[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
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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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