    [Senate Hearing 109-576]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 109-576

    THE THOMASINA JORDAN INDIAN TRIBES OF VIRGINIA FEDERAL RECOGNITION ACT
      AND THE GRAND RIVER BAND OF OTTAWA INDIANS OF MICHIGAN REFERRAL ACT

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

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                           ONE HUNDRED NINTH CONGRESS

                                 SECOND SESSION

                                       ON

                                     S. 437

        TO EXPEDITE REVIEW OF THE GRAND RIVER BAND OF OTTAWA INDIANS OF
      MICHIGAN TO SECURE A TIMELY AND JUST DETERMINATION OF WHETHER THAT
           GROUP IS ENTITLED TO RECOGNITION AS A FEDERAL INDIAN TRIBE

                                     S. 480

      TO EXTEND FEDERAL RECOGNITION TO THE CHICKAHOMINY INDIAN TRIBE, THE
    CHICKAHOMINY INDIAN TRIBE--EASTERN DIVISION, THE UPPER MATTAPONI TRIBE,
       THE RAPPAHANNOCK TRIBE, INC., THE MONACAN INDIAN NATION, AND THE
                             NANSEMOND INDIAN TRIBE

                                   __________

                                 JUNE 21, 2006
                                 WASHINGTON, DC

                        U.S. GOVERNMENT PRINTING OFFICE
    28-348                      WASHINGTON : 2006
    _____________________________________________________________________________
    For Sale by the Superintendent of Documents, U.S. Government Printing Office
    Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800
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                          COMMITTEE ON INDIAN AFFAIRS

                         JOHN McCAIN, Arizona, Chairman

                  BYRON L. DORGAN, North Dakota, Vice Chairman

    PETE V. DOMENICI, New Mexico         DANIEL K. INOUYE, Hawaii
    CRAIG THOMAS, Wyoming                KENT CONRAD, North Dakota
    GORDON SMITH, Oregon                 DANIEL K. AKAKA, Hawaii
    LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
    MICHAEL D. CRAPO, Idaho              MARIA CANTWELL, Washington
    RICHARD BURR, North Carolina
    TOM COBURN, M.D., Oklahoma

                   John Tahsuda, III, Majority Staff Director

                    Sara G. Garland, Minority Staff Director

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page
    S. 437 and S. 480, text of.......................................     3
    Statements:
        Adkins, Stephen R., chief, Cickahominy Indian Tribe, Charles
          City, VA...................................................    86
        Allen, Hon. George, U.S. Senator from Virginia...............    72
        Comp, Fran, vice chairman, Grand River Bands of Ottawa
          Indians, Grand Rapids, MI..................................    91
        Dorgan, Byron L., U.S. Senator from North Dakota, vice
          chairman, Committee on Indian Affairs......................    78
        Fleming, Lee, director, Office of Federal Acknowledgment,
          Department of the Interior, Washington, DC.................    79
        Levin, Hon. Carl, U.S. Senator from Michigan.................    70
        McCain, Hon. John, U.S. Senator from Arizona, chairman,
          Committee on Indian Affairs................................     1
        Moran, Hon. James P., U.S. Representative from Virginia......    75
        O'Conner, Michael, president, Virginia Petroleum, Convenience
          and Grocery Association, Richmond, VA......................    94
        Rountree, Helen, professor emerita of anthropology, Old
          Dominion University, Norfolk, VA...........................    89
        Warner, Hon. John W., U.S. Senator from Virginia.............    77
        Willerup, David, pastor, Westwood Reform Church, Muskegon, MI    93
        Yob, Ron, chairman, Grand River Bands of Ottawa Indians,
          Grand Rapids, MI...........................................    91

                                    Appendix

    Prepared statements:
        Adkins, Stephen R.(with attachment)..........................   101
        Allen, Hon. George, U.S. Senator from Virginia (with
          attachment)................................................   105
        Barton, Rev. Jonathan M., general minister, Virginia Council
          of Churches (with attachment)..............................   121
        Fleming, Lee.................................................   124
        O'Conner, Michael............................................   127
        Rountree, Helen (with attachment)............................   131
        Warner, Hon. John W., U.S. Senator from Virginia.............
        Willerup, David (with attachment)............................   152
        Yob, Ron (with attachment)...................................   167
    Additional material submitted for the record:
        Kildee, Hon. Dale E., U.S. Representative from Michigan
          letter to Hon. Peter Hoekstra, U.S. Representative from
          Michigan...................................................   221

     THE THOMASINA E. JORDAN INDIAN TRIBES OF VIRGINIA FEDERAL RECOGNITION
    ACT AND THE GRAND RIVER BAND OF OTTAWA INDIANS OF MICHIGAN REFERRAL ACT

                                  ----------

                            WEDNESDAY, JUNE 21, 2006

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:30 a.m. in room
    485, Senate Russell Office Building, Hon. John McCain (chairman
    of the committee) presiding.
        Present: Senators McCain, Dorgan, and Thomas

       STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA,
                 CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        The Chairman. Good morning. We are here today to receive
    testimony on two bills, S. 437, the Grand River Band of Ottawa
    Indians of Michigan Referral Act, and S. 480, the Thomasina E.
    Jordan Indian Tribes of Virginia Federal Recognition Act of
    2005.
        These bills, if enacted, would allow the mentioned Indian
    groups to bypass the Department of the Interior Federal
    acknowledgement process regulations. According to a status
    report sent to the committee by the DOI Office of Federal
    Acknowledgement, each of the groups listed in the bills have
    submitted petitions for recognition through the DOI
    regulations.
        The solemnity of Federal recognition which establishes a
    government-to-government relationship between the United States
    and an Indian tribe demands not only a fair and transparent
    process but a process that is above reproach. And, while the
    relationship established is Federal, the impacts are felt
    locally, as well, as has been reported to this Committee by
    States attorneys general and local communities.
        Hearings held by this committee in the past have indicated
    that the regulatory process, although well intentioned, can be
    criticized as too slow, too costly, and too opaque. Recognition
    by legislation, on the other hand, has been justly criticized
    for being too summary and arbitrary. Therefore, it is Congress'
    responsibility to ensure that the decision whether to extend
    recognition to an Indian group be conducted in a fair and
    transparent fashion, in keeping with the gravity of that
    decision.
        It has long been my view that Congress is ill equipped to
    conduct the rigorous review needed to provide the basis for
    such a decision. It is also my view that is substantively
    unfair to provide a legislative path short-circuiting the
    process for some tribes while others labor for years to get
    through the regulations. On the other hand, there are, from
    time to time, extenuating circumstances for particular Indian
    groups that require Congressional resolution, and I have
    supported legislation in those circumstances.
        The witnesses today will provide testimony, both pro and
    con, as to the unique history of each of the groups listed in
    these bills and whether the extenuating circumstances exist
    such that Congressional recognition is warranted.
        I also welcome our colleagues from the Senate who are here
    and those from the House who have sponsored this legislation.
        [Text of S. 437 and S. 480 follow:]

        The Chairman. Senator Thomas.
        Senator Thomas. Thank you, Mr. Chairman. I really do not
    have a statement. I think you have covered the two points. One
    is why does it take so long to do this regularly, and should
    there be shortcuts in the Congress. So I think it is important
    to have the hearing and I thank you for that.
        The Chairman. Thank you, sir.
        Could Senator Allen and Senator Levin decide among
    themselves as to who would like to go first by age or alphabet,
    whichever is appropriate.
        Senator Allen. I will let Senator Levin go first, since
    seniority, and his bill was introduced 1 or 2 minutes before
    mine.
        The Chairman. Thank you very much.
        Senator Levin, welcome. I know you are busy with the
    authorization bill on the floor, so we appreciate your being
    here, and also Senator Allen's courtesy in having you go first.
        Senator Levin.

        STATEMENT OF HON. CARL LEVIN, U.S. SENATOR FROM MICHIGAN

        Senator Levin. Thank you very much, Mr. Chairman and
    Senator Thomas. First let me thank you for holding this
    hearing. I add my thanks to Senator Allen for his graciousness
    in allowing me to go first, mainly not just because of my age,
    which I do not like to emphasize, but because of the floor
    responsibility which I am in the middle of, so thank you very
    much, George.
        Mr. Chairman, thank you and the committee for holding
    today's hearing on the status of the Grand River Band of Ottawa
    Indians.
        In 1994 Congress passed and the President signed
    legislation that gave Federal recognition to several Michigan
    tribes, including the sister tribe of the Grand River Band, the
    Little River Band of Ottawa Indians. The Grand River Band
    should have been recognized at that time, but for various
    reasons it was not.
        To remedy this situation, Senator Stabenow and I have
    introduced S. 437, the Grand River Band of Ottawa Indians of
    Michigan Referral Act, which would refer the matter of Federal
    status of the Grand River Band to the Secretary of the
    Interior. The Secretary would then determine whether the Grand
    River Band meets the same criteria that Congress used in 1994
    to recognize the other tribes, and then act accordingly in an
    expeditious manner.
        I would note that our bill does not legislatively recognize
    the Grand River Band; it does direct the Bureau of Indian
    Affairs [BIA] to make a decision on the merits in a timely
    fashion. It is a critical difference, but it is an important
    difference, particularly in the light of the chairman's opening
    statement.
        The salient questions would be whether members of the Grand
    River Band are descendants of persons who signed the relevant
    treaties and whether today's members continue to reside in
    their ancestral territory. We believe that the Grand River Band
    meets those criteria. The historic record is clear that today's
    Grand River Band are direct descendants of those who signed the
    relevant treaties.
        The Grand River Band are a very traditional Indian people,
    and because of their traditional lifestyles they have a high
    rate of tribal intermarriage. In addition to signing the
    treaties, their ancestors were also instrumental in bringing
    their land claims to the Indian Claims Commission in the late
    1940's and 1950's. The Federal, State, and local governments
    have had dealings with the Grand River Band on a continuing
    basis.
        The Grand River Band also lives today in the same areas of
    Michigan that they have occupied when the first Europeans
    arrived. They reside now in Mason, Oceana, Muskegon, and Kent
    Counties. Burial mounds of the Grand River Band are located
    along the Grand River, itself, from Lansing to Muskegon, and
    they conduct their ceremonies and annual Grand River Ottawa pow
    wow near these sacred mounds.
        I want to mention very briefly there is another tribe in a
    similar situation, the Burt Lake Band of Ottawa and Chippewa
    Indians who were signatories to the 1836 and 1855 treaties.
    They have not been federally recognized, even though they
    submitted their documented petition over 10 years ago. I hope
    that the Burt Lake Band will also be the focus of future
    Federal recognition.
        Mr. Chairman, the importance of this bill is that we need
    an expeditious decision by the regulators and the
    administrators. That is critical because of land claim
    judgments which were settled by Congress which were brought by
    the Grand River and other treaty tribes during the Indian
    Claims Commission period.
        The 1997 act provided that funds will be distributed to
    unrecognized tribes whose members are descendants of treaty
    signatories, provided--and this is the key issue--the tribes
    submitted a fully documented petition by December 15, 2000, and
    that the BIA approves recognition by December 2006. That is
    what the key issue here is, as to whether we can get the BIA to
    make their decision in time to make a deadline which will have
    a major financial impact in terms of a claim which was properly
    and timely filed by this band.
        So we have the Grand River Band that submitted its
    petition, including 21 boxes of materials, on December 5, 2000,
    in time. Nearly 4 years later the BIA granted the tribe its
    first technical assistance meeting in 2004. In January 2005,
    the BIA provided a detailed, 29-page letter describing
    deficiencies and omissions in the Grand River Band's original
    material. After 18 months of work, the Grand River Band now has
    delivered its response on June 9.
        The materials include certified copies of all of its
    membership rolls, 700 members, along with a 63-page legal
    response and a 265-page ethno-historical response prepared by
    Dr. James McClerkin, who is the most eminent Native American
    ethno-historian in Michigan. Each of the 749 citations is
    supported by documentation, along with numerous maps, charts,
    family trees, and population reports, so this exhausting and
    expensive process has gone on.
        We can't allow it to go back and forth for years and years.
    It is essential that a BIA determination regarding the Grand
    River Band be made in a timely way, because if no action is
    taken within the next few months the Grand River Band will be
    denied millions of dollars that have been specifically set
    aside for the band by Federal law. It would be an injustice. It
    would be an injustice not to allow the Grand River Band to take
    its rightful place among the family of federally recognized
    tribes. But, again, this legislation does not decide that; it
    calls for an expeditious, prompt determination by the BIA.
        I will leave for the record a number of technical changes
    to be made in the bill. I won't go through all those now, but I
    would, again, simply thank the committee for holding this
    hearing. It is urgently necessary. We need to get this decision
    made in time so that justice will not be denied a band that has
    truly worked hard, done everything that it is required to do,
    played by the rules, and now I believe and Senator Stabenow
    believe is entitled to a favorable response, but, in any event,
    is entitled to a decision within the time period provided by
    law.
        The Chairman. Thank you very much, Senator Levin. I know
    you have to leave to go to the floor. Thank you. Your complete
    statement will be made a part of the record.
        May I also say I know that Senator Warner is on the floor
    with this important legislation and he may not be able to be
    here. His statement will be made part of the record.
        I know that Senator Allen will speak. I think that you and
    Senator Warner are basically in agreement on this issue.
        Thank you, Senator Levin.
        Senator Levin. Thank you.

       STATEMENT OF HON. GEORGE ALLEN, U.S. SENATOR FROM VIRGINIA

        Senator Allen. Thank you, Mr. Chairman. Senator Thomas,
    thank you for being here. I very much appreciate, Mr. Chairman,
    your holding this hearing on this important issue to consider
    what I consider to be the unique and extraordinary stories of
    these six Virginia Indian tribes. I think you will see in not
    just my testimony but the testimony of Chief Adkins and Dr.
    Rountree the extenuating circumstances that call for
    legislation and Congressional action insofar as these six
    Virginia tribes are concerned.
        I, of course, respectfully urge the committee to move as
    quickly as possible to extend Federal recognition to the
    Chickahominy, the Eastern Chickahominy, the Upper Mattaponi,
    the Rappahannock, the Monacan, and the Nansemod Tribes by
    voting in favor of this measure, S. 480, the Thomasina E.
    Jordan Indian Tribes of Virginia Federal Recognition Act of
    2005.
        I am joined in this measure with my colleague and partner
    from Virginia, Senator Warner, and I think I speak for him, as
    well, in this effort to get long overdue recognition and the
    recognized status to a group of Americans who have been a part
    of this country's history from before 400 years ago and
    continue to be.
        The six tribes seeking Federal recognition, Mr. Chairman,
    have suffered humiliation and indignities that have gone
    largely unnoticed by most Americans because many of these
    injustices were not the result of any actions undertook by
    these Virginia tribes. Instead, these indignities originated in
    Government policies that sought to eliminate their culture and
    heritage. I believe the circumstances of their situation
    warrants Congressional recognition.
        Some express concern about granting Federal recognition
    without investigative processes used by the Department of the
    Interior. However, if one closely examines the history of these
    Virginia Indians they will see why this legislation has been
    introduced and why some of my colleagues continue to push for
    recognition on the House side, including Congressman Moran,
    whom you will hear from shortly.
        The history of these six tribes begins well before the
    first Europeans landed on this continent. History has shown
    their continued inhabitance in Virginia. Through much of the
    last 400 years, they have undergone great hardship; however,
    many have worked hard to maintain and preserve their tradition
    and heritage. To put the long history of Virginia Indians in
    context, while many of the federally recognized Indian tribes
    have signed agreements with the Government of the United States
    of America, the Virginia Indian tribes hold treaties with the
    kings of England, including the Treaty of 1677 between the
    tribes and Charles II.
        Like the plight of many American Indian tribes over the
    last 4 centuries, the Virginia tribes were continually moved
    off their land and many assimilated into U.S. society. Even
    then, the Virginia Indians were not extended the same rights as
    were extended or offered to U.S. citizens. The years of racial
    discrimination and coercive policies took a tremendous toll on
    the population of Virginia Indians. Even while living under
    such difficult circumstances and constant upheaval, the
    Virginia Indians were able to maintain a consistent culture.
        And here is where the extenuating circumstances--Mr.
    Chairman, your criteria or burden of proof. Here is the
    extenuating circumstances for the Virginia tribes. Following
    the turn of the 20th century, members of these six tribes
    suffered more injustice. New State mandates in the 20th century
    forced Virginia Indians to renounce their Indian names and
    their heritage.
        They passed in Virginia what was called the ``Racial
    Integrity Act of 1924.'' This was a damaging, wrong policy in
    Virginia's history. This measure enforced by State officials,
    the Registrar of the Bureau of Vital Statistics, in particular
    a person named Dr. William Plecker sought to destroy all
    records of the Virginia Indians and recognize them not as
    Indians but as the designation was then, ``colored.''
        People were threatened with imprisonment for noting
    ``Indian'' on a birth certificate. Mothers were not allowed to
    take their newborn children home if they were given an Indian
    name. Many generations were, of course, affected by this policy
    that was enforced throughout Virginia and left many Indians
    searching for their true identity.
        A respected journalist who is here in the audience, Peter
    Hardin, wrote a comprehensive, thorough article which appeared
    on March 5, 2000, in ``The Richmond Times Dispatch,'' and I
    would like to have that article made part of the record.
        The Chairman. Without objection.
        Senator Allen. Now, the Racial Integrity Act, Mr. Chairman
    and Senators Dorgan and Thomas, left the records of tens of
    thousands of Virginia Indians inaccurate or deliberately
    misleading until 1997. As Governor--I was Governor then--that
    year I signed legislation that directed State agencies and
    officials to correct all State records related to Virginia
    Indians, reclassifying them as American Indian and not colored.
    My administration championed this initiative when we learned of
    the pain that this racist policy inflicted on many Virginia
    citizens.
        I was also briefed on the problem that many Virginia
    Indians experienced when trying or attempting to trace their
    ancestry or have their records of their children and deceased
    relatives corrected. Now, to combat those injustices we want to
    make sure that any American Indian whose certified copy of
    birth record contains an incorrect racial designation were able
    to obtain those for a fee. I think this is the height of insult
    that someone to correct their record would then have to be
    paying fees to get these old records, and so we made sure that
    there wasn't any fee charged to correct a racial designation
    that was actually not caused by an Indian individual but rather
    by State government policy.
        Now, because, Mr. Chairman and members of the committee, of
    the arrogant, manipulating, and wrongful policies of Virginia's
    Racial Integrity Act, the Virginia Indian tribes have had a
    difficult time collecting and substantiating official documents
    necessary for Federal recognition. Through no fault of their
    own, the records they need to meet the stringent and difficult
    requirements for Federal recognition are simply not available.
    I fear that, unless my colleagues and I take legislative
    action, these six tribes will be faulted and denied Federal
    recognition for circumstances over which they truly had and
    have no control.
        The Virginia tribes have filed a petition with the
    Department of the Interior's Branch of Acknowledgement and
    Research; however, I believe Congressional action is the
    appropriate path for Federal recognition.
        The six tribes represented today have faced discrimination
    and attacks on their culture that are unheard of in most
    regions and States of the United States. Federal recognition
    brings some benefits to Virginia Indians, including access to
    education, grants, housing assistance, and health care services
    which are available to most American Indians. The education
    grants, in particular, can provide an avenue for Virginia
    Indians to improve their prospects for employment and hopefully
    secure better-paying jobs.
        The benefits of Federal recognition would not be
    restitution for years of institutional racism and hostility,
    but would provide new opportunities for members of these six
    tribes. This recognition is a simple matter of justice, fair
    treatment, and honor and pride of heritage and of family.
        I can understand some concerns of Members of Congress have
    with gambling and property claims that relate to federally
    recognized Indian tribes. The issue of gambling is resolved in
    this measure. It complies with the Indian Gaming Regulatory Act
    and also the Virginia laws. The tribes presently, if they so
    desired, could have bingo. They do not want to have bingo.
    People are concerned about casinos. The reality is, if they
    want to have casinos or anything they are going to need to have
    approval from Virginia's government, and Virginia has horse
    racing and the lottery. I do not foresee them having casinos.
    If they did have casinos, then everyone could have casinos
    under such law, but I do not see that happening and they can't
    do it without Virginia government support.
        The Virginia General Assembly, Mr. Chairman and members of
    the committee, have passed resolutions supporting this
    legislation. Governors have supported this legislation. This is
    a right that has been stripped for many decades from Virginia
    tribes. They are not seeking Federal recognition for
    superficial gain, but it is to right a wrong.
        I do believe, Mr. Chairman, that the circumstances in these
    cases are special, and that is why, with my colleague, Senator
    Warner, I have introduced this legislation. I am hopeful that
    you and members of the committee will objectively review this
    situation, consider the testimony and evidence that Chief
    Adkins and Dr. Rountree will present to this committee, and
    make the right decision to move this legislation to the floor
    as was done by your predecessor chairman, Senator Campbell.
        I thank you again, Mr. Chairman and members of the
    committee, for holding this hearing and your consideration of
    this very important matter of justice and equity for Virginia
    Indian tribes.
        Thank you.
        [Prepared statement of Senator Allen and ``Richmond Times
    Dispatch'' article appears in appendix.]
        The Chairman. Thank you very much, Senator Allen. We very
    much appreciate your advocacy, your knowledge, and your passion
    that you bring to this issue. We know you can't stay. We thank
    you very much for being here.
        Congressman Moran, thank you. Please proceed.

      STATEMENT OF HON. JAMES P. MORAN, U.S. REPRESENTATIVE FROM
                                VIRGINIA

        Mr. Moran. Thank you, Mr. Chairman. Thank you very much. It
    is nice to see my former colleagues and now illustrious
    Senators, Senator Dorgan and Senator Thomas. I appreciate the
    fact that the three of you would come to this hearing.
        We have been before this committee, as Senator Allen said,
    and Senator Campbell worked to get this legislation favorably
    through the committee. The story of the Virginia tribes
    represent represents a unique travesty of justice, a national
    travesty that we are dealing with today. This hearing is
    particularly timely, because this Nation is about to recognize
    and celebrate the Jamestown Settlement, which occurred 400
    years ago.
        That Jamestown Settlement could not have been successful if
    it had not been for these Indian tribes teaching survival
    skills to the English explorers and settlers. They welcomed
    them in. They taught them how to farm, what foods could be
    eaten. Many of the Indians were not immune to the diseases that
    the English settlers carried, and they died as a result.
        Subsequently, the settlers killed, expelled, subdued these
    Indian tribes. The Indians lost their land. For much of the
    19th and 20th centuries they were treated in the same way that
    African slaves were treated: Without any rights. As Senator
    Allen just described, this was deliberate policy. One of the
    most troubling legislation actually occurred in the first half
    of the 20th century. I am going to try to summarize some of
    this because Senator Warner has joined us, as well, and I do
    think it is quite a testament to the importance of this issue
    that both of our Senators are so strongly supporting Federal
    recognition.
        As I say, this is a unique situation, at least in two ways.
    These six tribes signed treaties, but they were treaties with
    the kings of England. They still exist, but they, were not made
    with the American Government.
        Senator Allen suggested that the most important treaty was
    the Treaty of 1677 with King Charles II. That treaty has been
    recognized by the Commonwealth of Virginia every year for the
    last 328 years. The Governor, and when Senator Allen was
    Governor he accepted tributes from the tribes, often turkeys
    and other game, and it is celebrated at the State capital.
    There is no question about the legitimacy of this treaty.
        But in the intervening years between 1677 and the birth of
    this Nation, these tribes, as I say, were dispossessed of their
    land, and they were too weak to pose any threat, so they were
    never in a position to negotiate or receive recognition from
    the nascent Federal Government. It was the first English
    permanent settlement in the New World, and the Virginia Indians
    were the ones that enabled it to happen, and yet they have not
    been recognized by the U.S. Federal Government.
        The second reason that this is unique is that they were the
    victims of I guess you would have to call a ``paper genocide''
    that was a result of the laws and, at that time, the attitude
    of the Commonwealth of Virginia. At the time that the Federal
    Government grated Native Americans the right to vote,
    Virginia's elected officials were embracing the eugenics
    movement and adopted racially hostile laws that were targeted
    at those classes of people who didn't fit into the dominant
    white society.
        Those laws and attitudes culminated with the enactment of
    the Racial Integrity Act of 1924. It empowered zealots like
    Walter Plecker. He was a State official. He destroyed the
    records of these Indian tribes. He reclassified in Orwellian
    fashion, as Senator Allen has said, all non-whites as colored.
    In order to get your child out of a hospital, you had to check
    a box whether you were white or colored, in the term that was
    used then. It particularly targeted Native Americans so that
    they could deny them their identity.
        The letter hasn't shown up, but people talk about a letter
    that Mr. Plecker wrote to Adolph Hitler bragging about the fact
    that he had eliminated the identity of the Native Americans in
    the State. I do not know whether such a letter actually exists,
    but that is exactly what it was all about: To eliminate Native
    Americans in Virginia.
        You could be sentenced to 1 year in jail if you did not
    check off the right box. There were only two boxes. So
    obviously what happened is that there were no more Native
    Americans left in the State.
        Now, the Racial Integrity Act was struck down by the
    Federal courts, but not until 1967. For up to 50 years the
    State officials waged a war to destroy all public and many
    private records that would have affirmed the existence of
    Native Americans in Virginia. Now, historians have affirmed
    that there is no other State in the Nation that compares to
    Virginia's efforts to eradicate its citizens' Indian identity.
        All of Virginia's State recognized tribes have filed
    petitions with the Bureau of Acknowledgement seeking Federal
    recognition, but it is a very difficult burden, as you know,
    Mr. Chairman, for these tribes to be able to get that kind of
    acknowledgement. They have been told that they probably won't
    process the paperwork in their lifetimes.
        They weren't able to get jobs. They weren't able to get a
    public school education. The only education they've got were
    from religious groups, missionaries. That is one of the
    reasons, as Senator Allen referred to, they believe gambling is
    a sin. They do not want to have anything to do with gambling.
    They could gamble if they wanted with bingo parlors. They won't
    do it, even though the American Legion or the VFW bingo parlor
    is down the street. They won't do it. This is a very difficult
    and really undignified process for Indians to have to go
    through, particularly these tribes where their records were
    officially destroyed. That just aggravates the injustice that
    has already been visited upon these tribes.
        It wasn't until 1997 when then Governor George Allen signed
    legislation directing State agencies to correct these State
    records that had been deliberately altered to list Virginia
    Indians as colored. The law allows living members of the tribes
    to try to correct those records, but the law can't correct the
    damage done to past generations; 2 years later the Virginia
    General Assembly adopted a resolution calling upon us in the
    Congress to enact legislation recognizing the Virginia Indian
    tribes. Well, that was 7 years ago.
        Now, we have submitted that legislation. We have continued
    to push it. We are counting on you now, Mr. Chairman and the
    members of this committee. There is no doubt that the
    Chickahominy, the Eastern Chickahominy, the Monacan, the
    Nansemod, the Rappahannock, and the Upper Mattaponi Tribes
    exist. They do exist. They've existed on a continuous basis
    since before western European settlers first stepped foot in
    America. They are here with us today. Helen Rountree will
    testify on the next panel.
        The Chairman. Congressman Moran, would you please
    summarize, because----
        Mr. Moran. I will. She spent her lifetime researching this.
    You are going to hear from her, Senator.
        This is a compelling case, and I hope you will correct this
    travesty of justice. We are counting on you. Thank you, Mr.
    Chairman.
        [Prepared statement of Mr. Moran appears in appendix.]
        The Chairman. Thank you very much, Congressman Moran. And
    thank you for taking the time to come over today and be a part
    of this and add important testimony on this issue.
        We now recognize our friend and colleague, Chairman Warner.

      STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR FROM VIRGINIA

        Senator Warner. Thank you, Senator McCain and members of
    the committee.
        First, I'd like to commend the committee and its leadership
    in seeking to rectify obvious wrongs inflicted many years ago
    in the history of our State. And I want to commend the members
    of the tribes who have joined here this morning, and hundreds
    of others who are back in their homes awaiting the outcome of
    this very important hearing.
        I want you to know that throughout my career here I have
    supported Federal recognition of these tribes. I am certain
    that we can devise a means where we can do so, albeit
    recognizing a lot of the records do not exist. Somehow, we've
    got the power, I believe, here in the Congress to do what is
    right.
        My only concern, Mr. Chairman and members of the committee,
    is the issue of gambling. We've witnessed how gambling in
    various parts of the United States has literally transformed
    communities, transformed the quality of life sought by so many
    people. While the current leadership of these tribes have
    represented they have no interest in gambling, we all recognize
    we are not immortal, and others will succeed as time marches on
    with regard to the management of their tribal desires.
        Therefore, I want you to know that, while I strongly will
    work to get this Federal recognition, I equally will strongly
    work to resist any legislation that does not ensure that these
    areas designated by the Federal Government and the people on
    them will conduct themselves consistent, as it relates to
    gambling, as the law of the Commonwealth of Virginia, whatever
    that law may be at such time as that issue may arise.
        With that in mind, I join my colleagues this morning and I
    implore the committee to exercise every possible way to achieve
    our goals, but at the same time achieve them such that the
    issue of gaming will be controlled by the State law.
        I thank you.
        The Chairman. Thank you very much, Mr. Chairman. I thank
    you for taking the time to be in here this morning.
        Senator Dorgan.

      STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH
           DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        Senator Dorgan. Mr. Chairman, first of all, thank you. I
    missed just the first part of Senator Allen's testimony. A bill
    that I've introduced is being heard in the Commerce Committee,
    so I am sorry I was delayed. But thank you for offering us the
    historical perspective and the interest that you have with
    respect to justice for these tribes. I think the committee has
    to try to work through these issues, and your testimony is very
    valuable to us. Thank you very much.
        The Chairman. Senator Thomas, I thank you for coming this
    morning. I appreciate it. And Senator Warner, we certainly
    understand your concern on this gambling issue, which seems to
    pervade this issue of tribal recognition and has caused
    considerable controversy in other States as Indian tribes
    achieve recognition or entities receive recognition as
    recognized tribes.
        I thank the witnesses for coming this morning. I appreciate
    your being here. Thanks again.
        Our next panel: Lee Fleming is director of the Office of
    Federal Acknowledgement of the Department of the Interior.
        Welcome, Mr. Fleming. Your complete statement will be made
    part of the record. We thank you for being here this morning.
    Please proceed.

         STATEMENT OF LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL
      ACKNOWLEDGEMENT, DEPARTMENT OF THE INTERIOR, WASHINGTON, DC

        Mr. Fleming. Good morning, Mr. Chairman and members of the
    committee. My name is Lee Fleming and I am the director of the
    Office of Federal Acknowledgement at the Department of the
    Interior. I am here today to provide the Administration's
    testimony on two bills, S. 437, entitled ``The Grand River Band
    of Ottawa Indians of Michigan Referral Act,'' and S. 480, ``The
    Thomasina E. Jordan Indian Tribes of Virginia Federal
    Recognition Act of 2005.''
        The acknowledgement of the continued existence of another
    sovereign is one of the most solemn and important
    responsibilities delegated to the Secretary of the Interior.
    Federal acknowledgement enables Indian tribes to participate in
    Federal programs and establishes a government-to-government
    relationship between the United States and the Indian tribe.
    Acknowledgement carries with it certain immunities and
    privileges, including exemptions from State and local
    jurisdictions and the ability of newly acknowledged Indian
    tribes to undertake certain economic opportunities.
        The Department recognizes that under the United States
    Constitution Congress has the authority to recognize a
    distinctly Indian community as an Indian tribe, but along with
    that authority it is important that all parties have the
    opportunity to review all the information available before
    recognition is granted. That is why the Department of Interior
    supports a recognition process that requires groups to go
    through the Federal acknowledgement process, because it
    provides a deliberative, uniform mechanism to review and
    consider groups seeking Indian tribal status.
        Legislation such as S. 437 and S. 480 would allow these
    groups to bypass this process, allowing them to avoid the
    scrutiny to which other groups have been subjected. While
    legislation in Congress can be a tool to accomplish this goal,
    a legislative solution should be used sparingly in cases where
    there is an overriding reason to bypass the process.
        Interior strongly supports all groups going through the
    Federal acknowledgement process under 25 C.F.R. part 83. The
    Department believes that the Federal acknowledgement process
    set forth in 25 C.F.R. part 83 allows for the uniform and
    rigorous review necessary to make an informed decision
    establishing this important government-to-government
    relationship.
        Before the development of these regulations, the Federal
    Government and the Department of the Interior made
    determinations as to which groups were Indian tribes when
    negotiating treaties and determining which groups could
    reorganize under the Indian Reorganization Act. Ultimately,
    treaty rights and land claims litigation highlighted the
    importance of these tribal status decisions; thus, the
    Department in 1978 recognized the need to end ad hoc decision-
    making and adopt uniform regulations for Federal
    acknowledgement.
        Under the Department's regulations, petitioning groups must
    demonstrate that they meet each of the seven mandatory
    criteria. The petitioner must:
        One, demonstrate that it has been identified as an American
    Indian entity on a substantially continuous basis since 1900;
        Two, 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;
        Three, demonstrate that it has maintained political
    influence or authority over its members as an autonomous entity
    from historical times until the present;
        Four, provide a copy of the group's present governing
    document, including its membership criteria;
        Five, demonstrate that its membership consists of
    individuals who descend from a historical Indian tribe or from
    historical Indian tribes that combined and functioned as a
    single autonomous political entity and provide a current
    membership list;
        Six, 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, last,
        Seven, demonstrate that neither the petitioner nor its
    members are subject of Congressional legislation that has
    expressly terminated or forbidden the Federal relationship.
        A criterion shall be considered met if the available
    evidence establishes a reasonable likelihood of the validity of
    the facts relating to that criterion. A petitioner must satisfy
    all seven mandatory criteria in order for the Department to
    acknowledge the continued tribal existence of a group as an
    Indian tribe. Currently, the Department's workload of 19 groups
    seeking Federal acknowledgement consists of 10 petitions on
    active consideration and nine petitions on the ready waiting
    for active consideration.
        Now, with respect to S. 437, the Grand River Band of Ottawa
    Indians, and another petitioning group, the Burt Lake Band of
    Ottawa and Chippewa Indians, Incorporated, both of these groups
    are affected by the timing of deadlines for the distribution of
    judgment funds under the Michigan Indian Land Claims Settlement
    Act. Both groups have applied for Federal acknowledgement under
    the regulations.
        The Grand River Band of Ottawa Indians, which would receive
    recognition under this bill, has not submitted a complete
    documented petition demonstrating its ability to meet all seven
    mandatory criteria. The group did submit partial documentation
    in December 2000, and received a technical assistance review
    letter from the office in January 2005. The purpose of the
    technical assistance review is to provide the group with the
    opportunity to supplement its petition due to obvious
    deficiencies or significant omissions. As of last week, the
    Grand River Band of Ottawa Indians submitted additional
    documentation in response to the technical assistance review
    letter.
        Under section 110 of the Settlement Act, if the Grand River
    Band of Ottawa Indians or the Burt Lake Band of Ottawa and
    Chippewa Indians, Incorporated, are acknowledged before
    December 15, 2006, each could receive a significant lump sum
    from the judgment fund in excess of $4.4 million, provided that
    the group and its membership meet the eligibility criteria set
    forth under the Settlement Act.
        If no new tribes are recognized before that date, the money
    is, instead, distributed per capita to the Indians on the
    descendent roll. The Secretary would have 90 days to segregate
    the funds and to deposit those funds into a separate account
    established in the group's name.
        Section 205 of this bill provides that, notwithstanding
    section 110 of the Michigan Indian Land Claims Settlement Act,
    effective beginning on the date of enactment of this act any
    funds set aside by the Secretary for use by the tribes shall be
    made available to the tribe.
        Under S. 437 and the Settlement Act, funds are not set
    aside for the Grand River Band of Ottawa Indians until they are
    recognized. Although not clear, we interpret section 205 of S.
    437 to mean that, if the Grand River Band is acknowledged prior
    to December 15, 2006, any funds set aside for them under
    section 110 of the Settlement Act would not be subject to plans
    approved in accordance with the Settlement Act.
        We do not support section 205 because it takes away the
    membership's right to participate in the development of the use
    and distribution plan for the judgment funds. If S. 437 is
    enacted, we suggest that section 205 be amended.
        The Department also has concerns over the three different
    membership lists referenced in sections 102 and 202. It is
    unclear why three different lists would be required. In
    addition, S. 437 appears to be ambiguous concerning the nature
    and extent of jurisdiction and possible conflicts with treaty
    rights of other Federally recognized tribes. The Department
    would like to work with the committee in order to find an
    equitable solution to all parties connected to the Settlement
    Act.
        Now, with respect to S. 480, the Thomasina E. Jordan Indian
    Tribes of Virginia Recognition Act of 2005, this bill provides
    Federal recognition as Indian tribes to six Virginia groups:
    The Chickahominy Indian Tribe; the Chickahominy Indian Tribe
    Eastern Division; the Upper Mattaponi Tribe; the Rappahannock
    Tribe, Incorporated; the Monacan Indian Nation; and the
    Nansemod Indian Tribe.
        Under the regulations, these six groups have submitted
    letters of intent and partial documentation to petition for
    Federal acknowledgement as Indian tribes. Some of these groups
    are awaiting technical assistance reviews under the
    Department's regulations. As stated above, the purpose of the
    technical assistance review is to provide the groups with
    opportunities to supplement their petitions due to obvious
    deficiencies and significant omissions. Today, none of these
    petitioning groups have submitted completed documented
    petitions demonstrating their ability to meet all seven
    mandatory criteria.
        The Federal acknowledgment regulations provide a uniform
    mechanism to review and consider groups seeking tribal status.
    S. 480 and S. 437, however, allow these groups to bypass these
    standards, allowing them to avoid the scrutiny to which other
    groups have been subjected.
        We look forward to working with these groups and assisting
    them further as they continue under the Federal acknowledgment
    process.
        This concludes my prepared statement, and I would be happy
    to answer any questions the Committee may have.
        [Prepared statement of Mr. Fleming appears in appendix.]
        The Chairman. Thank you very much, Mr. Fleming.
        You just mentioned that they have not submitted the
    documentation for the Federal recognition process under your
    responsibilities?
        Mr. Fleming. All of these groups have submitted partial
    documentation, some more than others. And with respect to the
    Grand River Bands, they just recently submitted about 10
    archival boxes last week.
        The Chairman. What about the Virginia tribes?
        Mr. Fleming. The Virginia tribes have provided
    documentation over time. We have been in the midst of
    developing their technical assistance review letters, but they
    are far from completing their documented petitions.
        The Chairman. Was your office involved in the drafting of
    either of the bills before us today?
        Mr. Fleming. No, sir.
        The Chairman. In the Virginia case, there is overwhelming
    evidence that there has been substantial destruction or
    corruption of documentation. Is it realistic to believe that
    they could meet the Federal acknowledgment process criteria?
        Mr. Fleming. The regulations allow for all kinds of
    evidence, and evidence is found on the Federal level, the State
    level, the county level, the local level--church records, for
    example--and tribal group and family records. We have had many
    groups provide that type of documentation.
        In doing cursory review of records in many of these
    counties where these groups reside, there are records for these
    groups to research and provide under the process. We certainly
    would like to provide technical assistance to show what these
    documents will show to help each group as they prepare their
    petitions.
        The Chairman. How do you respond to criticism of your
    office that the process takes so long?
        Mr. Fleming. It is a necessary thorough process. We have
    been reviewed by the Government Accountability Office [GAO]. We
    have understood the length of time it takes for petitioning
    groups, but it is a process also burdened by the number of
    groups that are already lined up in the process.
        The Chairman. What was the GAO's conclusions?
        Mr. Fleming. The GAO's conclusions were that they recommend
    that we improve on the timeliness and the transparency of this
    process, because this process affects many----
        The Chairman. Are you implementing those recommendations?
        Mr. Fleming. Yes; we are.
        The Chairman. How soon can you let us know of your
    implementation of those recommendations?
        Mr. Fleming. We can certainly provide the committee with--
    --
        The Chairman. I mean when will it be completed?
        Mr. Fleming. The overall process?
        The Chairman. The implementation of those recommendations
    by the GAO.
        Mr. Fleming. Those recommendations have been----
        The Chairman. They have already been implemented?
        Mr. Fleming [continuing]. Implemented.
        The Chairman. Finally, under the conditions, the normal
    situation as it prevails today, if both of these entities were
    federally recognized tribes, what is the situation as to regard
    to both of them being able to engage in gaming?
        Mr. Fleming. If these tribes are recognized, they would
    have the same equal footing as the other 561 federally
    recognized tribes. With regard to the Virginia groups, however,
    there is a provision that addresses the ability of these groups
    with regard to gaming.
        The Chairman. And the case prohibiting it?
        Mr. Fleming. Prohibiting.
        The Chairman. In the case of the Michigan legislation,
    there is none?
        Mr. Fleming. I believe that is correct.
        The Chairman. I thank you, Mr. Fleming.
        Senator Thomas.
        Senator Thomas. Thank you, Mr. Chairman. I think you have
    asked most of the question.
        I guess you said, of course, you are concerned about going
    through the Congress, but 437 doesn't go through the Congress,
    it simply asks for your department to get the job done, doesn't
    it?
        Mr. Fleming. That is correct. The bill has deadlines that
    are stale. Most of those deadlines in the proposed bill have
    already passed, so something would need to be addressed with
    regard to a new schedule or dates.
        Senator Thomas. Why would you say that you haven't come to
    some decision prior to now? Why is it taking so long to come up
    with a final decision?
        Mr. Fleming. Senator, we have so many groups that are ahead
    of some of these other petitioning groups. They have been lined
    up, and we have nine groups, for example, that are under
    various phases of what is known as ``active consideration.''
    This is a period of time where our professionals are looking at
    the evidence of these nine particular groups. Once those groups
    are cleared off of active consideration, then we have ten
    groups that are lined up that are ready, that have completed
    documentation, and then we are able to apply our resources to
    reviewing those 10 petitioning groups.
        Senator Thomas. How long have you been considering the
    Michigan group?
        Mr. Fleming. The Michigan groups, the Burt Lake Band
    submitted their letter of intent in 1985, the Grand River Band
    group submitted their letter of intent in the midnineties. Now,
    a letter of intent simply says we are interested in the
    process. Under the Settlement Act and those deadlines, those
    petitioning groups did meet some of these intermediary
    deadlines for getting a documented petition into our office. In
    fact, Burt Lake is one of the groups that is further along.
    They are expecting a final determination in September of this
    year.
        Senator Thomas. Well, I agree with the idea that it really
    shouldn't go around this, but can there be groups that have
    been longer than 10 or 12 years ago that are still pending? I
    do not understand the administrative process that you are 10
    years off and you still are behind a bunch of other groups.
    What is the story?
        Mr. Fleming. This is a concern that I think we all----
        Senator Thomas. Well what are you doing about it? I mean,
    having a concern doesn't solve the problem.
        Mr. Fleming. Let me give you an example. One group
    submitted their letter of intent in 1978. The regulation allows
    the group to then research documentation. Twenty years later
    the group submitted their material. No fault of their own other
    than it is a process that takes time to research and find the
    documents to provide in the process. So the Department gets
    blamed for those 20 years that the group is working on its
    petition. Then we issue a technical assistance review letter.
        Senator Thomas. I do not think we are talking about how
    long it takes for them to do it; it is when it gets to the
    department, how soon does that decision come?
        Mr. Fleming. When the petitioner goes on active
    consideration, then the regulation provides certain regulatory
    due process periods of time. For example, 12 months is involved
    in the review of the evidence to make sure that the evidence is
    applied to all 7 mandatory criteria. When we propose a finding,
    either to acknowledge or to not acknowledge, that allows for
    then a 6-month public comment period to allow the petitioner
    and the public to comment on our finding.
        Then the petitioner is allowed to months to respond to any
    comments that may have come in from an interested party. Then
    the Department has 2 months to work on the production of the
    final determination. So right there you are just under the
    regulatory process of these various phases of due process. That
    is 22 months.
        Senator Thomas. Okay. Well, I understand the difficulty,
    but I just think we need to be as watchful as we can to make
    sure that these things do not go on for years standing in line.
        What would you do then in 480, finally, if, because of the
    age of the years involved here, that some of these documents
    that you require are not available but that the evidence is
    still there that should happen? I guess----
        Mr. Fleming. I would state that the records are there. The
    records are available on the Federal level. For example, the
    Federal census is taken every 10 years. You have the 1930 being
    the most available right now. These groups should look for
    their families and members on the Federal Census. In fact, in a
    cursory look some of the individuals are even identified as
    Rappahannock, Mattaponi, or Pamonky. This is 1930 in the middle
    of that period of time when Virginia had some of its policies
    affecting vital records. But even vital records, the names of
    the parents and the names of the children are listed with their
    dates of birth, place of birth, and so on and so forth. These
    are the types of records that help demonstrate the genealogies
    of these families.
        Sure enough, you may find different designations in these
    records, but even when you do a cursory look of records on the
    county level you are finding hunting and gaming documents where
    individuals are listed as ``IN'' or ``IND,'' standing for
    Indian. Church records, these records are very helpful in
    demonstrating events that are taking place in the communities.
    You almost have to follow the genealogy of a church, because
    some members will disassociate from a mother church and create
    another church and then another church, but then you go back
    and you look at those types of records.
        Our staff is ready to assist these groups in identifying
    these various records at these various levels. Civil War
    destroyed some of the courthouse records, but from 1865 to the
    present there are records there to help document those time
    periods. Prior to that there are other records on the other
    levels that I had just mentioned.
        Senator Thomas. Well, I know it is difficult, but I just
    think we have to come to some decisions, and it can't go on
    endlessly without some decision-making.
        Thank you.
        The Chairman. Senator Allen, would you like to ask
    questions?
        Senator Allen. First of all, I thank you, Mr. Chairman, for
    letting me be an ex officio member of the committee.
        The Chairman. You are always welcome here.
        Senator Allen. Well, I wanted to hear the testimony of
    Chief Adkins, who will explain, as well as Dr. Rountree, on why
    it is so difficult to get these records, mostly because of
    vital statistics, the best records, of course, purged any
    reference to Indian or American Indian or whatever, anything
    other than white or colored.
        One can say that this is a simple thing to do, but I would
    simply ask Mr. Fleming, you have read our legislation here. As
    you go through the documentation, the treaties, the
    Chickahominy, the Nansemod, the Rappahannock, all these
    different tribes, it is very interesting history, really, of
    Virginia. Some of these treaties were entered into in 1614
    before the Pilgrims even landed up at Plymouth Rock. And you
    just see trying to reconstruct, it is more than just the last
    few years. It is even prior to that.
        Do you have any question whatsoever that these tribes do
    exist, or people have the bloodlines, that there are
    Chickahominy, there are Rappahannock Indians, there are Monacan
    Indians or Upper Mattaponi and the others that are involved in
    our legislation?
        Mr. Fleming. The groups exist, and we know they exist
    because they have petitioned under our process. We also have,
    in total, actually 12 groups from Virginia that have petitioned
    for Federal acknowledgment. What struck me in looking at the
    bill--and when you cursorily look at all the events that were
    listed chronologically, it raised a yellow flag in my mind
    because there are evidentiary gaps that are in these findings.
        We would advise then, under technical assistance to these
    groups, find documents to help supplement these periods where
    there are gaps. Our staff did do a cursory look at the various
    types of records that could be found at the State archives, the
    State library, in the counties, in the churches, in the
    families of these groups, and, as you start to gather the
    evidence, you align the evidence chronologically under the
    seven mandatory criteria to help demonstrate that there is a
    continued tribal existence socially and politically and that
    they do, indeed, descend from an historical tribe or tribes.
        I think what other concern I have is in the bill, as we
    compare it to our petitioners in the process, there are two
    Rappahannock groups, there are two Chickahominy groups, there
    are two Mattaponi groups that, when you have two groups, there
    are questions with regard to then membership. What is going on
    here? These issues are ironed out through the acknowledgment
    process and it allows for clear definition of who is who and
    who belongs to whatever group.
        Senator Allen. How long do you think it would take to go
    through your processes to have these tribes recognized using
    your agency?
        Mr. Fleming. It depends on the group in doing research,
    because a lot of that time is involved with the research. It
    would be interesting to see if there could be some cooperation
    between not only our office in providing technical assistance,
    but other institutions. The Commonwealth of Virginia has
    tremendous research institutions, and one can foresee some kind
    of coordination between the groups and academia, where most of
    these records are kept in their institutions, such as William
    and Mary, for example. The Brafforton School for Indians was
    established in the early 1600's and ran and then eventually
    became William and Mary. Those records have references to
    Indian students who came from these various groups of today.
        Senator Allen. What's the average for a tribe to be
    recognized using your agency, as opposed to a----
        Mr. Fleming. The GAO did an analysis of that. They looked
    at the various groups. Our regulation went through revisions in
    1994, but we can provide you the data on that, because not only
    do you have work that is being done by each group, but you are
    also having work done by the Department of Interior. They broke
    down some of those time frames to give an idea of how long it
    took a group to document versus how long did it take a group to
    go through our process.
        Senator Allen. So what is the answer to the question?
        Mr. Fleming. I'd have to get back to you on that.
        Senator Allen. Roughly.
        Mr. Fleming. Roughly probably 6 to 10 years.
        Senator Allen. Total?
        Mr. Fleming. Some groups less, some groups more.
        Senator Allen. Thank you, Mr. Chairman.
        The Chairman. Thank you very much, Mr. Fleming.
        Our next panel is: Stephen Adkins, who is the chief of the
    Chickahominy Indian Tribe; Helen Rountree, who is the professor
    emerita of anthropology at the Old Dominion University; Ron
    Yob, who is the chairman of the Grand River Bands of Ottawa
    Indians; Reverend David Willerup, the pastor of the Westwood
    Reform Church in Muskegon, Michigan; and Michael O'Connor, who
    is the president, Virginia Petroleum, Convenience, and Grocery
    Association in Richmond, VA.
        Chief Adkins, we will begin with you, sir.

      STATEMENT OF STEPHEN R. ADKINS, CHIEF, CHICKAHOMINY INDIAN
                        TRIBE, CHARLES CITY, VA

        Mr. Adkins. Thank you, Senator McCain, Chairman McCain, and
    members of the committee for allowing me to testify here today.
        I will omit some of my prepared oral testimony. Senator
    Allen has spoken to some of my points, as well as Senator
    Warner and Congressman Moran. But I would like to say that one
    of the bright spots in our history occurred in 1997 when
    Senator Allen signed that legislation that compelled the State
    to go back and change the vital statistics, the birth records
    of my tribe and several other tribes in Virginia, and also I
    would thank the Senator for his unflagging support from the
    State House to the Halls of Congress.
        You, Senator McCain, I would like to thank you for the fact
    that you told Chief Ken Adams and myself in February of this
    year at the winter conference of the National Congress of
    American Indians that you would give consideration to and look
    at the bill that we have before this committee, and I thank you
    for honoring that commitment and having us here today. This is
    the third time, in fact, that I have appeared before the Senate
    Indian Affairs Committee, so my story really hasn't changed. It
    hasn't changed since 1607 when we actually greeted the English
    settlers as sovereign nations. The Senator, Senator Allen,
    talked about our treaties.
        The first treaty engaged with the colonists was in 1614,
    that being between the Chickahominy and English settlers. Then
    we had treaties in intervening years. In the 1640's, the treaty
    that Congressman Moran alluded to delineated some of the
    responsibilities of the tribes and the officials regarding what
    the tribes would do and what the governing body would do. One
    provision of that treaty was that a tribute would be made every
    year to the State House as a condition of that treaty. That
    tradition has continued for over 3\1/2\ centuries, which I
    think would lend some compelling evidence to some of the points
    that Mr. Fleming brought up regarding the continuity of our
    people for those years.
        I would like to say a little bit about Walter Plecker. I
    won't go into the whole thing because that has been talked
    about today. I would like to mention that we have gotten
    support from three Governors--Governor Allen, Governor Warner,
    Governor Kane--letters that have come pledging their support
    for our efforts around Federal recognition.
        But when I think about Walter Plecker, the rabid separatist
    that he was, and those things that were done to my people, it
    is not something I like to talk about, but what that caused us
    to do was unite more strongly as tribes and to really work hard
    to preserve our heritage.
        Now, the obvious barriers that we had were barriers that
    were created that caused the public to look at us as something
    other than Indian, so we fought the system and the image that
    we had in the public. No other State had officials that were as
    rigid, as zealous enforcers of such a vile act as Virginia had,
    so we faced the bureaucratic obstacles as well as the scrutiny
    of the public in maintaining our heritage. Very hard to do. But
    I would say it made us stronger. Some people under adverse
    conditions wither and die away; I would say this made us
    stronger and gave us a more compelling desire and urge and more
    deliberateness in pursuing our rightful place as recognized
    tribes within these great United States of America.
        I am glad to be here today to offer this testimony.
        I have with me today Dr. Helen Rountree, who is prepared to
    assist with any questions you may have about our history.
        Senator McCain, I could tell you much about the publicized
    stories of 17th century Virginia, and you have heard much of
    that, so I won't talk much about that. But I would say that
    well known is the story of Chief Powhatan, and more widely
    known is the story of his daughter, Pocahontas, whose very
    picture hangs in the Capitol Building here in D.C., along with
    her husband, her English husband John Rolfe.
        I would say that without the hospitality of my forebears,
    the first permanent English settlement would not have been
    Jamestown. To be sure, there would have been one, but it
    wouldn't have been Jamestown.
        People know about the 17th century and how that early
    history so callously denied our Indian heritage, but I want you
    to remember most and recognize most is that myself, along with
    the chiefs here today, stand on the shoulders of those people
    who gave their lives, whose very lives were destroyed because
    of the harsh realities that existed in the 17th century and
    have carried on through the 20th and now the 21st century. I
    stand here on the shoulders of Chief Wowinchopunk, who was
    chief of the Paspahegh, whose whole tribe was annihilated by
    1610. Some of those descendants found refuge with the
    Chickahominy Tribe, but as a tribal group they were destroyed.
    That is 3 years after the English settlement.
        As we commemorate Jamestown 2007, the birth of this great
    Nation, those of Indian heritage in Virginia are reminded of
    this history and it is painful. We are actively involved in the
    commemoration of the birth of this great Nation and we think it
    is the right thing to do. We know that one of the legacies of
    this effort will be that our story will be told the way it
    happened. The legacy will find its way into the history books,
    the textbooks of our schools, so that is a good thing.
        But we are seeking recognition through an act of Congress
    rather than the BIA because we think the actions taken by the
    Commonwealth of Virginia during the 20th century erased our
    history by altering key documents as part of a systematic plan,
    a systematic plan to deny our existence. We think this state
    action separates us from other tribes of this country that were
    protected from this blatant denial of Indian heritage and
    identity, so it distinguishes us from those tribes.
        The Senator talked about the article from Peter Hardin, so
    I won't mention that, but I do concur that I would like to see
    that in the records.
        It was socially unacceptable to kill Indians in Virginia,
    but we became fair game to this documented genocide, the
    eugenics movement, and all of the attendant things that
    occurred under the leadership of Walter Plecker that sought to
    destroy who we are, that Racial Integrity Act of 1924.
        Now, the thing about it, that law stayed in effect half of
    my life. My Mom and Dad traveled to Washington, DC, on February
    20, 1935, to be married as Indians because they couldn't do it
    in the Commonwealth of Virginia. People ask me why I do not
    have an Indian name. The answer is quite simple. My Mom and Dad
    weighed the risks of naming me what they would have loved to
    name me and said it is not worth the risk of going to jail.
    Now, I am not alone in that plight. There are people here today
    who do not carry Indian names because of the threat of going to
    jail for a year if that happened. Again, no other ethnic
    community was probably denied in that way.
        I would like to talk a little bit about----
        The Chairman. Chief, you have got to talk a little bit
    faster. We are well over time. I have been informed we have a
    vote at 11:15, so we want to be able to give all of the----
        Mr. Adkins. Okay. Give me 1\1/2\ minutes.
        We think that recognition through Congress because of the
    history of racism in very recent times that intimidated our
    people, prevented us from believing that we could fit into a
    petition process that would either understand or reconcile the
    State action with our heritage. We fear the process would not
    be able to see beyond the corrupted documentation that was
    designed to deny our heritage.
        Mr. McCain, the story I just told you I do not like to
    tell. It is very painful. But that is how we got here to day.
        I would like to end this testimony with a quote from Chief
    Powhatan. I think it is very timely and I would like for you to
    hear that. I used this quote last year but I want this year to
    specially honor him. Last summer I was one of two chiefs to be
    hosted by the British Government. We went to England and we
    were honored, first time a Virginia Indian had been honored in
    England since Pocahontas visited there with her husband, John
    Rolfe. But here is that quote:

        I wish that your love to us might not be less than ours to
    you. Why should you take by force that which you can have from
    us by love? Why should you destroy us who have provided you
    with food? What can you get by war? In such circumstances, my
    men must watch, and if a twig should but break all would cry
    out, `Here comes Captain Smith.' And so, in this miserable
    manner to end my miserable life. And, Captain Smith, this might
    soon be your fate too. I, therefore, exhort you to peaceable
    councils, and above all I insist that the guns and swords, the
    cause of all our jealousy and uneasiness, be removed and sent
    away.

        Senator McCain, our bill would give us this peace that
    Chief Powhatan sought, it would honor the treaty our ancestors
    made with the early colonists and the Crown, and at this time
    in our history when we are commemorating the 400th anniversary
    of the birth of the greatest nation in the world, it would show
    respect for our heritage and our identity, that through
    jealousy perhaps has never before been acknowledged.
        Thank you.
        [Prepared statement of Mr. Adkins appears in appendix.]
        The Chairman. Thank you very much.
        The written statements of all the witnesses will be
    included in the record completely. We are going to have to
    stick fairly close to the 5-minute rule here because of the
    vote that is going to take place so we have time to hear your
    testimony as well as answer questions. I apologize for any
    inconvenience that may cause you.
        Dr. Rountree, thank you, and thank you for all the hard
    work you have done for many years on this issue.

    STATEMENT OF HELEN ROUNTREE, PROFESSOR EMERITA OF ANTHROPOLOGY,
                  OLD DOMINION UNIVERSITY, NORFOLK, VA

        Ms. Rountree. Thank you, sir. I will make this very
    succinct and count on questions afterwards. I am going to cut
    down even the few pages I have.
        I am Dr. Helen Rountree, an ethno-historian trained in both
    anthropology and history, but my primary area is cultural
    anthropology.
        I started working with American Indians in Nevada and
    worked with people who were more fluent in Shoshone than they
    were in English, but in 1969 I became acquainted with Virginia
    Indians, saw serious parallels, and said I had better get to
    work and begin researching here. I have been doing it ever
    since.
        I not only have spent time visiting and living with the
    modern people, but I have literally scoured the published and
    unpublished records in Virginia, including the speed reading
    the often unindexed county records from 1607 onward. I have
    found the records that Mr. Fleming is looking for. I hope you
    will ask me what I have done with them besides publishing them,
    for I have produced no less than six books on the subject of
    the Powhatan Indians of Virginia. Number seven is in the
    hopper. The one that is most germane to this hearing came out
    16 years ago, ``The Powhatan Indians of Virginia Through Four
    Centuries.'' Roughly one-third of the book is end notes and
    bibliography which gives the resources of the records I found
    to prove I didn't make anything up. These records are going to
    be easy to throw in a Xerox machine and send to Washington if I
    ever get the word to do it. I have yet to get a word to do it.
    Do please ask me about that. It is a point of bitterness with
    me. Sorry. It is on behalf of the Indians I work with.
        I am not the first social scientist to work with these
    tribes in Virginia. There have been social scientists,
    including anthropologists like me who specialize in American
    Indians, North American Indians, working with them for 120
    years, just under 120. So it is not as if I am the first, and
    it is not as if they are recently appearing. They are not.
        I learned early on what it was going to take to show that
    ethnic groups were actually here. The criteria I was using were
    subsequently codified by the Bureau of Indian Affairs. They
    were not news to me. I knew those criteria, too. In my opinion,
    the six tribes represented here today meet those criteria. Why
    they did not choose the BIA route is their own business and
    they can answer that, but they do meet the criteria. The people
    are authentic. On that basis, I will stand firm.
        There are several things that make the Indian groups in
    Virginia an exception, and many of them, in my opinion as an
    outsider, have to do with Pocahontas, believe it or not. When
    the icon of Indianness in your State is a legendary figure from
    400 years back and an internationally famous turncoat who has
    been Disneyfied, it is a little hard for modern-day tribal
    people to look Indian in the eyes of the general public. And
    talk about being overshadowed, these people I work with have
    been overshadowed badly for as long as the Pocahontas legend
    has been going on. People would much rather talk about
    Pocahontas to me. I work with Virginia Indians. ``Well, tell me
    about Pocahontas.'' It goes on all the time.
        This has blinded people in Virginia, many people, to the
    fact that there have been Indian tribes all along in their
    midst. They didn't want to look at the reality. They preferred
    to look at the legend. It has gone on for 400 years now.
        Pocahontas also played into the difficulties of the 20th
    century with that racial integrity legislation. The one drop
    rule--one drop of non-white ancestry makes you colored--was
    believed in by many Virginia people, including my ancestors
    there, back in the 19th century when they began to try to make
    it a matter of law of racial definitions. The first thing they
    discovered was that some of the aristocratic Virginians traced
    their ancestry back to Pocahontas, and therefore some of the
    State's aristocrats would be the very first people put onto the
    Jim Crow Coach. ``We cannot allow that to happen,'' so they
    wrote an exception right from the beginning of the 20th century
    for, as they were called, the ``Pocahontas descendants.'' But
    for the die-hard white supremacists in the State--Plecker was
    only one of several--for those die-hards, they saw that as a
    hole in the dike that had to be plugged, and the quickest way
    to plug it was to say the only people with Indian ancestry are
    those Pocahontas descendants today, and all these other people
    claiming to be Indian are only using the Indian label as a
    ``waystation to whiteness.'' That is a direct quote, a
    ``waystation to whiteness.''
        So the stridency that you heard all across the south in the
    first one-half of the 20th century was much magnified in
    Virginia, and the attacks on people saying publicly they were
    Indian, like Steve's ancestors, were that much more public and
    that much more relentless.
        When the racial definitions were repealed----
        The Chairman. Dr. Rountree.
        We have run out of time. Please summarize.
        Ms. Rountree. I will summarize.
        It is not a waystation to whiteness they've claimed. They
    are still saying they are Indian. Anybody can be anything they
    want to in Virginia now. They are still saying they are Indian,
    so I think they deserve recognition on that basis.
        Thank you.
        [Prepared statement of Ms. Rountree appears in appendix.]
        The Chairman. Thank you very much, Dr. Rountree. Thank you
    for your passion.
        Chairman Yob, welcome back.

      STATEMENT OF RON YOB, CHAIRMAN, GRAND RIVER BANDS OF OTTAWA
       INDIANS, GRAND RAPIDS, MI, ACCOMPANIED BY FRAN COMP, VICE
                                CHAIRMAN

        Mr. Yob. Sir, thank you.
        [Remarks in Native tongue.]
        Good morning, Mr. Chairman and members of the Senate
    Committee on Indian Affairs, my name is Ron Yob and I am
    chairman of the Grand River Bands of Ottawa Indians of
    Michigan. I would ask the committee that Vice Chairman Fran
    Comp will be allowed to assist me if there are any questions
    from the committee.
        Thank you very much for holding this hearing today on bill
    S. 437 that would expedite review of the Grand River Band of
    Ottawa Indians to secure timely and just determination on
    whether the tribe is entitled to recognition as a Federal
    Indian tribe. I want to be clear that this is not a recognition
    bill. This would allow the tribe to participate in an expedited
    process through the Office of Federal Acknowledgment and allow
    the OFA to make a final determination.
        We'd like to take this opportunity to express our deep
    appreciation to Senator Levin and Senator Stabenow for their
    interest and support of our tribe. For many good and valid
    reasons, the tribe is very hopeful that the committee will
    favorably consider S. 437.
        The story of our tribe is long and varied, as is the story
    of recognition of all the Michigan Indian treaty tribes, of
    which the Grand River Bands of Ottawa Indians is the only one
    that remains unrecognized. The Grand River Bands of Ottawa
    Indians is the largest unrecognized treaty tribe in Michigan,
    and perhaps the United States. Our members live primarily in
    western Michigan in the same area we have lived since before
    the Europeans first arrived there. Our prehistoric burial
    mounds are located along the Grand River near the city of Grand
    Rapids, and in many other areas of the river, from below
    Lansing to Grand Haven.
        As we are pressed for time, I would like to focus the
    testimony on the legislation and why we are pursuing an
    expedited process to pursue Federal acknowledgment.
        The Grand River Bands of Ottawa Indians of Michigan is
    comprised of 19 bands of Ottawa Indians who occupy the
    territory along the Grand River Valley and other river valleys
    in what is now southwest Michigan, including the cities of
    Grand Rapids and Muskegon. There are about 700 tribal members,
    the majority living in and around the counties of Kent,
    Muskegon, and Oceana. We are signatories to five treaties, and
    all successor tribes have now been recognized by the United
    States except for the Grand River Bands of Ottawa Indians.
        In 1997 Congress passed the Michigan Indian Lands Claim
    Settlement Act to implement distribution of several land claim
    awards. The law provides that to be eligible for the set-aside
    a non-recognized tribe must file its documented petition by
    December 15, 2000. We have done so. The act provides 6 years
    for the BIA to issue a final determination on that petition.
    The BIA has not done so. If the Grand River Band of Ottawa
    Indians is not recognized by March 15, 2007, we are going to
    lose millions of dollars for tribal programs that would
    otherwise be available.
        S. 437 was introduced by Senators Levin and Stabenow to
    ensure that our petition would be acted on in time for the
    Grand River Bands of Ottawa Indians to qualify for the funds
    set aside by Congress for the tribe. After making our
    submission on December 8, 2000, the Grand River Bands did not
    hear from the Bureau of Indian Affairs [BIA] until April 2004,
    when they granted us a technical assistance meeting at the
    request of Congressman Peter Hoekstra. It was another 9 months
    before we received our technical assistance letter on January
    26, 2005. The Grand River Bands have spent the past 17 months
    collecting materials, preparing a 63-page legal response
    supported by a 265-page ethno-historical response, additional
    documents, and two certified copies of our membership
    documents. We filed this as our response to the TA letter on
    June 9, 2006.
        My conclusion: The Grand River Bands of Ottawa Indians has
    the support of its community and other Michigan tribes, and
    thankfully our Senators. This bill does not directly recognize
    the tribe, but instead refers the matter to the BIA for a
    determination with time lines for deciding the tribe's status
    and filing a report to Congress. The Congress has directly
    reaffirmed the existence of four other Michigan tribes, so
    there is an ample precedent for direct reaffirmation of our
    status.
        The Grand River Bands have always been an active leader in
    the Michigan Indian community. We participate, though often
    unofficially, in Indian child welfare cases, repatriation
    matters, and other dealings with other State, local, and
    private entities. We have spearheaded the return of the
    original 1855 Treaty of the Grand Rapids to be exhibited in the
    museum named for our great former President Gerald Ford.
        If S. 437 is not passed and Grand River Bands of Ottawa
    Indians remains in the Federal acknowledgment process, not only
    will Grand River lose millions of dollars, we estimate it will
    take 15 to 25 years to complete this process.
        Thank you again for your attention to S. 437, and we pray
    that the committee will act favorably on this legislation.
        [Prepared statement of Mr. Yob appears in appendix.]
        The Chairman. Thank you very much, Chairman Yob.
        Reverend Willerup, welcome.

     STATEMENT OF DAVID WILLERUP, PASTOR, WESTWOOD REFORM CHURCH,
                              MUSKEGON, MI

        Mr. Willerup. Thank you very much, Chairman McCain.
        I am here today as a pastor of Westwood Reform Church, the
    former president of Positively Muskegon, which was a ballot
    action committee formed in 2003 to face one referral question
    that was put before the city of Muskegon. We faced a single
    question referral in September 9, 2003, whether the city of
    Muskegon should host a casino or not. Most of the reason why we
    are here today has to do with that particular referral and
    activities after that referral in September 2003.
        Prior to September 2003 the Archimedes Group, LLC, was
    involved in some redevelopment claims for our downtown. Our
    downtown in Muskegon--and Muskegon is only a population of
    40,000 residents with a beautiful beach. We have significant
    investment from Grand Valley State University in a
    technologically advanced Michigan Alternative and Renewable
    Energy Research Center, and also Water Research Facilities
    Institute. Both of these represent millions of dollars of
    investment.
        Well, the Archimedes group approached the Downtown Muskegon
    Redevelopment Corporation with a proposal to put a casino on 23
    acres of defunct mall property which was rejected. For the next
    several months the Archimedes group published their plan on
    this mall property. I attended one of those meetings where they
    said that the casino would be the economic savior of Muskegon
    and, as a reverend, that got my ire up. So when I stood up at
    the meeting to ask what avenue they would take, because in
    Michigan there are only two ways to get a casino, one is
    through a private corporation which was enacted only for three
    casinos in the city of Detroit, or tribal. At that point I was
    silenced and told to sit down.
        It took the next several months of public debate to get the
    Archimedes group to even admit that this would be done through
    a tribal process, and not until after the vote, which went 52
    percent to 48 percent in favor of the referendum from Muskegon
    city residents only, that the tribe became active politically.
        There was a political action committee formed by the
    Archimedes Group called Yes Muskegon. This group has been
    behind the tribe since the introduction of the idea of a casino
    for downtown Muskegon. I do have testimony here. I district
    have proof of my claims that I would like to have included in
    the record.
        The Chairman. Without objection.
        Mr. Willerup. Thank you. They include letters from business
    and community leaders stating their objection to a casino as an
    economic engine.
        In September 2003, as I stated, the referral went in favor
    where more people turned out for this one non-binding election
    than voted for the Governor. In November 2003 the ``Muskegon
    Chronicle'' reported that a deal had been struck between the
    Archimedes Group and the tribe. In December 2003 I called
    Senator Stabenow's office to see if she was at all interested
    in expediting the procedure, at which point I was told no. And
    then in February 2004 I find that she sponsored legislation.
        Also in 2004 a tribe that had been previously politically
    inactive began investing in lobbyists, and over the next 2
    years over $200,000 was invested with firms that are mentioned
    in my testimony.
        So I would like to make clear to the committee today that
    my point in being here is to let you know that it is casino
    interest which is driving this time line. The Archimedes Group
    had made a public promise that they would have a casino up and
    running in 3 to 5 years. That will not happen without tribal
    recognition.
        I would also like to state that I am not--if that casino
    were not part, if casino were not part of this effort, I would
    be in support of the tribe's search for recognition. I do not
    believe that any people should be denied what has been promised
    to them, should be denied their culture or their heritage or
    the avenue through which those things are protected. But
    because casino is clearly behind it, I ask that this committee
    consider that, as a progenitor of this bill, we have something
    that looks a whole lot less like ``Of the people, by the
    people, for the people,'' and a whole lot more like ``Of Las
    Vegas, by the lobbyists, and for the management company.''
        Thank you.
        [Prepared statement of Reverend Willerup appears in
    appendix.]
        The Chairman. Thank you very much, sir.
        Mr. O'Connor, welcome.

     STATEMENT OF MICHAEL O'CONNOR, PRESIDENT, VIRGINIA PETROLEUM,
           CONVENIENCE AND GROCERY ASSOCIATION, RICHMOND, VA

        Mr. O'Connor. Good morning, Senator. I will summarize.
        I appreciate Senator Allen for his efforts in including our
    views in the hearing this morning, as well.
        I am president of the statewide trade association that
    represents petroleum marketers and convenience store operators
    in the State of Virginia. All of our members stand to be
    affected by S. 480, the Thomasina E. Jordan Indian Tribes of
    Virginia Federal Recognition Act should it be enacted.
        While honorable in its intention, S. 480 poses a serious
    threat to small businesses across our State. If passed, S. 480
    could create an anti-competitive marketplace for goods such as
    tobacco and gasoline and strain the State budget by reducing
    excise tax revenue from those products. In fact, if passed, the
    impact of S. 480 could be multi-faceted.
        The U.S. Government and the government of the Commonwealth
    of Virginia would recognize the referenced tribes as sovereign
    entities. The groups would no longer be subject to the taxing
    power of the Commonwealth. Pursuant to S. 480, these groups
    would be permitted to purchase and to take into trust land in
    some of the most populous areas of our State. In fact, it
    appears that one of the groups could acquire land anywhere in
    the State of Virginia and turn it into a reservation. This
    would create havoc for State laws and for law enforcement.
        For our members, the single greatest concern is that these
    tribes will have the ability to establish retail business
    outside of the jurisdiction of traditional State powers to
    collect taxes. That means that any convenience store, truck
    stop, or smoke shop established by one of the recognized tribes
    could sell gasoline and tobacco to the public free of State
    taxes.
        The type of tax evasion I am referencing today is not
    conceptual. It is occurring today in many States and has led to
    high-profile disputes in New York, Oklahoma, Kansas, and New
    Mexico, among others. In these States, Native American tribes
    have used recognition to open convenience stores and truck
    stops that sell gasoline and tobacco products tax free to non-
    Native Americans. This is in spite of the U.S. Supreme Court
    ruling saying that such sales can be subject to State taxes.
        For example, in New York it is estimated that $360 to $400
    million per year is not recouped due to cigarette excise tax
    evasion.
        Let me be clear in summing up about our position. We are
    not opposed to recognition of Virginia's tribes; however, the
    people whom I represent do not deserve to have a life's
    investment threatened by a marketer selling gasoline to non-
    tribal members at a 17\1/2\ cent price advantage, an advantage
    that would be gained solely through tax evasion.
        Because this legislation is not just about recognizing
    existing reservations but pulls in other areas of the State
    into new reservations, the competitive disadvantage large
    numbers of convenience store retailers would feel is
    exacerbated.
        Mr. Chairman, any legislation of this kind must ensure that
    tribal members are required to pay all excise taxes on
    gasoline, tobacco, and other products. Accordingly, unless
    strong protections against excise and sales tax evasion are
    included in S. 480, VPCGA must oppose the bill in its current
    form; however, we would welcome the opportunity to work with
    the committee, Senator Allen, and any of the proponents to
    address the concerns that we have aired today.
        I appreciate your time.
        [Prepared statement of Mr. O'Connor appears in appendix.]
        The Chairman. Thank you very much, Mr. O'Connor.
        Mr. O'Connor, in many States the tribes and the States have
    sat down and worked out agreements so that these impacts are
    mitigated. In some of the States the tribes collect taxes equal
    to those imposed by the State, etc. Would you be supportive if
    such agreements could be worked out?
        Mr. O'Connor. I think the answer to that is if the
    agreements were embedded in the legislation it would certainly
    give a great deal more comfort to the people that I represent.
        The Chairman. How do you feel, Chief Adkins, about that
    issue?
        Mr. Adkins. First, I'd like to say this is the first time
    I've seen Mr. O'Connor, and if he is sincere about working with
    the tribes I am just kind of amazed that this is the first time
    I've heard anything that he's talking about today. But the
    tribes would be willing to work with the State in a way that we
    honor the sovereignty and respect the laws of the State of
    Virginia.
        The Chairman. Chairman Yob, how do you respond to Reverend
    Willerup's concern that this is simply a casino-driven deal;
    that the funding that you have received is primarily from
    developers who would like to see a casino in operation? And I
    say that because, as you know, in other parts of the State of
    Michigan there has been great controversy about casinos and its
    impact on the local communities. How would you respond to
    Reverend Willerup's concerns?
        Mr. Yob. Well, basically our tribal council doesn't--as you
    noticed, our letter of intent was in 1994. The Archimedes
    people agreement is in 2003. That is 9 years later. Our tribal
    council do not even talk casino. We do not want casinos. We
    never brought up casinos. We have been approached over the
    years by numerous people from Nevada, from Florida. They wanted
    to fly us to Florida and show us operations in New Jersey,
    North Dakota. I can go on and on, monthly. I will say no. We
    were approached by the Archimedes people several times and we
    still would say no to them.
        The Chairman. Have the Archimedes people funded some of
    your efforts?
        Mr. Yob. Yes; they have, sir.
        The Chairman. Out of altruism?
        Mr. Yob. Excuse me?
        The Chairman. Because they support your effort for
    recognition or because they think there's some financial gain
    that they would eventually realize?
        Mr. Yob. I can't talk for the Archimedes people, but the
    only thing I can say is that I have seen the nature of the
    Archimedes people change when they started seeing the plight of
    our people and they started seeing our priorities. Our casinos
    are way down the list. We've got too many other things that we
    need to correct in our State with our own people that have
    nothing to do with gaming. You know, the only reason that we
    even worked things out with Archimedes is once, when they
    brought us to Muskegon, for instance, the person drove by a
    cemetery and told me that is where his mother was and that is
    where his brother was buried, and that showed me that
    connection to that community. He did mention the county-wide
    vote which was 60-some percent to 40-some percent, actually,
    that showed that they were in favor of doing that.
        When that point comes along, that is--our tribal council
    truly does not want--I mean, I won't say we won't have one, but
    that is not our intentions, that is not our priority. We have
    many, many other things that concern the welfare of our people,
    whether it be education, health care, care for our elders,
    housing, et cetera.
        The Chairman. I understand that, but there's a clear record
    and it is not illegal, but there is a clear record of gaming
    industry people funding tribes' recognition process, helping
    fund them, and in return there have been casinos set up. I am
    not saying there's anything illegal about it, but it certainly
    is a charitable instinct on the part of this group whose
    general purpose is to make money. I guess we will have to see.
        Ms. Rountree, are your criteria for what constitutes a
    tribe the same as the Federal Government's criteria?
        Ms. Rountree. Yes, sir; they are.
        The Chairman. With regard to the Virginia groups, has your
    research provided evidence of an ongoing tribal government?
        Ms. Rountree. Yes; it has.
        The Chairman. There's no gaps?
        Ms. Rountree. Not since 1850 when the better records came
    about.
        The Chairman. There seems to be some difference of opinion
    between that view and that of Mr. Fleming.
        Ms. Rountree. I have tried communicating with Mr. Fleming
    and he does not readily answer letters and does not answer
    questions directly. I have offered to send him any or all
    documents that are relevant. He has not communicated to me what
    to send. That is why I sent him nothing.
        The Chairman. Mr. Fleming, I hope you will be in receipt of
    and take in consideration the documents that Dr. Rountree has.
    Will you do that?
        Mr. Fleming. Yes.
        The Chairman. Thank you very much.
        Chief Adkins, it is not your responsibility, but if we in
    the Congress were to grant recognition based in part on the
    destruction of records, what should we tell a group whose
    family histories were destroyed by fire?
        Mr. Adkins. I think what distinguishes us from those groups
    and what I would offer is that the State systematically worked
    to destroy us, and I call it paper genocide. If ours were
    simply destroyed by fire--and I do not trivialize that--it
    would be much easier to go back and fill in the gaps than it is
    to go through records that have been given the official seal of
    designating us in some class that we are not. That is the
    argument, sir, that I would give.
        The Chairman. I think that is an excellent point.
        Senator Dorgan.
        Senator Dorgan. Mr. Chairman, I had to go back to the
    Commerce Committee, so I missed a part of the presentation. I
    will review those that I missed and I want to thank the panel
    for being here. This is a hearing that is very important, and
    one in which we have a lot to learn. I think we have learned a
    lot today from the submissions of the statements, so thank you
    very much for being with us.
        The Chairman. Senator Allen.
        Senator Allen. Thank you, Mr. Chairman.
        Dr. Rountree, in your research--and you mentioned this--you
    paraphrased or summarized your testimony, but in your written
    testimony you talked about how much more difficult it was to
    hunt for the personal names and associations in the records
    because they didn't have the accurate racial labels, and that
    the law that was passed in 1924 insofar as records where you
    are either white or colored was the term that was used was
    repealed. What year was that repealed?
        Ms. Rountree. In 1975.
        Senator Allen. All right. So you have over 50 years, 51
    years of records that way. Now, with all your research you have
    done, how does that affect you as a researcher trying to put
    together a record of a continuity, plus the names weren't the
    previous names because you couldn't use Indian names, as Chief
    Adkins mentioned, and his parents had to get married in the
    District of Columbia to be able to have a proper record. How
    does that affect the research and record?
        Ms. Rountree. It draws the research out quite a lot longer,
    for starters, because I have to try to find James Mooney's list
    of family heads, for instance, circa 1900, and work back from
    that using family names, rather than going the quick and dirty
    route and just looking for Indian references in the column
    under race. It took a great deal longer. I was working with
    names.
        It also means that for individuals that are not obviously
    connected by genealogy to some of those family heads but are
    still part of the tribes, I may be missing them. I could very
    well, unless somebody comes along and points out, ``Oh, yes, he
    was Indian, too.''
        Senator Allen. What's the likelihood of something like that
    happening?
        Ms. Rountree. Once in a while it does, actually.
        Senator Allen. Once in a while.
        Ms. Rountree. The big holdup in the 20th century--and this
    is liable to drive me nuts. It will take the modern people
    getting more courage and sharing the information with me. I've
    constructed the genealogies from the public records. The modern
    people, especially the old-timers in the 1970's, were simply
    scared to death of talking about any of this with me. They
    didn't trust me, an outsider. Why should they trust an
    outsider?
        And anybody who got married outside of their home county I
    was likely to miss and not know some of those connections. I do
    not have complete genealogies on some of the tribes as a
    result, even now. They will be submitting their own, obviously,
    and they will know better. But I haven't got Steve's parents'
    dates. I didn't see it until his testimony when I read it last
    night to know when his parents were married. That is not in my
    records. They married elsewhere. I was having to go on local
    records.
        And in the case of the Eastern Chickahominy, none of them
    married locally, thanks to Plecker and his campaign, between
    1923 and 1946. So I've missed a whole generation of people
    there in the public record.
        Senator Allen. To answer the Chairman's question which gets
    to his burden of proof of extenuating circumstances, the
    question he asked, when you are doing research, let's assume,
    say, during the War Between the States records are burned at a
    courthouse, what's the difference between records being
    destroyed in a county courthouse versus this racial
    designation, this eugenics movement of 51 years, versus, say,
    county records in Gloucester being burned?
        Ms. Rountree. It is a difference of degree. When a county
    courthouse is burned in the 19th century that takes everything
    out. You cannot replace it. There's no way I can get around
    some of these things. Family tradition will only take you back
    so far. I mean, these people are not coming from a culture that
    memorizes, as in traditional Hawaii, memorizing all their
    genealogy back 25 generations. So the records are gone and they
    just are gone.
        In the case of the things Plecker did, he changed racial
    designations to make people harder to find. He made them go
    elsewhere to do some of these public record things. The records
    are going to be elsewhere. Washington, DC and Philadelphia were
    favorite spots. It is possible to track down those people with
    extra time and trouble and retrieve that information. The
    information is harder to retrieve but it is retrievable. But
    when a courthouse burns completely you have lost it. It is
    gone.
        Senator Allen. Chief Adkins, we heard from Mr. O'Connor on
    some of these issues. On the gambling issue, it is your
    understanding, speaking for your tribe and others, that in the
    event that you all are Federally recognized, the only way that
    you conduct any sort of gambling--casinos, blackjack, slot
    machines, and all the others--would be if it was agreed to by
    the State government, the Governor of Virginia and laws passed
    by the General Assembly. Is that your understanding?
        Mr. Adkins. We have agreed to that. That is true.
        Senator Allen. I just wanted to make that part of the
    record. Mr. Fleming mentioned that, as well.
        Insofar as gas taxes, in the event on any tribal lands that
    you all had a convenience store and a filling station,
    gasoline, ethanol, whatever it may be that is sold there, would
    it be your view that you would be paying the road taxes, the
    gas taxes to any sales made to someone who is not a member of
    the tribe?
        Mr. Adkins. That is my view and in no way would we attempt
    tax evasion. Even in the tribal communities we perceive that as
    being illegal. I do not know how the larger community looks at
    that, but we are not inclined to break the law, so tax evasion
    is not within the scope of things we plan to do. And if we did
    engage in any kind of retail activity, you know, there would be
    negotiations and dialog between the government and the tribes.
    So we are not trying to circumvent the State laws.
        Senator Allen. Well, the chairman, Senator McCain,
    mentioned, and obviously where he is from in Arizona there are
    recognized tribes, Navajo, Pima, and others. Would you all
    envision such compacts or contracts or agreements with the
    Commonwealth of Virginia, whether it is gas taxes or tobacco
    taxes, taxes on beer or any other item that may be sold there?
        Mr. Adkins. We haven't looked that far ahead, but I think
    it is logical to assume that somewhere in our future we would
    engage in activities that we would have to negotiate with the
    State, but I think those laws clearly delineate that taxes must
    be collected from non-Natives. I have little knowledge of that
    because we haven't even looked at that. You know those things
    that we are interested in.
        Senator Allen. Understood.
        Thank you, Chief. Thank you, Mr. Chairman for allowing me
    to participate in this way on this important matter.
        The Chairman. We hope you will become a permanent member of
    this Committee, Senator Allen.
        Dr. Rountree, are you compensated by the Chickahominies for
    your work?
        Ms. Rountree. Nary a penny.
        The Chairman. Thank you very much.
        These are obviously, as I said in my opening statement,
    very difficult issues and hard to ascertain exactly the right
    way to go on them. I certainly understand the desire of people
    to see action, particularly when 6 and 10 years is a minimum
    some cases have been on the books, or going through the process
    for a long period of time.
        We will probably mark up both of these bills subject to the
    vote of the committee and see if we can't move the process
    forward. I understand the impatience of both tribes. I also
    understand the concerns of people like Rev. Willerup and people
    in the communities who are affected by gaming operations. It
    has become more and more controversial as gaming operations
    have grown rather dramatically.
        I understand that that is not an issue with your tribe, yet
    I think there are many people who would like to see that in the
    law, Senator Allen, because there have been cases where tribes
    have appeared before this committee and said, ``We will not
    engage in gaming,'' and then a few years later a new tribal
    council is elected, which is the right of the tribe, and then
    they have decided to change their policy. So I think if people
    of the Commonwealth of Virginia are concerned, maybe a compact
    or agreement such as you talk about and is envisioned might be
    helpful.
        I thank the witnesses. Thank you very much.
        This hearing is adjourned.
        [Whereupon, at 11:20 a.m., the committee was adjourned.]

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                                A P P E N D I X

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                  Additional Material Submitted for the Record

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       Prepared Statement of Stephen R. Adkins, Chickahominy Indian Tribe

        Thank you Chairman McCain and other distinguished members of this
    committee for inviting me here today to speak on S. 480 which is
    pending before your committee. The bill, introduced by Senator George
    Allen is titled the Thomasina E. Jordan Indian Tribes of Virginia
    Federal Recognition Act of 2005-S. 480. A hearing on our Federal
    recognition bill was held by this committee on October 9, 2002 [S.
    2694] before Chairman Campbell. In addition, as you may remember I
    appeared before your committee last May and entered the testimony and
    evidence from the 2002 hearing into record. I am proud to appear again
    before the committee in this session of Congress for a more complete
    hearing on our legislation on behalf of the six tribes named in S. 480,
    the Eastern Chickahominy, the Monacan, the Nansemond, the Upper
    Mattaponi, the Rappahannock, and my tribe the Chickahominy. That
    evidence included a strong letter of support from our Governor, Mark
    Warner, testimony from the Virginia Council of Churches and our
    anthropologist and many others supporting our Federal recognition
    through Congress. As part of the record today I am submitting the
    letter from our current Governor, Timothy Kaine, who at his recent
    inaugural address pledged his strong support for the Federal
    recognition of the Virginia tribes. Beside me today is Dr. Helen
    Rountree, who is a renowned anthropologist specializing in the heritage
    of the Virginia tribes, who worked on the petitions we filed with the
    BIA, and is prepared to assist with any questions you may have about
    our history.
        Senator McCain, I could tell you the much publicized story of the
    17th Century Virginia Indians, but you, like most Americans, know our
    first contact history. Well known is the story of Chief Powhatan and
    his daughter Pocahontas, her picture being in this very capitol
    building with her English husband John Rolfe. I often say this country
    is here today because of the kindness and hospitality of my forebears
    who helped the English Colonists at Jamestown gain a foothold in a
    strange and new environment. But what do you know or what does
    mainstream America know about what happened in those years between the
    17th century and today. The fact that we were so prominent in early
    history and then so callously denied our Indian heritage is the story
    that most don't want to remember or recognize. I, and those chiefs here
    with me, stand on the shoulders of the Paspahegh led by Chief,
    Wowinchopunk whose wife was captured and taken to Jamestown Fort and
    ``run through'' with a sword, whose children were tossed overboard and
    then their brains were ``shot out'' as they floundered in the water,
    and whose few remaining tribal members sought refuge with a nearby
    tribe, possibly the Chickahominy. With this horrific action in August
    1610, a whole Nation was annihilated. A Nation who befriended
    strangers, and, ultimately died at the hands of those same strangers.
    As we commemorate Jamestown 2007 and the birth of our Nation today,
    those of Indian heritage in Virginia are reminded of this history.
        We are seeking recognition through an act of Congress rather than
    the BIA because actions taken by the Commonwealth of Virginia during
    the 20th Century erased our history by altering key documents as part
    of a systematic plan to deny our existence. This State action separates
    us from the other tribes in this country that were protected from this
    blatant denial of Indian heritage and identity. It has now been well
    documented in an article written by Peter Hardin of the Richmond Times
    dispatch in 2000, the documentary genocide, the Virginia Indians
    suffered at the hands of Walter Ashby Plecker, a rabid separatist, who
    ruled over the Bureau of Vital Statistics in Virginia for 34 years,
    from 1912-46. Although socially unacceptable to kill Indians outright,
    Virginia Indians became fair game to Plecker as he led efforts to
    eradicate all references to Indians on Vital Records. A practice that
    was supported by the State's establishment when the eugenics movement
    was endorsed by leading State Universities and when the State's
    legislature enacted the Racial Integrity Act in 1924. A law that stayed
    in effect until 1967 and caused my parents to have to travel to
    Washington DC on February 20, 1935 in order to be married as Indians.
    This vile law forced all segments of the population to be registered at
    birth in one of two categories, white or colored. Our anthropologist
    says there is no other State that attacked Indian identity as directly
    as the laws passed during that period of time in Virginia. No other
    ethnic community's heritage was denied in this way. Our State, by law,
    declared there were no Indians in the State in 1924, and if you dared
    to say differently, you went to jail or worse. That law stayed in
    affect half of my life.
        I have been asked why I do not have a traditional Indian name.
    Quite simply my parents, as did many other native parents, weighed the
    risks and decided it was not worth the risk of going to jail.
        On that note, I would like to honor Senator Allen who as Governor
    sponsored legislation in 1997 that acknowledged this injustice.
    Unfortunately while this law allows those of the living generations to
    correct birth records, the law has not and cannot undo the damage done
    by Plecker and his associates to my ancestors records.
        We are seeking recognition through Congress because this history of
    racism, in very recent times, intimidated the tribal people in Virginia
    and prevented us from believing that we could fit into a petitioning
    process that would understand or reconcile this State action with our
    heritage. We feared the process would not be able to see beyond the
    corrupted documentation that was designed to deny our Indian heritage.
    Many of the elders in our community also feared, and for good reason,
    racial backlash if they tried.
        My father and his peers lived in the heart of the Plecker years and
    carried those scars to their graves. When I approached my father and
    his peers regarding our need for State or Federal recognition they
    pushed back very strongly. In unison they said. ``Let sleeping dogs lie
    and do not rock the boat''. Their fears of reprisal against those folks
    who had risked marrying in Virginia and whose birth records accurately
    reflected their identity outweighed their desire to openly pursue any
    form of recognition. Those fears were not unfounded because the threat
    of fines or jail time was very real to modem Virginia Indians.
        Senator McCain, the story I just recounted to you is very painful
    and I do not like to tell that story. Many of my people will not
    discuss what I have shared with you but I felt you needed to understand
    recent history opposite the romanticized, inaccurate accounts of 17th
    century history.
        Let me tell you how we got here today. The six tribes on this bill
    gained State recognition in the Commonwealth of Virginia between 1983-
    89. In 1997 as I mentioned, Governor Allen passed the statute that
    acknowledged the State action but it couldn't fix the problem--the
    damage to our documented history had been done. Although there were
    meager attempts to gain Federal acknowledgment by some of the tribes in
    the mid-20th century, our current sovereignty movement began directly
    after the passage of Governor Allen's legislation acknowledging the
    attack on our heritage. In 1999 we came to Congress when we were
    advised by the Bureau of Acknowledgment and Research [BAR] now the
    Office of Federal Acknowledgment [OFA] that many of us would not live
    long enough to see our petition go through the administrative process.
    A prophecy that has come true. We have buried three of our chiefs since
    then.
        Given the realities of the OFA and the historical slights suffered
    by the Virginia Indian tribes for the last 400 years, the six tribes
    referenced in S. 480 feel that our situation clearly distinguishes us
    as candidates for Congressional Federal recognition.
        As Chief of my community, I have persevered in this process for one
    reason. I do not want my family or my community to let the legacy of
    Walter Plecker stand. I want the assistance of Congress to give the
    Indian Communities in Virginia, their freedom from a history that
    denied their Indian identity. Without acknowledgment of our identity,
    the harm of racism is the dominant history. I want my children and the
    next generation, to have their Indian Heritage honored and to move past
    what I experienced and my parents experienced. We, the leaders of the
    six Virginia tribes, are asking Congress to help us make history for
    the Indian people of Virginia, a history that honors our ancestors who
    were there at the beginning of this great country.
        I want to end with a quote credited to Chief Powhatan. I use this
    quote last year, but I want this year especially to honor him. Last
    summer I was one of two Chiefs to be hosted by the British Government;
    this was the first time a Virginia Indian had been honored since
    Pocahontas visited England with her English husband John Rolfe. I was
    moved that Pocahontas has been regarded with honor and distinction far
    beyond what America has afforded her father the paramount chief in this
    country. To date no chief in Virginia that lived in that era or since
    has received as much honor as Pocahontas. This quote, from Chief
    Powhatan to John Smith, maybe has been forgotten but ironically the
    message still has relevance today:

            I wish that your love to us might not be less than ours to you.
            Why should you take by force that which you can have from us by
            love? why should you destroy us who have provided you with
            food? What can you get by war? In such circumstances, my men
            must watch and if a twig should but break, all would cry out,
            ``Here comes Captain Smith.'' And so, in this miserable manner
            to end my miserable life. And, Captain Smith, this might soon
            be your fate too. I, therefore, exhort you to peaceable
            councils, and above all I insist that the guns and swords, the
            cause of all our jealousy and uneasiness, be removed and sent
            away.

        Senator McCain, our bill would give us this peace that Chief
    Powhatan sought, it would honor the treaty our ancestors made with the
    early Colonists and the Crown, and at this time that we are
    commemorating the 400th anniversary of the birth of the greatest nation
    in the world it would show respect for our heritage and identity, that
    through jealously perhaps has never before been acknowledged.

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       Prepared Statement of R. Lee Fleming, Director, Office of Federal
                   Acknowledgment, Department of the Interior

        Good morning, Mr. Chairman and members of the committee. My name is
    Lee Fleming and I am the director for the Office of Federal
    Acknowledgment at the Department of the Interior. I am here today to
    provide the Administration's testimony on S. 437, the ``Grand River
    Band of Ottawa Indians of Michigan Referral Act'' and S. 480, the
    ``Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act
    of 2005.'' The acknowledgment of the continued existence of another
    sovereign is one of the most solemn and important responsibilities
    delegated to the Secretary of the Interior. Federal acknowledgment
    enables Indian tribes to participate in Federal programs and
    establishes a government-to-government relationship between the United
    States and the Indian tribe. Acknowledgment carries with it certain
    immunities and privileges, including exemptions from State and local
    jurisdictions and the ability of newly acknowledged Indian tribes to
    undertake certain economic opportunities.
        The Department recognizes that under the U.S. Constitution Indian
    Commerce Clause, Congress has the authority to recognize a ``distinctly
    Indian community'' as an Indian tribe. But along with that authority,
    it is important that all parties have the opportunity to review all the
    information available before recognition is granted. That is why the
    Department of the Interior supports a recognition process that requires
    groups go through the Federal acknowledgment process because it
    provides a deliberative uniform mechanism to review and consider groups
    seeking Indian tribal status. Legislation such as S. 437 and S. 480
    would allow these groups to bypass this process--allowing them to avoid
    the scrutiny to which other groups have been subjected. While
    legislation in Congress can be a tool to accomplish this goal, a
    legislative solution should be used sparingly in cases where there is
    an overriding reason to bypass the process.
        Interior strongly supports all groups going through the Federal
    acknowledgement process under 25 CFR part 83. The Department believes
    that the Federal acknowledgment process set forth in 25 CFR 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. Before the development of these regulations,
    the Federal Government and the Department of the Interior made
    determinations as to which groups were Indian tribes when negotiating
    treaties and determining which groups could reorganize under the Indian
    Reorganization Act (25 U.S.C. 461). Ultimately, treaty rights
    litigation on the West coast, and land claims litigation on the East
    coast, highlighted the importance of these tribal status decisions.
    Thus, the Department, in 1978, recognized the need to end ad hoc
    decisionmaking and adopt uniform regulations for Federal
    acknowledgment.
        Under the Department's regulations, 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 an 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 shall be considered met if the available evidence
    establishes a reasonable likelihood of the validity of the facts
    relating to that criterion. A petitioner must satisfy all seven of the
    mandatory criteria in order for the Department to acknowledge the
    continued tribal existence of a group as an Indian tribe. Currently,
    the Department's workload of 19 groups seeking Federal acknowledgment
    consists of 10 petitions on ``Active Consideration'' and 9 petitions on
    the ``Ready, Waiting for Active Consideration'' lists.
        S. 437 The Grand River Band of Ottawa Indians [Petitioner #146] and
    another petitioning group, the Burt Lake Band of Ottawa and Chippewa
    Indians, Inc. [Petitioner #101] both are affected by the timing of
    deadlines for the distribution of judgment funds under Public Law 105-
    143, the Michigan Indian Land Claims Settlement Act [Settlement Act].
    Both groups have applied for Federal acknowledgment under 25 CFR part
    83. The Grand River Band of Ottawa Indians, which would receive
    recognition under S. 437, has not submitted a complete documented
    petition demonstrating its ability to meet all seven mandatory
    criteria. The group did submit partial documentation in December 2000
    and received a technical assistance review letter from the Office of
    Federal Acknowledgment in January 2005. The purpose of the technical
    assistance review is to provide the group with opportunity to
    supplement its petition due to obvious deficiencies and significant
    omissions. As of last week, the Grand River Band of Ottawa Indians
    submitted additional documentation in response to the technical
    assistance review letter.
        Under section 110 of the Settlement Act, if the Grand River Band of
    Ottawa Indians or the Burt Lake Band of Ottawa and Chippewa Indians,
    Inc. are acknowledged before December 15, 2006, each could receive a
    significant lump sum from the judgment fund, in excess of $4.4 million,
    provided that the group and its membership meet the other eligibility
    criteria set forth under the Settlement Act. If no new tribes are
    recognized before that date, the money is instead distributed per
    capita to the Indians on the descendant roll. The Secretary would have
    90 days to segregate the funds and to deposit those funds into a
    separate account established in the group's name.
        Section 205 of S. 437 provides that:

            Notwithstanding section 110 of the Michigan Indian Land Claims
            Settlement Act (111 Stat. 2663), effective beginning on the
            date of enactment of this act, any funds set aside by the
            Secretary for use by the Tribe shall be made available to the
            tribe.

        Under S. 437 and the Settlement Act, funds are not set aside for
    the Grand River Band of Ottawa Indians until they are recognized.
    Although not clear, we interpret section 205 of S. 437 to mean that if
    the Grand River Band is acknowledged prior to December 15, 2006, any
    funds set aside for them under section 110 of the Settlement Act would
    not be subject to plans approved in accordance with the Settlement Act.
        We do not support section 205 because it takes away the
    membership's right to participate in the development of the use and
    distribution plan for the judgment funds. If S. 437 is enacted, we
    suggest that section 205 be amended as follows:

            Notwithstanding section 105 of the Michigan Indian Land Claims
            Settlement Act (111 Stat. 2663), the Grand River Band shall
            have 1 year from the date of its Federal recognition to submit
            a plan to the Secretary for the use and distribution of any
            funds it receives under section 110 of the Michigan Indian Land
            Claims Settlement Act.

        The Department also has concerns over the three different
    membership lists referenced in section 102 and section 202. It is
    unclear why three different lists would be required. In addition, S.
    437 appears to be ambiguous concerning the nature and extent of
    jurisdiction, and possible conflicts with treaty rights of other
    federally recognized tribes.
        The Department would like to work with the committee in order to
    find an equitable solution to all parties connected to the Settlement
    Act.
        S. 480, the ``Thomasina E. Jordan Indian Tribes of Virginia Federal
    Recognition Act of 2005,'' provides Federal recognition as Indian
    tribes to six Virginia groups: The Chickahominy Indian Tribe, the
    Chickahominy Indian Tribe--Eastern Division, the Upper Mattaponi Tribe,
    the Rappahannock Tribe, Inc., the Monacan Indian Nation, and the
    Nansemond Indian Tribe.
        Under 25 CFR part 83, these six groups have submitted letters of
    intent and partial documentation to petition for Federal acknowledgment
    as Indian tribes. Some of these groups are awaiting technical
    assistance reviews under the Department's acknowledgment regulations.
    As stated above, the purpose of the technical assistance review is to
    provide the groups with opportunities to supplement their petitions due
    to obvious deficiencies and significant omissions. To date, none of
    these petitioning groups have submitted completed documented petitions
    demonstrating their ability to meet all seven mandatory criteria.
        The Federal acknowledgment regulations provide a uniform mechanism
    to review and consider groups seeking Indian tribal status. S. 480 and
    S. 437, however, allow these groups to bypass these standards--allowing
    them to avoid the scrutiny to which other groups have been subjected.
    We look forward to working with these groups and assisting them further
    as they continue under the Federal acknowledgment process.
        This concludes my prepared statement. I will be happy to answer any
    questions the committee may have.

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