listed as a tribe in 1941, 1960 and 1966.
    Mr. Chairman, there is no reason that the Department cannot 
acknowledge us immediately.
    The status of our petition sits in what I call the ``Black Hole''--
the ``Ready for Active Consideration list.'' I call it a black hole 
because in September 2003 the Shinnecock were told we were number 12 on 
the current list and according to BIA,
    [And I quote]
        ``it may take the OFA up to 15 years to decide all completed 
        applications''
    [End quote].
    Mr. Chairman, it's been nearly a year and a half since receiving 
the information from BIA. We have not heard from them since and we are 
still number 12 in the never-ending ``queue.'' It's simply a fact that 
OFA is getting further behind in the process of reviewing and acting on 
pending applications. At this rate, without major changes to the 
process, the Shinnecock Nation will languish in an unrecognized status 
indefinitely.
    We provided evidence--and more evidence--to the BIA above and 
beyond what is required, because BIA staff interprets the results as 
they see fit. This is not what Congress intended.
    To comply with the BIA's process, a variety of professional 
services are required: genealogists, anthropologists, legal counsel, 
computer analysts--the list goes on and on. It has cost nearly one 
million dollars so far, money that could have been spent to provide 
housing or improve education and health care for our people.
    Last year, I witnessed testimony before this Committee calling for 
a moratorium on the federal recognition of Indian tribes. For a tribe 
like mine, who provided BIA with a tremendous amount of documentation, 
and redirected limited resources toward this process, a moratorium 
would only amount to punishing all the tribes that have played by the 
rules.
    What is needed, Mr. Chairman, is to fix a system that is clearly 
broken. And it should start with immediate recognition for tribes like 
the Shinnecock--those that have languished for too long and have done 
everything asked by the BIA. And in our case, we've been recognized by 
New York for 317 years. Isn't it ironic that the two tribes who helped 
the first settlers survive- the Shinnecock and the Mashpee- have yet to 
be formally recognized by our federal government?
    For thousands of years we have lived on our native lands. Most 
tribes in this country were moved to so-called ``reservations'', but 
quite simply we've never moved--and over 500 members of the Nation live 
on our territory today. Through the strength of Mother Earth and the 
perseverance of our people, we are still here.
    My mission is to realize the dream of my ancestors and see that the 
``seventh generation'' has a better life than the generations before 
it. Now is the time for the United States government to recognize the 
Shinnecock Indian Nation.
    Mr. Chairman, thank you for your efforts on Indian issues, and 
thank you for the opportunity to speak to the committee.
                                 ______
                                 
    The Chairman. I thank both of you for your testimony.
    Mr. Gumbs, would H.R. 512 directly help the Shinnecocks to 
obtain a decision?
    Mr. Gumbs. That would be our hope. I think it would go a 
long way in this process, considering the fact that when we 
started this process, I was a senior in high school, and over 
half my life, I have watched and waited and hoped. So yes, to 
answer your question directly, I think it would help.
    The Chairman. I would like to ask both of you a question in 
light of the testimony that we have received at this hearing 
and at previous hearings on this topic. What would be your 
opinion of taking the recognition process away from the BIA and 
from the Department of Interior and doing something like what 
we did on the base closure commission or something like that, 
where you set up a completely outside group to review all of 
the petitions and make decisions based on that and take the 
politics out of it and just base it on a predescribed criteria 
and do it through the legislative branch versus the executive 
branch?
    Mr. Gumbs. I personally think it would help a great deal. I 
think that in cases--it should be based on the merits. It 
should be based on the facts, not politics, not anybody's 
personal agendas, and not on this whole casino issue. We are 
one of the tribes that did not go out and get financial 
backing, so we have been in this process, and yet it seems like 
we are being penalized now because of the new so-called gold 
rush to casinos. So I think that it would help a great deal if 
tribes were allowed to go through this process based on the 
merits, based on their facts, based on their history, and not 
on outside personal agendas.
    The Chairman. Mr. Sachse?
    Mr. Sachse. I agree with that. I think Interior has had 
their shot at this and they have made a horrible mess of it. It 
is in the courts now, whether people want it to be there or 
not, because of the delays. Once we won our case, they 
everybody else could file a case like that.
    But the substantive issues, where it is wrong, these 
thousands of pages of documentation and so on and so forth, I 
think if a tribe has been recognized for many, many years by a 
State, the Federal Government should just recognize it. It 
shouldn't be that they have to go prove all kinds of things.
    And I also think that where a tribe has been previously 
recognized and the people are the direct descendants of those 
people, and let us say previously recognized within the last 
100 years or something, and some of the people from the 
recognized time are still alive, it should just be recognized.
    And here is the odd thing, and the court is going to have 
to deal with this, but it is important. In California, there 
are all these little tribes like the Muwekma Tribe. The 
Department of Interior in 19--let me get the dates right. The 
Department of Interior in 1994 told the Ione Band of Miwoks 
that they didn't have to go through this procedure at all. They 
had been previously recognized and they would just recognize 
them again, and they did it. And then in the year 2000, the 
Department of Interior did the exact same thing with the Lower 
Lake Rancheria and they are recognized, just by correcting 
their records, you see.
    Well, the records should be corrected for a tribe like 
Muwekma or for other tribes that were just dropped from the 
list without there being a formal finding by the Department of 
Interior that this is not a tribe or Congress doing something 
or some agreement where two tribes merge and one no longer 
exists.
    So if you are going to set up a different procedure, there 
ought to be some way to weed out the tribes like Shinnecock, 
like Muwekma, not make them go through this procedure. For 
years, Muwekma had to go through this simply because Interior 
told them that that was the way to do it. And while Muwekma is 
going through this, Interior just corrects its records on other 
tribes.
    The Chairman. I don't know if I necessarily agree with you 
in terms of changing what the criteria is, and that is 
something I would have to look at. I can tell you, and I am 
sure both of you have seen this, some of the groups that have 
applied for recognition probably don't qualify, and there are 
others that do. I just think it is unconscionable, whether you 
think they qualify or not, to hold somebody out there for 20 
years and not give them an answer. I mean, once they have 
turned in all their documents, it is yes or it is a no. You are 
either qualified or you are not.
    With the Shinnecocks and others that I have worked with, it 
has been, tell them yes or no, but don't make them wait for 
another 20 years. That is the part that gets to me, because I 
know that there are groups that have applied that probably 
aren't tribes and they shouldn't be recognized as a federally 
recognized tribe.
    And there are, and I can tell you there are major 
differences between a State recognition process and the Federal 
recognition process and it has impacts--once we recognize 
someone as a federally recognized tribe, it has an impact on 
all the other federally recognized tribes. So it is not 
something that I believe we can take lightly, but it is 
something we have got to give them a decision on.
    I don't quarrel with treating everybody the same and having 
the same recognition process and going through what we have 
done, but I do quarrel with making somebody wait for decades to 
tell them yes or no, and that is the part of this whole process 
that I have a real problem with, because I have heard stories 
like this for a number of years and I just think that we need 
to clear the decks. We need to figure out a way to allow 
everybody the opportunity to apply for recognition and in a 
timely manner give everybody an answer.
    If we do that through--once this legislation is enacted, 
when we deal with everybody else, if we do that through some 
kind of a different process, that is fine. It is going to cost 
money. We are going to have to hire people and we are going to 
have to do it, but I just can't imagine going on with this for 
another 20 years or 30 years and leaving these poor people 
hanging out there like what we have done.
    I am going to recognize Mr. Kildee.
    Mr. Kildee. Thank you, Mr. Chairman.
    Mr. Sachse, you mentioned that the legal document which the 
Department issued in response to the Muwekma petition was a 
very lengthy document. You compared it to some other legal 
document. You know, if they were to expend the same time and 
effort as they obviously put in that denial document for 
seeking some help for the nations like the Shinnecock, that 
would be helpful. Apparently, they had time to prepare a rather 
lengthy document to deny your petition in December of 2002, 
right?
    Mr. Sachse. I think that is the right date, yes.
    Mr. Kildee. But they must have had time and professional 
staff to prepare a rather lengthy denial. My point is that I 
would hope that they would spend the same assiduous effort in 
trying to ascertain affirmatively those that have been there 
for many, many years.
    Mr. Sachse. One would hope. One of the reasons I think this 
bill is good, though as I say, it doesn't affect my client, is 
that every tribe can go to the Federal District Court and under 
the Administrative Procedure Act get an order that requires 
Interior to decide within a reasonable time because the law is 
on the books right now that every agency has to decide an issue 
before it within a reasonable time, and ten, 15 years is no 
reasonable time on anybody's part.
    But a tribe shouldn't be forced to do that, because in 
doing that, you buildup the animosity of the people who are 
going to decide your case. It is much better for Congress just 
to say every tribe has this right and tell Interior to do it.
    Mr. Kildee. I have been, as I say, a number of years here 
in Washington. I have attended one function here where the BAR 
process did recognize a Michigan tribe, the Huron Band of 
Potawatomi. I recall that. But I think the last time, according 
to my records here, and I could be corrected, the last time 
that the BAR process did affirmatively uphold the recognition 
of the sovereignty was 2002 with the Cowlitz Tribe of Indians 
in Washington. So there hasn't really been much in the last 3 
years affirmatively recognizing a tribe. It would seem to me 
with the number of petitions and my knowledge of some of these 
tribes that there certainly are tribes that are truly sovereign 
Indian Nations under Article 1, Section 8 of the Constitution 
and it has been 3 years since they found one. I think that is 
one of the reasons that Mr. Pombo has introduced his bill.
    Again, I am determined--I carry with me wherever I go, I 
carry the Constitution and I carry John Marshall's decision. I 
never leave home without it. I read Article 1, Section 8, and 
John Marshall says the Indian Nations had always been 
considered as distinct, independent political communities, 
retaining their original natural rights as the undisputed 
possessors of the soil from time immemorial. The very term 
``nation'' shall generally apply to them. It means a people 
distinct from others.
    Now, as an unsophisticated 7-year-old, I could recognize an 
Indian tribe in Northern Michigan. But the BIA could not. So we 
went through the Congressional process and reaffirmed their 
retained sovereignty.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    The Chairman. Thank you, Mr. Kildee.
    Mrs. Napolitano?
    Mrs. Napolitano. I don't know where to start other than I 
agree with some of the testimony that has been given. And like 
I mentioned, I do not have any tribes within my area, but I 
have dealt with tribes for a number of years, since I was in 
State legislature, and the frustration of those that have come 
before Congress to become recognized is not new to us.
    Is there anything either one of you can recommend or state 
to this body that might help expedite, if you will, the process 
with BIA? What is it that we need to know that is a problem in 
identifying or being able to expedite or being able to 
determine with clarity what needs to be done so they can move 
forward? You have heard their testimony. There is an issue with 
the necessary personnel. Whatever else, what is it that you 
feel we need to know to be able to see that we can move 
forward?
    Mr. Gumbs. One of the problems that I see in particular is 
the lack of communication coming back from them as to what may 
be some of the problems in your petition. You get a TA letter, 
or technical assistance letter, but then there is no further 
follow-up. Once you have put in information, it doesn't seem to 
be a two-way street of information. So that would really help 
to expedite it.
    One of the other things that I see in this whole FOIA 
process, I am sure that most of the tribes would be willing to 
give their information to whoever wants it in the process of 
expediting this, but they seem to get bogged down with the 
whole FOIA process.
    My last problem that I personally have with it is the 
continual changing of, I won't say the regulations, but how 
they interpret information. We actually had to go back in the 
community part of the process, and even though there is a 
specific criteria that you have to have, it wasn't acceptable. 
We had completed it, it was done, and then we were notified 
that it wasn't acceptable. But by the guidelines, we had 
completed it exactly as to their specifications, but we were 
informed that it wasn't complete and so we had to spend an 
additional 2 years redoing the community aspect of our 
petition.
    So these are the problems that I personally see in being 
part of this process that lengthens the whole situation itself.
    Mrs. Napolitano. Would you have felt that those were change 
of personnel and personnel interpretation, or is this an agency 
interpretation?
    Mr. Gumbs. I think it is a little of both, I mean, to be 
honest with you. I think it has to do with both the change of 
personnel, the inconsistency, and the inconsistency of the 
people doing this. There is no consistency. There is no rhyme 
or reason. There is no method. It is like whoever chooses to do 
it at that particular time and how they read or interpret the 
rules and regulations, and I think that is a big problem.
    Mr. Sachse. I don't know that I know how to fix this, but I 
know what part of the problem is. Part of the problem is that 
the process is so complicated, with all the anthropologists and 
everything like that, that it is turned over to this little 
branch called the BAR, the Bureau of Recognition, whatever it 
is, and they work on these things at their speed and their way 
for years and years and years.
    And the Assistant Secretary, who is usually somebody who 
would like to improve things, doesn't have any control over it. 
For instance, when they make a recommendation to the Assistant 
Secretary, it is so long and so complicated that the Assistant 
Secretary can't go back and judge, was this right or was this 
wrong, and they just rubber stamp it. And so that little bureau 
gets more and more powerful.
    What I saw in our case, and it is still going on, is when 
the decision was made against the Muwekma Tribe, we thought it 
was so patently wrong that we went back to the Assistant 
Secretary, who then was an acting person, Aurene Martin, who 
you might have met, who is a very good person. We talked to her 
and she said she wanted to reconsider all this and how long did 
we need. This was in December. We said, how about setting up 
some procedure to reconsider it by the end of January?
    Well, we don't hear anything from her, and we don't hear 
anything in February and March. Then we talk to her and she 
says that she is waiting to hear from Scott Keep. Scott Keep is 
the lawyer who does all of the legal work for the recognition 
procedure. And Scott never did get back to her. And we kept 
talking to her and she kept talking to Scott.
    In the end, she is out of office, Scott is still there, and 
he has just out-waited the process of reconsideration. We then 
talked to Mr. Olsen about the same thing and got the same 
answer just a week or two ago. Well, I would like to think 
about this but I have to get--and Scott Keep hasn't gotten back 
to me yet on it.
    I just think it is too broken to fix. I think the idea of 
taking it out of Interior altogether is a good idea.
    Mrs. Napolitano. Thank you, Mr. Chair.
    The Chairman. Ms. Herseth?
    Ms. Herseth. Thank you, Mr. Chairman. I don't have any 
questions for our witnesses today but I would like to commend 
both of you as well as those that testified before the 
Committee as well as Chairman Pombo for having these hearings 
and the importance of moving these matters. It is important to 
tribes across the country. Whether we are dealing with the 
Department of Interior mismanagement of the trust for Indian 
lands and the need for trust reform, whether we are dealing 
with matters as it relates to Federal recognition and the years 
and the decades that have gone by without the kind of 
accountability that you deserve, I think it is important that 
we are having these hearings today and that these issues have 
been prioritized by the Committee, so thank you.
    The Chairman. Mr. Udall?
    Mr. Tom Udall of New Mexico. Thank you, and let me also 
echo that. First, let me thank the witnesses for being here, 
but Chairman Pombo, I think this is an important issue. It is 
an issue that needs to be addressed and I compliment you and 
the Committee for doing that.
    There is one question I want to ask. In one of your 
answers, you talked about going to court and doing things in 
court. This is a very expensive process for tribes, is it not? 
Do you have an estimate of the average cost for a tribe to go 
through the process or, rather, what it costs them to pull 
everything together and get it done?
    Mr. Sachse. I think I will defer it to the Chairman here--
    Mr. Gumbs. It has cost us over a million dollars right now 
and it is still going up. And if it hadn't been for the Native 
American Rights Fund, who, as most of you know, does the 
Federal recognition pro bono, it would probably be upwards of 
probably $2 or $3 million. For a tribe like ours that does not 
have any income, that is an inordinate amount of money.
    Mr. Sachse. I second that. I think that is correct. It is 
very expensive to litigate things. You need to hire a private 
attorney to litigate. I am not talking about the process in the 
BIA. I am talking about if you need to litigate to get BIA to 
get to it or then to appeal what they do. You are talking about 
$700,000 or $800,000, a million dollars in litigation costs.
    Mr. Tom Udall of New Mexico. Thank you. Thank you, Chairman 
Pombo.
    The Chairman. Thank you. I want to thank the panel for 
their testimony. It, I believe, was very valuable for the 
members of the Committee. I intend on moving forward with this 
legislation in a timely manner. I look forward to working with 
you and with the administration in order to be able to do that.
    I would like to say to Mr. Gumbs, I appreciate you making 
the effort to be here. I know that we have asked other 
witnesses to come forward that have gone through the same 
process that you have and many times they are very reluctant to 
appear and to testify and I appreciate you having the courage 
and the willingness to come here and share your story with us. 
It is something that I believe the Committee needs to hear, and 
I know that you have been going through this for a long time so 
I appreciate you making the effort to be here.
    Mr. Gumbs. Thank you for having us.
    The Chairman. If there is no further business before the 
Committee, the Committee stands adjourned.
    [Whereupon, at 11:24 a.m., the Committee was adjourned.]

    [A statement submitted for the record by The Honorable 
Edward Roybal, II, Governor, Piro/Manso/Tiwa Indian Tribe, 
Pueblo of San Juan de Guadalupe, follows:]

Statement submitted for the record by The Honorable Edward Roybal, II, 
Governor, on behalf of the Piro/Manso/Tiwa Indian Tribe, Pueblo of San 
               Juan de Guadalupe, Las Cruces, New Mexico

    Chairman Pombo and distinguished members of the House Resources 
Committee, thank you for the opportunity to provide written comments 
for the official hearing record for H.R. 512, a bill to require the 
prompt review by the Secretary of the Interior of longstanding 
petitions for Federal recognition of Indian tribes.
    My name is Edward Roybal, II and I am Governor of the Piro/Manso/
Tiwa Indian Tribe, Pueblo of San Juan de Guadalupe of Las Cruces, New 
Mexico (``Tribe''). First, I would like to provide some background 
information on the Tribe and our efforts to restore our government-to-
government status with the federal government and then I will comment 
on the intent and provisions of H.R. 512.

Background
    The Tribe is the inheritors of the culture, traditions, tribal form 
of government and land of the aboriginal Piro, Manso, and Tiwa people 
of southern New Mexico, southwestern Texas and northern Mexico. Oral 
tradition tells of how our people have lived in the area since time 
immemorial and have traditions and ceremonies tied to the mountains, 
river, plants, animals and storm and cloud movements of the region.
    The Tribe, although unrecognized, is a traditional Pueblo with its 
own ceremonial and civil governing structures. Our Cacique, who serves 
for his lifetime, is the sacred core barrier of thousands of years of 
tribal traditions and ceremonies. The position of Cacique is documented 
in Spanish, Mexican and American records as being in my family for 300 
years, or since the late 1700's. My grandfather served as Tribal 
President for 25 years and my great uncle served as Cacique from 1935 
until his death in 1978. Their father, my great-grandfather was cited 
in the Las Cruces newspaper as the ``Cacique of the Pueblo of Indians 
in Las Cruces'' in 1908. It was during his tenure, from 1890 to 1910, 
that the Tribe received Federal services as an Indian tribe and over 
110 children from our Pueblo were taken, against their parent's wishes, 
to Indian boarding schools in Albuquerque, Santa Fe, California, 
Oklahoma, and Arizona.
    Today, the Tribe has 206 enrolled members who descend from the 
original families that maintained the government-to-government status 
with the United States back in the 1890-1910. In addition, more than 
75% of our enrolled tribal members reside within the eight (8) square 
mile area in or near the old traditional community in Las Cruces, New 
Mexico.

Federal Recognition Efforts
    Prior to any development of federal regulations or policies dealing 
with unacknowledged Indian tribes, the Piro/Manso/Tiwa sought 
clarification of their relationship with the United States. In 1971, a 
letter was sent to the Department of the Interior requesting they 
acknowledge the government-to-government relationship with the Tribe as 
federally recognized Indian tribe. In 1976, Senator Domenici introduced 
legislation to recognize the Piro/Manso/Tiwa Tribe. Unfortunately, no 
action was taken on this legislation. During this time, the Tribe also 
sought judicial relief in order to receive Snyder Act services in the 
Avalos v. Morton case. However, the court held that it was unable to 
determine our status judicially. Two years later, in 1978, the Bureau 
of Indian Affairs promulgated and implemented the federal 
acknowledgment regulations found at 25 CFR Part 83.
    In 1992, the Tribe submitted a revised documented petition to the 
Department of the Interior pursuant to 25 CFR Part 83. The 
documentation we submitted in 1992 was extensive and included the 
Tribe's history, references in local newspapers and Spanish, Mexican 
and American documents, genealogical records, tribal events and 
meetings, named political and religious leaders, maps, and examples of 
how the Tribe and its members have interacted. In 1993, the Department 
conducted a preliminary assessment of the petition and advised the 
Tribe of its ``obvious deficiencies'' assessment. In January, 1997, the 
Tribe was notified that the Department deemed the petition to be 
complete and since 1997 the Tribe has been on the ``Ready, Waiting for 
Active Consideration'' list. In fact, the Tribe has been in a holding 
pattern--at number seven (7)--since 2000. Thus, in almost five (5) 
years, the Tribe has not moved any closer to having its petition 
reviewed by the Office of Federal Acknowledgment (``OFA'').
    What is most tragic about this situation is that our elders 
continue to age while our petition remains in the Department's holding 
pattern. With each day, important federal services are inaccessible to 
our elders because our Tribe has yet to receive federal acknowledgment 
of the government-to-government relationship.

H.R. 512
    The prior related story of the Piro/Manso/Tiwa Tribe and its people 
illustrates the paramount need for H.R. 512 to be enacted. Although we 
were one of the first petitions to seek federal recognition in 1971, we 
have spent almost 34 years fighting, with very little resources, to 
gain the federal recognition that is due to the Tribe. Without reform 
in the Federal acknowledgment process, it is possible that in the year 
2010, the Piro/Manso/Tiwa Tribe could still be number seven (7) on the 
Ready, Waiting for Active Consideration list. I hope that is not an 
accurate prediction of the future, but it is an unfortunate 
possibility.
    Therefore, the Tribe strongly supports the intent of H.R. 512 which 
is to establish reasonable and mandatory time frames in which the 
Secretary of the Interior would be required to publish a proposed 
finding and a final determination for the eligible petitioners. This 
type of directive is exactly what is needed to alleviate the backlog in 
petitions at the Department.
    However, the Tribe has a few concerns with the bill regarding the 
intent of how the review of the ``Eligible Tribe'' category will be 
implemented.
    1)  First, the bill defines the terms ``Eligible Tribe'' to be a 
Tribe that has made an ``initial application'' for recognition as an 
Indian to the Department of the Interior before October 17, 1988. As 
you are aware, the regulations at 25 CFR, Part 83 do not define the 
term ``initial application'' rather the terms ``letter of intent'' and 
``documented petition'' are utilized. The bill would need to clarify 
whether ``made an initial application'' means the submission of a 
letter of intent pursuant to 25 C.F.R. Part 83.4 or the submission of 
the documentation petition required in 25 C.F.R. Part 83.6. We would 
request the ``made an initial application'' be clarified to mean the 
submission of a letter of intent. As you know, the Piro/Manso/Tiwa 
submitted their letter of intent in 1971 and their petition in 1992.
    2)  Second, it related to the order of review of the ``Eligible 
Tribe'' petitions by the Department of Interior in the expedited 
procedure. The Tribe believes that it is important that the order of 
review be established to allow for those Tribes who have been in the 
bureaucratic system the longest to proceed first in the expedited 
alternative. The Tribe believes there would be no justification to have 
other Tribes leap frog over our petition since we have been waiting for 
34 years. Alternatively, it appears the bill allows for simultaneous 
review by the OFA staff which could create other issues related to our 
third concern.
    3)  Finally, the bill is silent regarding any appropriations 
increases for the workload envisioned for the OFA. The Tribe would be 
concerned that the Department would declare the bill an unfunded 
mandates and cause more litigation defenses. As an alternative, a 
directive earmark of the Office of the Secretary--Indian Affairs budget 
to mandate use of their funding for the project would be effective to 
ensure adequate staffing. Other creative monetary ideas could be 
developed to forestall critics of the bill.

Conclusion
    In closing, the Piro/Manso/Tiwa Indian Tribe, Pueblo of San Juan de 
Guadalupe, thanks you for the privilege of submitting written testimony 
on H.R. 512. We would like to work with your staff to address our 
concerns and to assist in the final passage of H.R. 512. Please feel 
free to contact us. Finally, we deeply appreciate the efforts Chairman 
Pombo and the Committee to champion the voices largely not heard--that 
of unacknowledged tribes.

                                 
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