[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
H.R. 2837, INDIAN TRIBAL FEDERAL RECOGNITION ADMINISTRATIVE PROCEDURES 
                                  ACT 

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

                          LEGISLATIVE HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                       Wednesday, October 3, 2007

                               __________

                           Serial No. 110-47

                               __________

       Printed for the use of the Committee on Natural Resources



  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                                   or
         Committee address: http://resourcescommittee.house.gov

                     U.S. GOVERNMENT PRINTING OFFICE

38-138 PDF                 WASHINGTON DC:  2008
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office  Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800  Fax: (202) 512-2250 Mail Stop SSOP, 
Washington, DC 20402-0001





























































                     COMMITTEE ON NATURAL RESOURCES

               NICK J. RAHALL II, West Virginia, Chairman
              DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas              Chris Cannon, Utah
Frank Pallone, Jr., New Jersey       Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin         Jeff Flake, Arizona
    Islands                          Stevan Pearce, New Mexico
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam          Cathy McMorris Rodgers, Washington
Jim Costa, California                Bobby Jindal, Louisiana
Dan Boren, Oklahoma                  Louie Gohmert, Texas
John P. Sarbanes, Maryland           Tom Cole, Oklahoma
George Miller, California            Rob Bishop, Utah
Edward J. Markey, Massachusetts      Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon             Dean Heller, Nevada
Maurice D. Hinchey, New York         Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island     Doug Lamborn, Colorado
Ron Kind, Wisconsin                  Mary Fallin, Oklahoma
Lois Capps, California               Vacancy
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina

                     James H. Zoia, Chief of Staff
                   Jeffrey P. Petrich, Chief Counsel
                 Lloyd Jones, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                






























                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, October 3, 2007.......................     1

Statement of Members:
    Boren, Hon. Dan, a Representative in Congress from the State 
      of Oklahoma................................................    13
    Cole, Hon. Tom, a Representative in Congress from the State 
      of Oklahoma................................................     4
    Costa, Hon. Jim, a Representative in Congress from the State 
      of California..............................................    11
    Kennedy, Hon. Patrick J., a Representative in Congress from 
      the State of Rhode Island..................................    13
    Kildee, Hon. Dale, a Representative in Congress from the 
      State of Michigan..........................................     7
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     1
        Prepared statement of....................................     3
    Shays, Hon. Christopher, a Representative in Congress from 
      the State of Connecticut...................................    14
        Prepared statement of....................................    16
    Young, Hon. Don, a Representative in Congress from the State 
      of Alaska, Prepared statement of...........................     6

Statement of Witnesses:
    Artman, Carl J., Assistant Secretary for Indian Affairs, U.S. 
      Department of the Interior, Washington, D.C................    22
        Prepared statement of....................................    24
    Austin, Steven L., Ph.D., Cultural Anthropologist, Austin 
      Research Associates, Silver Spring, Maryland...............    94
        Prepared statement of....................................    97
    Cramer, David, Attorney, Andrews & Cramer, LLC, Lincoln City, 
      Oregon.....................................................   109
        Prepared statement of....................................   111
    Jordan, Derril B., Partner, AndersonTuell, LLP, Washington, 
      D.C........................................................    88
        Prepared statement of....................................    90
    Keedy, James A., Esq., Executive Director, Michigan Indian 
      Legal Services, Traverse City, Michigan....................    70
        Prepared statement of....................................    72
    Lawson, Michael L., Ph.D., Senior Associate, Morgan, Angel & 
      Associates, LLC, Washington, D.C...........................   103
        Prepared statement of....................................   105
    Locklear, Arlinda F., Esq., Washington, D.C..................    54
        Prepared statement of....................................    57
    Tilden, Mark C., Staff Attorney, Native American Rights Fund, 
      Boulder, Colorado..........................................    61
        Prepared statement of....................................    64
    Zell, Patricia M., Partner, Zell & Cox Law, P.C., Washington, 
      D.C........................................................    50
        Prepared statement of....................................    52

Additional materials supplied:
    Blumenthal, Hon. Richard, Attorney General, State of 
      Connecticut, Statement submitted for the record............    86
    Cherokee Nation, Letter submitted for the record.............   119
    Courtney, Hon. Joe, a Representative in Congress from the 
      State of Connecticut, Statement submitted for the record...    84
    Schaghticoke Tribal Nation, Statement submitted for the 
      record.....................................................   115


    LEGISLATIVE HEARING ON H.R. 2837, TO PROVIDE FOR ADMINISTRATIVE 
PROCEDURES TO EXTEND FEDERAL RECOGNITION TO CERTAIN INDIAN GROUPS, AND 
FOR OTHER PURPOSES. ``INDIAN TRIBAL FEDERAL RECOGNITION ADMINISTRATIVE 
                            PROCEDURES ACT''

                              ----------                              


                       Wednesday, October 3, 2007

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 10:05 a.m. in Room 
1324, Longworth House Office Building, Hon. Nick Rahall, II, 
[Chairman of the Committee] presiding.
    Present: Representatives Rahall, Kildee, Faleomavaega, 
Abercrombie, Costa, Boren, Kennedy, Inslee, Herseth Sandlin, 
Shuler, Duncan, Fortuno, and Lamborn.

  STATEMENT OF THE HON. NICK RAHALL, II, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF WEST VIRGINIA

    The Chairman. The Committee will come to order.
    We are meeting today to once again receive testimony on a 
bill from my good friend and very valued member of our full 
committee, the gentleman from American Samoa, Mr. Faleomavaega, 
in hopes of making sense out of what is now called the Office 
of Federal Acknowledgement in the Department of Interior.
    The gentleman has introduced this bill year after year 
after year after year. His effort is much like that of the 
tribes, who wait year after year after year after year for the 
recognition they so much deserve.
    But instead, we hear horror stories about the 
administrative process, year after year after year after year. 
Well, you get the picture.
    We hear that, first, petitioning tribes are stuck in the 
system, without finality, for more than 20 years. We hear 
tribes must spend huge sums of money, as much as $8 million, to 
produce the mountains of documentation required by the process. 
We hear the criteria are too vague and overly subjective. We 
hear the documentation accepted as proof for one tribe is not 
accepted for another. And we hear that the system is inherently 
biased, leaning heavily toward denying recognition.
    But when the Congress steps in to recognize an Indian 
tribe, there are those who say we should not. They say this 
despite the fact that Congress has recognized the overwhelming 
majority of Indian tribes. They say Congress should stay out, 
to avoid making the process political.
    I say if you believe the Interior Department's treatment of 
Indian tribes is not political, I have some oceanfront property 
in my home state of West Virginia that I would like to sell 
you.
    To those who say that Congress does not have the expertise 
to recognize an Indian tribe, I would say look at the record; 
the record speaks for itself.
    We have heard Mr. Shuler speak up for the Eastern Band of 
Cherokee Indians. He knows they are an Indian tribe, and they 
were Congressionally recognized through legislation. Do not 
tell Mr. Kildee, for example, that the Little River Band of 
Ottawa Indians is not an actual Indian tribe; they were 
Congressionally recognized. And do not even think of telling 
Mr. Young, our Ranking Member, that the Central Council of the 
Tlingit and Haida do not deserve Federal recognition.
    I would very much like to see us move legislation that will 
make the administrative Federal recognition process fair and 
manageable. But let me be very clear here: that this will not 
stop me from bringing before the Committee legislation to 
establish a government-to-government relationship with various 
Indian tribes when appropriate. It is right, and it is the 
responsibility of the Congress to recognize Indian tribes.
    It is also the responsibility of the Congress to live up to 
its relationship with the various tribes, and provide enough 
funding to meet our Federal obligations. I am tired of the 
defamatory attacks, claiming that Indian tribes that have 
submitted applications only want recognition in order to try 
and open up a casino. I find that charge demeaning beyond 
words.
    I cannot even imagine how degrading it must be to know who 
you are, and to know who your ancestors were, but not have the 
Federal government recognize that honorable heritage.
    The final report of the American Indian Policy Review 
Commission said back in 1977, and I quote, ``The results of 
non-recognition upon Indian communities and individuals have 
been devastation.''
    Coach Calvin Sampson, a Lumbee Indian, testified before 
this very committee in April, and most succinctly said, ``I do 
not need your permission to call myself Native American. But 
unfortunately, in today's world, I need your validation.''
    Time and again, members of these non-recognized tribes rise 
up, enlist in the military, and fight for this great nation 
that will not even recognize them as Indians. I have always 
found it amazing that those who suffer the greatest poverty and 
prejudice are so often the first ones to stand up and defend 
our nation.
    We have a chance to fix this. I ask everyone here today to 
help us fix the administrative process. Any phonies will be 
exposed quite quickly. Let us act now, so that no additional 
generations of Indian children will have to live the indignity 
of needing validation from the Federal government.
    I now yield to the Ranking Member, Mr. Cole of Oklahoma.
    [The prepared statement of Mr. Rahall follows:]

       Statement of The Honorable Nick J. Rahall, II, Chairman, 
                     Committee on Natural Resources

    We are here today to once again receive testimony on a bill from my 
good friend from American Samoa, in hopes of making sense out of what 
is now called the Office of Federal Acknowledgment in the Department of 
the Interior.
    Mr. Faleomavaega has introduced this bill--year, after year, after 
year.
    His effort is much like that of the tribes who wait--year, after 
year, after year--for the recognition that they deserve.
    But instead we hear horror stories about the administrative 
process--year, after--well you get the picture. We hear that:
      Petitioning tribes are stuck in the system without 
finality for more than 20 years;
      Tribes must spend huge sums of money--as much as $8 
million--to produce the mountains of documentation required by the 
process;
      The criteria are too vague and overly subjective;
      Documentation accepted as proof for one tribe is not 
accepted for another; and
      The system is inherently biased, leaning heavily toward 
denying recognition.
    But when the Congress steps in to recognize an Indian tribe, there 
are those who say we should not. They say this despite the fact that 
Congress has recognized the overwhelming majority of Indian tribes. 
They say Congress should stay out to avoid making the process 
political.
    I say--if you believe the Interior Department's treatment of Indian 
tribes is not political, I have oceanfront property in West Virginia I 
would like to sell you.
    To those who say that the Congress does not have the expertise to 
recognize an Indian tribe--I say, take a look at our record, it speaks 
for itself.
    We have heard Mr. Shuler speak up for the Eastern Band of Cherokee 
Indians. He knows they are an Indian tribe and they were 
Congressionally recognized through legislation.
    Do not tell Mr. Kildee that the Little River Band of Ottawa Indians 
is not an actual Indian tribe. They were Congressionally recognized.
    And do not even think of telling Mr. Young that the Central Council 
of the Tlingit and Haida do not deserve federal recognition!
    I would very much like to see us move legislation that will make 
the administrative federal recognition process fair and manageable.
    But let me be very clear here that this will not stop me from 
bringing before this Committee legislation to establish a government-
to-government relationship with various Indian tribes when appropriate. 
It is the right and the responsibility of the Congress to recognize 
Indian tribes.
    It is also the responsibility of the Congress to live up to its 
relationship with the various tribes and provide enough funding to meet 
our federal obligations.
    I am tired of the defamatory attacks claiming that Indian tribes 
who have submitted applications only want recognition in order to try 
and open up a casino. I find that demeaning beyond words. I cannot even 
imagine how degrading it must be to know who you are and who your 
ancestors were, but not have the federal government recognize that 
honorable heritage.
    The final report of the American Indian Policy Review Commission 
said back in 1977: ``The results of ``nonrecognition'' upon Indian 
comminutes and individuals have been devastation...''
    Coach Kelvin Sampson, a Lumbee Indian, testified before this 
Committee in April said most succinctly: ``I do not need your 
permission to call myself Native American but unfortunately in today's 
world I need your validation.''
    Time and again, members of these non-recognized tribes rise up, 
enlist in the military, and fight for this great Nation that will not 
even recognize them as Indians. I have always found it amazing that 
those who suffer the greatest poverty and prejudice are so often the 
first ones to stand up and defend our Nation.
    We have a chance to fix this. I ask everyone here today to help us 
fix the administrative process. Any phonies will be exposed quite 
quickly.
    Let us act now so that no additional generations of Indian children 
will have to live the indignity of needing validation from the federal 
government.
    Thank you.
                                 ______
                                 

 STATEMENT OF THE HON. TOM COLE, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF OKLAHOMA

    Mr. Cole. Thank you very much, Mr. Chairman. If I may, I am 
going to read first the statement of the real Ranking Member, 
Mr. Young from Alaska. Then I want to offer a couple of 
comments of my own.
    Mr. Chairman, let me thank you for holding this hearing on 
H.R. 2837, introduced by the gentleman from American Samoa. He 
has been a long and tireless advocate for the rights of Native 
American people.
    There were several hearings during the last two Congresses 
on the issue of reforming the recognition process. What we 
learned from those hearings is similar to what I suspect we are 
going to hear from today's witnesses: the administrative 
processes at the Department of Interior are replete with delays 
and backlogs. Also, it is unclear whether criterion for 
recognizing the tribes are being applied in a rational, 
consistent manner.
    I think we can all agree that reforms to expedite the 
process and to upgrade fairness, consistency, and transparency 
are warranted. We should also ask whether or not the Department 
should be authorized by statute to continue a role of 
recognizing tribes, or whether Congress should handle the 
recognition petitions.
    I respectfully suggest that if this committee pursues 
changes in the recognition process, that the Department should 
ensure that no tribe seeking a decision on their petitions lose 
their place in line. Some tribes initially filed letters of 
intent in the 1970s, and have laboriously constructed their 
documented petitions over many years. While I do not speak to 
the merits of their petitions, they do deserve a final response 
before newer entrants are considered.
    Again, I appreciate your scheduling this hearing, Mr. 
Chairman. I look forward to hearing from the witnesses.
    Now, if I may, Mr. Chairman, just quickly add I am drawing 
from some personal experience, some observations here.
    Number one, I want to echo Ranking Member Young's 
appreciation for you holding this hearing. I know I have asked 
that on many occasions, many Members have, because the 
recognition process that we are engaged in `is so complex, so 
controversial, and frankly, has not worked well. And you are 
very much to be commended for helping us explore that process 
and figure out the best way to fix it.
    In the case of my own tribe, the Chickasaws, we know we 
have been around a long time. DeSoto found us in 1540, and then 
we ran him out of our territory. So we have a long history of 
documentation. Matter of fact, I was back with members of my 
tribe and an archaeologist and historian two weeks ago, around 
Tupelo, Mississippi, just to explore the old tribal sites where 
we lived before removal.
    What I think most people don't appreciate is how much the 
impact of European, and then American, contact on tribes has 
scrambled tribes up. In the history of my own tribe, you know, 
we absorbed the Natchez after the French essentially 
annihilated the Natchez in the early part of the 18th century, 
before there was a United States of America.
    Now, the Natchez have also maintained a separate historical 
consciousness. It is a legitimate question. Are they now 
Chickasaw, having joined us in a defeat? Or do they have an 
independent existence if they wanted to assert that? And that 
is just a single example of what has happened again and again 
and again to tribes.
    I would actually tell my friends the wonderful historian, 
Robert Remini, wrote a great book, ``Andrew Jackson and His 
Indian Wars.'' And I remember him handing it to me. He said, I 
want you to read this book. You are not going to like it very 
much, but I want you to think about it at the end, because the 
thesis basically was if the tribes, including my own, had not 
been removed from Mississippi, they would have been destroyed. 
And that, while that was certainly not Jackson's intention, to 
help us, at the end of the day removal protected us, saved us, 
gave us more time, and we were able to survive as a collective 
force.
    I read that book; didn't like it a lot, because I had been 
raised to hate Andrew Jackson. When I was five, I didn't know 
who he was, but I knew he was a very bad man and had done 
terrible things.
    But after reading the book, I happened to be in Tishomingo, 
Oklahoma, where my tribe holds every year a festival, and 
frankly where I will be this weekend. It is our sort of 
homecoming. And there will be thousands of Chickasaws there 
from all over the country. And I thought you know, that might 
not have happened. It certainly wouldn't have happened in that 
place if it hadn't been for that process.
    So there are a lot of interesting things here. And some of 
my friends in areas where tribes have been frankly shattered by 
European contact think that they have ceased to exist. And in 
some cases, that is true.
    Recently I went to the Eastern Shore. And this was a 
weekend off. I enjoyed it, went traveling around in a boat, you 
know, one of these tour things where you spend a few bucks, and 
they take you around the Chesapeake. And it was a wonderful 
tour.
    And I was listening to the recorded statement. They were 
describing, you know, native presence in the Chesapeake Bay in 
the 17th and 18th century. And then I heard the most jarring 
phrase by accident, totally unintended, in a recorded 
description I had ever heard. That was until the area had been 
``detribalized.'' Now, that is a nice way to say ethnically 
cleansed. You know, those tribes were shattered. They may or 
may not have continued to exist. I don't know their history. 
But it is worth thinking about.
    So simply because a tribe, you know, we dealt with earlier 
this year, on this committee, Virginia tribes that clearly had 
been here a long, long time; were not very large, and, in my 
opinion, frankly were forced to give up some of their rights to 
get recognition in the first place, which I thought was 
unfortunate.
    But they had maintained a collective identity. They had 
maintained a real existence. They had figured out that they 
needed to hide; they were in rather obscure places, and they 
maintained it. My own tribe had to do this. The Federal 
government basically--the great Cherokee Chief Wilma Mankiller 
likes to say, if my government had succeeded, I would not be 
here as a Cherokee. You know, we resisted the ability to 
destroy us as a country. And that is what happened, or as a 
nation, to most of the tribes in Oklahoma.
    I find it ironic that we find ourselves in many cases 
opposing people that are trying to reassert an historic 
identity that they have maintained collectively. And we always 
tend to question their motives. They are always base. They are 
always, you know, it is for the money. And that is what again, 
many of my friends that don't deal with tribes on a regular 
basis, don't understand.
    Frankly, tribes are not genealogical societies or fraternal 
associations. They really do exist to improve the lives of 
their people. And they have maintained their existence in many 
cases under the most horrific of circumstances.
    So I want to thank you, and certainly the gentleman from 
American Samoa, for putting so much attention onto something 
that I think is absolutely so critical, and part of our history 
that has not been given the appropriate amount of attention. I 
really appreciate this committee, on many cases, having to come 
in when the bureaucratic functions of the Department did not 
work, and do the just thing.
    Now, I think we would all prefer that we had a process that 
was more orderly, because it is tough when you are a Member, 
and you don't know, and you are not from that area, to make 
these decisions. So there ought to be a much better process 
than we have had.
    But if there is ever any question about--there is no 
question, of course, about Congress' right to recognize a 
tribe. But if we have ever erred in that process, it has been 
largely because there has been a bureaucratic failure ahead of 
time. And you know, your efforts, and the gentleman from 
American Samoa's efforts, to focus on how we fix it--or replace 
it, if that is the appropriate mechanism--I think are to be 
commended. Congress is doing, frankly, what it ought to be 
doing.
    So thank you again for holding this hearing, Mr. Chairman.
    [The prepared statement of Mr.Young follows:]

       Statement of The Honorable Don Young, Ranking Republican, 
                     Committee on Natural Resources

    Mr. Chairman, thank you for holding a hearing on H.R. 2837, 
introduced by the Gentleman from American Samoa, who has been a long, 
tireless advocate for the rights of Native American people.
    There were several hearings during the last two Congresses on the 
issue of reforming the recognition process. What we learned from those 
hearings is similar to what we're going to hear from today's witnesses. 
The administrative process at the Department of the Interior is replete 
with delays and backlogs. Also, it is unclear whether criteria for 
recognizing tribes are being applied in a rational, consistent manner. 
I think we can all agree that reforms to expedite the process and to 
upgrade fairness, consistency and transparency are warranted. We should 
also ask whether or not the Department should be authorized by statute 
to continue a role of recognizing tribes or whether Congress should 
handle recognition petitions.
    I respectfully suggest that if this Committee pursues changes in 
the recognition process at the Department, we should ensure that no 
tribes seeking a decision on their petitions lose their place in line. 
Some tribes initially filed letters of intent in the 1970's and have 
laboriously constructed their documented petitions over many years. 
While I do not speak to the merits of their petitions, they do deserve 
a final response before newer entrants are considered.
    Again, I appreciate your scheduling this hearing, Mr. Chairman, and 
I look forward to hearing from the witnesses.
                                 ______
                                 
    The Chairman. The Chair wishes to thank the gentleman from 
Oklahoma. We have heard you speak a number of times about the 
rights and the plights of Native Americans and Indian country. 
But for this particular gentleman from West Virginia, I must 
say every time I listen to you, I find it more enlightening and 
more interesting, and I learn something. And I appreciate very 
much your comments.
    Another true leader on our committee for Native American 
rights and tribal sovereignty, the gentleman from Michigan, Mr. 
Kildee, I recognize you. And thank you for your decades of 
leadership.

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

    Mr. Kildee. Thank you very much, Mr. Chairman. And thank 
you for your great leadership. And whenever I see Tom Cole, I 
know this is a bipartisan obligation responsibility, which you 
have served very well, this idea of recognizing the reality of 
Indian sovereignty. You and I read regularly from the same 
Constitution, which says, ``Congress shall have power to 
regulate Commerce with foreign nations, and among the several 
states, and with the Indian tribes.'' It does not say with 
fraternal organizations, right?
    As you say, these are not fraternal organizations. These 
are sovereignties. And it is in the Constitution, and each one 
of us up here take an oath to uphold this Constitution. And the 
right of the sovereignty of the tribes is part of that oath.
    I would like to thank you, Mr. Chairman, for this brief 
remark. Thanks for convening this.
    We know that the tribal recognition process is broken. The 
fact that the current administrative process for Federal 
recognition can take up to 25 years or longer is just 
unacceptable, and it must be fixed.
    I am particularly interested in hearing testimony today 
from Jim Keedy, a lawyer for the Michigan Indian Legal Services 
in my home state, who has been working with the Grand River 
Band of Ottawa Indians.
    As you know, Mr. Chairman, in 1994 I worked with this 
committee to reaffirm the status of several Indian tribes in 
Michigan. At that time we had three, and President Clinton 
signed those three bills in the Oval Office.
    I was going to do a fourth one, for the Grand River Band of 
Ottawas. But the tribe had been so burned by the Federal 
government, they no longer trusted the Federal government, and 
they weren't sure they wanted to be part of any Federal 
process. I mean, they just figured leave us alone; we know we 
are Indians, and for God's sakes, why don't you know we are 
Indians?
    We signed treaties with them in 1836. One of my greatest 
tasks and honors was to read those treaties when I first became 
a member of the State Legislature back in 1965. And the State 
of Michigan recognizes them. Any member of that tribe can go to 
a public college in Michigan, and the State of Michigan pays 
the tuition. That is my bill that I introduced.
    But they decided to be kept out of that bill, because they 
had been so burned by the Federal government. That has been the 
history, unfortunately.
    Then in 1997 I worked with this committee to pass the 
Michigan Indian Land Claims Act, an Act that provided for the 
distribution of judgment funds awarded to certain Michigan 
tribes by the Indians Claims Commission.
    With the Grand River in mind, knowing that they had great 
records of their sovereignty, I included a provision in the 
bill for unrecognized tribes that allow the BIA to have seven 
years in which to reaffirm the tribes if they met certain 
conditions. I believe that seven years was more than enough for 
them to review and make this decision. And the Grand River 
Indians met all those conditions.
    And I put in there that a certain amount of that money and 
that claim would be set aside for a tribe like the Grand River 
Indians. And time went on, and time went on, and time went on. 
They applied through the regular process, and it just 
languished in the regular process. Right now it is up in one of 
the higher statuses right now for recognition, but still is 
stuck. You can be stuck in the higher status. You can work for 
years to get it up there, but it is still stuck there.
    And the millions of dollars that I had set aside in 1997 
for the Grand River Band went back to the Treasury. Again, that 
is the history of this government's relationship. The history 
has been better later, but we still have so much to do, as Mr. 
Cole and Mr. Rahall and Mr. Faleomavaega and I know.
    So to realize that the Grand River Band, which petition is 
still languishing over there, has actually lost money back to 
the Treasury because of their, first of all, certitude that 
they were sovereign people. They were a sovereign nation. And 
their distrust of the Federal government, based upon facts that 
had taken place, makes it cogent upon us to make sure that we 
do modernize, bring up to date this system of recognizing these 
tribes.
    And with that, Mr. Chairman, I yield back the balance of my 
time.
    The Chairman. The Chair thanks the gentleman from Michigan, 
and now recognizes the sponsor of the bill we are considering 
today, Mr. Faleomavaega.
    Mr. Faleomavaega. Thank you, Mr. Chairman. I certainly want 
to thank you for calling this hearing to consider the proposed 
bill, H.R. 2837, a bill that I introduced, as you said earlier, 
Mr. Chairman, time after time after time, to provide the 
process to be mandated by Congress this time on how we should 
go about recognizing tribes.
    Mr. Chairman, I was very moved by the gentleman from 
Oklahoma's statement, and probably the only member of this 
committee who is Native America, unless if I am wrong. 
Certainly I was moved by the fact that, given his own given 
experience of what Native Americans or Indian countries have to 
go through not just to receive recognition, but many other 
aspects of providing for their needs and their welfare.
    I have stated time and time again, Mr. Chairman, not to 
blame the bureaucracy for setting up the recognition process, 
but the fact that it really comes right back to the Congress. 
Whether we took action, or by omission, which we failed to take 
action, just proves what Mr. Kildee has said earlier.
    I do want to thank you for all the initiatives and the 
efforts that you have made in addressing the serious problems 
dealing with Native Americans.
    I think the first policy that Congress or even this 
government has ever had toward the Indians was to kill them. A 
good Indian was a dead Indian, it seems to me the policy that 
we initiated first. And then it was to assimilate, the process 
of assimilation: let us make them all Americans. And then 
termination; terminate them as tribes.
    And so now we find ourselves in the fourth era at this 
point in time in dealing with Native Americans. We now have to 
go through a process of recognizing them as Indians. It is a 
sad commentary, in my humble opinion, Mr. Chairman, of how we 
have dealt with the Indian country and members of the Native 
Americans, whether it be here or in Alaska.
    I think, Mr. Chairman, you have a member of your staff here 
who is a member of a tribe from Louisiana that is not even 
recognized. Joshua, where are you? Now, if he doesn't look like 
an Indian, I don't know what an Indian looks like.
    [Laughter.]
    Mr. Faleomavaega. But this is how ridiculous the situation 
has become.
    Mr. Chairman, this is not a new issue, as you have said. I 
think for the last 15 years, ever since I have been a member of 
this committee, and the time when Governor Richardson was 
sitting right next to me over there--Bill Richardson from New 
Mexico. And trying to have hearings after hearings after 
hearings, how, I should say terrible the process has been.
    And I might also want to share this with my colleagues. 
There is no Congressional enactment that provides for the 
recognition of American Indians. It is all done by 
administrative authority of the Secretary of the Interior, by 
regulation.
    And I remember distinctly the gentleman who wrote the 
regulations that provided some seven criteria, the current 
process, that the Indians have to go through these loops in 
recognizing. Before they can be recognized, you have to fulfill 
these seven criteria. And the gentleman who wrote these 
regulations sat right there and said, you know, if I were to go 
through the process, even I would have failed, in terms of how 
complicated and how terrible the situation has been in trying 
to give assistance to the Indians to be recognized.
    Mr. Chairman, the administrative system for Federal 
recognition of Indian tribes needs reform. Structural and 
procedural constraints have transformed the Federal 
acknowledgement process into a cumbersome and overly stringent 
process.
    I do not need to remind my colleagues of how important the 
Federal acknowledgement process is in Indian country. We all 
know that for Native Americans to be eligible for Federal 
benefits and services provided by the Department of Interior 
and the Indian Health Services, these tribes must be members of 
Federally recognized--to be Federally recognized.
    In addition, Federal recognition of Indian tribes opens the 
door for government-to-government relationships between the 
Indian tribes and the Federal government. Most important, this 
process recognizes the Indian tribes as sovereign entities. For 
these reasons, gaining Federal recognition is important in 
establishing rights and obligations, not only as a prerequisite 
for many government benefits and privileges, but also as 
sovereign entities.
    Mr. Chairman, there are some 565 Federally recognized 
tribes listed. These tribes get recognized as sovereign 
nations, and as a trust responsibility of the Congress, and are 
eligible to receive benefits from certain Federal programs.
    About 334 petitions have been filed with the Office of 
Federal Acknowledgement since October of 1978. Of the 334 
petitions filed, only 62 have been resolved as of February of 
this year. Forty-three petitions were resolved by the 
Department of the Interior, nine by the Congress, and 10 by 
other means: either they merged with other petitioners, or 
dissolved, or just simply withdrew from the acknowledgement 
process.
    Mr. Chairman, one thing is clear. For too long, Indian 
tribes have been denied recognition of their rightful heritage 
and identity because of cumbersome and restrictive regulations. 
The amount of paperwork, review, and documentation needed to 
establish the mandatory seven criteria for Federal 
acknowledgement of Indian tribes has led to monumental delays 
in the process. Extremely restrictive academic burdens of proof 
that exceed even the Courts' requirements have made it almost 
impossible to satisfy the demands of the Office of 
Acknowledgement.
    Moreover, we have a process that operates on the 
presumption, presumption, that many Indian tribes are not 
legitimate. Essentially, the regulatory nature of the process 
has grown to impose tremendous burdens of proof on tribal 
petitioners. Consequently, many legitimate Indian tribes have 
been denied recognition, and been penalized because they failed 
to adhere to the seemingly impractical standards set for 
approval.
    The petitions by Indian tribes for recognition are mired in 
the process of an average 15 to 20 years before they are 
finally reviewed.
    Mr. Chairman, the evidentiary burden required to meet the 
mandatory criteria has also imposed a financial burden on many 
tribes. Cost of compliance has grown increasingly unbearable 
for many tribes, several of which already live in poor 
conditions and lack resources or capacity to raise needed 
revenues. In order to satisfy the requirements of the 
acknowledgement process, many Indian tribes have sought 
financial backing to mitigate horrendous financial burdens 
associated with the process. The results have been disastrous.
    The great burdens of proof and related information costs 
have paradoxically thwarted efforts by Indian tribes to achieve 
Federal recognition and retain their sovereignty.
    Mr. Chairman, because of limited resources and the many 
benefits of recognition, the process as it is set up has also 
caused contention and confrontation between recognized tribes 
and those seeking recognition. Sad, but it is true. Some tribes 
have decided to pursue different alternatives. Many have 
directly sought recognition from Congress. Others have either 
merged with other petitioners, dissolved, or withdrew from the 
process. Still others have been involved in litigation because 
of disagreements between tribes and the Office of Federal 
Recognition.
    Mr. Chairman, the bill I have introduced does not seek to 
remedy all of these problems. My bill proposes and provides 
much-needed reform in the Federal process for recognition. The 
underlying purpose of the bill hopefully is to establish a 
process that will provide accountability, transparency, and 
helping the tribes to get recognized.
    This is not a cure-all for the problems we have encountered 
over the years when tribes sought recognition, Mr. Chairman. 
However, through legislation, I do believe it is about time 
that Congress take action and provide some kind of a structure 
and a better procedure than the way it is done right now.
    I am open to any and all suggestions from any country, the 
Administration, and my colleagues here in the Committee to make 
whatever changes that are necessary to resolve this problem.
    Mr. Chairman, I am not going to read the rest of my 
statement, but I do want to personally welcome my good friend, 
the gentleman from Connecticut, who is here with us. And also, 
the two young ladies, beautiful young ladies whom I have dealt 
with for the last 100 years in dealing with Indian issues: Ms. 
Patricia Zell, former Staff Director of the Indian Senate 
Indian Committee, and also Arlinda Locklear, who is here with 
us and will be testifying. And I look forward to their 
statements, and also other members of the panel that will be 
testifying this morning.
    Again, Mr. Chairman, thank you so much for finally, finally 
giving a hearing to this bill that I have introduced 100 times 
already. Maybe 101 will be all right. But it is time that 
Congress finally takes action on this. And I sincerely hope, I 
sincerely hope that we will find a solution to this problem 
that has been gnawing at us for all these years.
    And I again thank you, and thank Mr. Cole, for your 
participation and leadership in moving this bill forward. Thank 
you, Mr. Chairman.
    The Chairman. Thank you, Eni. Any other members of the 
Committee wish to make statements? The gentleman from 
California, Mr. Costa.

 STATEMENT OF THE HON. JIM COSTA, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Costa. Thank you very much, Mr. Chairman. I, too, want 
to commend you for your efforts to bring this issue to the 
forefront. I think it is fitting and appropriate that this 
committee raise the level of review on something that I think 
has been a problem throughout the country for decades.
    And I would like to associate my comments with those that 
have been made by the gentleman from American Samoa, as well as 
from the gentleman from Oklahoma, who have spoken with such 
elegance about the challenges we currently face with Native 
Americans, and the misdeeds, the misdeeds that have occurred 
for centuries by those of us upon those who were here long 
before the migration to North America took place. And so it is 
important that we remember our history.
    As this legislation I hope moves forward, I want to point 
out two areas that will be I hope under consideration just from 
my own experience in California. I believe we have 108 
sovereign recognized nations in California--107 or 108--and we 
have a significant number that choose to be recognized. I have 
met with a number of them about the lengthy and difficult 
process that they have been engaged in with the Bureau of 
Indian Affairs for recognition purposes.
    Certainly it is fitting and appropriate when the gentleman 
from American Samoa talks about the four phrases I think that 
probably accurately capture what has been faced by Native 
Americans, at least in the last two centuries. And as we embark 
upon this new phase, hopefully for the better, we can correct 
some of those misdeeds.
    But I think I would be, I think I would be frustrated not 
to mention two other factors that I think exist here as it 
relates to the recognition process, which I think needs not 
only an overhaul, but it needs continuing oversight, as this 
legislation hopefully is enacted.
    And that is, not only as we de-listed tribes, but as they 
consider this process, there is some motivation among the 23 
states that have gaming that they become recognized because of 
the potential of becoming a gaming tribe.
    Now, there is nothing wrong with that. It is legal in those 
23 states. But it ought to be put up there under the elements 
of consideration. Because I think one of the other areas that 
this committee and the Congress has been negligent in is really 
determining how, in the 23 states in which you have full Class 
III gaming, how we go forward prospectively. And obviously, 
that would impact any Native Americans who hope to once again 
regain their recognition as a tribe, and how we go forward with 
that.
    I know we have a number of entities that are actually 
financing some of these individual Native Americans, with the 
hope through their process that if, in fact, they become 
recognized, then they will be part of their process to 
establish gaming. And that brings into another issue that I 
think needs to be looked at.
    Because in a number of the 64 sovereign nations under 
which, out of the 108 in California, we have an issue--and I 
don't know how serious it is, but I think it deserves 
consideration--of de-listing that is taking place within those 
existing tribes. Certainly as a sovereign nation they have that 
authority and that ability to do so. But it seems to me that it 
is an issue that has also been raised, along with the desire to 
be recognized.
    So for all of the right reasons, I want to commend again 
the gentleman from American Samoa for his efforts with this 
legislation; and I hope that we look at the full aspects that 
are involved in this and related issues. And I want to continue 
to work with all the Members of this committee as this 
legislation goes through the process.
    I want to thank you gentlemen for you efforts, and pledge 
to continue to work with all of you.
    The Chairman. The gentleman from Rhode Island, Mr. Kennedy.

 STATEMENT OF THE HON. PATRICK J. KENNEDY, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF RHODE ISLAND

    Mr. Kennedy. Thank you, Mr. Chairman. I, too, want to 
commend the Chairman, and particularly the gentleman from 
American Samoa, and also associate with the remarks of the 
gentleman from Oklahoma who did speak enormously eloquently to 
this issue.
    I want to ask those that are going to be testifying to keep 
in mind, and to the extent they can answer this question, in 
the course of us considering this bill. In my area of the 
country, many tribes are settlement tribes. In other words, 
they made a deal with the states in which they were recognized 
on the assumption that they would be subjected to the state 
laws. And then they became Federally recognized, and then there 
is this dynamic now as to whether, which is first. Are they 
first subject to the initial agreement that they were subjected 
to by the state, under which they were initially recognized by 
these settlement agreements? Or are they then under the Federal 
IGRA as Federally recognized tribes?
    Clearly, obviously Federal government takes, supersedes 
state law, and that is the way the Supreme Court has ruled in 
my case, in the Tribe of the Narragansetts in Rhode Island. But 
that is still being contested.
    And if we are going to address this issue of tribal 
recognition, we have to address this issue of this netherworld 
of tribes in limbo. Because, as the gentleman from California 
just pointed out, it is one thing to be recognized, but it is 
another thing to be treated as a sovereign tribe once you are 
recognized. And that has to be the bottom line. Because you can 
be recognized, but if you are not treated as a sovereign tribe, 
then what is the good of it?
    And I really hope that we can nail this down, because I 
think it is really unfortunate that these tribes, like the one 
in my state, the Narragansetts, are Federally recognized, but 
they are being denied by the state basically their IGRA rights. 
And they are the only Federally recognized tribe in the country 
that has been denied those rights.
    Anyway, with that, I yield back the balance of my time.
    The Chairman. Thank you. The Chair now will recognize our 
first panel, composed of--oh, I am sorry. I am sorry, I didn't 
see you seeking recognition.

 STATEMENT OF THE HON. DAN BOREN, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF OKLAHOMA

    Mr. Boren. Mr. Chairman, it will just take two seconds. I 
just wanted to make a few comments.
    I just wanted to thank the Chairman for holding this 
hearing. And I would echo my colleagues' statements about the 
process.
    I think most of us, the questions really are about the 
transparency of the process, questions about timing. You know, 
we had a bill Mr. Shuler was working on, obviously with the 
recognition of the Lumbee Tribe. And as a fairly new member of 
this committee and a new Member of Congress, all of us wrestled 
with whether or not it is the role of a committee in the 
Congress to recognize Indian tribes, or whether it is the 
purview of the BIA to do that.
    And I think the problem is the fact that it is taking so 
much time. And will this legislation alleviate that problem?
    And anyway, I want to commend the gentleman from American 
Samoa for introducing this legislation. And I think it is very, 
very important. The questions that I have are, again, about the 
transparency.
    Is it really, is there a bias at the BIA? Because I would 
like to take the politics out of the situation, because so many 
of us, for whatever reason, with each individual tribe we have 
our own belief and our own bias toward that tribe, and whether 
they should be recognized.
    And it is my belief that it should be an independent group. 
Whether the BIA can be independent, or whether it is this 
commission, and not the Congress, frankly. I think it too often 
gets into other issues that don't really pertain to those 
definitions as to what a tribe really is.
    So again I want to thank the Chairman for holding this 
hearing, and for allowing us to be part of it. Thank you.
    The Chairman. Thank you. The Chair now recognizes our 
colleague from Connecticut, Mr. Chris Shays.

 STATEMENT OF THE HON. CHRISTOPHER SHAYS, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CONNECTICUT

    Mr. Shays. Thank you, Chairman Rahall, and to Members. And 
thank you for the opportunity to listen to your statements. It 
is a true privilege to be here, and I thank the courtesy of the 
Chair and the Committee for allowing me to provide a 
perspective than may be different than what has been discussed 
from the dais.
    First, we all want, or we all should want, a balanced and 
fair process. Second, if the motive is to grant recognition to 
all petitioners, then I am simply in the wrong place. Because I 
believe not recognizing legitimate tribes is a true insult; 
recognizing a non-legitimate applicant is also a true insult to 
legitimate Indian tribes.
    I make the point to you, you are not recognizing Indians; 
you are recognizing a tribe, a government, and, as you know, 
you are creating an independent sovereign nation that does not 
have to pay taxes; can play by its own rules within these 
United States. So this is truly a solemn obligation.
    Currently there are seven active petitions that are 
currently being worked on by the BIA. Seven. Ten ready and 
waiting petitions, completed petitions BIA has not yet begun to 
work on. So you have 10 people waiting who should not have to 
wait.
    You have 79 incomplete petitions, petitions that are 
lacking all the information the BIA needs to begin work on it. 
And you have 147 letters of intent, letters informing the BIA 
of a tribe wishing to file a petition for recognition.
    In the appropriations process, we provided a measly $1.9 
million to the Bureau of Indian Affairs. That is an absurdity. 
And yet everyone here says we want, and we want the process to 
work better. But you aren't providing the money necessary to 
have the BIA hire the people to do the research to be current. 
And yet you blame the BIA.
    Don't blame the BIA. Don't blame the regulations. I think, 
speaking frankly, blame ourselves. Just appropriate the dollars 
necessary to get the BIA to do its work.
    Now, what the BIA is trying to determine is, is there 
social, political, economic continuity pre-Colonial times. That 
is the regulation.
    Now, if you decide you want to change the regulations and 
make it a different requirement, you have every right to do 
that. And maybe you should, as long as it is fair and balanced.
    I would take issue with the fact that all petitioners want 
to be Federally recognized tribes because of gambling. 
Conversely, I would take issue with anyone who suggested some 
are not making that request because of Indian gaming. So it is 
a mixture, and you need to sort that out.
    We have had far more applicants since Indian tribes have 
had that source of revenue. Out West it is a modest source of 
revenue. Where my colleague from Rhode Island and I come from, 
it is truly a license to print money. And that is why you have 
a significant financial backing of one tribe in Connecticut, 
the Golden Hill Paugussetts, being funded by a developer who, 
when the tribe was denied by the BIA, happened to make a 
contribution of $300,000 to a fundraiser for $300,000 under the 
previous Administration for someone very important in that 
race--Hillary Clinton. And all of a sudden there was a 
resurrection by the Department of Interior in re-examining that 
application.
    We have another applicant who is being funded by a 
billionaire. It is because they want to realize the significant 
benefits of Indian gaming. They are not in this for altruistic 
reasons for the Indians. That is a fact. They are there to make 
money. So all of this needs to be part of the record. And I 
thank you for giving me this opportunity.
    You may decide that the regulations are not fair. Change 
the regulations, but why kick it out of the BIA? Just fund them 
properly. Or you may decide that you want to take it out of the 
Department of Interior.
    But in order to determine the legitimacy of each 
application, because some will be legitimate and some won't be, 
you need experts. If you are going to depend, and I wrote this 
down, take the politics out of the process. That is what we 
want to do, I agree with you.
    Well, the BIA, the professionals, aren't the politicians. 
The politicians are the potential appointees to the Interior 
Department, and the Administration itself, whether it is 
Republican or Democrat.
    I am really scared big time with legislation that puts the 
politics in. And in my judgment, the politics comes in when you 
take the professionals out. The politics comes in when you 
don't fund the Commission.
    So you have a lot of ways you can go, I ill just summarize. 
You can properly fund the BIA, and I don't think we will have 
the backlog. Or you can set up a separate commission.
    And I don't inherently have a problem with that, if they 
are appointed in a way that tries to take the politics out. But 
has to be based not on a political decision, but can you meet 
the criteria?
    And then, as my colleague from American Samoa has pointed 
out, you could just change the requirements to be what you 
perceive to be fair and balanced.
    And I thank you for giving me the opportunity to make this 
statement to you. I appreciate it a great deal.
    [The prepared statement of Mr. Shays follows:]

   Statement of The Honorable Christopher Shays, a Representative in 
                 Congress from the State of Connecticut

    Thank you, Chairmen Rahall and members, and thank you for the 
opportunity to listen to your statements. It is a true privilege to be 
here, and I thank the courtesy of the chair and the committee for 
allowing me to provide a perspective that may be different than what 
has been discussed from the dais.
    First, we all want, or we all should want, a balanced and fair 
process. Second, if the motive is to grant recognition to all 
petitioners then I'm simply in the wrong place. Because I believe that 
not recognizing legitimate tribes is a true insult. Recognizing a non-
legitimate applicant is also a true insult to legitimate Indian tribes.
    I make the point to you, you are not recognizing Indians, you are 
recognizing a tribe, a government, and as you know you are creating an 
independent sovereign nation that does not have to pay taxes and can 
play by its own rules within these United States. So this is truly a 
solemn obligation.
    Currently there are seven active petitions being worked on by the 
BIA. Seven. There are 10 petitions ready and waiting--complete 
petitions--that the BIA has not yet begun to work on. So you have 10 
tribes waiting that should not have to wait.
    You have 79 incomplete petitions, petitions that are lacking all 
the information the BIA needs to begin work on them, and you have 147 
letters of intent, letters informing the BIA of a tribe wishing to file 
a petition of recognition.
    In the appropriations process we provided a measly $1.9 million to 
the Bureau of Indian Affairs. That's an absurdity. And yet everyone 
here says we want the process to work better. But you aren't providing 
the money necessary to have the BIA hire the people to do the research, 
to be current, and yet you blame the BIA. Don't blame the BIA. Don't 
blame the regulations. I think, speaking frankly, we should blame 
ourselves. Just appropriate the dollars necessary to get the BIA to do 
its work.
    Now what the BIA is trying to determine is, does their social, 
political and economic continuity date to pre-colonial times. That's 
the regulation. If you decide you want to change the regulations and 
make a different requirement, you have every right to do that. And 
maybe you should as long as it's fair and balanced.
    I would take issue with the fact that all petitioners want to be 
federally recognized because of gambling. Conversely I would take issue 
with anyone who suggests that some are not making that request because 
of Indian gambling. So it's a mixture and you need to sort that out.
    We've had far more applicants since Indian tribes have had that 
source of revenue. Out West it is a modest source of revenue. Where my 
colleague from Rhode Island and I are from, its truly a license to 
print money, and that's why you have, a significant financial backing 
of one tribe in Connecticut, the Golden Hill Paugussetts, being fronted 
by a developer, who when the tribe was denied be the BIA, happened to 
make a contribution of $300,000 to a fundraiser under the previous 
administration for somebody important in that race, Hillary Clinton, 
and all of a sudden there was a resurrection by the department of 
interior in reexamining that application.
    We have another applicant that is being funded by a billionaire. It 
is because they want to realize the significant benefits of Indian 
gambling. They are not in this for altruistic reasons for the Indians. 
That's a fact. They are there to make money. So all of this needs to be 
part of the record, and I thank you for giving me this opportunity.
    You may decide that the regulations are not fair. Change the 
regulations. But why kick it out of the BIA? Just fund them properly. 
Or you may decide, that you want to take it out of the Department of 
Interior, but in order to determine legitimacy of each application, 
because some will be legitimate and some won't be, you need experts.
    If you are going to depend, and I wrote this down, ``take politics 
out of the process'' and that's what we want to do. I agree with you. 
Well the BIA, the professionals aren't the politicians. The politicians 
are the potential appointees to the Interior Department, and the 
administration itself, whether it is Republican or Democratic.
    I'm really scared big time with legislation that puts the politics 
in, and in my judgment the politics come in when you take the 
professionals out. The politics come in when you don't fund the 
professionals.
    So you've got a lot of ways you can go, and I'll summarize: you can 
properly fund the BIA and I don't think we'll have the backlog. Or you 
can set up a separate commission, and I don't inherently have a problem 
with that, if they are appointed in a way that tries to take the 
politics out. The decision has to be based not on politics but on 
whether applicants meet the criteria and then as my colleague from 
American Samoa has pointed out, you could just change the requirements 
to what you perceive to be fair and balanced.
    Thank you for the opportunity to make this statement. I appreciate 
it a great deal.
                                 ______
                                 
    The Chairman. The Chair thanks the gentleman from 
Connecticut for his interesting testimony and perspective. And 
I am going to yield my time to the gentleman from Oklahoma if 
he wishes to ask questions.
    Mr. Cole. Just quickly, because I think the gentleman from 
Connecticut made, as always, very good points. But is it just a 
funding issue? Or in your opinion--can I just call you Chris? 
My goodness, I almost said Mr. Shays.
    Mr. Shays. Yes.
    Mr. Cole. Chris, walk through with me, from you standpoint, 
the problems you see, other than just funding. Is it simply a 
matter of us writing a check? Or do you see things in the 
process of the----
    Mr. Shays. Well, I can't get by the funding because I have 
spoken to the BIA over a course of many years. The staff is 
overworked and undermanned, and that is a fact. They have very 
few people.
    $1.9 million is all we appropriate for them to go through 
these applications? When they have seven active, they have 10 
pending? They don't have the people to do it.
    And yet then we criticize people, the Bureau, for not doing 
it. They don't have the money.
    Mr. Cole. Let us just say you could write whatever check 
you wanted.
    Mr. Shays. You would hire more people. You would----
    Mr. Cole. Well, who would they be? And let me ask you this, 
too.
    Mr. Shays. Sure.
    Mr. Cole. How long do you think would be a reasonable time? 
These really are tough issues, I grant you that, because 
frankly, the history involved in each tribe is very different. 
And trying to establish collective identity, when in some cases 
frankly that identity was hidden, because if it wasn't hidden, 
the tribe wouldn't have been able to continue to exist. I mean, 
literally.
    Mr. Shays. Well, then, you may want to change the 
regulations. You may want to say if you are an Indian, you can 
get granted sovereignty, but you may not be a tribe.
    Mr. Cole. No, I agree with that. We have no point of 
disagreement here at all. I am just asking you, I mean, you 
have obviously wrestled and thought about this issue.
    It is pretty easy, a tribe the size of mine, 42,000 people 
can establish a continuous collective existence. That is easy. 
It is tougher with the smaller tribes. I am just asking you----
    Mr. Shays. I can answer your question. You could put 
timelines. You could put timelines, provided the timeline 
begins when the applicant says this is my completed 
application, and you could say two years, you could say three, 
you could say four years. You could then make sure they were 
properly staffed.
    Now, what may occur, and what has occurred, is that the 
tribe starts getting the message that they don't properly meet 
the standard. And then they back off and pull back their 
application. Or they may be asked to get information which may 
take them two or three years to try to assemble.
    So it is not all the BIA's fault. It may be that simply 
there is information that, if they acted on that application 
based on the information, they would deny it. It is not unlike 
the FDA. You sometimes get the pharmaceutical companies coming 
in to the FDA, and then they have some bad tests and they pull 
back their application. Then they blame the FDA for not giving 
them, you know, taking too long.
    Mr. Cole. Do you still recognize, I would assume--I don't 
know, I am asking this question--the legitimacy of 
Congressional action? We still retain obviously the ultimate 
right as the Congress to do the recognition process. Although I 
think most of us would prefer that that be settled before it 
gets here. But you are not interested in----
    Mr. Shays. Congress has the inherent right to bypass the 
BIA and make me a tribe if it wants to. It has that right. It 
would be pretty stupid.
    Now, the problem is, when I have to vote on it, what do I 
know about that tribe, when I am voting on the House Floor? 
What do I know? Am I going to depend on the elected official in 
that district, who has a political reason, as well? Or do I 
want to depend on professionals who can tell me that they have 
reached certain standards that we, Congress, have a right to 
set?
    So to answer your question, we can set no regulations and 
recognize them; we can have regulations and ignore them, and 
accept a tribe. But the logical thing, to get the politics out 
of it, in my judgment, is have fair regulations, whatever they 
are. And then have everybody play by those rules. Maybe once in 
a while you have an exception. Maybe once in a while. And you 
then come out to the House Floor and say this is why there is 
an exception; because, you know, there was information that is 
simply not attainable because they were so obliterated over a 
course of time. You know, maybe on those cases you could.
    Mr. Cole. Thank you, Mr. Chairman. I yield back.
    The Chairman. Are there other Members who wish to ask 
questions? Mr. Faleomavaega?
    Mr. Faleomavaega. I just want to say to my good friend 
[speaks in Fijian].
    Mr. Shays. [Replies in Fijian].
    The Chairman. Thank you, Mr. Chairman.
    Mr. Shays. That is a little Fijian. He is the only one I 
can speak with.
    The Chairman. OK. I was getting ready to respond, but I 
guess I had the wrong language.
    Mr. Shays. We said you are a magnificent Chairman, and we 
appreciate the good work you are doing.
    [Laughter.]
    The Chairman. I knew I was getting ready to respond.
    Mr. Faleomavaega. Mr. Chairman, will the Chairman yield?
    The Chairman. Yes, your time.
    Mr. Faleomavaega. My good friend was a former Peace Corps 
volunteer on the Islands of Fiji, and we were just speaking in 
the Fijian language. So in case some of our friends don't know 
where Fiji is, it lies about 600 miles directly south of my 
islands, which is about 2300 miles directly south of Hawaii. So 
if that gives you a sense.
    And by all means, I just wanted to share with my colleagues 
that we were talking about some of the history. Why is an 
American Samoan being the one introducing this legislation? It 
is interesting to note, Mr. Chairman, that an archaeologist did 
a DNA study of one of the ancient villages on my island. They 
called it chicken bones; I guess now they are making studies of 
chicken bones.
    Well, they found that these same chicken bones are found in 
Chile. So some Samoan must have gone over to Chine, ate chicken 
over there, came back, and----
    [Laughter.]
    Mr. Faleomavaega. I just wanted to share that with you. But 
I do want to share Chris' concerns. They are very legitimate. 
And certainly if in the process, that some of these petitioners 
have motives only for purposes of gaming, then of course they 
are not to be recognized, or even given the time of day.
    Mr. Shays. Will the gentleman yield?
    Mr. Faleomavaega. Yes.
    Mr. Shays. If they are a legitimate Indian tribe, and they 
also want gambling, then they have every right to want it and 
deserve it. I want to be on record with that.
    Mr. Faleomavaega. I thank the gentleman for that.
    Mr. Shays. So there is nothing wrong with them wanting to 
have an opportunity to have resources to help their tribe, and 
so on.
    Mr. Faleomavaega. I can only cite, Mr. Chairman, the 
experience that I have had for the last 20 years. In hearings 
after hearings after hearings we had with the Lumbee Indians. 
And with all due respect to my good friend from North Carolina, 
Mr. Shuler, unbelievable the testimony that we have had to take 
from some of the members of this tribe, Mr. Chairman, where 
they have had to examine their teeth.
    Now, this is out of the administration process. They had to 
examine their teeth, if their teeth looked like Indians. And I 
would say what in the world are we going through? But these are 
some of the things that are cited, I say just utterly 
ridiculous, in terms of this is how far-fetched the process has 
gone in determining what an Indian should be, or what he or she 
looks like.
    And again I want to thank my good friend from Connecticut 
and his concerns. And we will certainly consider that, members 
of the Committee, and make sure that we do have a legitimate 
effort moving forward and seeing that the process--here is what 
I hope for the process.
    I think two years is not unreasonable, compared to the 20 
years that some of these tribes have had to endure in seeking 
recognition. That is basically what I think the process--and 
not to guarantee, also, that they become recognized, but that 
the process becomes transparent. I think more than anything 
that is what we are seeking here.
    Again, I thank my good friend for his concerns.
    Mr. Shays. Thank you.
    The Chairman. Gentleman from Rhode Island, Mr. Kennedy?
    Mr. Kennedy. Yes, I appreciate your saying that about the 
legitimacy of tribes being able to do that, because having 
their own ability to have financial wherewithal if they are 
legitimate, because that is a good point to make.
    I mean, there is nothing wrong with having money if they 
have a legitimate, you know, claim to being--I mean, the 
Narragansetts, what really were the biggest knocks against them 
was that they, it was exactly what you said. They, the Rhode 
Islanders, wanted the tribe to have the casino, but they didn't 
trust Harrod's coming in and financing the deal, because they 
thought Harrod's was going to get all the money. That was the 
bottom line.
    And that was what killed the deal for the Narragansetts, 
ironically. So it was the exact opposite. It was exactly what 
you were pointing out.
    If this thing had been all about the Narragansetts being 
able to get this deal, this thing would have passed, you know, 
three to one for the Narragansetts. It got killed only because 
the people of Rhode Island felt that there was something 
asunder; that some corporate gaming folks were going to get the 
benefit of the deal, not the Narragansetts.
    So I appreciate what you are saying, I think it is well 
founded. We have just got to make sure that we do make it very 
transparent and on the up and up, so that the tribe ends up 
being the beneficiary of this.
    The Chairman. The Chair recognizes Members in the order in 
which they came in, so Mr. Boren will be next.
    Mr. Boren. Thank you, Mr. Chairman. I would yield to Heath, 
he is kind of bigger than I am.
    But anyway, quick question. Going back to politics. We 
talked a little bit about this bill, and one of the provisions 
of the bill that I was reading through says that the Commission 
will consist of three members appointed by the President. I can 
be corrected if I am wrong, but let us say, whether it is 
Hillary Clinton or George Bush, you know, you can have three 
Democrats or three Republicans, do you think that this 
commission should be separated between one Democrat, one 
Republican, and maybe an Independent?
    And being someone who is a bipartisan Member of this body, 
what would be your opinion as to the makeup of this commission 
if you were drawing up the commission?
    Mr. Shays. First I would want to have, I might suggest that 
it be five, just so that you could have Indian representation 
from tribes that have been clearly identified for a long time. 
Because I think they will have a sensitivity to respect the 
legitimacy of the process.
    I would think they would have to be Senate-approved. And I 
would think that you would make sure that they, you do 
everything possible to insulate them from a political, and even 
financial--I would say frankly you would pay them a significant 
amount of money. Because I can't emphasize, in some parts of 
the country, when a tribe is recognized they literally have a 
license to print money. We are talking about $1 billion a year 
in some tribes. It is a huge amount of money. Not out West, but 
out East.
    Mr. Boren. I appreciate that. And going back to the 
commentary of what actually happens when you have a recognition 
process of this committee, I would say everyone on this 
committee has been very thoughtful about, whether it be the 
Lumbee issue or any other issue.
    But when you get into the full Congress and you have 
Members who frankly aren't as focused on these issues of tribal 
recognition, I won't say which Members, but you hear the 
conversations on the Floor, you know. They start talking about 
individual Members who are carrying this bill, and well, I like 
that person, so I guess I will go with that tribe. That is 
literally how these decisions are being made, and that is the 
wrong way that they should be made. They should really be made 
by people who understand the process, and understand what it 
really means to be a sovereign nation.
    And so I appreciate you coming and testifying before the 
Committee. Thank you.
    Mr. Shays. Thank you.
    The Chairman. The gentleman from North Carolina, Mr. 
Shuler.
    Mr. Shuler. Mr. Chairman, thank you. I just want to clear 
up, in all due respect, this Congress. The reason the Lumbees 
have never gone through the recognition process is because it 
is what has happened in the Congress actually stopped that 
recognition process. It wasn't the BIA, it was the body of 
Congress.
    And if we are going to have--and you know, I have grown up 
in the mountains. I mean, math is pretty, you know, it is a 
basic education process. If you have three people trying to 
make a decision versus an entire organization, I just don't 
know how you are going to increase that backlog and get it a 
lot faster through the process. Three people making a decision 
of all the work and the research that needs to be done----
    Mr. Shays. No, no. If I could, they have to have a sizable 
staff, far more than what--I envision that you would basically 
take the BIA folks who do recognition, and you move them under 
this commission. Whether they are directly still under the 
Department of Interior, they would have to provide extensive 
data to this commission.
    Mr. Shuler. Well, that is what I would hope. I mean, 
really, we have to take the politics out of it, without a 
doubt. And I commend you for your work. And my friend from 
Oklahoma, Mr. Boren, we do. I mean, we are all caught in the 
middle of it in so many different ways, we understand the 
processes.
    But outside of this committee, our Members outside this 
committee don't understand the process and the problems that we 
have had to deal with, and what has happened in the history of 
our country.
    And so I commend everyone for their hard work and their 
dedication just finding the right, putting the right 
information together, that we can do the right thing this time 
and allow people to go through the process. That is why I 
offered my amendment for the Lumbees to actually go through the 
process and have that opportunity to be recognized, if so.
    Mr. Chairman, I yield back.
    The Chairman. The Chair thanks the gentleman from North 
Carolina. Any other Members wishing to be recognized?
    [No response.]
    The Chairman. If not, Chris, thank you.
    Mr. Shays. Thank you again for this opportunity.
    The Chairman. Thank you for your time and patience.
    Mr. Shays. Thank you for your patience.
    The Chairman. Our next panel is composed of the Hon. Carl 
J. Artman, the Assistant Secretary for Indian Affairs, Bureau 
of Indian Affairs, Washington, D.C.
    Mr. Secretary, we welcome you. Thank you for your patience 
with us this morning, and you may proceed as you desire.
    We do have your written testimony, and without objection, 
it will be made part of the record as if actually read. And you 
may proceed.

       STATEMENT OF CARL J. ARTMAN, ASSISTANT SECRETARY 
 FOR INDIAN AFFAIRS, BUREAU OF INDIAN AFFAIRS, WASHINGTON, D.C.

    Mr. Artman. Good morning, Mr. Chairman and members of the 
Committee. And thank you for holding this hearing today.
    As you stated, I do wish to submit the full statement for 
the record, but I will make some short comments regarding this 
hearing, the subject of this hearing.
    My name is Carl Artman; I am the Assistant Secretary for 
Indian Affairs at the Department of the Interior. And to my 
right is Lee Fleming, the Director of the Office of Federal 
Acknowledgement.
    Thank you for the opportunity to present our views on H.R. 
2837, the Indian Tribal Federal Recognition Administrative 
Procedures Act. The Department supports the efforts to improve 
the acknowledgement process, and is, in fact, taking steps on 
its own accord to improve the process. However, the Department 
does not support the current bill, as written.
    The Federal acknowledgement process may need reform; 
however, this legislative approval doesn't address at least six 
provisions that we would view necessary if Congress wishes to 
legislate the criteria for acknowledgement. And these necessary 
provisions would include the definition in the process as to 
how the petition will be reviewed:
    Provide detailed standards of proof, as in 83.6(d) and (e) 
of the 25 CFR, which mandates that a reasonable likelihood 
standard of proof be used. Clarify the Privacy Act protections 
and Freedom of Information Act exemptions. Provide guidance as 
to how to address the splintering of petition groups, and the 
subsequent submission of letters of intent and documented 
petitions by factions of petitioning groups. Provide 
clarifications on the sunset rule, and provide the definition 
of the administrative record for purposes of judicial review.
    This legislative proposal replaces the Secretarial 
decision-making authority with a decision-making body prone to 
political influence. The legislation does not provide criteria 
to ensure the appointed commission members have the requisite 
ability or minimum skillset to make determinations on 
individual applications.
    It doesn't address the institutional knowledge of the 
Department of the Interior on these matters, and lowers the bar 
for acknowledgement by requiring the showing of continued 
tribal existence only from 1900 to present, rather than from 
the first sustained contact with Europeans, as is in the 
current standard.
    The Department does, however, support Congressional 
affirmation of the Department's authority to give clear 
Congressional direction as to what the criteria should be.
    Congressional ratification of the acknowledgement standards 
would speed up the process, because the Department would no 
longer have to spend time and resources defending and preparing 
for litigation challenging its authority to acknowledge tribes 
or the specific criteria used to do so.
    Courts have upheld the Secretary's authority in this area, 
and Congressional support would preclude further challenges.
    The Federal acknowledgement process set forth in 25 CFR 
Part 83, procedures established in that an American Indian 
group exist as an Indian tribe, allows for uniform and rigorous 
review necessary to make informed decisions on whether to 
acknowledge a petitioner's government-to-government 
relationship with the United States.
    The regulations require groups to establish that they have 
had a substantially continuous tribal existence, and have 
functioned as an autonomous entity throughout history until the 
present. A petitioning group must demonstrate that they meet 
seven mandatory criteria with a reasonable likelihood of the 
validity of the facts relating to that criteria.
    We are considering several actions to expedite and clarify 
the Federal acknowledgement process, and anticipate that these 
clarifications would eliminate many of the backlogs and delays 
that have been discussed this morning. Among the proposed 
improvements that are in the written testimony are 
technological improvements to the process. The possibility of 
moving applications to the front of the ready and waiting for 
active consideration list, and streamlining various OFA 
processes.
    We are also considering various ideas for improving the 
Federal acknowledgement process by amending regulations. These 
improvements would help to process and complete all 
applications within a set timeframe. These include hiring or 
contracting additional staff; establishing a timeline for 
responding to each step of the regulations to ensure that the 
petitions move along; issuing negative proposed findings or 
final determinations based on a single criterion, allowing for 
an expedited negative proposed finding if the petitioner has 
failed to adequately respond to a technical assistance review 
letter, or refuses to submit additional required materials in 
response to this review; and moving the first sustained contact 
requirement of 25 CFR 83.7(b) and (c) for some cases to start 
at the point when that area became part of the United States, 
or to 1776, to ease the burden on the petitioners and reduce 
the time-consuming research into the Colonial histories.
    The acknowledgement of continued existence of another 
sovereign entity is one of the most solemn and important 
responsibilities delegated to the Secretary of the Interior. 
Federal acknowledgement enables that sovereign entity to 
participate in Federal programs for Indian tribes, and 
acknowledges a government-to-government relationship between an 
Indian tribe and the United States. It confers unique 
privileges and immunities upon that government, and may yield 
substantial financial support from the Federal government for 
the operation of that tribe's government services.
    Any opportunity to alter the existing legislative or 
administrative options available to petitioning groups must 
uphold this solemn responsibility with well-informed, endurable 
processes that anticipate the needs of all stakeholders.
    Thank you, Mr. Chairman, Committee, for the opportunity to 
provide my statement on the Federal acknowledgement process, 
and I will be happy to answer any questions that the Committee 
may have.
    [The prepared statement of Mr. Artman follows:]

   Statement of Carl J. Artman, Assistant Secretary--Indian Affairs, 
                    U.S. Department of the Interior

    Good morning, Mr. Chairman and Members of the Committee. My name is 
Carl Artman, and I am the Assistant Secretary-Indian Affairs at the 
Department of the Interior (Department). Thank you for the opportunity 
to present our views on H.R. 2837, the Indian Tribal Federal 
Recognition Administrative Procedures Act. The Department supports the 
efforts to improve the acknowledgment process embodied in H.R. 2837, 
however, as discussed below, the Department opposes the bill as 
written.
    My testimony will address the current process and several proposals 
currently under consideration to improve the process. I will then turn 
to the legislation.
Implications of Federal Acknowledgment
    The acknowledgment of the continued existence of another sovereign 
entity is one of the most solemn and important responsibilities 
delegated to the Secretary of the Interior. Federal acknowledgment 
enables that sovereign entity to participate in Federal programs for 
Indian tribes and acknowledges a government-to-government relationship 
between an Indian tribe and the United States.
    These decisions have significant impacts on the petitioning group, 
the surrounding communities, and Federal, state, and local governments. 
Acknowledgment carries with it certain immunities and privileges, 
including partial exemptions from state and local criminal and civil 
jurisdictions, and the ability of newly acknowledged Indian tribes to 
undertake certain economic opportunities.
    For instance, the Mashpee Wampanoag Indian Tribal Council recently 
received a positive decision under the Federal acknowledgment process 
and is now eligible to receive Federal health and education services 
for its members, to have the United States take land into trust that 
will not be subject to state taxation or jurisdiction, and to operate a 
gaming facility under the Indian Gaming Regulatory Act if it satisfies 
the conditions of that Act.
Background of the Federal Acknowledgement Process
    The Federal acknowledgment process set forth in 25 C.F.R. Part 83, 
``Procedures for Establishing that an American Indian Group Exists as 
an Indian Tribe,'' allows for the uniform and rigorous review necessary 
to make an informed decision on whether to acknowledge a petitioner's 
government-to-government relationship with the United States. The 
regulations require groups to establish that they have had a 
substantially continuous tribal existence and have functioned as 
autonomous entities throughout history until the present. Under the 
Department's regulations, petitioning groups must demonstrate that they 
meet each of seven mandatory criteria. The petitioner must:
    (a)  demonstrate that it has been identified as an American Indian 
entity on a substantially continuous basis since 1900;
    (b)  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;
    (c)  demonstrate that it has maintained political influence or 
authority over its members as an autonomous entity from historical 
times until the present;
    (d)  provide a copy of the group's present governing document 
including its membership criteria;
    (e)  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;
    (f)  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
    (g)  demonstrate that neither the petitioner nor its members are 
the subject of congressional legislation that has expressly terminated 
or forbidden the Federal relationship.
    A criterion is considered met if the available evidence establishes 
a reasonable likelihood of the validity of the facts relating to that 
criterion. 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.
    The Federal acknowledgment process is implemented by the Office of 
Federal Acknowledgment (OFA). OFA is currently staffed with a director, 
a secretary, four anthropologists, three genealogists and four 
historians. A team composed of one professional from each of the three 
disciplines reviews each petition. Additionally, OFA has a contract 
that provides for three research assistants and three records 
management/Freedom of Information Act specialists, as well as one 
Federal acknowledgment specialist.
    OFA's current workload consists of seven petitions on active 
consideration and ten fully documented petitions that are ready, 
waiting for active consideration. The administrative records for some 
completed petitions have been in excess of 30,000 pages. Two hundred 
forty-three other groups are not ready for evaluation because they have 
submitted only letters of intent to petition for federal acknowledgment 
as an Indian tribe or partial documentation.
    The Interior Board of Indian Appeals (IBIA) just affirmed the 
negative final determinations for the Nipmuc petitioning groups 69A and 
69B, but referred to the Secretary of the Interior issues as possible 
grounds for reconsideration. In addition, there are two pending 
lawsuits seeking review of acknowledgment decisions.
Proposed Improvements to the Federal Recognition Process
    We are considering several actions to expedite and clarify the 
Federal acknowledgment process. Some of these would require changes to 
internal workload processes to eliminate backlogs and delays and some 
would require amendments to the regulations.
    For example, we plan to distribute revised guidelines so 
petitioners and interested parties know what the OFA review teams 
expect and what the regulations require in order to provide more 
clarity in submissions. Additionally, to speed up the review, the OFA 
could recommend an application form for petitioners to use to point to 
the specific evidence in their submission that meets the criteria for 
specific time periods. OFA could also recommend petitioners present 
their genealogies in a common format used by genealogists (GEDCOM) and 
provide membership lists in an electronic database.
    Once a petition has been received, the genealogist, historian and 
anthropologist in a research team evaluate a petition concurrently. We 
are considering changing this to a review in stages, with the 
genealogist first, followed by the historian and anthropologist. The 
genealogist's advance work, prior to the petition going on the 
``active'' list, would prepare the way for the other professionals 
during the active review process.
    The OFA plans to develop lists of common questions and procedures 
that the research team or new research staff will use to speed up the 
evaluations and note the potential deficiencies in the petitions.
    Further, OFA is looking at the possibility of moving to the front 
of the ``Ready, Waiting for Active Consideration'' list groups that can 
show residence and association on a state Indian reservation 
continuously for the past 100 years or groups that voted for the Indian 
Reorganization Act (IRA) in 1934, if the groups appear to have met 
subsections (e), (f), and (g) of 25 C.F.R. Sec. 83.7.
    Limiting the number of technical assistance reviews and imposing a 
time period for petitioner response to a technical assistance review 
letter would also move petitions along faster. We will attempt to 
create more concise decision documents to speed the process and improve 
the public's ability to understand the decision.
    The Department also plans to post decisions and technical 
assistance letters on its website for public access. These steps would 
free OFA to spend more time on review of the petitions and allow for 
greater transparency to the general public.
    Technological improvements would also speed the OFA's task. We plan 
to revise the Federal Acknowledgment Information Resource (FAIR) 
computer database. The final version of FAIR 2.0 will also allow for 
electronic redaction of documents under the Freedom of Information and 
Privacy Acts. In addition, revisions to the FAIR computer database 
would allow faster work. FAIR provides OFA researchers with immediate 
access to the records, and the revised version will speed up the 
indexing of documents and allow for more data review capabilities, 
allowing OFA researchers to make efficient use of their time. The 
Department plans to purchase a heavy duty scanner, new computers and 
printers, establish an internet connection and software for faster 
scanning and work.
    Our goal is to improve the process so that all groups seeking 
acknowledgment can be processed and completed within a set timeframe. 
We are considering various proposals for improving the Federal 
acknowledgment process. Several options we may consider include:
      hire or contract additional staff;
      establish a timeline for responding to each step of the 
regulations to ensure that petitions move along;
      issue negative proposed findings or final determinations 
based on a single criterion to speed work and maximize researcher time 
use;
      allow for an expedited negative proposed finding if a 
petitioner has failed to adequately respond to a technical assistance 
review letter or refuses to submit additional required materials in 
response to this review; or
      move the ``first sustained contact'' requirement of 25 
C.F.R. Sec. 83.7(b) & (c) for some cases to start at the point when 
that area became a part of the United States or at the inception of the 
United States in 1776 to ease the burden on petitioners and reduce 
time-consuming research into colonial histories.
The Indian Tribal Federal Recognition Administrative Procedures Act
    The stated purposes of H.R. 2837 include ensuring that when the 
United States acknowledges a group as an Indian tribe, that it does so 
with a consistent legal, factual and historical basis, using clear and 
consistent standards. Another purpose is to provide clear and 
consistent standards for the review of documented petitions for 
acknowledgment. Finally it attempts to clarify evidentiary standards 
and expedite the administrative review process for petitions through 
establishing deadlines for decisions and providing adequate resources 
to process petitions.
    While we agree with these goals, we do not believe H.R. 2837 
achieves them. As such, and for the reasons discussed here, we opposed 
the legislation.
    First and foremost, we object to the provisions within H.R. 2837 
that create an independent commission tasked with making 
acknowledgement decisions, thus removing that authority from the 
Department of the Interior. Historically, the Department has had the 
authority, and the primary responsibility, for maintaining the trust 
relationship with Indian tribes, as well as the government's expertise 
and institutional knowledge on these issues. Moreover, the Department 
of Justice has indicated there are constitutional concerns with the 
appointment of members of the commission.
    We are also concerned that H.R. 2837 would lower the standards for 
acknowledgment by requiring a showing of continued tribal existence 
only from 1900 to the present, rather than from first sustained contact 
with Europeans as provided for in 25 CFR section 83.7(b) and (c). 
Finally, the legislation, as drafted, could result in more limited 
participation by parties such as states and localities than provided 
for in the Department's regulations.
    We want to acknowledge several provisions of H.R. 2837 that we view 
positively. For example, the bill would establish the criteria for 
acknowledgment through legislation, rather than through regulation. The 
Department supports this change as a means of affirming the 
Department's authority and giving clear Congressional direction as to 
what the criteria should be.
    In addition, Congressional ratification of acknowledgment standards 
would speed up the process because the Department would no longer have 
to spend time and resources defending litigation challenging its 
authority to acknowledge tribes or the specific criteria used to do so. 
While several recent court decisions have upheld the Secretary's 
authority in this area, Congressional support would preclude further 
challenges.
    The Administration is still reviewing other provisions of the bill 
and reserves the right to comment on these provisions at a later time.
Conclusion
    We recognize the interest of the Congress in the acknowledgment 
process, and are willing to work with the Congress on legislative 
approaches to the Federal acknowledgment process. We believe that any 
legislation created should have standards at least as high as those 
currently in effect so that the process is open, transparent, timely, 
and equitable.
    Thank you for the opportunity to provide my statement on the 
Federal acknowledgment process. I will be happy to answer any questions 
the Committee may have.
                                 ______
                                 
    The Chairman. Before proceeding, the Chair wants to welcome 
to our full committee today the gentleman from Louisiana, Mr. 
Charlie Melancon. Without objection, I would like for him to be 
allowed to sit at the dais and participate in the hearings. We 
welcome you, Charlie.
    Mr. Artman, you testified that the Department of Justice, 
and I quote, ``has indicated there are Constitutional concerns 
with the appointment of members of the commission'' in H.R. 
2837.
    Now, I realize these are probably not your words, but the 
Committee takes the Constitution very seriously, as the 
gentleman from Michigan, Mr. Kildee, is so prone to point out. 
And I find it odd that the Department of Justice would indicate 
such a thing without explaining in detail the problem.
    So my question is, can you enlighten the Committee on this 
potential problem?
    Mr. Artman. Chairman Rahall, in my discussions with the 
Department of Justice, they are still developing that 
statement. And I would be happy to get that to you when it is 
complete.
    As has happened before in this committee and with the 
Department of Justice, the Department of Justice does weigh in 
on these Constitutional matters. And we have seen it before in 
even legislation with the Hawaii Recognition Bill, as well.
    The Chairman. Like OMB likes to weigh in on budgetary 
matters.
    Mr. Artman. As would be expected.
    The Chairman. We appreciate that, thank you. We do 
appreciate your getting that information to us at a later time.
    Mr. Abercrombie. Mr. Chairman, will you yield?
    The Chairman. Yes, I will be glad to yield.
    Mr. Abercrombie. I am not quite sure why you brought up the 
Native Hawaiian Bill. What did you mean?
    Mr. Artman. Well, just that the Department of Justice has 
weighed in on the Constitutionality of that, as well. This 
isn't----
    Mr. Abercrombie. You said it was developing some.
    Mr. Artman. I am sorry?
    Mr. Abercrombie. You referenced that. That has been going 
on for years.
    Mr. Artman. Yes. I only referenced it as the practice, Mr. 
Abercrombie.
    Mr. Abercrombie. Well, isn't that, then, just a commentary, 
a somewhat enlightening commentary, on the necessity of this 
bill? Is the Department of Justice so bereft of capacity to 
come to, to make decisions, that it would take years to do 
this?
    Mr. Artman. No. They were looking at this particular bill, 
sir.
    Mr. Abercrombie. What is taking them so long?
    Mr. Artman. I don't know, sir.
    Mr. Abercrombie. Well, do you think it is a good idea to 
have something take so long?
    Mr. Artman. Well, if you are talking about the Department 
of Justice review, I don't want to put myself in the shoes of 
the Department for answering that question. They have their 
processes for doing----
    Mr. Abercrombie. Well, you referenced them, though.
    Mr. Artman. Yes, I did.
    Mr. Abercrombie. Do you think there should be a time 
certain? Doesn't this bill call for time-certain decision 
making?
    Mr. Artman. Well, in the acknowledgement process, yes, it 
does. But I think what we are talking about here, Mr. 
Abercrombie, is the Department of Justice's review of this 
particular legislation, and the Constitutionality of the 
commission appointment.
    Mr. Abercrombie. How long do you think that is going to 
take?
    Mr. Artman. I don't know.
    Mr. Abercrombie. Should we postpone making a decision on 
this bill until the Department of Justice decides that we can 
move forward legislatively?
    Mr. Artman. That is not something that I can speak to, sir. 
That is within your control, sir. Thank you.
    The Chairman. The Chair thanks the gentleman from Hawaii.
    Mr. Secretary, you testified that you plan to distribute 
revised guidelines so the petitioners involved will know what 
is expected of them. How were these revised guidelines put 
together? And did the Department consult with the petitioners, 
Indian tribes, or other interested parties?
    Mr. Artman. The proposed guidelines. Let me just run 
through what some of those proposed improvements might include. 
There is a plethora of them, and we hope to have a final 
document that we can review and share with people in a number 
of weeks.
    But some of the issues that we would address are developing 
a policy for addressing splintered groups. Right now, in many 
of the petitioners that are in the, well, the 17 that were 
mentioned earlier, there have been a number of splinters in the 
groups. And you have essentially created additional tribes in 
that same process, seeking the same recognition, using the same 
record. And we don't have a policy for dealing with that.
    We are looking at potentially coming up with new forms to 
both deal with the application process, so there is a 
consistency in the information, as well as submitting the 
genealogical information on a consistent form and in a 
consistent method.
    Also staging reviews, and looking at moving up petitioners 
on the ready list if they have been living on a state 
reservation for 100 years, or if they have voted for the Indian 
Reorganization Act in 1934. Limiting the technical assistance 
reviews so as to speed up the process and bring some finality 
to this stage.
    More concise decision documents. Expedited negatives, both 
under the criteria, and if there is no response to the 
technical assistance letters.
    In looking at whether or not, and how we roll these out, I 
brought these up, I have brought them up in forums such as this 
and in other speeches, and have invited people to participate.
    When looking at the consultation process, the question 
becomes with whom do you consult. Right now the Executive Order 
on Consultation looks at Federally acknowledged tribes, but we 
are dealing with petitioners. We could consult with Federally 
acknowledged tribes, but then who are the tribes that are 
impacted by that? These are things that we are going to be 
reviewing in the upcoming weeks, when we have a final document 
that we can work with.
    The Chairman. So as of yet, you have not consulted with the 
Indian tribes or the petitioners.
    Mr. Artman. We have not consulted with any of the Federally 
acknowledged tribes. No, we have not.
    Mr. Faleomavaega. Would the Chairman yield?
    The Chairman. Yes, I will yield.
    Mr. Faleomavaega. I have a quick question to Mr. Secretary.
    For 29 years, how many times have you made revisions of 
these regulations?
    Mr. Artman. We had the revisions in 1994.
    Mr. Faleomavaega. That was the only time that you made 
revisions?
    Mr. Artman. That is the most, the largest amount of 
revisions were in 1994.
    Mr. Faleomavaega. It seems from what I hear from you, Mr. 
Secretary, man, it is a whole revamping of the process, just 
the regulatory process itself that you just shared with the 
Committee this morning. And my question was that it sounds like 
you constantly are making revisions of the process. And this is 
what I am a little concerned about.
    Mr. Artman. No. And I understand your concern, sir, and 
that is maybe a moving target that the petitioners may not 
understand what they have to adhere to. But that isn't the 
case.
    And we are going to be dividing up any changes we make into 
regulatory and guidelines, and there are even some we develop 
that may require legislative action.
    What we are going to be coming out with in a number of 
weeks is going to be guidelines. That is going to be affecting 
the process under which the current regulations currently 
oversee----
    Mr. Faleomavaega. So it just so happens that the revision 
process coincided with the proposal of the bill? Or has this 
been in planning for the last six years?
    Mr. Artman. No, it has been in planning since about March 6 
of this year.
    Mr. Faleomavaega. Of this year.
    Mr. Artman. Yes.
    Mr. Faleomavaega. But not the previous six years.
    Mr. Artman. No.
    Mr. Faleomavaega. OK. Thank you, Mr. Chairman.
    The Chairman. Mr. Cole.
    Mr. Cole. Thank you very much, Mr. Chairman. And Mr. 
Secretary, good to see you, and thanks for all you do. You are 
a good friend, and a wonderful background.
    I have a series of very specific questions, and then 
frankly I wanted you to talk a little bit more about splinter 
groups, because I think this is a real challenging area.
    Number one, Mr. Shays suggested if we just got you the 
resources, you could do the job. So in your professional 
opinion, is this primarily just that we haven't appropriated 
enough money for you to handle complex and difficult issues in 
a quick and timely manner?
    Mr. Artman. I think we are dealing with two issues here. 
One is the resources. Right now we have four teams looking at 
17 active petitions. And if you have those four teams going 
through their normal process, that will take about four years 
each. So you are looking at quite a bit of time to get through 
those. Well, it is about five years to get through all 17.
    With additional money we could hire more teams. When the 
GAO did a report, an investigation, a report on this recently, 
they found that it takes on average 8.3 years for the 
petitioning tribes to get through. But that is a bilateral 
process; that is also with the tribes submitting the 
information, having a complete application, as well.
    It should be taking us, on average, about 4.7 years to get 
through this process. With additional staff, we can meet that 
average, certainly. But I think that we can also achieve 
expeditious review with greater efficiency. And that is what we 
are aiming at when looking at revising guidelines, potentially 
looking at new regulations, and also potential legislation.
    Mr. Cole. If I may ask you your professional opinion on the 
wisdom of timelines, or literally drop-dead dates. Because I 
think that is part of the huge frustration, is that people seem 
to go into a bureaucratic situation and just simply get lost, 
for whatever reason. And there just seems to be no point at 
which a decision has to come.
    So, you know, would it be wise, in your opinion, either at 
the departmental level or the Congressional level, for us to 
mandate that these cases be disposed in a certain period of 
time?
    Mr. Artman. I think at any level, timelines are going to be 
beneficial to the process. There are situations in our history 
where--it was just brought up earlier, a reference to 
applications spending 25 years in the process.
    And in those situations, you know, one in particular that I 
am thinking of, a letter was submitted in 1978, I believe. And 
then a response, a technical review response, was sent back to 
that petitioner. And there was no response for five years. And 
there are these blank spaces in the process that accounts for 
that 25 years, but there is nothing that we can do about it. We 
can't reach in and say give us the information.
    So timelines I think have to go both ways: timelines both 
on the petitioner, and also for the Department. And that is 
something certainly we are looking at, and something we would 
support.
    Mr. Cole. I am going to skip ahead and ask you another 
question, then. On the approval process, let us say, do you 
have again a professional opinion on, let us say you come up at 
the departmental level with a decision? Frankly, Congress has 
the ultimate authority. What is an appropriate, if any, appeal 
process?
    Mr. Artman. Well, right now the appeal process goes through 
the administrative process, the IBIA, and then into the Federal 
Courts.
    That seems to have worked. We do spend a lot of time 
questioning our ability to actually go through the 
acknowledgement process, but for the tribes that have gone into 
the process--I am sure that the ones that have not had a 
success at the end of the appeals process may disagree with 
this comment--but it seems to have worked.
    Mr. Cole. So the problem seems to have been in the initial 
decision making. But you think once a decision is made, it has 
moved pretty well.
    Mr. Artman. Yes.
    Mr. Cole. OK. Let me ask you this, because I do want to get 
to this splinter issue, because this whole question of tribes 
and European contact is a really interesting question. And I 
want to give you not a hypothetical, but reality.
    What do you do--let us take two recognized tribes that were 
one at the point of European contact: the Eastern Band of 
Cherokees and the Cherokees in Oklahoma. Or let us take the 
Mississippi Choctaws and the Choctaws in Oklahoma. Or let us 
take the Seminoles in Florida and the Seminoles in Oklahoma. 
Those were tribes that American activity, you know, split 
asunder--forced removal and what-have-you.
    So how could you possibly, if you have to go all the way 
back to European contact--and we recognize all these entities 
now as having maintained a collective identity. So this whole 
idea that tribes had to have existed in 1540 or 1680, when we 
took actions, they did not lose their corporate identity, but 
we split them asunder, that seems to me a contradiction.
    I mean, how are you going to handle things like that when 
you are talking about ``splinter groups?'' Because that is part 
of their historical reality. They became a tribe, or continued 
to function in a tribal way, even though they had lost their 
homeland in one case, or had stayed, you know, retreating into 
the mountains in the Carolinas, for instance.
    Mr. Artman. I think the groups that entered, that have 
splintered prior to the petitioning process, or are there 
because they splintered off from a different tribe such as with 
the Cherokee--and we have quite a few, probably about a dozen 
different groups that claim to be of Cherokee descent--those 
are a separate issue.
    Let me just address the European contact question, and 
focus on the splintering issue.
    The European contact question, I think you raise a very 
valid point. How do you establish what happened in the pre-
Colonial era; in the 1500s, 1600s? And that is why we are 
looking at moving up that date to first contact, or first 
contact after a region became a state, or in 1776. So there is 
a cut-off date, and we are saying we are not going to go prior 
to that.
    With splinter groups, what is causing issues, the biggest 
issues for us is not those groups that splintered prior to, or 
there was a historical splinter. Those we can deal with through 
the normal process and the normal rules.
    What becomes, if you have petitioners who are tribes that 
are seeking the Federal recognition, but they are acting as 
governments, you have those problems that oftentimes come with 
governments, especially the more local you get, of electoral 
disputes.
    Right now we have a number of tribes that are Federally 
recognized, and they are having electoral disputes. There is no 
reason to think that petitioners wouldn't have the same problem 
with their government, and that is what we are seeing.
    We are seeing groups, there was one group in particular 
recently that was split into two. And in that one, those two 
groups split into two, as well. And each one wanted to have and 
maintain its own place on the list, and not be subjected to 
additional review. They wanted to have each other's 
information. And the question becomes what do we do, then, with 
that.
    That isn't so much a question of recognition of historical 
stance or historical position, but now that is a political 
question of who is actually in control of the situation. And 
while we look at one of the criteria is political control, 
these things happen. And it is almost a positive action that 
has occurred, because you do have an active and mature 
government fighting for control, vying for control of that one 
entity.
    But in the petitioning process, it is viewed more as a 
splintering. And now we have two, three, sometimes four groups 
that are all vying for that same spot. In that we have 
oftentimes counseled with those folks, worked with those folks 
and tried to deal with them, but it becomes too difficult. Now 
it looks like we are beginning to insert ourselves into that 
political process.
    We don't insert ourselves into the political process of 
Federally recognized tribes. We shouldn't be inserting 
ourselves into the process of petitioners, either. It is almost 
paternalism gone bad.
    So we are trying to figure out a way to handle those. And 
right now, one of the potential ways of handling those that we 
are looking at is pulling them out of the entire process, and 
putting them off into a neutral area while they figure out what 
is going on. And when they are done, and they say that they are 
done, we can bring them back in where they were before.
    Mr. Cole. Thank you, Mr. Secretary. Thank you, Mr. 
Chairman.
    Mr. Artman. Thank you.
    The Chairman. The gentleman from Michigan, Mr. Kildee.
    Mr. Kildee. Thank you, Mr. Chairman. Just a point. I know 
there is a vast difference here, and my analogy is not that 
good, but it took us a matter of a week or two to recognize the 
Republic of the Ukraine, the Republic of Georgia, Azerbaijan, 
Armenia. We worked much more quickly once it was decided that 
the Federated States of Micronesia wanted to become an 
independent country. The Republic of Palau, the Republic of the 
Marshall Islands.
    But when it comes to our own people here, I recognize the 
differences, and I accept those differences, and they are vast. 
But maybe we can learn some things from the State Department. 
They seem to be able to, you know, recognize sovereignty much 
more quickly than we are in the Interior Department.
    I say that because I personally have been in contact with 
the Grand River Band for 42 years. No question they are 
sovereign. They are a nation. And yet, it took them 11 years 
for them to get in the ready for active consideration. The next 
step would be active consideration, and the next step would be 
recognition or denial.
    They have been 11 years, it took them 11 years to get in 
that ready for active consideration. They have been in there 
since the beginning of this year.
    How long do you expect, what would the ordinary time be for 
them to get into the next step, assuming that they are moving 
in the right direction, into active consideration? What is the 
average length of time they stay in that ready for active 
consideration?
    Mr. Artman. The average time to the final determination, 
should it be positive or negative, should be about 4.7 years. 
As I mentioned earlier, the average is turning out to be about 
8.3 years, as the GAO found.
    But again, this is, we are looking at two issues that are 
creating delays. One, it is a bilateral process. It starts off 
with the petitioner sending in a letter of intent, and we send 
a response.
    The 4.7 years is best achieved when both sides are 
submitting information back and forth on a regular basis. But 
we do have periods where there is no communication between the 
parties for years at a time. And that can turn into five years, 
10 years, and now, like I said, we have groups that have been 
out there for 25 years.
    Time alone on the list doesn't make it right or wrong as to 
whether or not they should achieve that recognition. We have 
seven criteria. And if the seven criteria aren't right, if that 
is not what we should be using, then we certainly look to 
Congress to tell us what those correct criteria are. Or perhaps 
we even look to the courts, as has been desired by certain 
parties in the past.
    But those are the criteria that we have, and those are the 
rules that everyone is living by. So that is one part of it.
    The other part of it, as was mentioned earlier, is we do 
have only four groups that are looking into these petitions. 
There is only $1.9 million. Out of a $2.3 billion budget, we 
have a lot of other responsibilities, and this has to 
necessarily receive this $1.9 million because those other 
responsibilities, as you well know on this committee, involve 
everything from roads, taking care of land, fire suppression. 
It is a vast world of trust responsibilities that we take care 
of with that other $2.5 billion.
    We have tried to find money when possible to--we have tried 
to move it up from four teams to five teams. It is a small 
change in the process, you know. And I know there is criticism 
of the delays and how long it takes, but this is a two-sided 
process.
    Mr. Kildee. Let me ask you this. Could you have thought of 
submitting a bill, your idea is of a bill to Congress that 
would expedite, modernize, and bring us into this century on 
this process.
    Mr. Artman. We have. And in looking, when I first came on 
board--and the reason I said March 6 was when we first started 
looking at this is because I came on board on March 5. And it 
was around near that time that I sat down with Lee, and a 
little bit later much of his staff, and asked that very 
question: what can we do to help change this process. You are 
on the front lines every day. You are the academics with the 
expertise. Where do you see potential need.
    We looked at past hearings and critiques that we have 
received, and we came up with a great list of things that we 
can do. And then we divided them into guidelines, regulation, 
and legislation. So yes, sir, we are developing that potential 
legislation.
    Mr. Kildee. I appreciate that. You know, within the 
Department of Interior, the Department of Interior's budget is 
several billion dollars. You have $1.9 million for this. Isn't 
there some way within the Department, when you deal with OMB, 
say listen, can't we rearrange some priorities? There seems to 
me that within the billions of dollars Interior gets, that you 
only get $1.9 million; how zealous are you in telling OMB we 
need more, and shift some things around?
    Cap Weinberg used to, you know, he used to slap the OMB 
around and shift things around within the Department of 
Defense. You need advocates within the Department to set proper 
priorities. It seems to me when you look at your budget and you 
find the billions you get in the Department of Interior, and 
only $1.9 million for this, that you have to become greater 
advocates when you approach the budget process each year.
    Are there great advocates to--I mean, 1.9. I have made 
phone calls to get more money than that for an airport in my 
district.
    Mr. Artman. We are advocates for Indian tribes, sir. And 
when you look at the $2.3 billion--and the budget has decreased 
over the years. And this is something that we recognized within 
the Department. We are actually going out to Indian country; we 
have over the last month gone out to Indian country, and said 
here are the number of issues that we are facing. Here are the 
things that are problems that are creating stresses on the 
Bureau of Indian Affairs and the Bureau of Indian Education, 
and my office, the Indian Affairs Office. How can we change 
ourselves as a group, in talking to Indian tribes.
    Consult, not even consultations, but just dialogue, 
starting a dialogue. How can we change ourselves to better meet 
what is coming up ahead.
    One of the things that keeps coming back, one of the things 
we know of and one of the things we talk about every quarter 
with the Tribal Budget Advisory Committee, is how can we get 
more money into this process.
    But when you speak with the Tribal Budget Advisory 
Committee, probably our main input from Indian country, on 
these budget issues, the priorities that come up are supplying 
more money for Indian reservation roads, dealing with the 
fraction nation issue.
    The fraction nation issue alone is a multi-billion-dollar 
issue. That is probably $3 or $4 billion.
    Then you have another $3 to $4 billion for water rights 
settlements. Then we have the water restoration issues that we 
have in the Upper Midwest and throughout the South and 
Southeast.
    Additionally, as everyone here knows, there has been a 
number put on the Cobell settlement of $7 billion, but the $120 
billion is still floating around out there. So there are a lot 
of priorities that are coming away.
    And what we have to look at from the Bureau of Indian 
Affairs perspective, first and foremost, is that trust 
responsibility. Are we hitting our trust priorities and our 
trust responsibilities.
    For better or worse, this doesn't rise to that level yet. 
This is something that we need to do. This is something that we 
have the expertise in. But getting that direction from OMB, or 
be it from Congress, that is something that we would 
appreciate, as well. This is something that we consider to be 
very important.
    The more money we have to deal with this issue, the quicker 
that we can dispose of all the ones that are out there: the 17 
or the 243 that have incomplete petitions. We can deal with all 
of those. So this is an important issue. And we have a lot of 
staff, and we spend a lot of time dedicated to this issue.
    And in fact, one of the things I did when I came on board 
was change the organizational chart so that Lee reported 
directly to me. This is how important I view the issue. But we 
have to make do with what we have right now.
    Mr. Kildee. I appreciate that, but you know, this issue 
right here, this is something that is embodied in our 
Constitution. This is not a peripheral issue. This is something 
that each one of us up here on the dais take an oath to uphold. 
This is written out in the Constitution in specific terms. And 
it seems to me that that should give it a higher priority 
within the entire Department of Interior when you go to OMB. 
Send them a copy of the Constitution, and tell them you have 
some obligation to try to recognize when there is real 
sovereignty.
    Thank you very much.
    Mr. Artman. Thank you, Mr. Congressman.
    The Chairman. The gentleman from Tennessee, Mr. Duncan.
    Mr. Duncan. Thank you very much, Mr. Chairman. Mr. Artman, 
we have a briefing paper on this hearing that says under H.R. 
2837, the entire pending caseload of more than 200 documented 
petitions and letters of intent to petition are transferred 
from the Department to a new commission. Also petitions 
previously denied by the Secretary would be entitled to an 
adjudicatory hearing.
    I would like to know how many, if you know, how many are in 
each of those three categories. How many documented petitions 
do you have pending?
    Mr. Artman. We have seven that are on the active list. That 
means they are currently being, they are currently on the desk 
of one of our teams and being prepared for final determination, 
five of which should actually happen over the next, I think, 
six or seven months. We have another--I am sorry?
    Mr. Duncan. And how many are on the non-active list?
    Mr. Artman. Well, we have another 10 that are on the ready 
and waiting for active consideration list. Those will naturally 
fill in as we deal with the seven that are on the active list.
    And then we have 243 not ready, for any number of reasons. 
Either they have only a letter of intent in, or the petition 
application isn't complete.
    Mr. Duncan. So that adds up to, that was 243, and you 
said----
    Mr. Artman. Seventeen. So 260-plus.
    Mr. Duncan. All right. And then how many petitions 
previously denied would be entitled to a new hearing?
    Mr. Artman. Well, let me see. We have had 61 negative 
decisions over the past 28 years, so it would be, I guess, a 
potential----
    Mr. Duncan. So you are talking about 320, basically.
    Mr. Artman. Yes.
    Mr. Duncan. Do you have a rough guess as to how many 
Indians would be involved in those 320 petitions?
    Mr. Artman. No, sir, I don't. The populations for all of 
the petitioning groups varies from three or four all the way up 
to 50,000.
    Mr. Duncan. So the total in the 320 petitions then would be 
many, many thousands.
    Mr. Artman. I would imagine so, sir.
    Mr. Duncan. And how much are we spending at this point on 
the, for the budget for the Bureau of Indian Affairs, and 
Indian Health Service, and all the Indian, all related Indian 
programs?
    Mr. Artman. Well, for Indian Affairs, our budget is $2.3 
billion. I am not sure what IHS's budget is. The Department of 
Education, the Department of Transportation, and Housing and 
Urban Development also receive money, as well.
    Mr. Duncan. So you don't have really any idea of what we 
are talking about.
    Mr. Artman. No, not in those tangential points. Not outside 
of the Department of Interior.
    Mr. Duncan. But at any rate, you would be adding huge 
amounts of expenditures if all of those 320 petitions were 
approved.
    Mr. Artman. I think yes, if all 320 were approved. And that 
is a draconian situation. Of the 61 that were negative, I am 
willing to stand behind those and say that there was good 
reasons for a negative determination. I am sure that--and a 
commission like this would still probably find the same thing.
    The 243 in the list I believe also, you know, many of those 
folks sent in a letter of intent, and that is the last we have 
ever heard from them. We know for a fact that one of the 
individuals who sent in for a letter of intent was recently 
arrested in Florida for trying to pass himself off as an Indian 
tribe.
    So many of these disappear. Many of these disappear. And 
one of the things that we are going to be doing in the next few 
months is calling that list of 243 and seeing how many real 
ones are actually out there. And I think you are going to see a 
substantial amount of those folks fall off, as well.
    Mr. Duncan. A lot of people have doubts that you would have 
this many petitions were it not for the money involved in all 
of this. But at any rate, I yield back the balance of my time.
    The Chairman. The gentleman from, let us see, where? Oh, 
OK, from American Samoa, then. I thought I had already 
recognized him. Mr. Faleomavaega.
    Mr. Faleomavaega. Thank you, Mr. Chairman, thank you. Mr. 
Secretary, you had mentioned, commented about the Department of 
Justice raising the Constitutionality of the proposed bill. Is 
this basically what you were making reference to?
    Mr. Artman. Of the commission appointment itself, I believe 
it was.
    Mr. Faleomavaega. You are suggesting here that the Congress 
does not have the authority to set up a commission?
    Mr. Artman. I am not suggesting it. I only pointed out that 
the Department of Justice has raised concerns. I am not sure 
what those concerns are; I have not received a full and final 
briefing from them yet, so I really can't speak to those.
    Mr. Faleomavaega. I am sorry that the bell has rung here. 
You know, I don't think there is any blame being put on the 
bureaucracy or the Department of Interior. The fact of the 
matter is that the Congress has simply never acted in setting 
up a system statutorily as far as the recognition process. So 
this is the reason why the Department of the Interior set up 
these regulations, and you came up with this seven-point 
criteria in order for a tribe to become recognized.
    So that is simply the reason. And I am sorry to say it has 
taken this long for Congress now to propose a bill to mandate 
statutorily how we are going to go through the process of 
recognition.
    You mentioned that you have a $2.3 billion budget, and out 
of that $1.9 million is allocated to do the recognition 
process. Does it tell me that there is not much of a priority, 
then, in the process, does it?
    Mr. Artman. Well, there are the other priorities that we 
have. While we would certainly like to have more in the budget, 
we have what we have. And that is something that we have worked 
out within the Administration, and the Congress, and that whole 
process.
    But we do have the other trust responsibilities that we 
administer.
    Mr. Faleomavaega. No, Mr. Secretary, I understand that 
fully well. But I am just simply saying out of a $2.3 billion, 
budget $1.9 million is allocated to the functionings of the 
recognition process. What it tells me, and I am not a 
mathematician, is that there is not much of a priority really 
given by the Department to do the process.
    Mr. Artman. That could be one way of looking at it. I am 
sure that the other 562 tribes might say yes, but we need the 
money, too.
    Mr. Faleomavaega. I see. So for some 109 tribes in 
California and probably some others that have been seeking 
recognition for how many years now, that is not considered a 
priority as far as the Administration is concerned.
    Mr. Artman. The 109 that was referenced earlier, 108, there 
are 108 recognized tribes in California. And to those 108, they 
receive part of that $2.3 billion budget. I think in California 
that there are currently 74 tribes seeking recognition in that 
area.
    Mr. Faleomavaega. Would you agree that the only reason why 
Congress hasn't taken steps with this is simply because there 
has been no legislation introduced to address the issue of 
recognition?
    Mr. Artman. I think that--well, certainly, in many respects 
we filled that void coming up with the regulations nearly 30 
years ago.
    Mr. Faleomavaega. How soon do you think the Department of 
Justice will come out with this legal opinion about the 
Constitutionality of this bill?
    Mr. Artman. I am not sure, sir. I will be happy to check 
with the people over there, and give you an answer.
    Mr. Faleomavaega. Can you submit that for the record? 
Because I am very curious if this is going to be the big 
obstacle that is going to prevent this legislation from going 
forward, is it is because it is unconstitutional. Is that 
basically the gist of what I hear?
    Mr. Artman. I believe it is only a portion of the bill that 
is unconstitutional. They view it as unconstitutional. I am not 
saying that. I don't know. I haven't seen the full and final 
report, so I can't make a determination on that. Plus they 
would tell me they are the lawyers, and I am not.
    Mr. Faleomavaega. Oh, I thought you were an attorney.
    Mr. Artman. I am an attorney, but it only goes when you 
step out of that role.
    Mr. Faleomavaega. I see. You are now an attorney, but not a 
lawyer.
    Mr. Artman. Something to that effect.
    Mr. Faleomavaega. OK. Thank you, Mr. Secretary.
    Mr. Artman. And that may be a good thing, I don't know.
    Mr. Faleomavaega. Thank you, Mr. Secretary. I yield.
    Mr. Abercrombie. Is that OK if he yields?
    The Chairman. Yes.
    Mr. Abercrombie. Mr. Artman, I am sorry, but I want to 
pursue this a bit more. Because I am looking at a sentence. 
``Moreover, the Department of Justice has indicated there are 
Constitutional concerns of the appointment of members of the 
commission.''
    Now, I am reading through the bill, and I would like Mr. 
Kildee--I carry with me a copy of the Constitution. And I carry 
it with me when I am walking around here in the Capitol, and I 
carry it when I go home, not particularly because it gives me 
any particular insight, but it gives me a sense of comfort and 
it reminds me of what I am supposed to do.
    One of the reasons I do it is that I have discovered over 
time, and it has to do with Native Hawaiians and others, that 
this is constantly raised. And it is almost a throw-away line. 
And it is meant to stop us from legislating.
    Precisely what concerns have been indicated, and how were 
they indicated to you by the Department of Justice? Do you have 
a letter? Was it a phone call? Do you have something that you 
can give us in evidence here to the hearing about what these 
concerns were and are, and how they were indicated to you?
    Mr. Artman. Congressman, no, I can't. And as I----
    Mr. Abercrombie. Then why is the testimony there?
    Mr. Artman.--told Mr. Faleomavaega, that we will get you a 
letter from the Department of Justice.
    Mr. Abercrombie. I beg your pardon?
    Mr. Artman. I said we will be happy to get, arrange for a 
letter to be sent from the Department of Justice to you on this 
issue.
    Mr. Abercrombie. No, no, no, no, no.
    Mr. Artman. I have nothing here today, and I am not going 
to speak to the issue.
    Mr. Abercrombie. Then why is this sentence in your 
testimony?
    Mr. Artman. And I believe it puts it in very soft terms, 
that there may be an issue with the commission process.
    Mr. Abercrombie. How do you know that?
    Mr. Artman. The Department of Justice has done its initial 
review.
    Mr. Abercrombie. Where?
    Mr. Artman. I don't have it with me.
    Mr. Abercrombie. So there is something on paper.
    Mr. Artman. I am sure there is.
    Mr. Abercrombie. No, no, no, no. Not whether you are sure 
there is. This is testimony. The Department of Justice has 
indicated there are Constitutional concerns. How do you know 
that?
    Mr. Artman. In conversations with the Department of Justice 
that have made----
    Mr. Abercrombie. So it is a conversation--a telephone 
conversation?
    Mr. Artman. I am sure there was. The staff put that in 
there, and I would be happy----
    Mr. Abercrombie. No, no, no, no, no, no, no.
    Mr. Artman.--and I will support it. But----
    Mr. Abercrombie. No, no, no. You know, don't fool with me 
on this.
    Mr. Artman. Did I have a conversation with the Department 
of Justice on this? Is that the question?
    Mr. Abercrombie. Yes. Did you?
    Mr. Artman. No, I haven't. I understand----
    Mr. Abercrombie. Who has, in your department?
    Mr. Artman. The staff that helped develop this----
    Mr. Abercrombie. So the staff has had conversations.
    Mr. Artman. Yes.
    Mr. Abercrombie. Who in your staff?
    Mr. Artman. Members from Congressional Affairs, members 
from the Indian Affairs staff.
    Mr. Abercrombie. Who on your staff has had conversations 
with the Department of Justice concerning Constitutional 
concerns over this bill?
    Mr. Artman. Mr. Abercrombie, I will be happy to get those 
names for you.
    Mr. Abercrombie. So you don't know.
    Mr. Artman. I will be happy to get a letter for you.
    Mr. Abercrombie. Who wrote this testimony?
    Mr. Artman. Various people.
    Mr. Abercrombie. Who put this sentence in the testimony?
    Mr. Artman. I will be happy to find that out for you, sir.
    Mr. Abercrombie. So you are reading testimony you haven't 
written or vetted.
    Mr. Artman. I had approved it.
    Mr. Abercrombie. You didn't ask the question.
    Mr. Artman. I did approve it.
    Mr. Abercrombie. Did you ask the question of anybody who 
gave you the testimony as who had the concern?
    Mr. Artman. Not of that particular line.
    Mr. Abercrombie. Why did you say it, then?
    Mr. Artman. Because if you are looking at it from the legal 
perspective--and again, I am going to be entering into areas 
which, you know, the lawyers are going to be better prepared to 
talk about in the Department of Justice. But I imagine----
    Mr. Abercrombie. It is a serious, it is a serious 
accusation. It is not an observation that legislation would be 
forthcoming, that we would be so cavalier, or the gentleman 
from Samoa would be so cavalier as to put forward legislation 
that hadn't been vetted at least minimally about whether it 
meets Constitutional standards? This is constantly brought up 
in order to try and thwart legislation coming forward.
    We have Constitutional concerns. What Constitutional 
concerns? At least, perhaps you can answer this. Can you give 
me minimally what you mean when you say there is a 
Constitutional concern about the appointment of the 
commissioners? Because I have the bill right in front of me. I 
have read it word by word, and I have reread it right now.
    Mr. Artman. It would be probably a separation of powers 
issue.
    Mr. Abercrombie. In what context?
    Mr. Artman. Into who----
    Mr. Abercrombie. The bill says that the President should 
make the appointment.
    Mr. Artman. And then I believe it also says that the Senate 
should confirm.
    Mr. Abercrombie. Yes. That is what the Constitution says. I 
have it right in front of me.
    Mr. Artman. Yes, it does. But there oftentimes commissions 
where Senate confirmation isn't always necessary.
    Mr. Abercrombie. That is right. And it specifically says in 
here shall not be an advisory. ``The commission shall be an 
independent establishment as defined in Section 104, Title V, 
United States Code.''
    Mr. Artman. OK.
    Mr. Abercrombie. Is Section 104, Title V, United States 
Code now an issue of Constitutionality?
    Mr. Artman. I don't think so, sir. But again, you know, we 
are going to need to get something from the Department of 
Justice to have a fully vetted debate on this.
    Mr. Abercrombie. You know, you may think that you are being 
pushed around here. It is not you individually; believe me, it 
is not. I am not trying to do that.
    It is that we run into this over and over and over again. 
It is a tactic. I don't know if it amounts to a strategy with 
the Administration right now, but it is certainly some kind of 
tactic, whether these toss-away lines and everything, with 
respect to whether something is Constitutional. It is almost 
quotidian in the way it is quoted and appears in testimony. 
Well, there may be Constitutional--what the hell are you 
talking about?
    It is not fair. It is not right. I will tell you something, 
it is not fair to you. It is not fair to your department for 
the Department of Justice to casually waltz in with a 
conversation, nothing in writing, or however the heck it came 
before you and however it appeared in the testimony here. 
Believe me, it is not just your department. This is done over 
and over and over again.
    And I think it is disservice to you. It is a disservice to 
your section of the Department. It is a disservice to your 
testimony here to have this in here.
    So I would like--and I hope you understand, I am not 
personally trying to hold you to--well, in some respects I am, 
because you were giving the testimony, and you have to stand by 
it. But surely you can see that by virtue of the answers you 
have had to give, that this is at best vague to the point of 
being in the ether somewhere.
    And in terms of specificity, for us to be able to move 
forward, we need to know what are they talking about, and why 
is it in this testimony. And why are you being subjected to it, 
or your portion of the Department of Interior being subjected 
to this kind of imposition by the Department of Justice as to 
whether or not you could move forward with opposition or 
support for this legislation. OK?
    Mr. Artman. Thank you, Mr. Abercrombie.
    Mr. Abercrombie. Thank you.
    The Chairman. The gentleman's time has expired, or 
whoever's time it was.
    [Laughter.]
    The Chairman. The Committee will stand in recess, pending 
three roll-call votes on the House Floor.
    Mr. Secretary, we appreciate your continued patience, as I 
believe there are a couple other Members yet to ask questions. 
And they will have that opportunity when we return.
    The Committee is in recess.
    [Recess.]
    Mr. Faleomavaega [presiding]. Is there anything anyone 
wishes to ask Secretary Artman? The gentleman from Oklahoma.
    Mr. Boren. Thank you, Mr. Chairman. I appreciate you all 
coming back. I had just a few questions. I want to make sure I 
have these in front of me here.
    Well, one of the first questions I had, without looking at 
my questions, was you mentioned that there are four teams 
looking at 17 different petitioners. And can you talk a little 
bit about what comprises these teams? How many people are in 
these teams, and what do they actually do? If you could touch 
on that first, then I have several more questions.
    Mr. Artman. Thank you for your question, Congressman. 
Actually, I am going to defer to the Director of the Office of 
Federal Acknowledgement to answer that because he can do it in 
much better detail.
    Mr. Fleming. Each team is made up of an anthropologist, a 
genealogist, and a historian. And the teams then look at the 
evidence of a group.
    Under the regulations, the team has 12 months to review all 
of the evidence. And we are talking between 10,000 to 30,000 
pages of evidence. And it is not the quantity, but it is the 
quality of the evidence as it is applied under the seven 
mandatory criteria.
    At the end of the 12-month period, the team provides a 
proposed finding, either to acknowledge the group as an Indian 
tribe or to deny acknowledgement as an Indian tribe. And the 
proposed finding outlines how the evidence has fallen under the 
seven mandatory criteria.
    When notice of that proposed finding is published in the 
Federal Register, that starts a 180-day comment period for the 
petitioner and interested parties, and the public, to see what 
is being proposed. And comments are then, are provided by the 
petitioner or interested parties, or Jane Joe Q. Public. And at 
the end of that 180-day comment period, then the petitioner has 
60 days to respond to any of those comments.
    At the end of that 60-day period, or two months, then the 
Department again comes back with the team to review all of the 
comments and the responses and the evidence, to come out with a 
final determination. And again, the final determination is to 
acknowledge or not to acknowledge the group as an Indian tribe.
    At the end of that period, notice is published in the 
Federal Register, which then allows a three-month period to 
allow the petitioner or interested parties to request 
reconsideration before the Interior Board of Indian Appeals.
    You add all of those regulatory time frames, and it comes 
to 25 months as a regulatory review. It also provides due 
process to the petitioner and interested parties, and all of 
that is taken under consideration.
    Mr. Boren. So again these four teams, with a little over 
two years, with all these time limitations, are these teams 
looking at, as was mentioned 17 different petitioners, are they 
doing it simultaneously? Are they handling three or four 
different petitioners? Or are they just handling that one, and 
then going to the next one after the 25 months are done?
    Mr. Fleming. Because of the different phases, the 12-month 
period, they are focused on just one petitioner to come out 
with that proposed finding. When it goes into the six-month 
public comment period, then they are able to switch to work on 
another case, generally perhaps a final determination, which 
takes lesser time to produce. So there is a give-and-take with 
how the teams work.
    Mr. Boren. Well, since it looks like I am getting the 
yellow light, let me go quickly to the money issue.
    Secretary Artman, you brought up the fact that well, we 
need more money. How much more money do we need if we need to 
hire these, you know, more teams to handle this caseload? A, 
how much money?
    And then, too, you also mentioned that timelines are 
beneficial. One of the answers to Congressman Cole's question 
was timelines are beneficial. Are the time limits, what should 
they be if you were writing the rule book?
    And so those two questions, money and time. What would be 
your answer?
    Mr. Artman. With regards to the money question, I think one 
of the first questions we have to ask ourselves is how quickly 
do we want to get through this. Years ago, when the GAO did 
their report, they had a similar statement, that you are going 
to need more money to hire more teams to complete this.
    And in looking at that issue, internally we did a study and 
determined if we want to get this done--I think it was inside 
five years in that respect--we are going to have to hire 15 
teams. That is a huge ramp-up from where we currently are. And 
to do that, you are now looking at, you know, certainly 
something north of $15, $20 million.
    Is that the right number? Is five years the right number? 
What is the urgency that we need to put on this? There is 
certainly this is something that is important that needs to be 
done, so we need to make that determination first. That number 
can fluctuate, depending on how many teams we end up at.
    With regards to the deadlines themselves, we have, one of 
the things that we are looking at internally, as I mentioned 
before, we are looking at doing guidelines, regulations, and 
perhaps making legislative proposals. As we are looking at 
those, we are looking at those deadlines.
    One of the--as you look at the number of 260 applications, 
there are 243 that don't have complete petitions, that are only 
letters of intent. As you look, you--this body here--looks out 
at that and says my goodness, you have a backlog of 260 
applications, I don't know that that is necessarily true. We 
have 17 that are certainly under active consideration. We have 
another 243 that aren't complete. How long do those linger on 
that list? How long--I mean, those have been there for decades.
    Mr. Boren. That is where you mentioned the petitioners 
having a timeline, as well, is that----
    Mr. Artman. Right, exactly. And I think certainly on 
ourselves, no issue. There has to be deadlines for the various 
stages that we have. And I would be happy to get you a more 
detailed study that we have, that we have gone through as to 
what those deadlines are.
    But certainly with regards to the petitioners, as well, we 
want to see deadlines on those individuals, to promote getting 
the material in so that we can have that consideration, and so 
we can better determine how many teams that we do need to have.
    There are a lot of questions out there that have to enter 
into the equation to get that final answer that you first 
asked: how about the money. And this is one of those questions. 
How many do we really have out there, and how quickly do we 
want to go through these.
    Mr. Boren. OK, I appreciate that. I have run out of time. 
Mr. Chairman, thank you.
    Mr. Faleomavaega. I thank the gentleman from Oklahoma. Ms. 
Sandlin?
    Ms. Herseth Sandlin. Thank you, Mr. Chairman. And thank you 
for your testimony. I apologize for not being here earlier; we 
were in a Veterans Affairs Committee hearing on the future 
funding of the VA. And I think that with the oversight which 
our various committees are tasked to do, I am pleased that this 
committee has been more aggressive in the oversight in the 
100th Congress of various agencies. And I think the same 
question, but it perhaps goes beyond the particular bill we are 
discussing today.
    And I know you had spoken before I got here about some 
internal reforms you are looking at, when you came on board 
earlier this year, to expedite the process, to make it work 
more effectively for petitioning tribes.
    But I think the question beyond that that is an important 
one is the funding for the future of the BIA. And if you could 
talk a little bit--and maybe you have in response to some other 
questions--you know, as we are dealing with potential internal 
reforms, differing ideas about the particular bill that has 
been introduced to address the process, concerns of the 
petitioning tribes.
    If all of the majority of the Indian groups who are 
presently petitioning for Federal recognition are Federally 
acknowledge, how, if at all, will other Federally recognized 
tribes be affected? In other words, what are the impacts that 
the BIA will experience? And are you addressing those 
simultaneously, as you are looking at the internal reforms that 
you discussed previously, to ensure that obligations of the 
Federal government in the sovereign-to-sovereign relationship 
that we have with currently recognized tribes, that we will 
have in establishing the recognition process for petitioning 
tribes? Can you elaborate a bit on what the impacts will be, 
and how you are seeking to address those, as well?
    Mr. Artman. Sure. And this is a very good question. This 
came up in the previous hearing a number of months ago when we 
were looking at the bills that concerned the Virginia and the 
Lumbee tribes. Because those were questions that we wanted 
considered here in this forum, is the impact that would have on 
the budget.
    Earlier there was a determination that if every tribe on 
the list, all 260 plus the 61 that had not been recognized, had 
been recognized, that you could potentially have 320. I think 
that is probably a very high number compared to what the 
reality would actually be.
    But just working with that large number, you are going to 
be looking at tens, hundreds of thousands of people that would 
be coming--individuals, under those tribal rubrics--that would 
be coming onto, that would require some additional funding from 
the Federal budget.
    At this time, we are already drinking out of a fire hydrant 
in terms of need, and not being able to fulfill all of it. And 
that is with the 562 recognized tribes.
    The 562 recognized tribes, with about approximately 2 
million people, you have a budget that already amounts to $2.3 
billion just for the Department of the Interior and Indian 
Affairs. And my peers over at--I am the Assistant Secretary for 
Indian Affairs. Beneath that in the organizational chart is the 
BIA. And if I didn't recognize that the Bureau of Indian 
Education is no longer under the BIA--so we have two bureaus 
now: Bureau of Indian Affairs and the Bureau of Indian 
Education--the Education folks would be irritated. So I 
certainly put their marketing out there. And so we have to look 
at both the BIA and the BIE.
    That is $2.3 billion just for the Department of the 
Interior on Indian Affairs. We also have HHS through IHS, HUD 
and the Housing Program, Department of Transportation and the 
Indian Reservation Roads Program, Department of Defense, and 
some of the other agencies out there also have funds that are 
dedicated to Indians. I think that that would also increase, 
probably in a linear fashion, with the number of tribes and 
individuals that are recognized.
    That would be the hope. That would be the hope. But even 
with increasing populations and increasing tribes, other 
priorities and other pressures on the budget haven't allowed 
that budget to increase or even stay competitive with the cost 
of living or inflation. And so we find ourselves each year 
looking at a more and more limited budget.
    And now we are at the point we are asking the question that 
should be asked. Even if we had more money, this question 
should still be asked. But now it is certainly an even more 
imperative question. How do we operate more efficiently to 
continue to deliver the mission, goals, and services?
    I think if all 320 were recognized, or even a third of 
that, we would have to ask that in an even more serious manner. 
And certainly we would require much more funding that we 
currently have.
    Ms. Herseth Sandlin. Well, I appreciate your response. And 
Mr. Chairman, again, I appreciate the opportunity to 
participate in the hearing today.
    You know, as a representative of nine land-based tribal 
nations recognized through treaties with the U.S. Government, I 
am acutely aware of the importance of tribal sovereignty. And 
when I meet with tribal members and leaders in South Dakota, I 
understand the desire to have the proud history of tribes 
recognized and respected by the Federal government, and I 
appreciate the difficulties that have been encountered by 
American Indian groups seeking Federal recognition; the 
frustration with the process that exists today. And I also 
understand the solemnity of the government-to-government 
relationship and the United States' trust responsibility 
established by the treaties and various Congressional actions.
    But at the end of the day, I believe that the 
administrative processes to Federally recognize tribes much be 
sufficiently robust to ensure the integrity of this 
relationship, and that we are committed to simultaneously 
addressing our oversight responsibility as it relates to the 
BIA's budget, as well as the budgets of other agencies 
responsible for ensuring that the commitment to each tribe is 
fully recognized and respected, and that those obligations are 
fully funded, as well.
    So thank you, and I appreciate the opportunity again.
    Mr. Faleomavaega. I thank the lady from South Dakota for 
her remarks. Maybe I am being too simplistic sometimes, but we 
are spending $10 billion a month on the War in Iraq and 
Afghanistan, and here we are barely trying to provide $2.3 
billion for a whole year to provide for the services of our 
Native American community. It just puzzles me a little bit.
    The gentleman from Michigan.
    Mr. Kildee. Just one comment. Mr. Secretary, I appreciate 
your testimony. We ask tough questions up here, but I think we 
all are seekers after justice.
    You mentioned the other programs that are Indian dollars. 
Some of them are. But you know, I have two citizenships. I am a 
citizen of the United States, and I am a citizen of the State 
of Michigan. And they bring to me certain rights and certain 
obligations.
    Native Americans, I think that includes yourself, have 
three real citizenships. They are citizens of the state in 
which they live, they are citizens of the United States, and 
they are citizens of their sovereign tribe.
    So some of the dollars you mentioned, whether they flow to 
them not so much as they are Indians, but they are Americans, 
right? Defense dollars. So you can't add all those dollars up 
and say these are, this is what we give to the Indians. Because 
many of them, they receive as citizens of the sovereign United 
States.
    And so I think we have to distinguish certain programs. 
Even the Native American Housing Assistance and Self 
Determination Act (NAHASDA), of which I am chief sponsor, is 
directed toward Indians; they probably would be getting some of 
those dollars through the regular HUD program. So I think we 
have to be careful of what things we add and say these are 
Indian dollars. Some flow to them as citizens of the United 
States.
    But I do appreciate your testimony. OK, thank you.
    Mr. Faleomavaega. I just wanted to, Mr. Secretary, you said 
that there are 562 tribes, equivalent to 2 million people? I 
was under the impression the total population of our Indian 
country is about 4 or 5 million. What happened to the other 2 
million?
    Mr. Artman. I have seen about six or seven different 
numbers.
    Mr. Faleomavaega. Take your choice.
    Mr. Artman. Exactly. And that is mid-ground.
    Mr. Faleomavaega. So does this mean that we are actually 
providing for only 2 million Indians with the $2.3 billion?
    Mr. Artman. No. The way the Federal budget and the 
relationship with the tribes works, I mean, we don't look at it 
as one-to-one, here is how many dollars are going to this 
individual Indian.
    Because of our government-to-government relationship, we 
don't even get beyond that government question. We know how 
much money goes to a particular region or a particular tribe 
for a particular project. But the population of that tribe, we 
don't get into how many dollars per individual. We don't even 
ask that question, and I don't think that we should, either, 
because of the government-to-government relationship. That is 
the floor.
    Mr. Faleomavaega. No, I understand the government-to-
government relationship. But I am still a little puzzled here. 
What is the real population of Indian country out there? You 
are saying it is only 2 million people, and I am saying there 
is 4 to 5 million Native Americans living in the United States.
    And of course, we recognize the fact that some 100-some 
tribes are not recognized. So I am looking at it only for those 
who are recognized, and you are saying it is only 2 million of 
them.
    Mr. Artman. There is the census, and then each tribe also 
determines its own, how it views citizens, what it views its 
membership. There is no standard across the board.
    And then there is also the, like you said, the tribes that 
aren't Federally recognized. Those individuals view themselves 
as Indians, rightfully so, and put that down on the census. So 
it is a moving number as to how many there are out there and 
how many we actually impact through our Federal funding.
    Ms. Herseth Sandlin. Will the Chairman yield?
    Mr. Faleomavaega. I gladly yield to the gentlelady.
    Ms. Herseth Sandlin. This is a very important line of 
questioning the Chairman has pursued here. Because again, 
relating back to some of my earlier questions, and then how we, 
through the Federal recognition process as well.
    Would you agree or disagree with the statement that the 
census has traditionally under-counted the number of Native 
Americans living on the various reservations across the 
country?
    Mr. Artman. I don't know. I am not familiar with the 
processes that the United States Census Bureau uses, nor am I 
an expert on determining whether or not those are, that is the 
way to count it.
    Ms. Herseth Sandlin. But are you aware that certain tribes 
have undertaken--I think you referenced it.
    Mr. Artman. Yes.
    Ms. Herseth Sandlin. Certain tribes have undertaken their 
own census, of sorts, their own counting because of their 
concerns that the U.S. Census has traditionally under-counted. 
And have you considered that as it relates to the internal 
reforms you are looking at for the recognition process?
    I mean, which does your agency defer to when you are 
looking at the budgets, the programs that you administer. Are 
you deferring to the U.S. Census? Or are you showing some 
deference to the tribes' own census counts for their population 
of enrolled numbers?
    Mr. Artman. And again, to go back, in so many aspects our 
question stops at the tribal government. And the tribal 
government may be made up of six--I am sorry, the tribal 
membership of that government may be made up of six people, six 
citizens altogether, or it may be made up of 250,000.
    But we don't spread out the money evenly across the tribe. 
Obviously, the size of the tribe or the program that you are 
trying to fund, which is oftentimes determined by the size of 
the tribe, determines how much money you receive.
    But have we gotten into the question of which is the best 
way to count which numbers we are going to view as the accurate 
count? Not for the purposes of recognition we haven't, no.
    Ms. Herseth Sandlin. Thank you, Mr. Chairman.
    Mr. Faleomavaega. Mr. Secretary, I am totally confused now. 
The census has a different counting of Native Americans 
obviously, so the Department of Interior also has a different 
counting. You are saying you count by programs, and not 
necessarily numbers.
    I would think that the reasons for the $2.3 billion is 
because we have to provide for some four to five million Native 
Americans. I assume that among the 562 tribes, that this is 
what is being officially recognized.
    You are saying there are only two million of them out 
there. That is almost, that is almost 100 percent less than 
what I have always understood for the last 10 years, the 
increase, or the number of Native Americans in the U.S.
    Mr. Artman. We can provide you a list of various----
    Mr. Faleomavaega. Could you, please?
    Mr. Artman. From the various different areas that we also 
have----
    Mr. Faleomavaega. I would appreciate it.
    Mr. Artman.--including NCAI and NAIGA.
    Mr. Faleomavaega. I would appreciate it if you would 
provide that for the record.
    I have one more question. Who decides which anthropologist 
and genealogist and historian make up the team? Is this in 
consultations with the petitioner tribe? Or is this something 
that the division of the Federal acknowledgement process makes 
the ultimate decision as to?
    Because what happens if the genealogist or anthropologist 
says hey, I have written some stuff about this, guys, and they 
are not for real. It is already prejudiced, before they even 
started doing the research.
    Mr. Fleming. I, as director of the office, we have the 
anthropologists that have specialties in different areas of the 
United States. If a group falls in the Northwest, I look at the 
available staff members to see if one of those staff members 
has this expertise in that region which would help in the 
understanding of the evidence.
    So it is a management decision to take a look at which 
staff members are available when a certain case comes forward, 
and we assign. And we focus on the seven mandatory criteria.
    Mr. Faleomavaega. I don't question which staff is 
available. What I am questioning here is that, how can we 
assure that this anthropologist or this genealogist or this 
historian is going to be neutral in its efforts to come out 
with the facts and data, and not already said hey, I have 
written a book or some articles about this group, and I 
seriously question their petition as a tribe?
    Mr. Fleming. The regulations require that we notify the 
petitioners as to who is going to be assigned to the case. And 
then, when the proposed finding is issued, the petitioners and 
interested parties have the opportunity to request an on-the-
record meeting to discuss the review, the analysis, the 
evaluation of the proposed finding. And if there are questions 
regarding some of the staff who were assigned, that is an 
opportunity to ask those questions.
    Mr. Faleomavaega. OK, well, that is the reason why I asked. 
There is consultation with the petitioner and the division of 
fact, am I correct on this?
    Mr. Fleming. Well, we notify, yes.
    Mr. Faleomavaega. Notify, but not consult, then. In other 
words, if the petitioner doesn't agree with the anthropologist, 
you are still going to go ahead and proceed and appoint that 
anthropologist.
    Mr. Fleming. We work with a team that we hope would be able 
to expeditiously review----
    Mr. Faleomavaega. No, that is not what I asked.
    Mr. Fleming.--within the 12 months.
    Mr. Faleomavaega. You are still going to appoint that 
anthropologist. I mean, it is your discretionary authority to 
make that appointment, right?
    Mr. Fleming. Yes.
    Mr. Faleomavaega. OK, that is what I wanted to find out.
    Well, Mr. Secretary, this has been a long morning for you. 
And I do apologize if we have taken you through much of your 
time. But I promise you, this will not be the last time you 
will be seeing us.
    [Laughter.]
    Mr. Artman. You haven't taken too much time. I appreciate 
this.
    Mr. Faleomavaega. But we do really appreciate your coming 
this morning, and to testify, and look forward to working with 
you and your office.
    Mr. Artman. And I appreciate your questions. And 
unfortunately, I won't be able to stay for the next two panels, 
but I am going to ask my staff to stay, and I will be speaking 
with them later.
    Mr. Faleomavaega. And I would like to also state for the 
record the Committee will submit written questions, both from 
the Members as well as the Committee, and would really 
appreciate it if you could respond as soon as possible to be 
made part of the record.
    Mr. Artman. And I would hope as part of those written 
questions, that one of them will explore the Department of 
Justice issues. And we will get you a fuller explanation of 
that.
    Mr. Faleomavaega. Could you, please.
    Mr. Artman. We got some information on the break, but we 
will be happy to----
    Mr. Faleomavaega. We would really appreciate that.
    Mr. Artman. Thank you.
    Mr. Faleomavaega. You can bet your bottom dollar. Is that 
how they say it? I am still learning English here, so is that 
how they say it?
    Mr. Artman. That will work.
    Mr. Faleomavaega. You bet your bottom dollar? OK. Thank 
you, Mr. Secretary.
    Mr. Artman. Thank you.
    Mr. Faleomavaega. We have as our next panel--I am sorry for 
all this time--Ms. Patricia Zell, the President of Zell and Cox 
Law Firm in Washington; Ms. Arlinda Locklear, also an attorney 
here in Washington; Mr. Mark Tilden, the Staff Attorney with 
Native American Rights Fund; and also Mr. James Keedy, 
Executive Director of the Michigan Indian Legal Services, 
Michigan.
    I would like to, I would be more than happy to give the 
time to the gentleman from Michigan for introduction of one of 
the members of the panel.
    Mr. Kildee. Thank you, Mr. Chairman. I would like to 
particularly welcome the entire panel. But Mr. Keedy, Executive 
Director of the Michigan Indian Legal Services, Traverse City, 
Michigan; my father was born near Buckley, Michigan.
    And when I was about seven years old, about the time I made 
my first Holy Communion, my dad told all of us children that 
the Indians had been treated unfairly. And that stuck with me.
    And the first time I could do anything about that was 1965, 
when I was elected to the, took office in the State 
Legislature; introduced two bills: one establishing the 
Michigan Indian Commission, and the other Jackie Vaughn and I, 
Senator Jackie Vaughn and I introduced a bill in Michigan, the 
Indian Tuition Waiver Act, where any Michigan Indian can attend 
a public college in Michigan, and the State pays the tuition.
    But I particularly greet you here. The Kildees arrived as 
immigrants from Ireland and settled in that area. And I am glad 
that my dad had that type of conscience, that he could 
recognize and pass on to his children that the Indians were 
treated unfairly there. And I appreciate your presence here 
today.
    Thank you very much and thank you, Mr. Chairman.
    Mr. Faleomavaega. The gentleman from Hawaii.
    Mr. Abercrombie. Thank you very much. Mr. Chairman, I do 
want to take advantage of the opportunity to introduce Pat 
Zell. I am doing this by way of full disclosure, too.
    While I did not arrange for Ms. Zell to be on the panel, I 
wouldn't want to let the opportunity pass to express publicly 
my gratitude to her for, although she may not want to say it 
publicly, more than a quarter of a century of friendship, and 
what is more important, information and perspective provided to 
me that has been invaluable.
    I won't repeat all of the qualifications that she has to be 
here today, as they are apparent in all the Members' files 
here. But suffice it to say that the Senate Indian Affairs 
Committee was dependent upon her service, her insight, her 
perspective for the better part of 25 years.
    And most important from the point of view of the 
legislation, the particular legislation that is before us 
today, I don't think we can find anybody that has a better 
legal perspective on the value of this bill and its direction 
and its legislative intent than Ms. Zell.
    So I am taking a little bit of time, but you don't often 
get an opportunity, Mr. Chairman, to say, in public and in the 
legislative context, how valuable it is to us to have people 
working on a staff level that provide the foundation for our 
legislative activity.
    We live in kind of a closed universe in here, sometimes 
maybe a parallel universe to the real world outside. But our 
real world of legislation is utterly dependent upon the 
professionalism and the dedication and the perception of people 
like Pat Zell.
    Mr. Faleomavaega. I would, not taking anything away from 
Mr. Tilden and Ms. Locklear, but I do want to second the 
comments made by my good friend, the gentleman from Hawaii.
    And I just want to say a fond ``ya'ah'teeh'' to Patricia 
Zell, who is with us for the first time that she will be 
testifying before our committee, to my distinguished 
colleagues.
    Needless to say, her legislative accomplishments are too 
numerous to name. For the National Museum of American Indians, 
to Indian healthcare, the tribal water rights, and of course 
the Native Hawaiian rights.
    And I cannot say enough to say how much you are well 
respected, Patricia. And I know that I speak for my colleagues 
to the tremendous service that you have given, not only to 
Indian country, but certainly to our nation.
    And with all that said, let us get it moving. Patricia, 
could we have your testimony first?

            STATEMENT OF PATRICIA ZELL, PRESIDENT, 
            ZELL AND COX LAW, P.C., WASHINGTON, D.C.

    Ms. Zell. Yes. Thank you, Mr. Chairman, and thank you for 
your very kind remarks, Mr. Abercrombie and Mr. Chairman. I 
don't know that they are deserved, but I certainly appreciate 
your respect truly.
    Mr. Chairman and Congressmen Abercrombie and Kildee and 
Boren and Sandlin, I thank you for the invitation to present 
testimony today on H.R. 2837.
    The thoughts that I share with you arise out of my work on 
the Senate Indian Affairs Committee, and particularly very 
intensive work toward the end of my tenure there, which ended 
in May of 2005. So the information that we gathered in 
consultation with the Office of Federal Acknowledgement and the 
General Accountability Office and the Inspector General's 
Office of the Department of Interior, and tribal groups having 
gone through the process and those that were in the process, 
are identified problems that continue to plague the process. So 
in that respect, some of these issues remain timely, because 
problems haven't changed significantly over time, sadly.
    I want to inform the Committee that our law firm has no 
clients in the acknowledgement process.
    I think that the provisions of H.R. 2837 represent a very 
thoughtful approach to this whole range of issues, and I thank 
Chairman Faleomavaega for introducing the bill, and for his 
perseverance in pushing this bill forward so many times.
    As you can imagine, over the course of my time in the 
Senate we held many, many hearings, oversight hearings, on the 
Federal acknowledgement process and the need for reform. And 
many Members, some Members of the Senate, have consistently 
adhered to the position that, rather than the Congress taking 
any further legislative action to extend recognition to a 
tribe, that the Federal acknowledgement process ought to 
instead be reformed, and that all tribal groups should go 
through the acknowledgement process.
    However, that promise of legislation to reform the process 
has proven to be illusory. There has not been, there has been 
legislation introduced in every session of the Congress, but 
all these years later we have nothing to show for it except 
good intent and a lot of good work and effort gone into it. So 
I am very hopeful, as I know many of those in this room and 
those whom they represent are, we are hopeful that there will 
finally be action to provide support to this process.
    Whether it is more resources at a minimum, or whether it is 
comprehensive reform, as this legislation proposes, it is long 
overdue. It is very much needed. And I think that what those of 
us who worked with this process for a long time know is that 
these petitioning groups are disenfranchised, to some extent. 
And to the extent that the Federally recognized tribes can 
gather around an issue, and if there is consensus they can 
speak with one voice.
    All of these disparate groups that are in the process have 
no means of coming together and speaking with one voice, nor do 
they have the means by which to call the attention of Members 
of Congress to this issue and to these problems associated with 
the acknowledgement process. So you have given them a voice, 
you have given them a forum, and that is very important, if and 
of itself.
    I want to say that in our consultation with those Federal 
groups, the General Accountability Office, the Inspector 
General's Office, and the Office of Federal Acknowledgement, we 
of course had that consultation within the confines of knowing 
that they are not authorized to make legislative 
recommendations. What we asked of them was to identify through 
their experience what they thought the problems with the 
process are.
    And I am now going to speak very fast, because I see the 
yellow light is on.
    Two things. The Office of Federal Acknowledgement staff is 
cast with an enormous amount of responsibilities. They ought to 
be divested of those responsibilities and given one task, which 
is to work on those petitions and get them processed.
    The technical assistance function, which absorbs an awful 
lot of time, could be posited in another entity, so that the 
technical assistance, a very important function that the 
government serves to help tribes, help petitioning groups, 
could proceed, but not be taking the time of the 
acknowledgement staff, whether they are in Interior or in this 
new commission.
    We suggested the possibility of exploring placing that 
technical assistance function in the Cultural Resource Center 
of the National Museum of the American Indian, where so many 
documents and records that tribes and petitioning groups seek 
and rely on anyway--they are going there and using that 
information to document their petitions--perhaps that is a good 
place to house technical assistance.
    The second thing is not to separate out both technical 
assistance function from the decision-making function. Because 
we are all human, and if we spend a lot of time providing 
technical assistance to a group, and then, by one way or 
another, later are called upon to make some decision about the 
merits of that petition, that is just difficult. You are just 
ultimately evaluating your own work, if you have provided a lot 
of technical assistance to a group, and that is not a good 
position to put anybody in.
    So I will just summarize. I think that we need to take 
away, whether in a commission or otherwise, those things that 
draw upon the time of those experts--the historians, 
anthropologists, genealogists that Mr. Fleming has spoken of--
and let them do their work. Put the other tasks to other, on 
other entities and to other people.
    With regard, the last thing I want to address is that in 
recent years there have been a lot of allegations, particularly 
as they are associated with gaming, that this process is 
subject to external influence. And one of the things that we 
talked in depth about with all of those entities, Federal 
entities that I just referenced, was whether or not there ought 
to be a point in time where, in this case the commission, the 
petitioning group, and interested parties would file something 
with a Federal court, likely in Washington, D.C., and the Court 
would then supervise the process of each petition.
    That is not a day-to-day activity, but it would basically 
do, as the Court has done for some groups that have petitioned 
the Court, to set some deadlines so that everyone has an idea 
of how long this is going to go, when certain things are going 
to happen. And to assure that one petition isn't taken out of 
order because the Court has directed the Office of Federal 
Acknowledgement to work on petition A, when petition B was 
really the one that was ready to go forward.
    So we think that putting it in, or I don't suggest that it 
is a personal view, but rather a suggestion that if you had 
court supervision of each and every petition, you might provide 
a means for extricating any possibility of external influence 
on the process, as well as providing an orderly process. 
Including not having interested parties come in at any point in 
time that the process, a particular petition is being 
considered, and taking up the time of having to reproduce 
documents and bringing those interested parties up to speed.
    So I thank you again, Mr. Chairman, for the opportunity to 
present testimony today.
    [The prepared statement of Ms. Zell follows:]

      Statement of Patricia M. Zell, Partner, Zell & Cox Law, P.C.

    Chairman Rahall, Ranking Member Young, Delegate Faleomavaega, and 
Members of the Committee on Natural Resources, I thank you for inviting 
me to present testimony to the Committee today on H.R. 2837.
    My testimony today is drawn from my prior work as the former Chief 
Counsel and Staff Director for the U.S. Senate Committee on Indian 
Affairs. In May of 2005, following almost 25 years of service on the 
Committee, I retired from the Senate and am now engaged in the private 
practice of law, working with American Indian tribes, Alaska Native 
entities, and Native Hawaiian organizations. Our law firm does not 
currently represent any tribal group that has a petition pending in the 
Office of Federal Acknowledgment.
    I want to begin by expressing my appreciation to Congressman 
Faleomavaega for the fine and clearly thoughtful bill that he has 
introduced, and to the Chairman for scheduling a hearing on this most 
important issue.
    In my last few years on the Senate Indian Affairs Committee, in an 
effort to develop a framework for possible legislative reform of the 
Federal Acknowledgment process, we spent a considerable amount of time 
with the Director of the Office of Federal Acknowledgment and his 
staff, as well as with the team from the General Accountability Office 
that had conducted so much research on the acknowledgment process over 
the years, and the team from the Interior Department's Inspector 
General's Office who also had reason to examine the Federal 
acknowledgment process.
    While we conducted those discussions with the understanding that 
none of the people with whom we consulted could make recommendations 
for legislative change, what we were able to discuss were some of the 
challenges that the Office of Federal Acknowledgment is faced with in 
trying to carry out its mandate.
    For instance, we learned that a significant percentage of the 
Office's limited time and personnel resources was consumed in 
responding to requests made of the Office under the Freedom of 
Information Act (FOIA). Hours and hours were then being expended in 
locating the records that were the subject of a FOIA request and making 
photo copies for dissemination to those requesting the information.
    Another significant amount of time was then being expended in the 
provision of technical assistance to those tribal groups that had 
petitions pending in the acknowledgment process. These two activities 
alone substantially diminished the amount of time that the small OFA 
staff could have otherwise expended on the processing of acknowledgment 
petitions.
    Add to that the time consumed in preparing responses--when there 
are charges asserted that improper influence of one sort or another is 
being brought to bear on either the acknowledgment process, the OFA 
staff, or on Administration officials responsible for acknowledgment 
decision-making--and one begins to understand why the pace of action on 
petitions has slowed so dramatically in recent years.
    Another dynamic arises out of frustration with the length of the 
process, as some tribal groups seek the involvement of the Federal 
courts and court-ordered time lines result in a petition having to be 
set aside so that work on another petition which is the subject of a 
court's order can be acted upon in compliance with those court-ordered 
time lines.
    In recent times, we have also seen a marked increase in the number 
of so-called ``interested parties'' who want to intervene in the 
process--sometimes very late in the process--and who seek copies of all 
of the relevant documents associated with a petition. This unregulated 
intervention can and often does wreck havoc with an otherwise orderly 
acknowledgment process.
    There have also been concerns expressed that the manner in which 
the process is administered puts the Office of Federal Acknowledgment 
staff in a position in which they must serve multiple roles--for 
instance, they often have to provide technical assistance to 
petitioning groups, sometimes over an extended period of time, and then 
later, they have to bring their independent judgment to bear on the 
merits of the same group's petition.
    With these observations in mind, we developed a conceptual 
framework that the Committee may want to take into consideration as it 
reviews this legislation.
    Separate the technical assistance function from the decision-making 
function: To address the potential for conflicts of interest as well as 
reduce the costs associated with documenting a petition, we thought 
that one possible approach to achieving this objective would be to 
establish the technical assistance function within the Cultural 
Resources Center of the National Museum of the American Indian--a place 
where the citizens of tribal nations already come to conduct research 
not only on objects with the Museum's collections but on documents that 
contain important information about a tribe's history, its culture and 
traditions, its interaction with other governments and private entities 
at specific points in time. This branch of the Center could be staffed 
with the same complement of expertise that currently is posited in the 
Office of Federal Acknowledgment, so that technical assistance could be 
provided to petitioning tribal groups.
    Because some tribal groups, particularly those in California, have 
a common history--there could be a substantive benefit to the 
collection of historical information that might be relevant to the 
petitions of more than one group. Given the increasingly-prohibitive 
expense associated with the development of a full acknowledgment 
application, if historical information gathered by a prior applicant 
can be used by another petitioning group to fill in gaps in that 
group's own records, there could be a meaningful savings of costs.
    This Center could also serve as a useful alternative for a 
petitioning group that may have only the limited resources available 
through an Administration for Native Americans grant to hire private 
experts to assist the group in developing the historical, genealogical, 
anthropological and other documentation necessary to complete its 
petition.
    Place responsibility for responding to Freedom of Information Act 
requests in a separate office or develop a data base in which both 
transparency and protection of proprietary information can be achieved: 
In the context of the proposed Commission, unless this time-consuming 
responsibility is delegated to another entity, responding to FOIA 
requests is going to take up as much of the Commission's time as it 
currently requires of OFA staff.
    New software programs have been employed in the arena of 
environmental management and regulation that allow different users to 
have access to only that information that is appropriate to their role 
in environmental management and regulation. These programs are readily 
capable of being adapted to the Federal acknowledgment area--for 
instance, the petitioning group would have access to all documents that 
are submitted to the Commission, an interested party might have more 
limited access to documents--particularly no access to documents that 
contain proprietary information, and the Commission would have access 
to all documents. Rather than expending time duplicating paper copies 
of documentation requested under the Freedom of Information Act, the 
Commission could provide a point of limited access to information in 
the data base that the Commission deems appropriate to the FOIA 
request.
    Divesting the Process of Assertions of Improper Influence, Limiting 
the Time in which Interested Parties may involve themselves in the 
process, Providing Certainty and Reliability for a Time Certain in 
which each petition will be fully processed: Filing of Acknowledgment 
Petitions in a Designated Federal Court: Several of those with whom we 
consulted felt that this would be a way to impose order on the process 
as well as address assertions of improper influence on decision-makers 
or the process itself. In the context of H.R. 2837, the Commission 
would file each petition with a designated Federal court--likely a 
court in the District of Columbia--then the court could establish: (1) 
a time frame in which interested parties may register and a date beyond 
which no further interested parties will be involved in the process; 
and (2) a series of negotiated deadlines for the processing of each 
petition that would be negotiated by the petitioning group and the 
Commission with the court's oversight.
    Once a petition is in the court process, the Commission could not 
be pressured to set aside one petition for work on another petition--
all petitions would be subject to a petition-specific time line that 
could only be altered by agreement of the petitioning group and the 
Commission with the court's supervision and entry of such changes. This 
would enable not only an orderly process but it would also provide the 
petitioning group with some certainty as to the period of time in which 
the group can predictably rely on a beginning and an end to the 
process.
    Last, I would urge the Committee to consider providing authority 
for another member of the Commission to take official action on behalf 
of the Commission in circumstances when the Commission's Chairman is 
not able to do so.
                                 ______
                                 
    Mr. Faleomavaega. Thank you, Ms. Zell. Ms. Locklear.

               STATEMENT OF ARLINDA F. LOCKLEAR, 
                   ESQUIRE, WASHINGTON, D.C.

    Ms. Locklear. Thank you, Mr. Chairman. I appreciate and 
welcome the opportunity to appear today on this important bill, 
H.R. 2837. I have worked on this issue for approximately 30 
years now, and have had, during those years, the extreme 
pleasure of working with you, Mr. Chairman. On behalf of all of 
us who labor in this field, Mr. Chairman, we express our 
extreme gratitude to you for your faithfulness and your effort 
over many Congresses in trying to bring fairness in this 
process to all non-Federally recognized tribes. So thank you 
for that, and we hope this effort succeeds.
    Let me start by saying most of the testimony that the 
Committee has heard this morning has focused on the procedural 
aspects of the question of how does one go about determining 
whether an Indian tribe exists. Is it done by the BIA? Is it 
done by independent commission? Do there need to be timelines?
    Those are all important questions. Other witnesses who will 
testify on this panel will speak more specifically to the 
procedural questions.
    Let me say, though, that I do strongly agree with those you 
will hear soon that the process needs to be taken entirely from 
the hands of the Bureau of Indian Affairs, as H.R. 2837 
proposes, and placed in the hands of an independent commission.
    With respect, I think the Committee heard today, in the 
testimony of the Assistant Secretary himself, the reasons for 
that.
    The BIA has an important mission, and that mission is to 
serve Federally recognized tribes. As Mr. Artman correctly 
pointed out, the Bureau holds a trust responsibility to those 
tribes. That is as it should be.
    However, it asks too much to expect that same institution 
to apply the recognition process in an even-handed manner to 
tribes on the outside: tribes for whom it does not have a trust 
responsibility; tribes for whom the recognition may impact the 
services it tries to extend now to presently recognized tribes. 
For all those reasons, I would urge that the Committee proceed 
with all of the provisions in H.R. 2837 that authorize that 
independent commission.
    In addition, though, and I also strongly believe this, the 
creation of the commission does not solve the problem. That is 
only half of the problem.
    If you transfer the existing regulations now to an 
independent commission, eventually that independent commission 
will be bogged down in the same minutiae of examination of 
tribal histories that the present process engages in. So to 
make the fix work, the Committee should also focus on what 
those criteria are.
    In those respects, I would like to make some specific 
comments, some specific suggestions, as well as propose some 
particular amendments to H.R. 2837, to ensure that not only is 
the process where it should be, but that the process works as 
it should be, and is looking at the relevant criteria.
    First, let us begin with what I consider a fundamental flaw 
in the process, and that is its extreme time dip. As it now 
functions, all of the seven mandatory criteria, except for 
criterion A, require proof of continuity from the time of first 
sustained White contact. In the case of many Eastern tribes, 
that could be 350 years.
    More importantly, that is not necessary. The question 
before us is, is this a legitimate Indian tribe. An Indian 
tribe is a body of indigenous people who exercise inherent 
authority. It is not sovereignty that was delegated by a 
European power upon discovery; it is not authority that was 
delegated when the Constitution was adopted, or the Declaration 
was signed; it is inherent authority. So the time of White 
contact is legally irrelevant.
    The inquiry need only be, have they existed long enough to 
establish their legitimacy. In my view, H.R. 2837 makes a great 
progress on that point by establishing the beginning point as 
1900 for all the criteria. Arguably, we could bring it even 
sooner, and some witnesses support bringing it sooner. But 
certainly, 1900 is a fair and reasonable approach that will 
streamline the process and save a lot of time and resources. 
That is the most significant flaw.
    Second, though, and I urge the Committee to look at the 
criteria themselves, the criteria are written in a way that 
encourage subjective analyses of minutiae of tribal communities 
and internal relations within the tribe. Let me give you some 
examples.
    The community criterion, known by shorthand as B by those 
people who exercise the authority to make these decisions.
    The B criterion requires a petitioner to establish that 
there is significant interaction among a substantial number of 
community members. Mind you, this is an examination of internal 
relationships among the members of the tribe itself. Not only 
do they talk to each other, but how often do they talk to each 
other, and what do they talk to each other about.
    There is one case, for example, that illustrates this 
problem, where the tribe actually had to produce telephone 
records of individual members to prove how many members each 
member talked to, and how often those members were talked to. 
That is the level of detail that takes a very long time to 
examine, and that needs to be fixed. We need objective 
criteria.
    Similarly, for criterion C, political authority. Political 
authority is defined as, in the regulations, as a relationship 
between the leaders and the followers. In other words, are 
there significant issues on which a majority of the members 
will defer to the leadership of the leaders. This is referred 
to by the Bureau of Indian Affairs as bilateral political 
relations. That is their shorthand term for the phrase.
    Again, though, it focuses on the internal dynamic of the 
tribe. It requires the tribe to document that it makes 
decisions, it has leaders who make decisions that affect the 
lives of individual members. That takes time and that takes 
resources; and again, it is not necessary.
    If a community exists, then that community must have 
leaders. And if they can identify those leaders and describe 
for the decision maker how those leaders are selected, that 
should be all that should be asked of them.
    Finally--and I see that I am out of time--I will very 
briefly describe one other idea that I think may serve to 
shorten and streamline the process for all tribes.
    The Bureau discussed earlier the idea of an expedited 
denial, and expedited unfavorable for certain tribes that 
clearly cannot meet the standard. That makes some sense. It 
makes no sense for a tribe that can't even prove that its 
members are Indians, for example, to go through an analysis of 
significant community interaction. That makes sense.
    However, on the other side, in all fairness, there should 
be an expedited favorable for certain tribes that all of us 
looking at it can see and tell plainly they are Indian tribes. 
Let me give you some examples.
    Number one. If a tribe can prove that its present-day 
members descend from a tribe that was recognized by treaty with 
the United States, that ought to be the end of the inquiry. 
That tribe should be entitled to a presumption of recognition.
    Another example. If a tribe can prove that it occupies a 
reservation that the state has held and governed as belonging 
to those people since 1900, a state-recognized reservation 
since 1900, those folks ought to be recognized. It is counter-
intuitive to suggest that there is no community or political 
leadership.
    Those are the kinds of things that, if those--let me give 
one other quick example, because it shows how easily this can 
be done.
    Third example. If a tribe has been determined to exist as 
an Indian tribe under Federal law, by a Federal court, there is 
no reason for the BIA to make the detailed examination on 
community and political authority that it does. That tribe 
should be entitled to recognition, end of story.
    So if the BIA is able to parse down its list of petitioners 
through those means, both favorable and unfavorable expedited 
consideration, that will streamline the process, as well.
    In sum, we have reached a point where we have a process, 
and we can all debate as to how it got to this point, where 
there is so much focus on the individual tree, that they really 
are not able to see the forest. But in all of these cases, all 
of us, if we step back, the lines, the contours of the forest 
are visible. They are palpable. They are there. It is not that 
difficult to see, unless you remain focused on the individual 
tree.
    If we reform the process, we must reform the criteria, so 
that we alter that focus so that we can allow all legitimate 
tribes to be recognized as such.
    Thank you.
    [The prepared statement of Ms. Locklear follows:]Y

               Statement of Arlinda F. Locklear, Esquire

    Mr. Chairman and members of the committee, I appreciate the 
opportunity to present my views on H.R. 2837, a bill to reform the 
process to extend recognition to Indian tribes. This is a vital issue 
to scores of Indian communities and your leadership on this issue, Mr. 
Chairman, is greatly appreciated by those communities. Those 
communities owe a particular debt of gratitude to Mr. Faleomavaega, not 
only for bringing this issue to the fore with the introduction of H.R. 
2837 but also for his faithfulness over many congresses to the cause of 
fairness and justice for non-federally recognized Indian communities.
    I have been involved in the process to recognize Indian tribes for 
thirty years now, having worked on approximately 10 petitions, some 
formally and others informally, before the Office of Federal 
Acknowledgment [OFA] and its administrative predecessors. In addition, 
I have testified at several hearings held by Congress on the subject--
hearings on various reform bills and oversight hearings. I should also 
add that I have a personal interest in the subject, since I am an 
enrolled member of the Lumbee Tribe of North Carolina, the largest non-
federally recognized Indian tribe in the country. While I continue to 
work for a number of non-federally recognized tribes in various 
capacities, the views I express today are not offered on behalf of any 
particular tribe but are my personal views only.
    It is important to place this issue at the outset in its proper 
historical and legal context. This context is offered for two purposes: 
first, to encourage the Congress to take an independent and fresh view 
on the appropriate process and criteria to be employed in the 
recognition of Indian tribes; and second, to emphasize Congress' 
historic and continuing role in the recognition of tribes directly 
under certain circumstances. Next, I identify what in my view are the 
most important defects in the existing administrative acknowledgment 
process established by the Bureau of Indian Affairs in 1978. For 
legislative reform to succeed, we must learn from our experience under 
the existing administrative process. Finally, I express my support for 
H.R. 2837 and propose amendments so that Congress can meet its 
presumptive goal of insuring the recognition of all legitimate Indian 
tribes.
Federal recognition of Indian tribes--an historical and legal context
    Any discussion of federal recognition of Indian tribes must begin 
with the proposition that broad authority over the conduct of Indian 
affairs, including the recognition of Indian tribes, resides in the 
United States Congress. From the earliest days of the Republic, the 
Supreme Court has begun its analysis of any Indian question with this 
observation. See, e.g., Worcester v. Georgia, 31 U.S. 551 (1832). With 
regard to recognition of tribes, the Court has specifically observed 
that there are minimal limitations on Congress' authority:
        Of course, it is not meant by this that Congress may bring a 
        community or body of people within the range of this power by 
        arbitrarily calling them an Indian tribe, but only in respect 
        of distinctly Indian communities the questions whether, to what 
        extent, and for what time they shall be recognized and dealt 
        with as dependent tribes requiring the guardianship and 
        protection of the United States are to be determined by 
        Congress, and not by the courts.
    United States v. Sandoval, 231 U.S. 28, 46 (1913). This standard 
has been taken to mean that a group can be recognized by Congress if 
its members are indigenous people and its members are a people distinct 
from others. Indian Issues: Improvements Needed in Tribal Recognition 
Process, GAO-02-49, Nov. 2001, p. 23. It is noteworthy that Congress' 
determination to recognize a particular Indian tribe, by treaty or 
statute, has never been set aside by a court.
    The Congress has exercised this constitutional authority time and 
time again. Of the currently recognized tribes [565 on last published 
list], 222 are Alaskan tribes added to the list of recognized tribes 
administratively in 1993. Id. Of the remaining federally recognized 
tribes, the overwhelming majority were recognized specifically by 
Congress through treaty, statute, or other course of dealing. Id. at 
21-22. Even after the Department of the Interior established its 
administrative acknowledgment process in 1978, Congress continued to 
exercise its constitutional prerogative to recognize particular tribes 
under appropriate circumstances. Id. At 23-24.
    Finally, it should be noted that the Congress has never expressed 
its intention to defer to the present administrative acknowledgment 
process in all cases. As the GAO observed, ``In conclusion, BIA's 
recognition process was never intended to be the only way groups could 
receive federal recognition.'' Indian Issues: Basis for BIA's Tribal 
Recognition Decisions is Not Always Clear, GAO-02-936T, p. 8. There was 
no act of Congress directing the Department to establish this process. 
Instead, the Department relied upon its general supervisory authority 
in creating the process. See 25 C.F.R. Part 83, Source. In other words, 
the Congress did not mandate the particular process or criteria used by 
the Department of the Interior in its acknowledgment process and 
Congress is plainly not limited to or otherwise bound by those criteria 
and that process.
    For the reasons set out below, the present acknowledgment process 
does not provide for the acknowledgment of every legitimate Indian 
tribe. If Congress' goal, then, is to provide for recognition of every 
legitimate tribe, it can and must consider alternative processes and 
criteria. In any event, Congress retains the constitutional prerogative 
to specially recognize any given tribe, so long as that tribe is a 
distinct group of indigenous people, if Congress is satisfied that 
particular circumstances warrant direct congressional action.
Defects in the existing acknowledgment process
    Other witnesses focus on the defects in the process used by the BIA 
in its review of tribes' requests for federal recognition. The 
statement of Mark Tilden, with the Native American Rights Fund, 
explains the need for the independent commission proposed in H.R. 2837 
and discusses procedural details to provide for the fair and smooth 
working of the commission. I endorse those comments. My comments here 
are limited to defects in the criteria used by the BIA to ascertain 
whether a group is an Indian tribe.
    The administrative process requires that petitioning tribes 
demonstrate seven mandatory criteria. Criterion a (existence of an 
Indian entity) must be proved on a substantially continuous basis from 
1900 to the present. Criteria b (community) and c (political authority) 
must be proved on a substantially continuous basis from the time of 
first sustained white contact to the present, or three hundred years or 
more in the case of many eastern tribes. Criteria d (governing 
document), f (membership not members of another recognized tribe) and g 
(Congress has neither forbidden nor terminated the federal 
relationship) are mechanical queries without any time depth. Finally, 
criterion e (descent from an historic tribe) has time depth since it 
requires a petitioning group to link itself genealogically to a tribe 
that existed at the time of first sustained white contact. Failure on 
any one of these criteria results in refusal to acknowledge the 
petitioner.
    If the purpose of any process is to identify and recognize all 
legitimate Indian tribes, the present acknowledgment criteria fail to 
accomplish this goal for the following reasons.
1. Extreme time depth
    With the exception of criterion a, the present regulations require 
that petitioning tribes establish the substantive criteria continuously 
since the time of sustained white contact. This is an extraordinarily 
long period for eastern tribes and requires all petitioners to document 
their existence by records maintained by the dominant society, even for 
those periods of time when the dominant society kept few records.
    There is no legal or common sense rationale for beginning the 
inquiry at the time of sustained white contact. The ultimate question 
here is whether an indigenous group exists as a separate people, or 
community. Such groups hold limited, reserved sovereignty. This 
sovereignty does not derive from nor is it delegated by Europeans or 
the United States. Instead, it is an inherent sovereignty. See United 
States v. Wheeler, 435 U.S. 313, 322-323 (1978). As a result, the time 
of white contact is irrelevant to the inquiry of tribal existence. All 
that is required is sufficient time depth to demonstrate the actual 
existence of an indigenous people that has maintained its separate 
existence.
    In my view, 1934 is a reasonable starting point for the inquiry. 
This year represents a significant change in federal Indian policy with 
the enactment of the Indian Reorganization Act--a policy intended to 
foster and support tribal self-governance and to repudiate earlier 
assimilationist policies. It seems only fair that non-federally 
recognized tribes should be able to take advantage of this major shift 
in federal Indian policy, particularly because there were no artificial 
incentives at the time (such as Indian gaming) that would have 
encouraged groups to falsely self-identify as Indian.
2. Highly subjective definitions for criteria b (community) and c 
        (political authority)
    These important criteria are defined by largely subjective factors: 
e.g., ``significant social relationships connecting individual 
members''; ``most of the membership considers issues acted upon or 
actions taken by the group leaders or governing bodies to be of 
importance...'' Sec. Sec. 83.7(b)(1)(ii), 83.7(c)(1)(ii). This 
necessarily produces idiosyncratic, arguably arbitrary results. For 
example, in the case of the Miami Nation of Indiana, the BIA refused to 
accept an annual tribal picnic, one held continuously by the Tribe 
since 1907, as proof of community, even though the BIA accepted proof 
of similar gatherings for other tribes as proof of community. It also 
requires microscopic examination of internal relations within non-
federally recognized tribes. The Gay Head Tribe illustrates this point. 
In its proposed finding for Gay Head, the BIA proposed to decline 
acknowledgment largely because of insufficient proof of contemporary 
community. In its comments on the proposed finding, the Gay Head Tribe 
actually submitted telephone records of its members to document the 
extent and number of contacts among them. For the first time, the BIA 
reversed itself and issued a favorable final determination based on the 
Tribe's comments on the proposed finding. This inward focused, detailed 
examination results in a failure to see the forest for focusing on the 
trees.
    This requirement that petitioning tribes prove the quality of 
relationships among members also puts a disproportionate and unfair 
burden on larger tribes. The Miami Tribe of Indiana also exemplifies 
this problem. With approximately 4,700 members, it was the largest 
tribe processed by the BIA at the time of its final determination in 
1992. The Tribe calculated that, to carry its burden of proving 
significant interaction among its members, it was expected to document 
approximately 4.5 million relationships. Not surprisingly, the Tribe 
failed because the BIA found too little evidence of community and 
political authority from WWII to the early 1970's--the BIA emphatically 
did not find that there was no evidence of community or political 
authority, only that the evidence failed to meet some unspecified level 
of sufficiency under the regulations.
    This focus on the quality of relationships among members, as proved 
by documents maintained by the dominant society, further tends to 
disadvantage more traditional Indian communities. For example, if a 
community follows a traditional subsistence life style, it is far less 
likely to generate the necessary documents over time. The Little Shell 
Tribe of Montana continued its traditional nomadic life style well into 
the twentieth century, which produced few contacts with the dominant 
society and thus few documents to prove community. Interestingly, the 
BIA issued a proposed favorable finding for this tribe but, at the same 
time and for the first time, strongly urged the Tribe to submit more 
documentation of community. The same holds true for the political 
authority criterion. Because of its focus on proof of assent to 
leadership by the members, the inquiry heavily favors Anglo-type 
governments based on elections. More traditional governments, such as 
the Miami Nation of Indiana that relies on council members appointed by 
their traditional sub-groups, evidence of assent to leadership is more 
difficult to adduce.
    Most importantly, there is no need for this myopic focus on 
internal relations among members to ascertain whether an Indian tribe 
exists. As the Supreme Court has implied, the mere continued presence 
of a separate group of indigenous people suggests the existence of a 
community and political authority over time. This should be sufficient. 
However, if those criteria are retained, there must be objective means 
for determining the existence of community and political authority. 
This would at least infuse predictability into the process and 
eliminate the obligation to demonstrate the number and quality of 
relationships among members.
3. Requirement that tribe prove a genealogical connection to an 
        historic tribe
    Criterion e of the present process requires that petitioning tribes 
demonstrate descent from an historical tribe, defined by the BIA as 
from the time of sustained white contact. While the regulations do not 
so require on their face, the BIA in practice accepts only genealogical 
proof of descent from an historic tribe. In other words, it is not 
enough that historians have identified a particular group as descended 
from a tribe shown on records at the time of white contact; the 
petitioning tribe must be able to connect its present members through a 
continuous line of birth, death, and marriage records to individual 
members of the historic tribe. Of course, this is impossible when the 
dominant society has failed to maintain such records on the petitioning 
group for any reason, even a good reason such as state policies for 
periods of history that no people in their borders would be identified 
as Indian in official records.
    The problem with this criterion is related to the extreme time 
depth discussed above. If the beginning point for the tribal existence 
inquiry is moved forward in time from sustained white contact to 1934, 
the petitioning tribe would only be obliged to identify a tribe in 
existence at that point in history and demonstrate its descent from 
that tribe. Depending upon the beginning point that is selected, this 
may avoid many oppressive state policies or simple failures of the 
dominant society to maintain records. Whatever that beginning point may 
be, it would be helpful to specifically provide that evidence other 
than genealogical data can be used to establish descent from an 
historic tribe.
4. Absence of any expedited process for obvious cases, positive or 
        negative
    As others note in their statements, the generations long time delay 
that petitioners face in the process is a serious flaw. Modifications 
of the criteria suggested above would aid in speeding the process. 
After all, it takes considerable time and resources to establish and 
confirm thousands of individual relationships to prove community and 
political authority. Of course, the imposition of deadlines would also 
be helpful. In addition, there should be some expedited process for 
those petitioners that will presumptively fail and those that will 
presumptively succeed. These groups can receive final decisions based 
upon unrebutted proposed findings, thereby saving time and resources.
    The BIA already appears to engage in a presumptive negative finding 
for groups that cannot demonstrate Indian ancestry, although this 
process is not set out or defined in the regulations. It makes sense 
that a petitioner which cannot demonstrate that 50% of its members are 
Indian should be denied in fairly short order without examination of 
the other criteria. This expedited negative should be specifically 
authorized and defined.
    There should also be a presumptive positive finding for other 
groups. There are certain non-federally recognized tribes for whom 
detailed inquiry is unnecessary. These include:
      tribes for which a state has recognized a reservation 
since historic time (as redefined);
      tribes that can demonstrate 50% or more of their members 
descend from a treaty recognized tribe;
      tribes held to constitute an Indian tribe under federal 
law by a federal court.
    There are a number of non-federally recognized tribes in these 
positions for whom it makes no sense to commit years and millions of 
dollars to examine in detail--tribes such as the Pamunkey Tribe of 
Virginia, the Mattaponi Tribe also of Virginia, the Shinnecock Tribe of 
New York, and the Little Shell Tribe of Montana. Once a tribe 
establishes one of these thresholds, the decision-maker should issue a 
proposed favorable finding without any further examination. This 
proposed finding should function as a presumption in favor of 
recognition, one that could be rebutted by evidence from an interested 
party demonstrating that the particular tribes cannot meet one of the 
traditional criteria. In the absence of any negative evidence, the 
proposed favorable finding should become an automatic favorable final 
determination.
H.R. 2837 is meaningful and needed reform.
    The pending bill addresses and resolves many of the defects in the 
present administrative process identified above. First, it transfers 
the recognition process from the BIA to an independent commission. This 
is absolutely vital to meaningful reform. As others have discussed at 
more length, the proposed commission with the procedures outlined in 
the bill promises fair, timely, and transparent processing of 
petitions. Second, it changes the time depth on the inquiry from first 
sustained white contact to 1900 for all criteria. This is a reasonable 
and reliable time period for tribes to document their existence. It 
insures legitimacy with one hundred years' proof of existence from a 
time at which no incentives for false identification as Indian existed 
(such as Indian gaming.) This one change alone will dramatically 
improve and speed the process. Third, it adds one objective means of 
establishing political authority (although not community.) Fourth, it 
provides another opportunity for tribes already turned down by the BIA 
if the change in the criteria might affect the outcome on their 
petition. In all fairness, this is absolutely essential. It provides 
tribes that were subjected to an unfair process with an opportunity to 
prove their tribal existence in a fair process.
    There are amendments to H.R. 2837 that I urge the committee to 
consider in the interest of insuring that all legitimate tribes can be 
recognized as such:
      amend section 5(b)(2)(B)(x) to read ``Not less than 50 
percent of the tribal members exhibit collateral as well as lateral 
kinship ties through generations to the third degree'' [addition in 
bold]--the goal here is to establish an objective means of proving 
community, but it must take all relationships into account, those 
across and through generations;
      add continuous state recognition since 1900 as an 
objective, alternative means of proving community, inasmuch as the 
continuous existence of state recognition necessarily requires the 
presence of an Indian community;
      establish an expedited negative process for groups whose 
members cannot demonstrate Indian ancestry and an expedited favorable 
process for groups whose members descend from treaty recognized tribes, 
groups for whom a state has recognized a reservation since 1900, and 
groups found to constitute an Indian tribe under federal law by a 
federal court;
      amend section 5(c) to require that previously 
acknowledged tribes must prove only contemporary community and 
political authority. Presently this subsection requires previously 
acknowledged groups to prove their existence continuously from the time 
of last acknowledgment to the present. This may have the inadvertent 
effect of requiring more, not less, proof from these tribes since the 
beginning point for all petitions has been moved forward to 1900.
    H.R. 2837 is a good bill. With these modest changes, it establishes 
a fair process with reasonable criteria that could finally offer a real 
opportunity to non-federally recognized tribes for even handed and fair 
treatment.
Conclusion
    Once again, Mr. Chairman, thank you for the opportunity to present 
my views on this important issue. I would be happy to assist the 
committee in any way as it moves forward in its continued deliberations 
on the subject.
                                 ______
                                 
    Mr. Faleomavaega. Thank you very much.
    Mr. Tilden.

           STATEMENT OF MARK TILDEN, STAFF ATTORNEY, 
         NATIVE AMERICAN RIGHTS FUND, BOULDER, COLORADO

    Mr. Tilden. Good afternoon, Mr. Chairman and members of the 
Committee. My name is Mark Tilden, and I am a staff attorney 
with the Native American Rights Fund. And we are legal counsel 
to the United Houma Nation, the Shinnecock Indian Nation, the 
Pamunkey Tribe of Virginia, and the Little Shell Tribe of 
Montana. And we have worked on all of their petitions for 
Federal acknowledgement.
    And today I have accompanying me one of the trustees from 
the Board of Trustees with the Shinnecock Indian Nation, Mr. 
Lance Gumms, who has testified before this committee on prior 
occasions.
    To begin, the administrative acknowledgement regulatory 
process is only one pathway for Indian tribes to obtain Federal 
recognition. Under the Federal Constitution, the Congress has 
broad powers to recognize Indian tribes, so this morning was a 
little bit of a surprise that the Department of Justice has 
perhaps inquired into the scope of Congress' powers. And I am 
curious to see what the outcome of that situation is about.
    Courts also possess the power to recognize Indian tribes. 
And Congress made this unequivocally clear in the Federally 
Recognized Tribe List Act of 1994, when it expressly stated in 
the legislative history that Indian tribes presently may be 
recognized by a decision of a United States Court, in addition 
to recognition through an Act of Congress or through 
administrative proceedings.
    And the powers of Congress and the Judiciary to recognize 
tribes is not hypothetical. They both have been used when the 
situation calls for it to fulfill their Constitutional 
responsibility. And the Congress has found it appropriate 11 
times since the promulgation of the acknowledgement regulations 
in 1978, and this track record virtually matches the number of 
tribes acknowledged by the Administration, which amounts to 15 
acknowledgements.
    And Congress has not hesitated to recognize Indian tribes 
through special legislation. And I urge this committee not to 
abdicate that responsibility, but to follow the precedent of 
recognizing Indian tribes legislatively when appropriate.
    Turning to the Judiciary, it, too, has exercised its power, 
including after the enactment of the acknowledgement 
regulations. Twenty-five California tribes from 1978 to 1992 
received a judicial determination of their status, and those 
tribes are now on the list of recognized tribes.
    Most recently, on November 7, 2005, the United States 
District Court for the Eastern District of New York issued an 
order based on a full, factual record developed in extensive 
contested summary judgment proceedings, and expressly 
determined that the Shinnecock Indian Nation plainly satisfies 
the Federal common law standard for determining tribal 
existence; that the Shinnecock Indians are, in fact, an Indian 
tribe, and recognized the Shinnecocks as a tribe.
    Yet the Department of the Interior has wrongly refused to 
place the Nation on the list of Federally recognized tribes. 
This inequity should be addressed by the Congress, because the 
Congress has stated that judicial recognition is a legally 
acceptable method of obtaining Federal recognition.
    And I think I would follow up on Arlinda, Ms. Locklear's 
comments, too, about, you know, there is a certain point in 
time when I think it is really, it could really speed up the 
process if the Department were to take the position that tribes 
that are Federally recognized by a Federal court, or even by a 
state supreme court, like in the case of the Little Shell Tribe 
of Montana, that that is the end of the process right there; 
they are a Federally recognized tribe at that point in time. 
And that should be the decision itself, that they can be placed 
on the list of Federally recognized tribes.
    Turning to H.R. 2837, it is unfair, it is extremely slow, 
and it is very, very expensive for the petitioners. And I think 
the one thing I would like to really point out here is how 
expensive it is for petitioners.
    In our experience, the petitions now cost over $1 million 
out-of-pocket expenses, and that doesn't include attorney 
times. So when the Administration is sitting here talking about 
additional funding, I think the other point to be made is that 
tribes also need additional funding. I mean, if it is going to 
cost millions and millions of dollars, where do tribes get that 
money?
    Before, the Administration for Native Americans was 
providing some funding to tribes, although it was limited. But 
now they really don't provide any funding at all. That type of 
funding has really stopped altogether for tribes. And so a lot 
of tribes have had to turn to gaming developers out of 
necessity.
    Unfortunately, the fact is that that source of funding has 
been used against tribes. And I can say this for a fact, that 
all of my clients, and I think a lot of the petitioners, really 
started the process way before the Indian Gaming Regulatory Act 
was even thought of.
    And I think the other point, too, that I wanted to make 
was, there was a comment this morning by Congressman Duncan 
about the gaming situation, and the fact that a lot of tribes 
may have started the, may have submitted a petition for Federal 
recognition, or a letter of intent.
    But I think, you know, the one thing that really peaked was 
in the early 1990s, when the Administration held meetings, and 
they really solicited the input of non-Federally recognized 
tribes. They held two meetings at the White House, where they 
invited all the non-Federally recognized tribes. And at that 
point, the Branch of Acknowledgement and Research get a lot of 
outreach to really welcome tribes to submit letters of intent 
or petitions for Federal acknowledgement. And so there was a 
peak around 1994 or 1995.
    And so I don't think it was a result of Indian gaming; I 
think it was a result of some of these meetings that were held 
by the White House, as well as the outreach that was done by 
the Administration.
    Again, the other problem is that it is incredibly slow. The 
BIA has said that it takes about--I mean, they decide 1.3 
decisions per year. That has come out in the past. And for 
some, you know, and at that pace it is going to take a very 
long time.
    I can give you one example: the United Houma Nation. They 
filed their petition in 1985, and that was over 20 years of 
waiting. And they submitted a response to their proposed 
findings in 1996. And so that is over 10 years of the tribe 
waiting for a final decision on their petition for Federal 
recognition.
    So there is a lot of inherent problems with the Federal 
regulatory process, and I submitted written comments. And if 
those could be made part of the record--and I spelled out a lot 
of the recommendations that we made to help improve the Federal 
regulatory process.
    Thank you.
    [The prepared statement of Mr. Tilden follows:]

     Statement Submitted on Behalf of the United Houma Nation, the 
  Shinnecock Indian Nation, the Pamunkey Tribe, and the Little Shell 
                Tribe by the Native American Rights Fund

    The Native American Rights Fund represents the United Houma Nation, 
the Shinnecock Indian Nation, the Pamunkey Tribe, and the Little Shell 
Tribe. We appreciate the opportunity to submit testimony on H.R. 2837--
``Indian Tribal Federal Recognition Administrative Procedures Act of 
2007''. This statement is based on our experience in representing the 
above, and other, tribes seeking and obtaining federal recognition.
    H.R. 2837 is a response to the various problems that have been 
identified in the acknowledgment process established and currently used 
by the Bureau of Indian Affairs (BIA). Non-federally recognized tribes 
are mindful and appreciative of your dedication and earnestly hope that 
your efforts will bear fruit this Congress in the form of a fair and 
reasonable federal recognition process for Indian tribes to replace the 
present burdensome, expensive and unworkable administrative recognition 
process. Our experience with the process convinces us that the present 
administrative process is beyond repair and nothing less than a 
comprehensive remaking of the process by Congress can restore fairness 
and reason to the recognition process. We support the effort to deal 
with those problems. H.R. 2837 provides solutions to some of the 
problems. We have recommendations as to the others and as to some parts 
of the bill itself.
RECOGNITION
    Although the government recognized most of the currently federally-
recognized tribes in historic times, it continues to acknowledge tribes 
to the present day. Under current law, Congress, the Department of the 
Interior (Department or DOI) and the Judiciary have authority to 
recognize tribes. In section 103(3) of the Tribe List Act, 25 U.S.C. 
Sec. 479a Note, Congress expressly stated that ``Indian tribes 
presently may be recognized by--a decision of a United States 
court[,]'' in addition to recognition through an Act of Congress or 
through administrative proceedings.
RECOGNITION PRACTICE
1. Congress
    Congress has always had the broad constitutional power to recognize 
Indian tribes. United States v. Sandoval, 231 U.S. 28 (1913). 
Currently, it recognizes tribes through special legislation. It has 
done so eleven times after the federal acknowledgment process was 
established in 1978 (while the BIA has acknowledged fifteen). See e.g., 
Act of October 10, 1980, 94 Stat. 1785 (Maliseet Tribe of Maine); Act 
of October 18, 1983, 97 Stat. 851 (Mashantucket Pequot Tribe of 
Connecticut), Act of November 26, 1991, 105 Stat. 1143 (Aroostook Band 
of Micmacs); Act of September 21, 1994, 108 Stat. 2156 (Little Traverse 
Bands of Ottawa Indians and the Little River Band of Ottawa). This is 
congruent with its intent not to abdicate its constitutional 
responsibility. Indeed, the GAO noted that ``BIA's recognition process 
was never intended to be the only way groups could receive federal 
recognition.'' Indian Issues: Basis for BIA's Tribal Recognition 
Decisions Is Not Always Clear, GAO-02-936T, p.8. Thus, Congress reviews 
and acts on requests for special recognition legislation on a case-by-
case basis.
2. Judiciary
    Section 104 of the Tribe List Act, 25 U.S.C. Sec. 479a-1, requires 
that the Secretary annually, on or before every January 30, ``shall 
publish in the Federal Register a list of all Indian tribes which the 
Secretary recognizes to be eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians.''
    The Federally Recognized Indian Tribe List Act of 1994, Pub. L. 
103-454, 108 Stat. 4791, 25 U.S.C. Sec. 479a et seq., specifically 
addresses the means available to Indian tribes seeking federal 
acknowledgement. In Section 103(3) of the Tribe List Act, 25 U.S.C. 
Sec. 479a Note, Congress expressly stated that ``Indian tribes 
presently may be recognized by...a decision of a United States 
court[,]'' in addition to recognition through an Act of Congress or 
through administrative proceedings. In Sections 103(7) and (8), 
Congress stated that ``the list published by the Secretary should be 
accurate, regularly updated, and...should reflect all of the federally 
recognized Indian tribes in the United States....'' This should include 
any tribe recognized by a United States court, and any court of the 
various fifty states. Montoya v. United States, 180 U.S. 261 (1901); 
United States v. Candalaria, 271 U.S. 432 (1926); Koke v. Little Shell 
of Chippewa Indian of Montana, Inc., 68 P.3d 814 (Mont. 2003).
    Indeed, twenty-five California tribes, from 1978 to 1992, received 
a judicial recognition of their status. Those tribes are now on the 
Tribe List. 1 Most recently, on November 7, 2005, the United 
States District Court for the Eastern District of New York issued a 
Memorandum and Order, on a full factual record developed in extensive, 
contested summary judgment proceedings, in which it expressly 
determined that the Shinnecock Indian Nation ``plainly satisfies'' the 
``federal common law standard for determining tribal existence,'' 
``that the Shinnecock Indians are in fact an Indian tribe'' and 
``recognized the Shinnecocks as a Tribe.'' State of New York, et al. v. 
The Shinnecock Indian Nation, et al., 03 CIV 3243 (E.D.N.Y.),----, 
November 7, 2005 Order at 5, 12, 14. [This Order also is reproduced in 
full at 400 F. Supp. 2d 486 (E.D. N.Y. 2005).] Specifically, the 
District Court determined that the Shinnecock Indian Nation was ``an 
Indian Tribe not only when the first white settlers arrived in the 
eastern end of Long Island in 1640, but were such in 1792 when New York 
State enacted a law confirming that fact and that [the Nation] 
remain[s] an Indian Tribe today,'' falling ``squarely within the 
umbrella of the Montoya v. United States, 180 U.S. 261...(1901) and 
Golden Hill [Paugusett Tribe v. Weicker], 39 F.3d 51 [(2nd Cir. 1994)] 
line of cases...continuing to the present, [that] establish a federal 
common law standard for determining tribal existence that the 
Shinnecock Indian Nation plainly satisfies.'' Order at 10-12. These are 
the leading applicable cases regarding judicial recognition of Indian 
tribes. Finally, the Court determined that there was ``no requirement 
or need for further inquiry into this matter,'' that is, its holding 
that recognized the Shinnecock Indian Nation to be an Indian tribe for 
purposes of federal law is final. Order at 10. This ruling in the 
Shinnecock case is entirely consistent with the Tribe List Act, which 
specifically addresses the means available to Indian tribes seeking 
federal acknowledgement. Yet, the Department of the Interior has 
wrongly refused to place the Nation on the Tribal List. This inequity 
should be addressed by the Congress.
---------------------------------------------------------------------------
    \1\ 1978--Hopland Rancheria; 1979 (Tillie Hardwick Settlement)-the 
Rancherias of Big Valley, Blue Lake, Buena Vista, Chicken Ranch, 
Cloverdale, Elk Valley, Greenville, Mooretown, North Folk, Pinoleville, 
Potter Valley, Quartz Valley, Redding, Redwood Valley, Rohnerville, and 
Smith River; 1981-Table Bluff Band; 1983-Table Mountain Rancheria; 
1983-Big Sandy Band of Western Mono; and 1991-(Scott's Valley 
Settlement) Lytton Band of Pomo Indians, United Auburn Band of Pomo, 
Scotts Valley Band of Pomo and Guidiville Band of Pomo.
---------------------------------------------------------------------------
    As was reported in a 2005 report to Congress, the Congressional 
Budget Office (``CBO'') in preparing a cost estimate for H.R. 5134, ``a 
bill to require the prompt review by the Secretary of Interior of the 
long-standing petitions for federal recognition of certain Indian 
tribes,'' reported to the U.S. House of Committee on Resources:
        ``CBO expects that the department probably would be unable to 
        comply with the deadlines in the bill even with additional 
        resources. In that event, the affected tribes could pursue 
        judicial recognition as they may under current law.''
Letter, From Peter H. Fontaine, CBO to Richard Pombo, Chairman U.S. 
House Committee on Resources, Nov. 18, 2004 (emphasis added).
3. Department of the Interior
    Prior to 1978, DOI made acknowledgment decisions on an ad hoc basis 
using the criteria ``roughly summarized'' by Assistant Solicitor Felix 
S. Cohen in his Handbook of Federal Indian Law (1942 ed.) at pp. 268-
72. In 1978, the Department issued acknowledgment regulations in an 
attempt to ``standardize'' the process. Both the process and the 
criteria established in the regulations were different than those used 
prior to 1978.
A. The Acknowledgment Regulations
    In the 1970s various controversies involving nonrecognized tribes, 
2 including an increase in the number of requests for 
recognition, 3 led the Department to review its 
acknowledgment practice. That in turn led to the promulgation of the 
1978 acknowledgment regulations. 43 Fed. Reg. 39361 (Sept. 5, 1978) 
currently codified at 25 C.F.R. Part 83. 4 In publishing the 
regulations, the government explained that prior to 1978, requests for 
acknowledgment were decided on a ``case-by-case basis at the discretion 
of the Secretary.'' 43 Fed. Reg. at 39361. The 1978 regulations were an 
attempt to develop ``procedures to enable the Department to take a 
uniform approach'' in the evaluation of the petitions. Id.
---------------------------------------------------------------------------
    \2\ In 1972, the Passamaquoddy Tribe of Maine sued the federal 
government to force it to file a land claim on its behalf under the 
Indian Nonintercourse Act, 25 U.S.C. Sec. 177, even though it was not 
then federally-recognized. See, Joint Tribal Council of Passamaquoddy 
Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975). In the mid-1970s, a 
number of nonfederally recognized tribes attempted to assert treaty 
fishing rights in the United States v. Washington litigation. See, 
United States v. Washington, 476 F.Supp. 1101 (W.D. Wash. 1979), aff'd, 
641 F.2d 1368 (9th Cir. 1981), cert. denied, 454 U.S. 1143 (1982).
    \3\ For example, the Stillaguamish Tribe requested recognition in 
1974. When the Department of the Interior refused to act on the 
request, the Tribe filed suit. The federal district court in 
Washington, D.C. ordered the Department to make a decision on the 
request. Stillaguamish v. Kleppe, No. 75-1718 (Sept. 24, 1976). The 
Department recognized the Stillaguamish Tribe in October 1976.
    \4\ The proposed acknowledgment regulations were first published 
for comment on June 16, 1977. 42 Fed. Reg. 30647. They were redrafted 
and published for comment a second time on June 1, 1978. 43 Fed. Reg. 
23743. They were published in final on September 5, 1978.
---------------------------------------------------------------------------
    Under the 1978 regulations, groups submit petitions for recognition 
to the Assistant Secretary for Indian Affairs. 25 C.F.R. Sec. 83.4. The 
petition must demonstrate all of the following ``in order for tribal 
existence to be acknowledged'': (a) identification of the petitioner as 
Indian from historical times; (b) community from historical times; (c) 
political influence from historical times; (d) petitioner's governing 
document; (e) a list of members; (f) that petitioner's membership is 
not composed principally of persons who are not members of any other 
North American Indian tribe; and (g) that petitioner was not 
terminated. 25 C.F.R. Sec. 83.7(a)-(g).
    Upon receipt of a petition, the Assistant Secretary causes a 
``review to be conducted to determine whether the petitioner is 
entitled to be acknowledged as an Indian tribe.'' 25 C.F.R. 
Sec. 83.9(a). Most of the technical review is carried out by the Office 
of Federal Acknowledgment (OFA). 5
---------------------------------------------------------------------------
    \5\ Technically, recognition decisions are made by the Assistant 
Secretary--Indian Affairs. Review of petitions and recommended 
decisions is done by the OFA staff (formerly called the Branch of 
Acknowledgment and Research, which was formerly called the Federal 
Acknowledgment Project).
---------------------------------------------------------------------------
    The next step is active consideration by OFA. 25 C.F.R. 
Sec. 83.9(d). The Assistant Secretary, then issues proposed findings 
for or against recognition. 25 C.F.R. Sec. 83.9(f). Petitioners have 
the opportunity to respond to the proposed findings. 25 C.F.R. 
Sec. 83.9(g). After consideration of responses to the proposed 
findings, a final determination is made. 25 C.F.R. Sec. 83.9(h). The 
Assistant Secretary's final determination is final unless the Secretary 
of the Interior requests reconsideration. 25 C.F.R. Sec. 83.10(a).
B. Practice under the Acknowledgment Regulations
    The process used to consider petitions under the 1978 regulations 
is not as simple as the regulations suggest. In response to discovery 
requests in Miami Nation of Indiana v. Babbitt, No. S 92-586M (N.D. 
Ind. filed 1992), the Department described the actual process used in 
processing petitions for recognition under the regulations.
    Once a petition is placed on active consideration, a three person 
team is assigned to evaluate it. Miami Discovery Responses. The team 
consists of an anthropologist, a genealogist, and a historian. Id. Each 
member of the team evaluates the petition under the 25 C.F.R. Part 83 
criteria and prepares a draft technical report. Id. Evaluation of the 
petition consists of verifying the evidence submitted by the 
petitioners, supplementing the evidence submitted where necessary, and 
weighing the evidence as to its applicability to the criteria. Id. The 
individual reports are cross-reviewed by each team member. Id. 
Preparation of the reports includes comparing the petition to past 
determinations and interpretations of the regulations. Id.
    Following completion of the draft technical reports, there is an 
``extensive internal review, termed peer review''. Id. Peer reviewers 
are other OFA professional staff not assigned to the case. The 
technical reports are reworked ``until the professional staff as a 
group concludes that the report provides an adequate basis for a 
recommendation to the Assistant Secretary.'' Id.
    After review and editing by the OFA chief, the acknowledgment 
recommendations and reports are subject to legal review by the 
Solicitor's Office and Bureau of Indian Affairs line officials up to 
the Assistant Secretary. Id. If those officials require more 
information or clarification, OFA typically provides the information 
through meetings. Id.
C. The 1994 Revisions to the Acknowledgment Regulations
    In 1991, DOI proposed revisions to the 1978 regulations. 56 Fed. 
Reg. 47320 (Sept. 18, 1991). The revisions were not finalized until 
February 25, 1994. 59 Fed. Reg. 9280 (February 25, 1994) codified in 25 
C.F.R. Part 83 (1999 ed.). In promulgating the revisions, the federal 
government stated:
        None of the changes made in these final regulations will result 
        in the acknowledgment of petitioners which would not have been 
        acknowledged under the previously effective acknowledgment 
        regulations. Neither will the changes result in the denial of 
        petitioners which would have been acknowledged under the 
        previous regulations.
59 Fed. Reg. at 9280.
    The 1994 revisions specify the types of evidence that will be 
accepted to establish the two most troublesome criteria, community and 
political influence. These are listed in 25 C.F.R. Sec. 83.7(b) and 
(c). They also include a special provision for determining whether a 
group was previously recognized and the effect of previous recognition. 
25 C.F.R. Sec. 83.8.
PROBLEMS TO BE ADDRESSED BY H.R. 2837
    There are a number of concerns with the Department's recognition 
practice under the acknowledgment regulations. Even before the current 
Departmental process was established in 1978, there was doubt that the 
Department and its Bureau of Indian Affairs could deal fairly with 
applicants for recognition. In addition, practice before the Department 
and BAR has shown a number of weaknesses in the procedures used to 
review and determine petitions. Those concerns, along with concerns 
about some of the provisions of H.R. 2837 and proposed solutions are 
set out below.
1. Independent Decision-Making
    One of the fundamental issues is who should make recognition 
decisions. Congress has the ultimate authority, but DOI has interpreted 
the general grant of rulemaking in 25 U.S.C. Sec. Sec. 2 and 9 to allow 
it to do so as well. It was under those general statutes that the 
Department issued the existing acknowledgment regulations. The numerous 
oversight hearings on those regulations and the legislative attempts to 
change the Department's acknowledgment process have all indicated that 
it is questionable that DOI's Bureau of Indian Affairs, which manages 
the government's relationship with federally recognized tribes, can 
make an impartial decision on the recognition of ``new'' tribes.
    In the years 1975 to 1977, the American Indian Policy Review 
Commission (AIPRC) conducted a review of ``the historical and legal 
developments underlying the Indians' relationship with the Federal 
Government and to determine the nature and scope of necessary revisions 
in the formulation of policy and programs for the benefit of Indians.'' 
Final Report American Indian Policy Review Commission, Cover Letter 
(May 17, 1977). The review included a study of the status of 
nonrecognized tribes and resulted in reports and recommendations 
concerning recognition policy. Id. Chapter Eleven; Report on Terminated 
and Nonfederally Recognized Indians, Task Force Ten, AIPRC (October 
1976). The AIPRC described the posture of DOI in making recognition 
decisions and expressed concern about the ability of the Department to 
deal fairly with nonrecognized tribes.
        The second reason for Interior's reluctance to recognize tribes 
        is largely political. In some areas, recognition might remove 
        land from State taxation, bringing reverberations on Capitol 
        Hill. There also is the problem of funding programs for these 
        tribes.

        Interior has denied services to some tribes solely on the 
        grounds that there was only enough money for already-recognized 
        tribes....Already-recognized tribes have accepted this 'small 
        pie' theory and have presented Interior with another political 
        problem: The recognized tribes do not want additions to the 
        list if it means they will have difficulty getting the funds 
        they need.
Final Report AIPRC at 476.
    Concern with impartiality has echoed in the various hearings on 
recognition that have been held since 1977. There is widespread 
apprehension that the Department, the Bureau of Indian Affairs, and OFA 
are subject to inappropriate political influence in making recognition 
decisions. See e.g. the Statement of Raymond D. Fogelson, Dept. of 
Anthropology, University of Chicago on S. 611, a Bill to Establish 
Administrative Procedures to Determine the Status of Certain Indian 
Groups Before the Senate Select Committee on Indian Affairs, 101st 
Cong., 1st Sess. 177 (May 5, 1989) (``While I respect the individual 
conscientiousness, competence, and integrity of members of B.A.R., I 
believe that an office separate from B.I.A. will be more immune to 
possible allegations of conflicts of interests or to the potential 
influence of Bureau policy and attitudes. It seems to me that the 
B.I.A. has enough to do in administering Federal Indian programs and 
serving the needs of the Indian clientele without also assuming the 
additional role of gatekeeper.''); Deposition of John A. Shapard, Jr., 
former chief of BAR, in Greene v. Babbitt, No. 89-00645-TSZ (W.D. 
Wash.) at p. 33 (``there's a general, all-persuasive attitude 
throughout the bureau that they don't want anymore tribes''); see also, 
the Statement of Allogan Slagle in Oversight Hearing on Federal 
Acknowledgment Process Before the Senate Select Committee on Indian 
Affairs, 100th Cong., 2nd Sess. 198 (May 26, 1988) (``No matter how 
fair the BIA/BAR staff attempt to be, and no matter how they try to see 
that their decisions reflect a common standard, the perception of many 
tribes is that there are inequities in the way that the requirements 
are enforced.'')
    Those concerns persist to this day and taint the existing DOI 
recognition process. In the creation of a Commission and an 
adjudicatory process to rule on petitions for federal recognition, H.R. 
2837 solves half the problem in the current administrative process, 
that is, it requires an open decision-making process by a Commission 
that lacks the institutional biases of the BIA. Because its mission is 
to serve federally-recognized tribes, the BIA is institutionally 
incapable of fairly judging non-federally recognized Indian tribes, 
particularly through the closed decision-making process currently 
employed by the Bureau. The creation of an independent Commission is an 
important step that gives non-federally recognized tribes at least the 
prospect of a fair assessment of their petitions.
    We have a suggestion, however, on this aspect of H.R. 2837. We 
suggest that the Committee consider one additional change to the 
provisions creating the Commission, that of adding to the end of 
Section 4(h) the following proviso: ``provided that no individual 
presently employed by the Office of Federal Acknowledgment, Bureau of 
Indian Affairs, shall be employed by the Chairperson.'' This limitation 
is not meant to imply bias or lack of qualifications on the part of any 
individual staff member at OFA. It is unreasonable, however, to expect 
that those individuals, many of whom have worked under the dictates of 
the present acknowledgment regulations for years, could quickly adapt 
to the dramatically different decision-making process to be used by the 
Commission (and perhaps applying different criteria such as those 
suggested below). To insure a smooth and expeditious transition to the 
new way of doing business, the Commission should be required to employ 
fresh personnel.
    Proposed Changes to H.R. 2837: Add to the end of Section 4(h) the 
following proviso: ``provided that no individual presently employed by 
the Office of Federal Acknowledgment, Bureau of Indian Affairs, shall 
be employed by the Chairperson.''
2. Hearing Process
    Under the process established in the acknowledgment regulations, it 
is technically the Department's Assistant Secretary--Indian Affairs 
that makes recognition decisions. The OFA staff, however, do all the 
work of reviewing petitions, independent research, and decision 
writing. That work takes a number of years and is, in large part, 
hidden from petitioners.
    H.R. 2837 makes a needed change from the DOI process. Formal 
hearings are provided in Sections 8 and 9. Such hearings will bring 
more transparency to the decision-making process thereby giving 
petitioners a much better idea of their obligations and more confidence 
in the ultimate decision. Such hearings will also focus the examination 
of the Commission and the staff in a manner that is completely lacking 
in the present process.
    There are three matters that should be made more specific in 
Sections 8 and 9 of H.R. 2837.
    1) It should be made clear that the Commission itself will preside 
at both the preliminary and adjudicatory hearings. Under the DOI 
acknowledgment regulations, it is the Assistant Secretary--Indian 
Affairs that makes recognition decisions. The Assistant Secretary, 
however, is not involved in most of the work that leads to those 
decisions. The OFA staff reviews petitions, does additional research, 
and writes the recommended decisions. The Assistant Secretary signs off 
on those decisions. Although there is no doubt that staff will be 
necessary to aid the Commission in making decisions, the Commission 
should be much more involved in decision-making than the Assistant 
Secretary. One way to accomplish that is to make clear that it is the 
Commission that presides at all hearings.
    Proposed Changes to H.R. 2837: Sections 8(a) and 9(a), 
respectively. should be amended to state that the Commission will 
preside at the Preliminary Hearing or Adjudicatory Hearing with 
specific language to the effect ``...the Commission shall set a date 
for a preliminary hearing, in which the Commission shall preside, 
and...'' and ``...shall afford a petitioner who is subject to section 
8(b)(1)(B) an adjudicatory hearing, in which is shall preside.''
    2) It should be made clear that records relied upon by the 
Commission will be made available, in a timely manner, to petitioners. 
Both the present Departmental process and H.R. 2837 include preliminary 
decisions to which petitioners respond. Our experience with OFA 
indicates that it is imperative to make clear that the Commission and 
its staff provide petitioners with the documents and other records 
relied upon in making the preliminary decision. In one case, DOI issued 
proposed findings on the United Houma Nation (UHN) petition in mid-
December 1994. Under the acknowledgment regulations, UHN had 180 days 
to respond to the proposed findings. OFA only began making records 
relative to the proposed findings available to the UHN's researchers in 
April of 1995 for a response due June 20, 1995. It was past the June 
20, 1995 deadline before most documents were received. (We note for the 
Congress that the UHN submitted its response to the BIA's proposed 
finding in November, 1996, and it is still waiting for a final 
decision, over ten years later. That type of delay is unconscionable.).
    3) The bill should explain the precedential value of prior DOI 
recognition decisions and should make the records of those decisions 
readily available to petitioners. OFA has stated that it views its 
prior decisions as providing guidance to petitioners. It is very 
difficult, however, to get access to or copies of the records relating 
to those decisions or to get guidance from OFA as to the specific 
decisions it intends to follow in a given case. In one particular 
instance, for example, the Shinnecock Indian Nation submitted its 
petition in September, 1998 and subsequently met with OFA staff on 
March 1, 1999 to obtain technical assistance to strengthen its 
petition. The OFA staff advised the Nation's representatives to review 
two specific recognition decisions and federal court opinions. The 
Nation's representatives requested copies of those decisions and a list 
of those federal court opinions. OFA eventually provided the copies by 
March 2000--a relatively simple task to begin with. It never did 
provide the list of federal court opinions. With the transfer of 
petitions to the Commission, the precedential value of OFA, and earlier 
Departmental decisions, should be explained with specificity. If those 
prior decisions are considered precedent, the records of those 
decisions should be promptly made available to petitioners.
    Proposed Changes to H.R. 2837: Section 8(c)(1)(A)(i) should be 
amended to state that all records relied upon by the Commission and its 
staff in making the preliminary determination shall be made available 
to petitioners including prior decisions relied upon and records 
relating to such prior decisions. Given the deadlines for hearings in 
the bill, those records must be available immediately, at least within 
30 days.
3. The Criteria in H.R. 2837
    The criteria in the DOI acknowledgment regulations and in H.R. 2837 
are very similar. The creation of the Commission only solves half the 
problem with the present administrative process. Under Section 5 of 
H.R. 2837, the Commission would apply the substantially same criteria 
to the determination of tribal existence as those applied in the 
present administrative process. As written and applied, the criteria in 
the present regulations are so burdensome and heavily dependent upon 
primary documentation that many legitimate Indian tribes simply cannot 
meet them. If these same criteria are applied by the Commission, the 
Commission will become overwhelmed in expensive and time-consuming 
examination of minutiae much of which is unnecessary to the 
determination of tribal existence. Worst of all, the Commission will 
fail to recognize legitimate Indian tribes, just as the BIA has done 
under the current regulations.
    Today's testimony by Arlinda Locklear, Esq., reiterates the 
unreasonableness of the current acknowledgment criteria. We support her 
testimony.
    We ask the Committee to assume full responsibility in establishing 
reasonable criteria, rather than abdicating its responsibility by 
simply enacting into law the BIA's acknowledgment regulations, and to 
consider the recommendations by Ms. Locklear.
4. The Exclusion of Indian Groups Under Section 5 of H.R. 2837.
    Unfortunately, H.R. 2837 would exclude Indian groups from the 
recognition process. That is unwarranted. H.R. 2837, as currently 
written, is a significant change from the process under DOI's 
acknowledgment regulations. For that reason, it seems fair to let those 
groups denied under the regulations have at least one chance under the 
Commission. And it is even more important for those large tribes like 
the United Houma Nation, which has over 10,000 members and received a 
negative proposed finding. The acknowledgment regulations were not 
designed to handle such large petitioners.
    Proposed Changes to H.R. 2837: Section 5(a) should be amended to 
provide that groups that have been denied recognition under the 
acknowledgment regulations are allowed a hearing before the Commission. 
Section 5(a) should be amended by striking ``if the Commission 
determines that the criteria established by this Act changes the merits 
of the Indian group's documented petition submitted to the 
Department.'' Section 5(a)(3)(C) should be deleted.
CONCLUSION
    The Congress has broad powers to recognize Indian tribes. Courts 
also possess the power to recognize Indian tribes. Thus, the 
administrative acknowledgment regulatory process is only one pathway 
for Indian tribes to obtain federal recognition and does not displace 
other legal methods for determining tribal existence. Congress made 
this unequivocally clear in the Tribal List Act when it expressly 
stated that ``Indian tribes presently may be recognized by...a decision 
of a United States court[,]'' in addition to recognition through an Act 
of Congress or through administrative proceedings.

Respectfully Submitted,

Mark C. Tilden
Senior Staff Attorney
Native American Rights Fund
                                 ______
                                 
    Mr. Faleomavaega. Thank you, Mr. Tilden.
    Mr. Keedy.

   STATEMENT OF JAMES A. KEEDY, EXECUTIVE DIRECTOR, MICHIGAN 
         INDIAN LEGAL SERVICES, TRAVERSE CITY, MICHIGAN

    Mr. Keedy. Good afternoon. My name is James Keedy; I am the 
Executive Director of Michigan Indian Legal Services. And I 
wish to thank the Committee for giving me this opportunity to 
testify.
    I would also like to note that Mr. Ron Yob, the Chairman of 
the Grand River Bands of Ottawa Indians, is here today.
    Michigan Indian Legal Services has worked with many tribes 
in the past 30 years as seeking Federal recognition, and I 
summarized all of that in my written testimony.
    Today I would like to mention that MILS--Michigan Indian 
Legal Services--filed the first petition under the 1978 
regulations. In fact, I have it with me here today. In this 
notebook is the petition, the tribe's constitution and all 
their supporting documents for the petition for Federal 
recognition. And that was filed in December of 1978.
    Just 10 months later, October 1979, the BIA published 
proposed findings in favor of recognition of the Grand Traverse 
Band. Contrast that with a more recent case. On December 8, 
2000, I and Mr. Yob and other members of the Grand River Bands 
delivered 21 banker boxes of documents to the BIA offices. And 
in just this year, seven years after that petition was 
delivered, they were placed on the ready and waiting for active 
consideration list.
    While that is progress, it is estimated that the Grand 
River Bands will now wait 15 to 20 years for a decision, a 
final decision, on that petition. Obviously, something is very 
wrong with the eventual outcome for the Grand River Bands, 
justice is not served by such a delay. It is universally 
recognized that justice delayed is justice denied.
    Can this problem be fixed? I think that H.R. 2837 presents 
an opportunity to do that. If the problem was simply a lack of 
resources, Congress could fix the problem by appropriating 
additional money. I believe that the problem cannot be solved 
by money alone.
    The example of the Grand Traverse Band petition 
demonstrates that lack of money is not the problem, as it would 
seem clear that it cost a lot less to process this petition, 
and it took a lot less time, than what is happening today.
    So while it would be nice if money could solve the problem, 
it appears that there is something else going on here.
    I believe it has been amply demonstrated that Congress has 
the power to create a solution to this problem. The testimony 
of Mr. Tilden sets forth the many times that Congress has 
recognized tribes. Obviously, if Congress can recognize a 
tribe, it can certainly set forth the criteria and process by 
which tribes will be recognized.
    And it is very important that Congress act. The lack of 
Federal recognition causes problems every day for ordinary 
tribal members.
    For example, Congress created a very thoughtful response to 
the problem of massive numbers of Indian children lost to 
tribes and tribal culture by adoption into the majority 
culture. And they created the Indian Child Welfare Act.
    The problem for members of tribes that lack Federal 
recognition is that the protections of the Indian Child Welfare 
Act are only granted to children whose parents are members of 
Federally recognized tribes.
    In a book called American Indians: Time and the Law, 
Charles Wilkinson remarked that in his view, the effect of U.S. 
Indian policy was, for native people, the creation of a 
measured separatism.
    But without the benefits of U.S. policy, members of tribes 
that are not recognized are at risk of being overwhelmed by the 
dominant culture and law. That may explain the comments of the 
Grand Traverse Band member that I cited in my written 
testimony. That on the day we got recognized, we were suddenly 
a people.
    The Independent Commission created by H.R. 2837 is a very 
important idea, and one that has been suggested many times in 
prior hearings on Federal recognition reform. Commenters today 
and at prior hearings have noted the inherent conflict of the 
BIA in supporting existing tribes, while charged with 
determining if new tribes should split a pie in increasingly 
smaller pieces.
    But beyond that, as the current process has evolved it 
makes it clear that a fresh start is needed. The current 
process was not intended to be so burdensome. Mr. Shepard, who 
helped draft the 1978 regulations, has stated that petitions 
like the Grand Traverse Band petition, were what was intended.
    The process needs to be an adjudicatory function of 
government, and instead it resembles an academic exercise. The 
criteria that were the foundation for the current regulations 
that ``Cohen criteria'' cited in my written testimony were 
meant to be an aid and a fact-finder in establishing that the 
tribe continued to exist. And a fact-finder only looked at 
those criteria to see if the tribe continued in tribal 
relations. They weren't used to establish that a tribe existed.
    The regulations in 1978 completely flip-flipped that, and 
said that the tribes had to prove that they exist now. And, not 
only--in the Cohen criteria, you looked at one of the factors 
as you could use in combination singly or jointly; now you have 
to meet all seven of the factors in the excruciating detail 
that we had earlier talked about, and meet any of them to a 
degree of 100 percent.
    The elements we need to change I think are in H.R. 2837. It 
creates a separate commission. There is a sunset provision in 
funding for researching the petitioners. The criterion, 
however, are still problematical. And we would suggest a 
rulemaking process to develop the criterion.
    The Grand Traverse Band of Ottawa Indians share the same 
treaties and history with the other recognized tribes in the 
State of Michigan: the Grand Traverse Band, the Little River 
Band, the Little Traverse Bay Bands, and the Sioux St. Marie 
Tribe.
    Political power for all of these groups was derived from 
clans, which is very unlike the organized governments that the 
regulations envision. They were signatories to the 1821, 1836, 
and 1855 treaties. They petitioned for, and were refused, 
recognition under the IRA in the 1930s.
    They received distributions of land claim settlements, and 
participated in discussions with Congress over payment of those 
claims. Yet they are the only tribe not recognized, and may not 
be for many years if the process is not reformed.
    I thank you for taking up this bill and moving on a reform 
of the process.
    [The prepared statement of Mr. Keedy follows:]

        Statement of James A. Keedy, Esq., Executive Director, 
                     Michigan Indian Legal Services

    Good morning, Chairman Rahall, Ranking Member Young and 
distinguished members of the House Natural Resources Committee.
    My name is James A. Keedy and I am honored to appear before you 
today to offer my thoughts and recommendations for reforming the 
process for recognition of American Indian groups as Tribes by the 
Bureau of Indian Affairs (BIA) at the Department of the Interior. I 
began working as a staff attorney in 1987 for Michigan Indian Legal 
Services (MILS), an agency based in Traverse City, Michigan. In 1988, I 
was appointed Executive Director and have held that position since 
then. During the past 20 years, I have either been involved in, or have 
a working familiarity with, all the recognition work for Indian Tribes 
in Michigan.
    As a staff attorney and executive director of MILS, I have 
personally worked with two Tribes that are or were in the federal 
recognition process. In the late 1980s, I began working with the 
leadership of the Pokagon Band of Potawatomi Indians to prepare and 
file a petition for federal acknowledgment. In 1988, the fully 
documented petition was filed with the Branch of Acknowledgment and 
Research, now known as the Office of Federal Acknowledgment (OFA). The 
BIA had not acted on the petition six years later when Congress 
directly affirmed the Tribe's federal status in 1994 by enacting Pub.L. 
No. 103-323.
    Since 1994, I have been working with the Grand River Bands of 
Ottawa Indians (GRBOI). The GRBOI filed a fully documented petition at 
the OFA on December 8, 2000, after traveling by automobile from Grand 
Rapids with 21 boxes of documents. The trip started at 2:00 p.m. on 
December 7 and we arrived in Washington, DC at 3:00 a.m. on the 
December 8, in time for a 9:00 a.m. appointment at the BIA. To date, 
the GRBOI petition is still awaiting the review that will precede a 
final decision. My understanding is that, at the present pace of 
review, the GRBOI petition will not receive that review for at least 15 
to 20 years.
    MILS also provided assistance to the Lac Vieux Desert Band of Lake 
Superior Chippewa Indians (LVD), the Little River Band of Ottawa 
Indians (LRB) and the Little Traverse Bay Bands of Odawa Indians (LTBB) 
on the federal recognition efforts of those Tribes. LVD received 
recognition by an Act of Congress in 1988, Pub.L. No. 100-420. Congress 
then recognized both LRB and LTBB in 1994 by enacting Pub.L. No. 103-
324, a companion bill to the Pokagon Band bill mentioned earlier.
    MILS represented the Grand Traverse Band of Ottawa and Chippewa 
Indians when that Tribe sought federal recognition in 1978. MILS filed 
the petition for federal recognition in December 1978 under the newly 
promulgated regulations. Just 10 months later, the BIA published in the 
Federal Register ``Proposed Findings for Acknowledgment of the Grand 
Traverse Band,'' 44 Fed.Reg. 60171, October 18, 1979. All the petition 
documents fit into a one-inch binder. Successful federal recognition 
decisions, therefore, can and have been made in much less time and with 
far less documentation than the current process requires. It is my hope 
that this hearing will result in a solution that will return the 
process to the pace and documentation requirements of this earlier 
time.
    In Michigan, it has always been clear that whether a particular 
tribe is federally recognized is an accident of history. The Tribes of 
Michigan's Upper Peninsula all organized in the 1930s under the Indian 
Reorganization Act, 25 U.S.C. 461 (IRA), except for the Sault Ste. 
Marie Tribe of Chippewa Indians who were recognized in 1972 after a 
series of meetings and a letter from an assistant solicitor in the 
Department of the Interior.
    The Lower Peninsula tribes, on the other hand, were all denied the 
opportunity to organize under the IRA because a BIA official decided 
that, since the federal government lacked funds during the Great 
Depression to purchase land and provide services, the people would be 
better off being served as non-Indians by the State of Michigan's 
public relief programs.
    The Grand Traverse Band, the LRB, the LTBB and the GRBOI all share 
the same treaties and histories. Political power was derived from clans 
that, in structure, are more like extended families than the organized 
governments that the current recognition regulations envision. All 
these Tribes were signatories to the same 1836 and 1855 Treaties. All 
petitioned for organization under the IRA in the 1930s, yet three 
tribes are recognized and one is not. And the one not yet recognized 
may not be recognized for another 15 years, if ever, more than 30 years 
after all the other Ottawa Tribes achieved federal status. This offends 
any observer's sense of justice.
    At this point, I would like to say that I strongly believe the BIA 
itself will never be able to fix the broken federal acknowledgment 
process (FAP) internally. It is imperative that Congress step in as 
soon as possible to provide a statutory framework for the FAP... 
Whether the FAP stays within in the BIA or whether Congress creates an 
independent agency to complete the work that remains to be done is a 
decision only Congress can make. But Congress can no longer defer to 
the process within the BIA that is--by all accounts--not only broken 
but clearly devastating to thousands of America's first inhabitants. 
The relationship between Tribes and the United States is a political 
one. Congress has the authority and responsibility under the U.S. 
Constitution to maintain that relationship with all Indian tribal 
groups, including those that have survived together as Tribes for more 
than 200 years with little or no help from anyone, not even the federal 
government.
    The tenacity and strength of the American Indians who are members 
and leaders of Tribes that are not yet--and may never be--federally 
recognized is a constant source of amazement... There are few, if any, 
resources available for them to survive as tribal governments to allow 
them and to maintain their Indian cultures, languages and traditions. 
If the BIA's FAP is not fixed--and fixed soon--I believe that most of 
these tribal groups will literally disappear within the next 25 years. 
These Tribes simply cannot sustain themselves in this economy and 
political climate without the status and services that come with 
recognition by the federal government. This loss would be enormous, not 
only for the Indian people themselves, but also for the entire nation. 
It is certainly not a loss that we should accept before making a strong 
effort to ensure that it does not occur. It is difficult to express the 
importance of federal recognition to tribal members. A quotation from a 
member of the Grand Traverse Band in a Traverse City newspaper on the 
20th anniversary of the Grand Traverse Band's recognition expresses it 
better than I could hope to do:
        To many tribal members, recognition represented both a 
        validation and a turning point for the region's Indian 
        community. ``That day, I think the sun was shining for 
        everybody,'' said Bonnie Inman, a tribal member who has worked 
        for the band since its formal start. ``[T]he day we got 
        recognized, we were suddenly a people. I was suddenly a person. 
        There was a feeling that there was no end to what we could 
        do.'' Tribe Remembers Humble Beginning, Traverse City Record 
        Eagle, May 21, 2000.
    I have sat in countless meetings during the years discussing the 
progress of federal recognition efforts. Many times I have heard the 
plaintive cry from one of the members, ``If only we can be recognized 
before my father dies, he has been waiting his whole life.'' Other 
times it is a mother, aunt or uncle who has been waiting for federal 
recognition for decades. I have also counseled many clients that the 
protections afforded by the Indian Child Welfare Act, 25 U.S.C. 
Sec. 1901, do not apply to them or their families because the Act only 
applies to children with a parent who is a member of a federally 
recognized Indian tribe. I have had to advise the GRBOI that they could 
not join the State of Michigan when it sat down with the other 1836 
Treaty Tribes to decide the rules for and allocation of fish and game 
pursuant to their treaty rights because the precedent of the federal 
court in Michigan declared that only federally recognized Indian Tribes 
could participate. These treaty rights were allocated among the 
recognized by the Tribes and the State of Michigan just last week.
    It is apparent that the decision to grant or deny federal 
recognition is not only very important to the Tribes seeking 
acknowledgment, but it is also very important to the integrity of the 
United States. It is a solemn political decision made by the executive 
or legislative branches of government. It is not an academic exercise 
that can be exhaustively researched until someone is satisfied that all 
possible social interactions or cultural patterns have been described 
to their satisfaction. A child born to a GRBOI mother today may never 
have the protections of the Indian Child Welfare Act before the child 
reaches adulthood if Congress does not pass the GRBOI recognition bill 
pending in the Senate or does not pass full-scale recognition reform 
legislation such as H.R. 2837.
    The FAP was created by the BIA when it first issued regulations in 
1978. Those regulations were not intended to create the kind of burden 
that the researchers at the OFA now place on petitioners. Attached to 
my testimony is a petition that MILS helped to prepare in 1978 for the 
Grand Traverse Band of Ottawa and Chippewa Indians. Grand Traverse was 
the first Tribe recognized under the new regulations. The Tribe's 
petition is 67 pages, and that number includes the Tribe's 24-page 
constitution. The entire process took about 10 months.
    Compare that to the picture of the boxes of documents, also 
attached, that were submitted in 2005 by the GRBOI in response to a 
technical assistance letter from the OFA. These documents were provided 
in addition to the 21 boxes of documents that we delivered to the 
offices of the BIA in December 2000. The Tribe thought the 21 boxes 
(seven boxes of original documents and 14 boxes containing two copies 
of each of the originals) were the complete petition. Until the Tribe 
received the technical assistance letter in 2004, it did not realize 
how much more documentation was needed for a ``complete'' petition. The 
Tribe also provided all information in digital, electronic format.
    The salient factors for the GRBOI are that:
      All of the members of the GRBOI have proof that they 
descend from the signatories of one of the three Treaties the GRBOI 
signed with the United States in 1821, 1836 and 1855;
      The Tribe petitioned for recognition in 1934, and BIA 
Commissioner John Collier stated that the Tribe should be allowed to 
organize under the 1934 Indian Reorganization Act;
      The Tribe won several land and accounting claims before 
the Indian Claims Commission, and Congress has passed several 
distribution acts to pay out the judgment funds from those claims to 
tribal members;
      The majority of the Tribe's members live where their 
ancestors have always lived;
      The State of Michigan has always recognized the GRBOI;
      Other recognized Tribes in the state also recognize the 
Tribe; and
      The Tribe's history is the same as the three Lower 
Peninsula Ottawa and one Upper Peninsula Chippewa Tribes that are 
federally recognized.
    The GRBOI petition was moved to the Ready for Active list (of ten 
petitioners) in February 2007 but, despite all of this, it may take 
another 15 to 20 years for the BIA to process this petition. The first 
Tribe on the Ready for Act list (Brothertown Indian Nation of 
Wisconsin) was placed on the list by the BIA in 1996; over 11 years 
later, it has yet to move to the Active list.
    And the chances for successfully going through the process diminish 
appreciably as the years go by. According to the BIA/OFA Status Summary 
of Petitioners, between 1980 and 2000, 14 Tribes were accorded federal 
status while 15 other groups were denied acknowledgment. Since 2000, 
only two Tribes have been acknowledged as federal tribes, while 10 
other Indian groups have been denied--and four of these were denied 
after having originally been given final positive determinations.
    From any objective view, the FAP is broken. There are many 
distressing and compelling stories to tell. The question before the 
Committee is, how do we fix the problem? Many observers, including me, 
would prefer to see the creation of an independent agency in which 
inherent bias is absent, where timelines are set by law and a quasi-
judicial process is utilized.
    H.R. 2837, introduced on June 22, 2007 by Rep. Faleomavaega, is a 
good bill and one that deserves the Committee's attention and 
consideration. The bill would create an independent commission to 
review petitions from American Indian groups and would include a sunset 
clause precluding the consideration of petitions filed after a date 
certain. Under the bill, Congress would delegate authority to the new 
commission the authority to recognize American Indian Tribes. The 
evidentiary standards would be clarified, and necessary resources would 
be provided to expedite the process.
    These are all laudable and supportable goals, and I hope that 
members of this Committee will support this bill or a version of it. It 
is said that the devil is in the details. Thankfully, there are many 
competent people who have been part of this process for a long time who 
can help the Committee grapple with those details to come up with 
legislation that is both deserving of passage and deserving of the 
respect of all the American people but most especially the Native 
American people. My staff and I would be very happy to assist the 
Committee in this effort.
    This year of 2007 marks the 30th anniversary of the submission of 
the Final Report of the American Indian Policy Review Commission 
(AIRPC). In 1975, Congress established the Commission to conduct a 
``comprehensive review of the historical and legal developments 
underlying the Indians' unique relationship with the federal government 
in order to determine the nature and scope of necessary revisions in 
the formulation of policies and programs for the benefit of Indians.'' 
Members of both houses of Congress served on the Commission. A summary 
of the Commission's recommendations on recognition (Task Force 10) is 
attached to my testimony. The Committee will note that a major theme of 
the Commission's recommendations was that Congress should create a 
special office outside the BIA to establish by hearings and 
investigations that a group must meet any one of seven enumerated 
criteria.
    For many years prior to the Commission's report the Department of 
the Interior recognized tribes under the ``Cohen criteria''. Beginning 
with the IRA, the question of which Tribes were to be recognized as 
Indian tribes became a frequent task. According to the ``bible'' of 
Indian law, Felix S. Cohen's Handbook of Federal Indian Law (1942), the 
Department of the Interior used a number of criteria to make that 
determination and, it should be noted, tribes were not required to meet 
every one of the criteria.
        The considerations which, singly or jointly, have been 
        particularly relied upon in reaching the conclusion that a 
        group constitutes a ``tribe'' or ``band'' have been:
            1.  That the group has had treaty relations with the United 
            States.
            2.  That the group has been denominated a tribe by act of 
            Congress or Executive Order.
            3.  That the group has been treated as having collective 
            rights in tribal lands or funds, even though not expressly 
            designated a tribe.
            4.  That the group has been treated as a tribe or band by 
            other Indian tribes.
            5.  That the group has exercised political authority over 
            its members, through a tribal council or other governmental 
            forms.
        Other factors considered, though not conclusive, are the 
        existence of special appropriation items for the group and the 
        social solidarity of the group. See: page 271, emphasis added.
    It is unfortunate that nearly 30 years has elapsed since the 
regulations were first published and the situation at the BIA has gone 
from moderately bad to the virtually intolerable. In 2007, if Congress 
were to pass H.R. 2837, it would be a great commemorative gesture to 
all those who worked so hard to bring the AIPRC findings and 
recommendations on recognition issues to light and to all the Indian 
people who have waited so long for recognition of their status. 
Unrecognized but legitimate Indian Tribes deserve no less.
                                 ______
                                 

                          Federal Recognition

                      American Indian Law Day 2002

                             James A. Keedy

                     Michigan Indian Legal Services

I. What is federal recognition? It's a moving target.
    A.  For first 150 years of federal/tribal history the idea of 
federal recognition was not thought of separately from treaty making. 
Governments have routinely been required to decide whether or not to 
recognize a foreign government.
    B.  The Indian Reorganization Act of 1934 (IRA), 25 USC 461, was a 
New Deal era attempt to reverse the Allotment era policies that were 
destructive to tribes. Because the act allowed tribes to organize under 
its provisions the government was called upon to decide whether a 
particular group was a tribe.
    C.  The IRA did not provide any guidance for deciding which groups 
were tribes. Officials of the Commission on Indian Affairs used a 
variety of tests to determine if a group was indeed a tribe. These 
tests eventually resulted in the ``Cohen criteria''. Felix S. Cohen's 
Handbook of Federal Indian Law (1942) states at 271;

     The considerations which, singly or jointly, have been 
particularly relied upon in reaching the conclusion that a group 
constitutes a ``tribe'' or ``band'' have been:
        (1)  That the group has had treaty relations with the United 
        States.
        (2)  That the group has been denominated a tribe by act of 
        Congress or Executive Order.
        (3)  That the group has been treated as having collective 
        rights in tribal lands or funds, even though not expressly 
        designated a tribe.
        (4)  That the group has been treated as a tribe or band by 
        other Indian tribes.
        (5)  That the group has exercised political authority over its 
        members, through a tribal council or other governmental forms.
     Other factors considered, though not conclusive, are the existence 
of special appropriation items for the group and the social solidarity 
of the group.
    D.  In light of the current criteria promulgated by the Bureau of 
Indian Affairs (below) it is interesting to note that a tribe did not 
have to meet all the Cohen criteria (singly or jointly) and that by and 
large the criteria require a group to provide objective evidence.
    E.  A January 7, 1974 letter from Commissioner of Indian Affairs 
LaFollette Butler to Senator Henry M. Jackson summarized the actions 
taken under the Cohen criteria in the previous 20 years. Nine tribes 
were recognized by a number of means including a Commissioner's letter, 
two Solicitor's Opinions, a Deputy Commissioner's letter and a letter 
from an Assistant to the Secretary of the Interior. See Nonrecognized 
American Indian Tribes: An Historical and Legal Perspective, The 
Newberry Library, Frank W. Porter III, editor, p. 39.
    F.  The Commissioner's letter referred to above concerned the Sault 
Ste. Marie Tribe of Chippewa Indians. In a two page letter dated 
September 7, 1972 the Commissioner relates that a delegation of tribal 
members, Bureau personnel, Assistant Solicitor and a member of Senator 
Hart's staff met to explore the possibility of the tribe organizing 
under the Indian Reorganization Act. The letter concluded that;
               the Sault Ste. Marie Band of Chippewa Indians is an 
            historic Indian band; that members reside in several 
            communities in Michigan and that, exclusive of the group 
            known as the Bay Mills Indian Community, they have never 
            voted on the question of accepting or rejecting the 
            provisions of the Indian Reorganization Act.... and have 
            arranged to acquire a 40-acre tract from the University of 
            Michigan which they wish to use as a reservation 
            base....that they have a well-documented membership roll 
            based upon the Durant Census Roll of 1910.
        The letter does not state how these facts were established.
    G.  Despite or because of the Cohen criteria relatively few tribes 
were recognized in the years between the enactment of the IRA and the 
mid 1970s. The American Indian Policy Review Commission (AIPRC) 
commented negatively on the process in 1976;
               Inconsistencies and oversights in the Indian policy of 
            the United States are exposed by one stark statistic: there 
            are more than 400 tribes within the nation's boundaries and 
            the Bureau of Indian Affairs services only 289. In excess 
            of 100,000 Indians, members of ``unrecognized'' tribes, are 
            excluded from the protection and privileges of the Federal-
            Indian relationship.

               There is no legal basis for withholding general services 
            from Indians, with the sole exception of specific 
            termination acts. There is no legitimate foundation for 
            denying Indian identification to any tribe or community. 
            The BIA has no authority to refuse services to any member 
            of the Indian population. Final Report of AIPRC, p. 461 as 
            cited in Anderson and Kickingbird, An Historical 
            Perspective on the Issue of Federal Recognition and Non-
            Recognition, Institute for the Development of Indian Law 
            (1978), p. 1.
    H.  For the Michigan Ottawa and Potawatomi it was difficult to gain 
the benefits of the IRA because they never given an opportunity to 
apply the Cohen criteria. Chippewa tribes in Michigan's upper peninsula 
organized under the IRA. But when the Ottawa and Potawatomies of the 
lower peninsula applied under the IRA they met with an arbitrary 
decision to deny organization under the IRA to all the lower peninsula 
tribes. The Office of Indian Affairs received requests from all the 
lower peninsula tribes to organize under the IRA. The Office made a 
decision strictly on the basis of the lack of funding to deny all the 
petitions;
               Unless we have the funds and personnel to do a real job 
            in Lower Michigan, we should stay out of that territory. We 
            all know that neither the personnel nor the funds are 
            available. Hence, it would be a crime to disturb the 
            present excellent relations between the state, counties and 
            the Indians. Memorandum for the Commissioner, October 11, 
            1939.
     In response to this memorandum and others John Collier, 
Commissioner of Indian Affairs concluded on May 29, 1940 that ``there 
be no further extension of Organization under the Indian Reorganization 
Act in Lower Michigan.''
    I.  The AIPRC report and a possible Congressional remedy led the 
Bureau of Indian Affairs to promulgate regulations in 1978 to 
standardize the recognition process, 25 CFR 83.1 et seq. Unfortunately 
the new regulations substantially changed the substantive requirements 
Under the new regulations a tribe must;
        a.  Prove that is has been identified as an American Indian 
        entity on a ``substantially continuous basis since 1900'',
        b.  Show that a predominant portion of the petitioning tribe 
        ``comprises a distinct community and has existed as a community 
        from historical times until the present'',
        c.  Prove that is has maintained political influence or 
        authority over its members as an autonomous entity from 
        historical times until the present,
        d.  Provide a copy of the tribe's present governing document 
        including its membership criteria,
        e.  Provide evidence that the tribe's membership consists of 
        individuals who descend from a historical Indian tribe or from 
        historical Indian tribes which combined and functioned as a 
        single autonomous political entity.
        f.  Provide evidence that its membership is composed 
        principally of persons who are not members of any acknowledged 
        North American Indian tribe,
        g.  Prove that neither the tribe nor its membership are the 
        subject of congressional legislation that has expressly 
        terminated or forbidden the Federal relationship.
    J.  To meet the current recognition regulations is expensive and 
time consuming. A fully documented petition will cost several hundred 
thousand dollars to assemble unless services of professionals are 
donated or provided at no cost. For example, in 2000 Michigan Indian 
Legal Services completed a petition for federal recognition. An 
ethnohistorian donated approximately $100,000 worth of time. MILS staff 
provided close to 2,000 hours of service. The petition and supporting 
documents were delivered to the Bureau of Indian Affairs in 21 banker 
boxes.
II. Federal Recognition in Michigan.
      Michigan tribes have a full range of experience under the 
evolving federal recognition standards.
      Michigan has four tribes that organized under the Indian 
Reorganization Act.
        Bay Mills Indian Community organized under the IRA 11/4/
36.
        Hannahville Indian Community organized under the IRA 1936
        Keweenaw Bay Indian Community organized under the IRA 12/
17/36.
        Saginaw Chippewa Indian Tribe of Michigan organized under 
the IRA 5/6/37.
      The Sault Ste. Marie Tribe of Chippewa Indians was 
recognized using the Cohen criteria in a letter from the Commissioner 
on September 7, 1972 and an opinion from the Associate Solicitor, 
February 7, 1974.
      The first tribe to be recognized under the new 
recognition procedures promulgated by the BIA in 1978 was the Grand 
Traverse Band of Ottawa and Chippewa Indians, 45 FR 19321 (1980).
      Two other Michigan tribes have been recognized utilizing 
the regulations.
        Nottawaseppi Huron Potawatomi, 60 FR 66315 (1995).
        Match-e-be-nash-she-wish Band of Pottawatomi Indians of 
Michigan, 62 FR 38113 (1997).
      One Michigan tribe had its status clarified by Congress 
in 1988, the Lac Vieux Desert Band of Lake Superior Chippewa Indians, 
25 USC 1300h et seq.
      Three Michigan tribes had their recognition reaffirmed by 
Congress in 1994.
        The Pokagon Band of Potawatomi Indians, 25 USC 1300j et 
seq.
        The Little Traverse Bay Bands of Odawa Indians and
        The Little River Band of Ottawa Indians, 25 USC 1300k et 
seq.
                                 ______
                                 
    Mr. Faleomavaega. Thank you, Mr. Keedy. I think we have a 
vote pending on the Floor, but I would like to ask the 
gentleman from Michigan if he has any questions.
    Mr. Kildee. Thank you very much, Mr. Chairman. Mr. Keedy, 
the Grand River Band's petition is on the ready for active list 
grouping now. Does the tribe have any indication when the BIA 
will move it to the active list?
    Mr. Keedy. No, they have not been given any indication of 
when it will happen.
    Mr. Kildee. Do they ever communicate with you to give you 
any idea of whether something has stalled, or is there a give-
and-take at all, or asking for more information?
    Mr. Keedy. Well, we have had, and Chairman Yob and others, 
too, have had several meetings with Mr. Fleming and others in 
the Department to, you know, ask about those kinds of 
questions. It usually boils down to workload and things like 
that.
    Mr. Kildee. You know, you talked about the Congressional 
responsibility. And we have done that, and I was amazed today 
when they talked about the Constitutionality of Congress 
acting. Article I, Section 8 of the Constitution very clearly 
gives the Congress, and the Nonintercourse Act of 1789, I 
think, certainly indicates Congress' relationship with the 
various sovereign tribes.
    But in 1980, I was chief sponsor for the Blackbear Bosin 
recognition; in 1994, I was co-sponsor of Little River and 
Little Traverse Band, which you are very familiar with. And I 
was co-sponsor of the Pokagon Band.
    Congress, you know, is the competent body. And while I do, 
I agree, I think we have to really reform this system within 
the BIA, we should never give up our own responsibility. That 
is why I was surprised at the testimony this morning on that.
    But would you comment on the role of the Congress, Mr. 
Keedy?
    Mr. Keedy. Well, I do agree that certainly the Congress has 
the power and has exercised it, and I would hope it would 
continue to exercise it, even if this process is reformed, when 
a proper case is put before it.
    Mr. Kildee. I think that is a very good answer. I 
appreciate it. When the proper case is put before it. Because 
we have had other bills here that have not passed the Congress, 
and we have had some who have. I think we are a competent body, 
and we generally act prudently on that.
    But I think when you read the Constitution and read the 
Nonintercourse Act, you see that Congress was intended to play 
a very significant role in the sovereign-to-sovereign 
relationship there.
    And I thank you very much for your response. Thank you for 
your presence here today.
    Mr. Keedy. Thank you.
    Mr. Kildee. Thank you, Mr. Chairman.
    The Chairman. Thank you to the gentleman from Michigan. I 
am going to proceed and continue raising some questions. I do 
want to thank all the members of the panel for your excellent 
statements.
    I wanted to ask Ms. Locklear about your recommendation, 
which I think is well taken, that the Bureau of Indian Affairs 
should be in the business of providing for the 562 recognized 
tribes. And I would like to--it is a conflict of interest that 
you are administering the needs of the 562 tribes; and yet at 
the same time, you are going to consider if these other tribes 
seeking recognition should be recognized.
    And I would like to ask the members of the panel if you 
agree or disagree. I happen to agree with Ms. Locklear's 
observation about this. Patricia Zell?
    Ms. Zell. I would agree that there is an inherent conflict 
of interest when you are trying to serve, essentially not two 
masters, but two different groups, and you have the different 
legal relationships.
    As Secretary Artman has articulated here today, and I 
think, with all due respect, he may have made the case more 
strongly than any of us, that they do feel obviously very much 
bound by their trust responsibilities. And that has to 
compromise, both in terms of resources and dedication of time 
and personnel.
    As we have seen over many, many years the energy and effort 
that is put toward helping the petitioning groups get through 
the process, and bring an end to the process.
    And so I think you posed the exactly right question. Thank 
you.
    Mr. Faleomavaega. Mr. Tilden?
    Mr. Tilden. Well, I would totally agree with what Arlinda 
had to say about that. And also, too----
    Mr. Faleomavaega. This is not just a legal, this is a 
matter of policy.
    Mr. Keedy. Right, it is. And just to sort of echo what Pat 
said about Mr. Artman sort of making the case here for the 
commission, because I think he did really emphasize the fact 
that the BIA does have a trust responsibility to the 562 
tribes. And I think he does see that in terms of funding 
requirements, as well.
    Because he talked in terms of priorities and funding to the 
Federally recognized tribes. And I think we see that with only 
$1.9 million out of a multi-billion-dollar budget. I mean, that 
is budget dust compared to what I think they really could offer 
and give to the Office of Federal Acknowledgement to go through 
these petitions.
    And you know, I mean, it was just sort of remarkable 
sitting here listening to him make that case, that it just 
really presented the notion that there is an institutional bias 
against non-Federally recognized tribes.
    And so it is one of those issues I think, too, where the 
commission, if that were to be established, the sole focus of 
that commission would be dedicated to the non-Federally 
recognized tribes, and to really sit there and to really 
analyze the petitions that have been submitted. And that is 
their sole obligation.
    I think the other thing that Mr. Artman mentioned, too, 
were these guidelines that are forthcoming. And I think the one 
thing that would be really important in that respect, too, is 
to really seek the advice of non-Federally recognized tribes to 
some extent. And I kind of take that back to the White House 
meetings, back in the early nineties, where they invited all of 
the non-Federally recognized tribes, and the BIA went and did 
outreach----
    Mr. Faleomavaega. I remember. We met at the White House, 
did the whole rigmarole, and produced nothing.
    Mr. Tilden. Yes, I mean, you know, at least they did the 
outreach. And I think that they tried to get the non-Federally 
recognized tribes involved in the process to the extent that, 
you know, what was taking place at that point in time, too, was 
legislation. And I think at that point in time, too, you had 
also introduced legislation to reform the Federal recognition 
process. Because there are inherent problems with it. And I 
think that is where this idea of a commission, an independent 
commission to take care of the institutional bias that was so 
illuminated upon today by Mr. Artman.
    Mr. Faleomavaega. Mr. Keedy?
    Mr. Keedy. Yes, I certainly agree with the other members of 
the panel. I was struck that at the opening statement is, this 
is a very solemn obligation of the United States to make these 
decisions, and contrast that with the amount of resources that 
are devoted to meeting that very solemn obligation.
    Mr. Faleomavaega. And if I may, I appreciate Mr. Fleming 
sitting in for Secretary Artman. Mr. Fleming, can you submit 
for the record exactly the whole procedure that has taken 
place, and how you go about getting recognition for the tribes 
that do petition? The timelines, just as you had stated 
earlier? I would really appreciate that, to make it part of the 
record. I would like to get that.
    I don't think Mr. Conyers is going to need my symbolic 
vote, so I am not going to go vote on the Floor, how is that? A 
tremendous sacrifice on my part.
    Arlinda, again, you mentioned that we seem to be doing this 
covering primarily procedural efforts. Could you elaborate a 
little further on that? I mean, does the proposed bill lack 
substance? Or, please, the record is open; I would welcome any 
suggestions or recommendations that all of you would like to 
make, as to make improvements on the bill. It is an open door 
for you to do this.
    Ms. Locklear. The proposed bill uses by and large the same 
seven mandatory criteria that are now in use by the----
    Mr. Faleomavaega. Does it have to be seven? That is what I 
am questioning. Does it have to be seven?
    Ms. Locklear. There is an argument, as Mr. Keedy indicated 
earlier, that they could be made in the alternative, rather 
than all seven be required.
    At a minimum, though--and I think the bill does make some 
movement in this direction. At a minimum, there must be an 
effort made to adopt some objective standards for determining 
whether a community exists, whether there is political 
authority, so that the BIA doesn't have to expend the energy 
and time to examine internal processes. Particularly when they 
are so objective. Any reasonable observer can come to different 
conclusions, and I suspect that happens sometimes at the Office 
of Federal Acknowledgement.
    The bill does have some language on its definition of the 
community criterion B, which includes the objective standard of 
examining the level of kinship among the members. That is very 
helpful, because that is a yes or no kind of answer that 
different observers won't come to different conclusions about. 
And it is also a classic hallmark of an Indian community.
    I would encourage the amendment of the bill to include a 
similar marker for political authority. For example, some 
language that would just say if the petitioner can simply 
identify a list of leaders and describe what they are, that 
should suffice. That should suffice, without determining on 
what issues and over what period of time those leaders were 
able to get assent from their members. Particularly on the 
political authority issue, it creates the consequence where 
more traditional Indian communities have a harder time of 
establishing their existence.
    Because when you require documentary evidence of bilateral 
political relations, that is almost a vote. That is almost a 
democratic process that is reflected in the typical IRA 
constitution.
    In the absence of a vote, where assent is demonstrated 
presumably because that person shows up and actually registers 
their assent to leadership through the vote, then it is more 
difficult. Traditional Indian communities, though, did not use 
that kind of process. They use a more family based process that 
depended on individual leaders who would come to the fore.
    So that if we can get away from the focus on, again, the 
internal process by use of an objective criteria, then even if 
you keep the seven mandatory criteria, it at least gives 
petitioning groups an opportunity to do it without having to go 
through the internal examination that the BIA requires.
    Mr. Faleomavaega. I noted Secretary Artman commented about 
the politicization of the process in selecting the three 
members of the commission. It could be three, it could be five, 
as it was suggested by others, as well.
    But isn't it already politicized, just the sheer fact that 
when the President is nominating an Assistant Secretary of the 
BIA is going to be a Republican, in no way is going to be a 
Democrat?
    Ms. Locklear. Absolutely. The decisions are made at the 
Department now by political appointees. And it is foolhardy to 
believe or pretend that there is no political influences 
brought to bear on that. We all know that is not the case.
    Mr. Faleomavaega. Now, the bill does provide some standard, 
at least alerting the President when he makes his nominations, 
that there is careful evaluation and review of the process so 
that these three individuals have no conflicts with anything 
involving the recognition of the tribes; that they are as 
neutral as it could be. And then also subject to Senate 
confirmation, which adds another layer of making sure that 
these three individuals are going to be top people, and not a 
bunch of political lackeys, if that is another way of saying 
it.
    Ms. Locklear. The bill also provides that they have set 
terms, which would presumably tend to minimize the ability of a 
political outsider to influence them by threat to their tenure 
on the commission. And we don't have that now in the present 
process.
    Mr. Faleomavaega. I think Congressman Kennedy may have 
noted this, and I noticed in your statement, Mr. Tilden, that 
there are tribes that are also judicially recognized.
    Mr. Tilden. Yes.
    Mr. Faleomavaega. Can you elaborate on this, the main 
difference from those that are Congressionally recognized?
    Mr. Tilden. Right. Well, I think the one thing I wanted to 
point out in that respect is that the Congress has spoke to 
that issue also in the Tribal List Act. And the legislative 
history has said that tribes can be recognized either by 
Congress----
    Mr. Faleomavaega. Do you think we ought to make that as 
part of the bill to recognition?
    Mr. Tilden. Yes, that would help. I think that would really 
help to really clarify that, and make it very clear that 
judicial recognition is also one legal method of obtaining 
Federal recognition.
    And it is really problematic right now, because for one of 
my clients here, the Shinnecock Indian Nation, a Federal court 
has made a decision that they are a Federally recognized Indian 
tribe. Yet the Department of the Interior has refused to place 
them on the list of Federally recognized tribes.
    And so I think it has taken away one of the legal methods 
that is available to tribes.
    Mr. Faleomavaega. So does this mean the tribe has to 
petition the Court again to tell the Department of Interior you 
will recognize our tribe?
    Mr. Tilden. I mean, there is a lot of things that the tribe 
has to look at right now in order to force the Department of 
the Interior to place them on that list of Federally recognized 
tribes. And I think they brought a lawsuit to make sure that 
the Administration does what it is legally bound to do.
    Mr. Faleomavaega. Which means more money, more resources 
that have to go into the process.
    Mr. Tilden. That is exactly right. I mean, aside from 
paying for the petition work--and I would like to point that 
out, as well, is just how much it costs to put these petitions 
together. I mean, we are talking millions of dollars now. And I 
think that that is where the Administration, you know, it 
really is placing the blame on petitioners, because they are 
telling this Congress that yes, if you give us more money, we 
can sort of go through these petitions a little quicker.
    But I think what they fail to realize is that it is really, 
on the flip side of that is that the tribal petitioners need 
more money to put together these petitions because of what is 
now required under the Federal regulations, and how the 
Department interprets those Federal regulations, and new policy 
or new methodologies that they seem to come out with every time 
a new proposed finding or final determination comes down.
    So every time a decision comes down, I have to take a look 
at that and say well, do we need to do additional work for the 
petitioner because some new methodology has just been 
articulated within the proposed finding or final determination.
    So you know, we are talking millions of dollars now. And I 
think that it really needs to be forthcoming in the bill that 
there needs to be appropriate funding at levels that would be 
consistent with what it takes to put together a petition 
nowadays.
    And I think that, you know--otherwise you are setting up 
the petitioners for failure.
    Mr. Faleomavaega. Would you say that there are tribes out 
there right now who pass the criteria, as you suggested, but 
simply are without resources to petition, even to petition? As 
you said, it is a million-dollar case. So would you say that 
there many tribes out there who would love to go through the 
process, but they just cannot afford it?
    Mr. Tilden. I think just from experience, yes, there are. 
Because our organization does get requests for assistance, and 
we have to take a look at the resource issues right now. And we 
do get requests for assistance to help tribes go through the 
Federal regulatory process. But you know, if it is taking 
millions and millions of dollars, I mean, that could bankrupt 
our organization, which is a non-profit; but yet we have 
stepped up to help all of these other tribes in the past, and 
we continue to do so, to help tribes get through this process 
right now.
    Mr. Faleomavaega. I remember years ago when I visited one 
of the gaming operations by one of the tribes in California. 
And the leader of the tribe took me on the side, and she said 
you know, it is kind of ironic. We have to buy back the land 
that we owned. In the process, simply because there was no 
other way to regain any sense of stability or economically 
viable, it is ironic that here we have taken the land from 
them, and now they have to go back and buy their land back. I 
mean, this is just unbelievable.
    I know California, as my good friend, Mr. Costa, said 
earlier, there is at least over 100 non-recognized tribes in 
California.
    What do you think of Mr. Artman's response on what I said 
about the fact that if there are 562 tribes and only two 
million of them? That kind of really shocked me a little bit, 
because for the last 10 years the population of Indian country 
has always been between four to five million. So what happens 
to the other two, two and a half million? Does it mean the 
services are not provided to them? Is that basically the bottom 
line?
    Mr. Tilden. Yes, I think that that is pretty clear that 
that is probably what happens. You know, there is a lot of 
Indians who probably do not receive Federal services or 
benefits simply because of the under-count by the Department, 
or by the Federal government in general. So you know, there is 
a lot of impoverishment to begin with, and I think that just 
exacerbates that problem.
    And I think what is even worse is that non-Federally 
recognized tribes, you know, those that should be eligible for 
those Federal services and benefits are denied those. And it is 
really important, because I think it really gets down to this 
being a really critical decision that is made by the Federal 
government on how it impacts non-Federally recognized tribes.
    I mean, if the Department were to put the Shinnecock Indian 
Nation on the tribal list of Federally acknowledged tribes, 
they would be able to access those Federal services and 
benefits. So it makes a big difference in terms of healthcare 
to their members, housing to their tribal members, all of those 
different things that, you know, puts bread and butter on the 
table and provides a roof over their heads.
    So it really does have a direct impact on the tribal people 
themselves. It is not just some ephemeral, you know, this vague 
number that is out there. I mean, it is a real solid number of 
Indian people out there that are not being able to participate 
in those services and benefits, and they should rightfully be 
allowed to participate in those Federal services and benefits.
    Mr. Faleomavaega. I just wanted to, I just don't want to 
point fingers at the BIA or Mr. Fleming and his office. I know 
they are very sincere in their efforts in trying to work the 
recognition process.
    But it comes back to the Congress. I recall years ago, when 
the Lumbee Tribe petitioned, they got their recognition. And 
then Congress said no, we can't do it right now, because we 
don't have enough money to go around because of the other needs 
from other tribes. That was a reason why we never recognized 
the Lumbees, is because there wasn't enough money to go around.
    Now the problem causing contention, as I said in my 
statement, among those of the recognized and the unrecognized, 
the fear is that as more become recognized, less in the pot for 
division.
    But it hurts me when you say that we can't recognize these 
tribes because we don't have enough money to go around. Is that 
a good reason for Congress and for the government to say that 
we can't do this, simply because of lack of funds? Obviously it 
is not a good reason, OK?
    [Laughter.]
    Mr. Tilden. Obviously it is no, it is not a good reason. 
And I think it really abdicates the responsibility that, you 
know, the Congress could exercise if it really needs to say OK, 
we need to get the money out there in order to recognize these 
Indian tribes, and to see that, you know, they do enjoy the 
services and benefits that they are eligible to participate in. 
So no, absolutely not, it is not a good reason.
    Mr. Faleomavaega. Ladies and gentlemen, $10 billion a month 
we are spending on that terrible war that we have caused in the 
Middle East. Ten billion a month. And here we are barely 
squeezing the $2.3 billion to provide for the needs of Native 
Americans for one whole year, that we are saying well, we can't 
afford this, we can't afford that. Now it is cutting this and 
cutting that.
    I know more than anybody Ms. Zell would understand and 
appreciate what I am talking about, what we are going through 
right now.
    I cannot thank you enough for your most eloquent 
statements. And please feel free at any time to contact Marie 
or myself or Chairman Rahall. We need your input. Put the word 
out to Indian country: we will take any recommendations or any 
suggestions that will make this bill a good one for a goal, all 
right?
    Thank you very much.
    We have as our final members of the panel here--again, 
thank you so much for your patience--Mr. Derril Jordan, Partner 
with AndersonTuell, the law firm; and Mr. Steve Austin, the 
Cultural Anthropologist with Austin Research Associates here in 
Silver Spring, Maryland; Mr. Mike Lawson, the Senior Associate 
in Morgan, Angel and Associates Law Firm; and Mr. David Cramer, 
the attorney, also with Andrews and Cramer Law Firm. And also 
accompanied by the Chairman, Mr. Donny Fry, the Confederated 
Tribe of Lower Rogue, Coos Bay, Oregon. Am I correct on this?
    And also unanimous consent in the record for the testimony 
of Mr. Joe Courtney of Connecticut, and the Connecticut 
Attorney General, Mr. Ricardo Blumenthal. And also unanimous 
consent to place them both into the record, that their 
statements be made part of the record. Without objection, they 
are in the record.
    [The statement submitted for the record by Mr. Courtney 
follows:]

  Statement submitted for the record by The Honorable Joe Courtney, a 
        Representative in Congress from the State of Connecticut

    I want to thank Chairman Rahall and Ranking Member Young for 
convening today's hearing on a matter of critical importance to eastern 
Connecticut.
    An administrative process for tribal recognition was established in 
1978 to take the politics and the money out of the acknowledgement 
process. Recognition was to be granted to those entities that satisfied 
an absolute set of criteria, developed over 30 years. Unfortunately, 
due to subjective application of the criteria, lack of resources within 
the Bureau of Indian Affairs (BIA), undue political and monetary 
influence, and an overall uneven playing field, I believe the federal 
recognition process is severely broken.
    Instead of fixing the problem from within, or having Congress 
overhaul the system from outside, we now find tribes directly 
petitioning the Congress for recognition. This step is troubling for it 
lends itself to political influence, abbreviated examination of the 
documents and uninformed decisions. Simply put, we are trading one 
problem for another.
    I believe that the BIA takes both too long to render its decisions 
and does not always follow the letter of the rules in its 
determination. These protracted examinations are unfair both to the 
petitioners and to the state and local towns impacted by tribal 
recognition. Passing the buck to Congress to make a quick 
acknowledgement decision is not a solution. Real reform must ensure a 
full and accurate examination of the facts so that tribes that meet the 
seven criteria are granted recognition and those that don't, are 
denied. Lowering the bar, in any way, is unfair and unacceptable.
    Unfortunately over time, documents have shown that the BIA has 
applied the seven criteria in an arbitrary manner. This was made 
evident to me and the citizens of Connecticut during the early part of 
this decade when some petitioners from the state were granted 
recognition without satisfying all of the criteria. This is 
unacceptable.
    This lack of procedure makes a mockery of the recognition process 
and casts doubt on future decisions. I fully support the right of 
entities to seek federal recognition and all that comes with that 
distinction, but I want the playing field to be level and fair--rooted 
in stable, concrete rules; free of inside conflicts of interest and 
subjectivity; and free from undue outside monetary and political 
influence.
    To be sure, recognition brings federal government support and 
gaming opportunities to tribal entities, but it can have a myriad of 
impacts on state and local governments, local businesses, and 
surrounding infrastructure and land. Too often, during the 
acknowledgement process, petitioners are granted support and technical 
assistance from the federal government and outside backers, while the 
local stakeholders often find the ability to participate non-existent 
or cost-prohibitive. Local cities and towns must have a voice in the 
process.
    I thank Representative Faleomavaega for his dedication to this 
issue. Unfortunately, I am concerned that the bill before the 
Committee, introduced by my colleague from American Samoa, does not 
adequately reform the recognition process. It does not authorize a set 
amount of funding for the Commission and does not provide adequate 
participation for the local stakeholders. The bill sets up a convoluted 
process; effectively giving petitioners that were denied another bite 
at the apple. If anything, this added layer of process aggravates many 
of the problems I have listed above. Further, there is still too much 
room for outside influence to creep into the process.
    Congress must take steps to address the shortcomings of the current 
recognition process before the problem escalates beyond the point of no 
return. I look forward to working with members of this Committee to 
reach an equitable solution.
    We have been working with the Attorney General of Connecticut on 
this issue and attached, please find his thoughtful comments. I ask 
that his statement be made a part of the Record.
                                 ______
                                 
    [The statement of Attorney General Blumenthal follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Faleomavaega. Gentlemen, thank you very much for 
your patience. This has been a long day. So let us have Mr. 
Jordan. Can you start off with your testimony, please?

            STATEMENT OF DERRIL B. JORDAN, PARTNER, 
              ANDERSONTUELL, LLP, WASHINGTON, D.C.

    Mr. Jordan. Yes, thank you, Mr. Chairman. And good morning 
to Mr. Chairman and committee members. I want to thank you for 
this opportunity to testify about H.R. 2837.
    My name is Derril Jordan, a partner at AndersonTuell. I am 
a former Associate Solicitor of the Department of Indian 
Affairs, and I am also a member of the Mattaponi Tribe of 
Virginia, which is a state-recognized tribe. So I have a lot of 
interest in this subject, and I hope to be able to offer some 
meaningful testimony to Congress this morning that will help it 
to enact legislation that will ensure that all legitimate 
tribes are able to be recognized.
    First I want to say that I believe that the creation of an 
independent commission is an important and necessary step in 
the right direction. I believe that it is the only way to 
ensure that decisions will be made by those who are entrusted 
by the law with that responsibility, and not the staff.
    I believe that experts are important to this process, but I 
also believe that they aren't the only people with the ability 
to recognize the existence of an Indian tribe.
    There are several criteria in the current regulations, and 
that are also in the bill, that I believe are redundant. First 
of all, one of the criteria is that a group must show that it 
has been identified as an American Indian entity on a 
substantially continuous basis since 1900. I believe that this 
is redundant with the criteria regarding community and 
political authority, because in order for a group to prove 
those two criteria, it basically has to show that it has been 
identified by outside parties. That is where the documentation 
is going to come from, by outsiders.
    I also think that it is an inappropriate criterion, because 
it ignores the history of what many of the unrecognized groups 
have had to go through. As we have heard from a number of 
members of the Committee and other witnesses this morning, many 
Indian groups basically had to lay low; they had to maintain a 
low profile if they were going to survive. Otherwise they would 
be removed to some other part of the country, or they would be 
subjected to incredible kinds of discrimination.
    So to expect that there are records that others have 
identified that when, in fact, their very existence depended on 
not being identified, is contrary to reality.
    And furthermore, I also think that this criteria, it asks 
the question if an Indian takes a walk in the woods and a White 
man doesn't see him, is he still an Indian. And it answers that 
question, no.
    Mr. Faleomavaega. I guess he should wear moccasins.
    Mr. Jordan. There is also, I believe, an inter-relationship 
between the community criteria and the political criteria. I 
agree very strongly with the comments a number of the witnesses 
made, including Arlinda Locklear. You will not find a community 
without a political process, and there is not going to be a 
political process that is unassociated to a community. As 
Arlinda and others have pointed out, groups govern themselves 
by traditional means, through kinship groups. There were not 
tribal councils organized under the Indian Reorganization Act 
with people taking minutes. There simply is no paper trail of 
the exercise of governance.
    But if you find a community, you will find that there is a 
political process that has created or established and enforced 
the social bounds that make that group distinguishable from 
other groups.
    There is also a need, I believe, in the bill for an 
evidentiary standard. And I believe that that standard should 
be that a petitioner be required to show that it meet each 
criterion by a reasonable likelihood.
    The bill requires that a petition meet the community and 
political criteria, political authority criteria, at a given 
period of time or at a given point in time. Now, unfortunately, 
the bill doesn't define what a period of time is, or what a 
point in time is. Is it every year, every 10 years, or every 20 
years?
    But more importantly, any number of years is arbitrary, 
because the events and forces of history and Federal policy do 
not confine themselves to tidy time intervals. A petitioner 
should not have to show that it meets a criterion for numerous 
artificial time periods. It should be enough that, considering 
all of the evidence, the petitioner has shown that it is 
reasonably likely that it has maintained a distinct community 
from 1900 to the present, or that it has exercised political 
influence over its members during that time.
    If, in the alternative, petitioners are to be required to 
meet criteria for given time periods, I think Congress should 
clearly place the burden on OFA or on interested parties 
opposing acknowledgement to show, by clear and convincing 
evidence, that a group has abandoned, voluntarily abandoned its 
tribal relations. Putting the burden on OFA or opposing parties 
recognizes that evidence to demonstrate community and political 
influence may not be available for certain time periods due to 
no fault whatsoever of the petitioner.
    There is two quick points that I would like to make in 
closing, in response to some earlier testimony. Assistant 
Secretary Artman testified about conducting consultation on 
changes that they are considering to the Part 83 criteria. And 
I strongly believe that while it is important to conduct 
consultation with Federally recognized tribes, it is equally 
important that there be consultation with the groups that are 
seeking recognition. This protects obviously their lives, and 
these decisions are final, and they need to be consulted, as 
well.
    And a final point about dealing with splinter groups. The 
United States, the Bureau of Indian Affairs does have a role to 
play in helping to resolve the disputes within Federally 
recognized tribes. I speak to that from two perspectives, one 
having worked for a couple of tribes as an in-house attorney 
that experienced internal disputes, and the BIA is involved in 
that process. And as the Associate Solicitor, I also worked on 
several matters where we helped to resolve internal disputes. 
And I think that the Bureau and the Department have a 
responsibility to deal with these disputes when they arise in 
petitioners, because it has to decide who it is that it is 
going to deal with, who controls the documents, who is making 
decisions. So I think it needs at some point to make a decision 
on those bases.
    Thank you very much.
    [The prepared statement of Mr. Jordan follows:]

                Statement of Derril B. Jordan, Partner, 
                  AndersonTuell, LLP, Washington, D.C.

    Mr. Chairman and Members of the House Natural Resources Committee, 
thank you for this opportunity to offer testimony regarding the process 
for acknowledging that an American Indian group exists as an Indian 
tribe. My name is Derril Jordan, partner at AndersonTuell, LLP. Our 
firm represents a number of Indian groups seeking federal recognition, 
but I am not offering testimony on behalf of any particular client of 
our firm. As a former Associate Solicitor of Indian Affairs at the 
Department of Interior, as a long-time practitioner of federal Indian 
law, and as a member of a state recognized tribe, the Mattaponi of 
Virginia, I have a keen interest in this subject. It is my intent to 
offer testimony that will assist Congress in enacting legislation that 
ensures that all legitimate tribes have their sovereign status 
recognized by the United States.
    This is an issue of great significance, and Congress' attention to 
this matter is much needed and greatly welcomed. Numerous reform bills 
have been introduced over the last two decades, and there has been much 
discussion of the issue in the recent past. I hope that the 110th 
Congress will be the Congress that finally enacts legislation that 
establishes a fair and efficient process for the federal recognition of 
legitimate Indian tribes. I am committed to working with Congress to 
help it understand what is needed to make this process both timely and 
fair.

                          REVIEW OF H.R. 2837

    Much can be said about the current process employed by the Office 
of Federal Acknowledgment (OFA) within the Bureau of Indian Affairs 
(BIA). I believe that it is necessary to look and move forward, and not 
back, so I will focus my comments on H.R. 2837. I will also offer other 
suggestions about the issue of federal recognition generally.
A. The Creation of an Independent Commission.
    Section 4 of the bill creates an independent commission to be 
responsible for determining which groups are eligible to be recognized 
by the United States. I agree with the creation of an independent 
commission outside of the Department of Interior. It addresses directly 
the phenomenon known as staff capture. There has also been much 
controversy surrounding the process lately, with complaints on both 
sides that the process is biased and unfair. The creation of an 
independent commission will help to give the recognition process a 
fresh start and provide a renewed sense of legitimacy to its decisions, 
whether they be to recognize a tribe or to decline to extend 
recognition.
    There are other process-oriented reforms that I believe can go a 
long away toward improving the process, even if the creation of an 
independent commission proves to be beyond our grasp. For example, the 
creation of a peer review process would go a long way toward ensuring 
fair decisions. Independent contractors could be hired by the Assistant 
Secretary for Indian Affairs to conduct an independent review of OFA's 
analysis and recommendations and determine whether OFA's recommendation 
should or should not be followed. By creating this independent panel 
that has the time and resources to examine the case in its entirety, 
you will be providing an antidote to the phenomenon of staff capture, 
and you will be more likely to get decisions that are fair. Perhaps a 
pilot project could be authorized whereby the next five petitions that 
are on the ``Ready And Waiting List but not yet under active 
consideration to be evaluated would undergo this peer review process 
and the results evaluated to determine whether the peer review process 
should be continued, or whether other reforms should be considered.
B. The Elimination of Redundant Criteria.
    Several of the criteria are redundant and unnecessary. The use of 
redundant criteria is costly to petitioners and slows the process down, 
adding to the backlog of petitions.
1. Criterion (a)--Identification as an American Indian Entity.
    Like Section 83.7(a) of the current regulation, section 5 (b)(1) of 
H.R. 2837 requires that a petitioner demonstrate that it has been 
identified as an American Indian entity on a substantially continuous 
basis since 1900. Evidence to be relied upon must show identification 
by entities other than the petitioner itself or its members. It is both 
unnecessary and inappropriate to require a petitioning group to show 
identification by outside entities. It is unnecessary because this 
criterion overlaps with the criteria of sections 5 (b)(2) and (b)(3) 
(Sec. Sec. 83.7(b) and (c), respectively, of the current regulations) 
which require that a petitioning group demonstrate continuous existence 
as a community and continuing political influence or authority, 
respectively. Generally, the evidence relied upon by a group to meet 
the community and political authority criteria has been created by 
third parties such as the United States, state or local governments, 
newspapers, other Indian organizations, and scholars. These are 
virtually the same sources that are listed in section 5 (b)(1) of the 
bill and Sec. 83.7(a)(1)-(6) of the current regulations. Because a 
group must, at least in part, rely on records created by third parties 
to meet the community and political authority criteria, it is redundant 
to have identification by outsiders as an independent criteria.
    Moreover, it is an inappropriate criterion because it ignores the 
effects of federal, state and local policies and actions upon tribes 
throughout history. During much of United States history, especially in 
the late nineteenth and early twentieth centuries, there were 
considerable incentives for Indian tribes and their members to remain 
unidentified as such. Threats of removal, racial and ethnic animus, as 
well as economic, educational, and religious discrimination were 
commonplace. Indian groups in many places had to maintain a low profile 
in order to survive. In essence, this criterion is Eurocentric. It asks 
the question: if an Indian takes a walk in the woods and a white man 
doesn't see him, is the Indian still an Indian? Most distressingly, it 
answers that question in the negative! Simply put, identification by 
third parties can provide evidence that a group is a tribe, but it 
should not in itself be a criterion for proving tribal existence.
2. The interrelationship between the community and political authority 
        criteria.
    Sections 5 (b)(2) and (3), like criteria 83.7 (b) and (c) of the 
current regulations, require a petitioning group to demonstrate that it 
has maintained a continuing community and continuing political 
authority or influence over its members. These criteria overlap 
considerably. It is hard to imagine a community without a political 
process, however informal and, in turn, a political process without a 
community. Moreover, sections 5 (b)(2) and (3), as well criteria 83.7 
(b) and (c) of the current regulations, explicitly acknowledge the 
interrelationship of these criteria. For example, both H.R. 2837 and 
the existing regulations provide that if a group can demonstrate 
community by certain evidence, it will be deemed to have demonstrated 
political authority. See section 5 (b)(3)(C) and 25 C.F.R. 
Sec. 83.7(c)(3). Likewise, the bill and the existing regulations both 
provide that if political influence is demonstrated by certain 
evidence, the group will be deemed to have met the community 
requirement. See section 5 (b)(2)(C)(v) and 25 C.F.R. 
Sec. 83.7(b)(2)(v). These provisions demonstrate the interrelatedness, 
and redundancy, of these criteria. Furthermore, it should not matter 
what type or form of evidence a group has relied upon to establish 
community or political authority; if it can show that it meets one 
criterion by any evidence, it should be deemed to have met the other 
criterion. Thus, these two criteria should be combined to be but one: 
that a group show that it has maintained a continuous community, with 
political process or form of leadership being one type of evidence that 
can be used to show that it has met this criterion.
C. The Need for an Evidentiary Standard.
    H.R. 2837 does not establish a standard of proof necessary to meet 
each of the criteria. One standard that is applicable to all criteria 
should be established, and that standard should require a petitioner to 
show that it meets each criterion by a reasonable likelihood.
    The bill retains an element of the current regulations that is most 
problematic. In several instances, the bill requires that a petitioner 
meet the community and political authority criteria at ``a given period 
of time,'' or ``a given point in time.'' See sections 5 (b)(2)(C) and 
(b)(3)(C). First, the bill does not define what a ``period of time'' or 
a ``point in time'' means. Is it every year? Every ten years? Or every 
twenty years? What's more, any number of years is arbitrary. The events 
and forces of history and federal policy do not conform themselves to 
tidy time intervals. For example, the period of forced assimilation in 
Indians affairs lasted from the early 1880's to the mid 1930's, a 
period of over fifty years. A petitioner should not have to show that 
it meets a criterion for numerous artificial time periods. It should be 
enough that, considering all of the evidence, the petitioner has shown 
that it is reasonably likely that it has maintained a distinct 
community from 1900 to the present, or that it has exercised political 
influence over its members during that time.
    In the alternative, if petitioners must meet each criterion at a 
given point or period in time, Congress should clearly place the burden 
on OFA or interested parties opposing acknowledgment to demonstrate by 
clear and convincing evidence that a petitioning group has voluntarily 
abandoned tribal relations before a petitioning group can be denied 
acknowledgment on the basis of a lack of evidence for a specific time 
period. If a Tribe meets a criteria during the 1920's, and meets that 
same criteria in the 1950's to the present, isn't it logical to assume 
that it has met that same criteria for that intervening 30 years? 
Placing the burden on OFA or opposing parties recognizes that evidence 
to demonstrate community or political influence may not be available 
for certain time periods due to no fault of the petitioner. For 
example, some public records may have been lost or destroyed, as is the 
case in Virginia. Also, many Indian groups were forced to refrain from 
engaging in political activities and to otherwise keep a low profile in 
order to survive in an environment hostile to their existence. Placing 
the burden on OFA and opponents of recognition also introduces equity 
into the process by recognizing that the Unites States bears some 
responsibility for its failure to extend recognition to the group at an 
earlier time or because it illegally terminated the tribe.
D. The Significance of Prior Recognition.
    Under our Constitution, only Congress has the authority to 
terminate a treaty relationship, but the BIA does not. If a tribe has a 
ratified treaty with the United States, and can demonstrate that the 
majority of its members are the descendants of the group which signed 
that Treaty, and that those families have continued to interact as a 
tribal community over time, the Tribe must be presumed to continue to 
exist as a federally recognized tribe in the absence of clear and 
convincing evidence that the entire tribe or band has ceased to exist.
    With regard to other non-treaty forms of prior federal 
acknowledgment, I note that Section 5 (c) of H.R. 2837 provides that a 
group that can demonstrate prior recognition must meet the criteria set 
forth in section (5) only from the date of last recognition to the 
present. I suggest that the Committee refer to section 5 (c) of H.R. 
361, which was introduced in the 106th Congress. That provision 
requires that a group demonstrate only the existence of current 
political authority from ten years prior to the submission of its 
petition to the present.
    While I would urge changes to section 5 (c) of H.R. 361, I would 
recommend that provision over the provision in the current bill. Such a 
provision would introduce equity into the process that is necessary to 
account for the wrongful conduct of the United States. If a group was 
previously recognized but no longer appears on the list of federally 
recognized tribes, it is because Interior illegally terminated the 
federal-tribal relationship, either through neglect or by deliberate 
action unauthorized by Congress. The current regulatory standard and 
the provision in H.R. 2837 penalize a petitioning group for the United 
States' illegal conduct. Requiring that the group demonstrate political 
authority only for the ten years prior to filing its petition 
recognizes that the petitioning group has been disadvantaged by the 
United States' illegal conduct.
E. The Significance of State Recognition.
    Many Indian tribes are recognized by the government of the State in 
which they reside. Some state recognitions are based on colonial era 
treaties and are characterized by well documented, centuries-long 
relations involving the appointment of trustees or overseers and the 
presence of well-defined land bases. Residence on a state-recognized 
reservation since 1900 should constitute conclusive proof that the 
group is entitled to federal acknowledgment as an Indian tribe.
F. Additional Comments on H.R. 2837
    The definition of ``continuous'' or ``continuously'' in section 3 
(6) should be amended to delete the words ``throughout the history of 
the group,'' and the words ``until the present'' should be added in 
their place.
    It should be made more clear that the types of evidence listed in 
subsection 5 (b)(2)(C) entitle a petitioner to a finding that it meets 
the continuing community criterion without the consideration of other 
evidence, but that showing one or more of these kinds of evidence is 
not required. Likewise, it should be made more clear that the types of 
evidence listed in section 5 (b)(3)(B) entitle a petitioner to a 
finding that it meets the political influence criterion without the 
consideration of other evidence, but that such types of proof are not 
required.
    Section 5 (b)(3)(A) requires a petitioner to show that it has 
maintained political influence or authority over its members ``from 
historical times until the time of the documented petition.'' The 
requirement that political authority be shown from ``historical times'' 
is inconsistent with the definition of ``continuous'' or 
``continuously,'' which mean ``extending from 1900 to the present. It 
should be made clear that criteria (1)-(3) need only be met from 1900 
to the present.
    I have already commented on the exception for tribes that can show 
prior recognition, but there are other suggestions that can be made. 
First, the standard for demonstrating prior recognition should be the 
same for establishing that the petitioner meets the criteria for 
recognition: by a reasonable likelihood. Second, if a group was 
identified as Indian tribe or band by an Indian agent whose job it was 
to inventory Indian communities in a state or territory, that 
identification should be considered prior recognition even if no land 
was ever set aside or federal assistance provided to the group. This 
was a common occurrence in California, where Indian agents were sent 
out to identify Indian communities in need, and many of the communities 
identified never had land set aside for them or received assistance 
from the United States because there was no cheap land available, not 
because the United States did not recognize its fiduciary relationship.
    The types of evidence necessary to show tribal membership listed in 
section 5 (b)(5)(C) should be more clearly stated to be in the 
alternative because no petitioner will be able to provide all such 
forms of evidence.
    Section 7 (a)(4) requires the Library of Congress and the National 
Archives to allow petitioners access to their resources, records, and 
documents. Petitioners, as members of the general public, already have 
such access. Is the point of this provision to make such access free of 
charge to petitioners?
    The publication of the list of federally recognized tribes eligible 
to receive services from the United States should remain the 
responsibility of the Department of Interior, especially given that the 
Commission will terminate after twelve years.
    Finally, the provision of financial assistance to petitioners 
should be based on need, and Congress should provide sufficient funding 
to ensure that all deserving groups receive at least some assistance. I 
would also note that this financial assistance should be provided 
throughout the entire review of a group's petition. While the 
Administration for Native Americans once provided assistance to tribes 
in preparing their petitions, that assistance stopped once the BIA's 
review was initiated. This left the petitioning group with no funds to 
respond to the BIA's requests for additional information on a 
particular topic and no funds to respond to issues raised by third 
parties opposed to recognition. Decisions of this magnitude should be 
based on facts and a group should not be penalized because it does not 
have the resources to fully document its petition. This is particularly 
important if there is going to be a sunset provision on the recognition 
process.

         THE SPECIAL CIRCUMSTANCES OF CALIFORNIA INDIAN GROUPS

    The report of the Advisory Council on California Indian Policy 
(ACCIP) on the federal recognition process recommended the modification 
of the current federal recognition process due to the unique and brutal 
legacy of Indian policy in California. To this end, the ACCIP's 
recommendations included the enactment of legislation to establish a 
California-specific recognition process. The ACCIP, created by Public 
Law 102-416, reported that literally two-thirds of the Indian people in 
California are not members of recognized tribes, which fact is due to 
the haphazard methods through which tribes were recognized, which is 
attributable to the lack of a coherent federal Indian policy in 
California from the time of statehood till the present. If the entire 
process is not reformed, a California-specific process should be 
established.

               PRESERVATION OF OTHER FORMS OF RECOGNITION

    Congressional action to reform the administrative process for 
recognizing Indian groups as sovereign tribes is much needed. 
Nevertheless, there are other legitimate means through which groups can 
be recognized. Congress, of course, retains the authority to recognize 
tribes, and it should not hesitate to do so in appropriate 
circumstances. There will always be cases where a legitimate group does 
not fit squarely into any given set of regulations because of its 
unique historical situation, and some tribes may be prohibited from 
going through the Part 83 process. In such instances the Congress has 
an obligation to examine the facts and render a fair and equitable 
decision.
    A number of tribes have been, in effect, administratively 
terminated by the neglect or wrongful conduct of the Department of 
Interior. Congress has affirmed the recognition of some of these tribes 
in the past, and it should not hesitate to do so in the future. In 
1958, Congress enacted the Rancheria Act, (72 Stat. 69), which provided 
for the termination of forty-one California rancherias. All but eight 
of those rancherias have been restored, either through litigation, or 
by Congress. In cases such as Hardwick v. United States, No. C-79-1710-
SW (December 15, 1983), Scotts Valley v. United States, No. C-86-3660 
WWS (March 16, 1991, N.D. California), Duncan v. Andrus, 517 F. Supp. 1 
(N.D. Calif. 1977), and Table Bluff v. Andrus, 532 F. Supp. 255 (N.D. 
Calif. 1981), the courts decided, or the United States agreed through 
stipulations, that it had not fulfilled the statutory pre-conditions to 
termination and that the termination of these rancherias was, 
therefore, unlawful. The Department of Interior should be directed to 
negotiate settlements with the last eight remaining terminated 
rancherias without the need for further litigation or the need for 
legislation.
    As the Hardwick, Scotts Valley, Duncan, and Table Bluff cases 
demonstrate, judicial restorations and recognitions are also possible. 
The recent judicial recognition of the Shinnecock Tribe by a federal 
district court in New York is the most recent example of this. State of 
New York v. The Shinnecock Indian Nation, 400 F, Supp. 2d 486 (E.D.N.Y. 
205). Any legislation enacted regarding federal recognition should 
direct the Department of Interior to add a tribe that is recognized by 
any of these means, including those recognized via litigation, to be 
added to the list of federally recognized tribes maintained pursuant to 
25 U.S.C. Sec. 479a (the Tribal List Act).
    I thank you for this opportunity to testify on this important 
issue. I look forward to answering questions and to providing further 
assistance to the Committee in its consideration of H.R. 3837 and the 
federal recognition process.
                                 ______
                                 
    Mr. Faleomavaega. Thank you, Mr. Jordan.
    Mr. Austin.

  STATEMENT OF STEVE AUSTIN, CULTURAL ANTHROPOLOGIST, AUSTIN 
          RESEARCH ASSOCIATES, SILVER SPRING, MARYLAND

    Mr. Austin. Thank you for the invitation to come and 
address the Committee today.
    My name is Steven Lee Austin. I am an anthropologist, and I 
have been working in the tribal recognition field for 14 years 
now. I have something of an interesting perspective to share in 
that I worked for six years for the Bureau of Indian Affairs, 
what was then known as the Branch of Acknowledgement and 
Research. And since 1999 I have been working as a contract 
anthropologist working on behalf of Indian tribes who are 
seeking to put together these kinds of petitions for 
acknowledgement.
    I think that the legislation that we are considering today 
in particular has several very important elements to it: 
elements that, whether this bill is passed or not, they should 
find their way into legislation to help improve the process.
    I think the first thing that needs to be done is to set 
dates certain by which petitioners need to have their petitions 
in to the Federal government; and also dates certain by which 
the Branch of Acknowledgement and Research, or now the Office 
of Federal Acknowledgment, or the commission if the commission 
is passed, those things need to have dates certain by which 
everyone involved in the process will know that this issue is 
being dealt with in a timely fashion. Petitioners deserve 
timely answers, the states in which they reside deserve timely 
answers, the Bureau of Indian Affairs and the Federal 
government, and individual citizens out there who are going to 
be impacted by these decisions, deserve timely answers.
    I think that another aspect of this that needs to be 
addressed, particularly if stringent time frames are going to 
be mandated by way of legislation, is to provide sufficient 
funding. The funding would need to go to either, again, the 
commission or to the Office of Federal Acknowledgement, or you 
can't expect them to handle a flood of petitions coming in. Say 
we set a timeline of 20 years by which we expect this process 
to be done.
    There is no way that they are going to be able to handle 
200 petitions in 20 years, with the resources that are 
currently available. We have heard this over and over again, 
from testimony, and the Committee members have also recognized 
it today.
    I remember when I was working for the Bureau of Indian 
Affairs, the difficulty of watching the branch chief, who at 
that time was being told as she came to committee meetings to 
try to explain why the process was taking so long, she was told 
that she couldn't, the one thing that she could not come into 
this committee room and ask for was more funding. Even if she 
was asked directly do you need more funding, she was not 
allowed to answer that she needed more funding.
    She ended up getting answers somewhat like we got today, 
though I think some of the answers we got from the assistant 
secretary were a bit more promising than ones we have gotten in 
the past. But they usually end up answering by saying, well, 
this is the amount of money we have got, and let me tell you 
what we are doing with it to try to make the process work 
better.
    Unfortunately, that still does not bring any kind of 
finality to the process; it doesn't bring any clearer answers 
for anybody involved in terms of when are these petitions 
finally going to be dealt with.
    And so I think that by providing dates certain by which 
these things have to be done, that calls on the petitioners, to 
finally do their part and get their petitions done and 
presented, and then it calls on the government, in the form of 
the Office of Federal Acknowledgement, to do its part, to 
resolve these petitions, to look at them and render decisions 
on them.
    That would go a long way toward helping to resolve it. But 
then it needs to be properly funded. And I would agree with Mr. 
Tilden, who was giving testimony on the previous panel, that 
the funding not only needs to go to the Office of Federal 
Acknowledgement or to the commission, but funding also needs to 
be provided to the petitioners.
    I don't know how many petitioners there are. You asked if 
Mr. Tilden thought there were a lot of petitioners that could 
benefit from that. I know that there are several clients of my 
own--I can say at least three or four--that would be taking a 
much more active role in this process and participating much 
more regularly if they had the adequate funding.
    However, there is now no funding, as Mr. Tilden indicated, 
from the Administration for Native Americans; there are no more 
status clarification grants. I was glad to see that your bill 
calls for reinstituting those, because I think they play a very 
important role, especially for tribes like the ones I am 
talking about now that do not have the opportunity to enter 
into a business relationship with somebody that could help them 
fund the research.
    The people I have in mind, for example, are in south 
Louisiana, down in the bayous south of New Orleans. They are 
not in a position where they will ever be able to benefit from 
Indian gaming, and they really don't have anything else that 
they can really do to raise funding.
    I have been working for tribes like that, like another one 
in New Mexico, which is in a similar position, perhaps not 
quite so desperate. But if they had a market for mosquitoes, 
these guys in Louisiana could perhaps raise some funds; or if 
there was a way to sell rocks on a Navajo reservation, those 
guys could come up with some funding to pay for research.
    As it is, persons like myself--and I know I have many 
colleagues who are doing the same thing out there--end up 
having to work on a pro bono basis. And that means that they 
get attention when I can give them the attention. They are not 
getting the just attention that they rightly deserve.
    So restoring funding through the ANA for the tribal 
acknowledgement status clarification grants would be a major 
step forward.
    I am one of the few people that thinks that the criteria 
are probably stated about right in the current regulations. 
However, the other thing that I would advocate for--and this is 
not, I don't think, adequately dealt with either in the bill or 
in the current acknowledgement process--that would be calling 
for greater peer review by independent scholars and legal 
specialists in the field of Indian affairs. The Bureau of 
Indian Affairs Office of Federal Acknowledgement does do its 
own internal peer review, but I think that a lot of the 
decisions recently that have been coming out are a little bit 
on the uneven side. They are really difficult to sometimes 
grasp the logic behind some of the decisions that have been 
coming out, where evidence is seen in some years to be showing 
that a tribe is there, and then for another 20 years after that 
there is no tribe there. And then after that, another 30 years, 
there is evidence of political leadership there.
    I would be very pleased to present the evidence that we 
have had in other cases to an independent review board of 
specialists to say, given the standard of evidence that is in 
the regulations, the reasonable likelihood of the validity of 
the facts, would you say that that tribe was in existence for 
20 years, suddenly went out of existence for another 20 years, 
and then came back for another 30 years and was in existence 
again? Or is it more likely to assume that that tribe was there 
all along? Especially when there is nothing that contradicts 
that the tribe was there all along.
    It is issues like that that will drive the petitioners and 
scholars and attorneys in this process crazy, because we feel 
like the decisions are very uneven sometimes. And that would 
also----
    The final thought I have that I would like to share this 
afternoon would be, bear in mind that while the criteria, in my 
opinion the criteria are important, and I think they should be 
the first line of defense or the first line of evaluating 
petitions that come in; there are going to be some instances in 
which the Congress needs to stand ready to act. And there are 
going to be some groups out there that are not going to be able 
to meet the criteria as they are stated, and particularly not 
as they are currently being interpreted by the Office of 
Federal Acknowledgement. Groups like the Burt Lake Band of 
Ottawa Indians in Michigan for whom I worked.
    I think it is important to watch some of the signals that 
come out of the Interior Department on things like this, when 
they say to you they do not oppose legislation to recognize a 
group, or that they--I don't think I ever heard them say it, 
but if they ever did say they were in favor of legislation to 
recognize a group, Congress needs to pay attention to that.
    In the case of Burt Lake, they went through the process. I 
personally think that they got an unjust decision, a decision 
based on an unfair reading of the evidence. But this is one 
that, when the Office of Federal Acknowledgement was asked to 
testify earlier about a bill to recognize Burt Lake, they said 
that basically they had no objection to the legislation.
    I think that Congress needs to perk up its ears when they 
hear that, and say this is somewhere where we need to step in. 
And even though the BIA is saying they couldn't be recognized 
under the process as it is currently standing, we need to step 
in and do it because it is the right thing for the government 
to do.
    [The prepared statement of Mr. Austin follows:]

          Statement of Steven L. Austin, PhD, Anthropologist, 
          Austin Research Associates, Silver Spring, Maryland

              Greeting and Thanks to the Committee Members

    Good morning. My name is Steven Lee Austin. I am an anthropologist, 
with a PhD in Anthropology from American University. I wish to thank 
The Honorable Members of the House Committee on Natural Resources for 
holding a hearing on this bill and allowing me to speak on this very 
important topic. I have some concerns about the creation of an ``Indian 
Recognition Commission.'' However, I view several aspects of it as 
representing major steps forward, and even if this bill is not passed, 
there are several provisions in the bill that Congress could pass 
separately that, in concert, would dramatically help improve the 
current tribal acknowledgment process.
    These provisions include:
    1)  legislating a sunset provision for the tribal acknowledgment 
process, to create a date certain by which all of the petitions 
currently on hand, and those submitted by the sunset date; will be 
resolved;
    2)  authorizing and appropriating more funding for the process in 
order to hire adequate staff to review petitions and provide technical 
assistance to petitioners;
    3)  authorizing and appropriating funds for status clarification 
grants to petitioners, so that they may conduct research and prepare 
their documented petitions; and,
    4)  implementing measures that would contribute to a reasonable 
interpretation of the seven mandatory criteria for tribal 
acknowledgment (25 CFR 83.7).

                                Overview

    When the administrative process was first established, it was never 
envisioned that it would still be in operation 30 years into the 
future. Rather, the scholars and attorneys responsible for designing 
the process thought it would last a few years, and the issue of tribal 
recognition would, for the most part, be settled once and for all. The 
original regulations for the tribal acknowledgment process were 
finalized and published in 1978. In 2008, the process will reach its 
30th anniversary; yet, from the point of view of many of the Indian 
groups seeking acknowledgment, there is little, if anything, to 
celebrate. Leaders from all of these groups who are here today could 
tell you painful stories about waiting for justice while a generation 
or two of their elders have passed on.
    I have worked as an anthropologist for nearly 20 years, since 1988. 
Beginning in 1993, I accepted a job with the Bureau of Indian Affairs, 
evaluating petitions for Federal acknowledgment. From 1993 to 1999, I 
was part of several review teams, evaluating the petitions from the 
Ramapough Mountain Indians, the Mohegan Indian Tribe, the Chinook 
Indian Tribe, and the two Nipmuk petitioners. I also served on peer 
review teams for several other petitioners, including the Jena Band of 
Choctaw, Match-e-be-nash-she-wish Pottowatomie, the Huron Band of 
Pottowatomie, the Duwamish Indian Tribe, and the Cowlitz Indian Tribe. 
In 1999, I left the Bureau of Indian Affairs to begin my own consulting 
business, which primarily focuses on developing documented petitions 
for unrecognized Indian tribes. From 1999 to the present, I have 
consulted with petitioning groups from Connecticut, Massachusetts, 
Louisiana, New Mexico, California, and Michigan. As I considered my 
testimony this morning, I reflected on my experience over the past 20 
years and I tried to think of insights that I could share which would 
constitute a unique contribution to this hearing.
    I keep two questions in mind as I work on matters related to tribal 
acknowledgment. The first question is: ``What is best and most just for 
Indian Country as a whole?'' I include tribes that are yet to be 
acknowledged as part of the legal construct ``Indian Country.'' Based 
on that perspective, I believe that it is in the interest of Indian 
country to acknowledge Indian tribes that meet the seven mandatory 
criteria (as stated in the Code of Federal Regulations) based on a 
reasonable interpretation of the genealogical, historical, and 
anthropological evidence, and who currently have the strength and 
fortitude to maintain a bilateral, government-to-government 
relationship with the United States. Generally speaking, it would not 
be in the interest of Indian Country for the Federal government to 
acknowledge those Indian groups that cannot meet the criteria and are 
not in a position to employ the unique rights and fulfill the 
responsibilities that attend the government-to-government relationship. 
To do so would, from my point of view, be a disservice to Indian 
country, and undermine the status of federally recognized tribes.
    The second question I keep in mind is: ``Given the totality of the 
evidence and circumstances of each case, what is the just and proper 
action for the Government to take?'' It should be remembered that there 
are going to be some very rare cases that will compel the Government, 
in the interest of fairness and justice, to acknowledge the existence 
of a tribe that can present a case with sufficient merit, even though 
the petitioner has not met all seven of the mandatory criteria as 
traditionally interpreted by the OFA. This is one of the areas that 
Congress can be of assistance in the process as it is currently 
designed. Particularly when the OFA or the Department of the Interior 
provides congressional testimony or otherwise indicates that it will 
support, or, at least, will not oppose, legislation to recognize a 
specific tribe, as it recently did at a hearing on a bill to recognize 
the Burt Lake Band of Ottawa and Chippewa Indians in Michigan.
    The Office of Federal Acknowledgment (OFA) is often criticized for 
being too slow and tedious, as well as for being inconsistent in its 
interpretation of the seven mandatory criteria. It seems that everyone 
with a hand in the process, scholars, petitioners and interested 
parties, and some members of the Legislature and the Judiciary, whether 
generally pro or con regarding tribal acknowledgment, are in agreement 
that the process moves too slowly. The specific accusations of 
inconsistency depend on the political goals of the critics, with 
petitioners typically complaining that the criteria (or the OFA's 
interpretation of them) are too demanding, and those interested parties 
who are opposed to the Government acknowledging more tribes complaining 
that the criteria (or the OFA's interpretation of them) are too 
lenient. First, I would like to address some of the concerns about the 
pace of the tribal acknowledgment process. Second, I will discuss a few 
examples of what I view as inconsistencies and unreasonableness in the 
OFA's interpretation of the regulations. Finally, I will make some 
additional comments on H.R. 2387.

           The Current Tribal Acknowledgment Process and the 
                       Issue of Timely Resolution

    The administrative process for acknowledging Indian tribes was set 
up to investigate the claims of Indian groups across the country that 
wanted their status, as tribes, affirmed by the United States 
government. In 1978, there already were 40 groups that had applied for 
that status, and it was anticipated that there might be a few more 
unrecognized tribes who had yet to make application. Altogether, they 
anticipated a relatively limited number of groups, and expected to 
review and decide those cases in a brief time period. Thirty years 
later, the Department of the Interior, through its Office of Federal 
Acknowledgment (OFA), has resolved about 40 cases, 9 petitions have 
been resolved by Congress, and 10 have been resolved ``by other means'' 
(mostly groups that withdrew from the process; statistics are based on 
the OFA's Status Summary of Acknowledgment Cases, dated February 15, 
2007). However, having resolved 40 cases in 29 years (an average of 1.4 
petitions resolved per year), the OFA now has a list of over 250 groups 
that have submitted a letter of intent to petition and whose cases have 
not yet been resolved. This is over 6 times the number of petitions 
they started with in 1978. The end result is that the burden on the 
Federal government has not diminished, but grown over time.
    These numbers are sobering. In their own defense, the 
representatives of the OFA usually point out that not all 250 groups 
have completed petitions that are ready for immediate evaluation; 
therefore, OFA cannot reasonably be held responsible for not having 
evaluated everyone on the list. They would say that there are only nine 
petitioners with completed petitions that are awaiting evaluation, and 
that is the only real ``backlog.'' While that is true, it cannot be 
very comforting to these Government officials or their superiors to 
know that, at some point in time, all of those petitions must 
eventually be resolved in one fashion or another, at least as the 
process is now designed.
    There are several personal insights I would like to share on the 
issue of the time required to evaluate all of those petitions, and why 
there might be some hope for the future.
    First, there really are not another 250 petitioners with merit. 
When I was still working at the Branch of Acknowledgment and Research 
(as the OFA was then known), I was aware that there were a number of 
Indian groups who clearly would never meet the requirements of the 
tribal acknowledgment process. Without getting too specific, I can tell 
you about just a few of those cases. There is one petitioner in 
Connecticut that consists almost exclusively of non-Indians, 
individuals who were taken off the membership roll of a recognized 
tribe and subsequently reorganized as their own ``Indian tribe.'' There 
was a petitioner in California whose petitioning group consisted of an 
elderly woman, quite probably Indian, along with her daughter and 
grandchildren. In Texas, there is another petitioner that consisted of 
a father and son. In California, there was another group of about 30 
individuals who had no evidence of Indian ancestry, tribal continuity, 
or any organic relationship to each other. Clearly these are 
petitioners that will never meet the standards for being acknowledged 
as an Indian tribe. Yet, as the regulations are now written, anyone can 
become a petitioner, simply by submitting a letter of intent to 
petition. A one-paragraph letter is all that is required; no 
substantiating evidence or additional information needs to be 
submitted.
    However the Government chooses to deal with the issue of tribal 
acknowledgment in the future, whether through the current regulatory 
process or through a Presidential Commission like that proposed in the 
bill under consideration at today's hearing, it would seem to be in the 
best interest of Indian Country, the Government, and interested 
parties, to remove groups like those mentioned above from the 
acknowledgment process. In other words, a screening process should be 
established for making a first cut on whether or not the groups that 
are requesting petitioner status have any chance at all of meeting the 
standards as set forth in the seven criteria. This might involve 
requiring applicants for petitioner status to submit their membership 
list (as defined in the regulations), and/or some other information and 
evidence regarding the history of their group when they submit their 
initial request for petitioner status. To prevent an appearance of a 
conflict of interest for the OFA, perhaps these initial determinations 
should be made by an independent panel of experts.
    A provision like this was made in the 1994 revised regulations, 
which allowed for petitioners to receive an expedited negative proposed 
finding, if it were determined that they had not provided acceptable 
evidence of Indian ancestry, and were unlikely to be able to do so. 
This provision in the 1994 revised regulations has largely been unused, 
but I believe the OFA, or the Commission, should reconsider its 
usefulness. Such an expedited review would cut down on the amount of 
time the OFA's researchers would need to spend evaluating the more 
spurious or weak petitions and allow them to focus their time and 
effort on the more substantial cases.
    I view the problem of too many petitioners and not enough resources 
to evaluate them that has resulted from the current administrative 
process as a failure, not on the part of the researchers at OFA, but on 
the part of both the Legislative and Executive Branches. The Executive 
did not plan well or adjust to changing realities as the number of 
petitioners increased beyond its ability to respond to them, and the 
Legislative failed to appropriate enough resources (money and 
personnel) to get the job done. I remember how difficult it was for our 
Branch Chief to give testimony in Congress about the acknowledgment 
process, primarily to respond to concerns about why the process was 
moving so slowly. Her superiors at the BIA always told her that she 
could not ask for, or even imply the need for, additional money for the 
acknowledgment program. The one investment that could have made a 
difference in the speed with which petitions were resolved was more 
money to hire an adequate number of researchers and support staff, and 
to provide more technical assistance to petitioners and interested 
parties. Even when asked directly by Members of Congress if the BAR 
needed more funding she was not allowed to reply in the affirmative. I 
do not know if the OFA's Director is still under instructions not to be 
direct about the need for more resources, but it is something the 
Congress should be sensitive to as it determines what to do next.
    Not only was the Branch Chief told she could not request more 
funding, but we were bucking a general trend in Government during the 
1990s, under the banner of ``Reinventing Government.'' When I first 
arrived at the BAR in 1993, it quickly became apparent to me that we 
were not making adequate headway with the cases that we were supposed 
to be resolving. On paper, we had three research teams (each with an 
anthropologist, historian, and genealogist), three support staff 
members, and a Branch Chief. In reality, we usually only had two teams, 
one support staff person, and a Branch Chief, with two or three 
positions going unfilled at any given time. The Executive Branch 
decided to downsize the Federal bureaucracy several times, and during 
that process, the first staff positions that we lost were those that 
were not actually filled. Then, through attrition, we lost other 
positions that were vacated through resignations, retirement, and 
transfers, etc. We were made to feel thankful that we did not suffer 
even greater reductions in force. In some ways we were thankful: the 
BIAs Central Office staff was cut by 50 percent, overall, while our 
office only lost 30 percent of its staff positions. After I left in 
1999, the OFA spent the next several years trying to regain those 
downsized researcher and support staff positions, and I think they may 
now have four full research teams, and they have increased the number 
of support staff.
    Given all of these ups and downs, it is amazing the OFA has 
accomplished as much as it has. One can point to a slight increase in 
productivity in regard to the number of cases resolved by the OFA 
during the first seven years of the new millennium (See Table I), when 
compared to the 1990s. Still, this is not enough. It is true that a 
journey of a thousand miles begins with one step. But that is no real 
consolation when each time one step is taken, another thousand mile 
stretch is added to the end of the journey. This would seem to be a 
good analogy for the OFA: running as fast as they can, they are not 
really making adequate progress in accomplishing their overall mission; 
and, in fact, they are losing ground as the mission continues to 
increase in scope, as new petitioners are regularly added tot he 
process.
    All participants in the petition review process deserve a timely 
resolution of these petitions. I believe it would be in the best 
interest of Indian Country, the Government, and other participants in 
the Federal acknowledgment process to provide a sunset clause, bringing 
the process to a close after the passage of a specific term of years, 
and I am pleased that H.R. 2837 calls for one. As I understand the 
provisions of the bill, petitioners would be given a maximum of eight 
years to submit a documented petition, once the Commission begins to 
hold meetings. Then the Commission would have four years to complete 
its review and make decisions on all of the remaining, pending cases. 
Generally, I think that the time frames called for in the bill are 
unrealistically short. More than likely, it will take 20 years to 
complete reviewing and ruling on all of the petitions that have yet to 
be submitted.
    As a matter of analysis, to help determine if this bill should be 
passed or if the current process should be revised, the Committee may 
use the Sunset Clause as a frame of reference for a cost-benefit 
analysis. Rather than explain what it has done to try and speed up the 
process, the OFA should be called on to provide a plan for what it 
needs to complete its mission, fully and competently, in 20 years, 
including changes they view as necessary or desirable and the amount of 
money and personnel. It may be more cost-effective to carry on with the 
current process, with Congress instituting a sunset clause by a passing 
a law for that purpose. However, if the OFA responds that it cannot 
possibly complete its mission in 20 years, or if its estimate is cost 
prohibitive, then perhaps it is time to transfer the process to a 
commission or some other venue.
    A sunset clause will generate the need for more resources, on 
several fronts. The OFA (or the Presidential Commission) will need 
additional personnel to become more proactive in providing more 
technical assistance to petitioners. Additionally, petitioners will 
need to have funds to help them complete their documented petitions. In 
spite of the propaganda of some opponents of the acknowledgment of more 
tribes, there are still some petitioners whose cases have merit, yet 
they do not have adequate funding to put together an adequate 
documented petition. For that reason, I am pleased to see that H.R. 
2837 calls for the restoration of funding for status clarification 
grants through ANA. Like many of my scholarly colleagues, I have chosen 
to do the best I can to work for some of those petitioners whose cases 
have merit but are not in a position to pay for my services. I feel it 
would be a tragedy for an Indian group to have their petition declined 
simply because they lacked the resources to hire professional 
researchers and document an adequate petition. Yet, I know that working 
for them on a pro bono basis, they are not getting the attention and 
time from me that they rightfully deserve. In my opinion, it would be a 
great service to Indian Country for Congress to restore this funding 
whether or not the Indian Recognition Commission bill is passed. I do 
not know why the funding for those grants was discontinued, but if 
there were problems with the way the program was administered, the 
problems should be addressed in a constructive manner, rather than by 
punitively cutting off the funds completely.

                  The Reasonableness of OFA Decisions

    Petitioners as well as interested parties to the acknowledgment 
process not only deserve timely decisions, but reasonable ones, as 
well. Some might object that what is reasonable to one scholar or 
attorney might be unreasonable to another. Still, there are some common 
sense standards that could strengthen the outcomes of acknowledgment 
cases through a process of independent peer review. Some of the common 
sense standards include the following:
    1)  applying the scholarly standards of the disciplines used to 
evaluate petitions;
    2)  ensuring the decisions are consistent, both internally and 
across cases;
    3)  adhering to the evidentiary standard called for in the current 
regulations, which is the ``reasonable likelihood of the validity of 
the facts;'' and,
    4)  taking into consideration historical circumstances of each 
petitioning group and the kinds of evidence available for each case for 
various historical time periods;
    In my view each of these standards has been violated in recent OFA 
decisions, and I believe this could have been avoided had there been an 
independent peer review of the decisions, either during active 
consideration of the petitions or during IBIA appeals of OFA decisions, 
or both. Let me provide an example of each of these in turn:
    1) The 1994 revised regulations for tribal acknowledgment provided 
for a ``sufficient'' level of evidence for demonstrating both criteria 
(b) and (c), by showing that the petitioner's members married each 
other at a rate of 50 percent or higher. While the OFA initially agreed 
with the method I used for calculating the marriage rate, it reversed 
itself upon appeal without a reasonable explanation and in spite of an 
overwhelming demonstration, in the form of an extensive literature 
review, that I had used the method advocated by every social scientist 
who ever wrote explicitly on the matter.
    2) When discussing the issue of maintaining tribal relations as it 
relates to tribal membership, the OFA advised during a technical 
assistance meeting that their basic principle was that if a family, or 
part of a family, could not be demonstrated by evidence to have 
participated in tribal affairs for more than one generation, then that 
family, or portion of that family, would be considered to have left 
tribal relations and would not be eligible for membership in the modern 
tribe.
    In another case, I used this principle, when calculating tribal 
residence and marriage patterns, to eliminate from consideration tribal 
descendants for whom there was no evidence that they had been involved 
in tribal affairs for more than one generation. Many of these 
individuals had married outside of the Tribe and there was no evidence 
that they had continued to live in tribal relations with the 
petitioning group. I saw no point in including them in the 
calculations, since the point of the research is to discuss the 
behavior of the petitioning group's members. However, the OFA decided 
that such individuals should be included in the calculations, even 
though there was no evidence they were still in tribal relations or 
that they continued to be members of the petitioning group.
    The inner contradiction here, is that when trying to describe the 
breadth of an Indian community at various points in time, one cannot 
include as tribal members individuals for whom there is no evidence of 
tribal activity for more than one generation. Yet, when calculating 
residency or marriage rates, the OFA insists on including individual 
descendants who have moved away or married out of the Tribe (factors 
that can be counted against a petitioner), even when there is no 
evidence that they have continued to participate in tribal affairs for 
more than a generation.
    3) In the research I did for one petitioner, I calculated the 
marriage rate for the Tribe's members from 1800 to 1900. The evidence 
showed that the petitioner's members married each other at a rate of 50 
percent or more from 1800 to 1820, and from 1850 to 1870, which was 
sufficient evidence that the petitioner met criteria (b) and (c) for 
those decades. But the OFA concluded that the Tribe did not meet (b) 
and (c) based on this evidence during the 1830s and 1840s. This 
indicates to me a failure to apply the stated, regulatory standard of 
the ``reasonable likelihood of the validity of the facts.'' I would be 
happy to have an independent peer review team consider the following: 
Is it reasonably likely that the Tribe continued to exist as a tribal 
political entity during the 1830s and 1840s, or is it more reasonably 
likely that the Tribe ceased to exist for twenty years and then 
suddenly came back into existence from 1850 to 1870?
    4) The OFA failed to accept Colonial/State recognition of tribes as 
an equivalent or reasonable substitute to Federal recognition, even 
though that recognition was shown to be continuous from first contact 
to the present, was substantive (it dealt with matters of significance, 
the same exact matters that the Federal government managed for 
federally recognized tribes); primary among the issues was the trust 
management by the State of the Tribe's Reservation, and the application 
of resources generated from the Reservation to the improvement of the 
lives of tribal members.
    Neither the current OFA process and budget, nor the Indian 
Recognition Commission bill provide for independent peer review of 
decisions, and I think that is a serious shortcoming in both processes. 
An independent peer review team would best include a representative of 
each of the three fields used to evaluate petitions, as well as an 
attorney familiar with the basic issues involved in tribal recognition. 
Before it passes out of this Committee, H.R. 2837 should be revised to 
provide for independent peer review, somewhere between the final 
adjudication by the Commissioners and the appeal of the decision to 
Federal Court.

                    Additional Comments on H.R. 2837

    It raises the possibility of increased politicization of 
acknowledgment decisions. Political pressure has always been present, 
and may have become more effective in recent years. These cases should 
be decided primarily on their merits. Acknowledgment should not be 
granted or denied based on a political favor or whim.
    The bill does not call for a specific budget amount. The only 
amount specifically called for is the salaries of the Commissioners 
themselves. That makes it difficult to know if the bill is a reasonable 
or better alternative to the process that is already in place.
    There seems to be no specific provision for professional staff to 
review the petitions. Is it the intention of the bill that the 
Commissioners themselves will read all of the materials in each 
petition, make a judgment on the same, and then write up their own 
opinion? That does not seem realistic to me. There should also be in-
house counsel for the Commission, to advise the Commissioners on legal 
matters, including the legal sufficiency of the decisions rendered.
    The qualifications of the Commissioners are not specified. Indian 
ancestry or tribal membership does not in and of itself provide a 
guarantee of impartiality. Some of the greatest opponents of the 
acknowledgment of more tribes can be found among federally recognized 
tribes, even those recently recognized through the OFA process. Without 
some background in one of the professions currently employed in 
evaluating the petitions (anthropology, history, and genealogy), the 
Commissioners may lack the expertise to determine if the information 
they have been presented in a petition is valid, truthful, and 
accurate.
    Criteria (b) and (c) should not only focus on 1900 to the present, 
for at least two reasons. First, it does not in any way address the 
issue of continuity with a historical tribe or tribes that have 
combined and functioned as a single autonomous entity. Second, the 
period from 1900 to 1930 is one of the most difficult periods for some 
petitioners to produce evidence of community and political authority. 
For them to begin with 1900 might be to put them in a position of 
discussing their history by starting with what may appear to be a weak 
evidentiary period. Stronger evidence may be found for some petitioners 
in the 1700s and 1800s, and could be used to compensate for weaker 
evidence for the brief period during the early 1900s (when evidence is 
sometimes weak or lacking).

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 
    Mr. Faleomavaega. I like you, Mr. Austin. Time for humor.
    I recently had an interview with Steve Colbert, the Steve 
Colbert Show?
    Mr. Austin. Oh, yes.
    Mr. Faleomavaega. You might want to look at it. Very 
interesting. What I wanted to say is that I think it was 
Shakespeare's play, Henry VIII, that said the first thing that 
we do, we kill all the lawyers.
    I want to say, the first anthropologist I catch coming to 
my islands, I want to shoot them.
    Mr. Austin. I had heard that before the hearing today, and 
I was a little--I was thinking about changing my profession 
before I spoke. But I stuck with anthropologist.
    Mr. Faleomavaega. That is OK. That is why I like you, Mr. 
Austin. We have had enough anthropologists coming to my islands 
and studying us, like we are some specimens for some scientific 
study if we are human beings or not.
    But at any rate, I like you. I think you are a good 
anthropologist. But the ones I have seen coming to my islands, 
I will shoot them the first chance.
    Anyway, thank you so much. Mr. Lawson.

 STATEMENT OF MIKE LAWSON, SENIOR ASSOCIATE, MORGAN, ANGEL AND 
               ASSOCIATES, LLC, WASHINGTON, D.C.

    Mr. Lawson. Mr. Chairman and members of the Committee, I 
also thank you for providing me with the opportunity to provide 
testimony today.
    I am a historian and a senior associate----
    Mr. Faleomavaega. You, too.
    Mr. Lawson.--with Morgan, Angel and Associates, which is a 
public policy consulting firm here in Washington. And I am 
offering my comments today not as a representative of any 
organization or group, but rather as a professional researcher 
and consultant who has been deeply involved in issues regarding 
Federal tribal acknowledgement and recognition for more than 23 
years.
    For nearly 10 years I served as a historian in the Bureau 
of Indian Affairs Branch of Acknowledgement Research, where I 
helped to evaluate petitions, and also participated in the 
process of revising the Federal acknowledgement regulations. 
Steve and I worked together for a brief time. I was leaving the 
Bureau about the same time that he was coming into the branch.
    Since my retirement from the Federal government in 1993, I 
have provided consultation and research to dozens of tribal 
groups to assist in their pursuit of Federal acknowledgement 
and/or Congressional recognition. I have also provided research 
and consultation to interested parties in the tribal 
acknowledgement process, including state and local governments 
and law firms.
    I support H.R. 2837 in principle as a generally well-
conceived plan to revise and hasten Federal acknowledgement 
process, and also to bring it under statutory law.
    However, I think that the proposed legislation could be 
improved along the lines that I recommended in my written 
comments.
    As I describe in detail in my written statement, the 
fundamental problem--I think a lot of people have touched on it 
here this morning--with the Interior Departments' current 
process is a lack of resources. The task of fully documenting a 
petition for Federal acknowledgement is beyond the physical and 
financial capability of the vast majority of unrecognized 
tribal groups.
    At the same time, the Interior Department has not provided 
sufficient resources to evaluate petitions in a timely manner. 
In fact, when I consider other administrative procedures in 
government, I can't think of any one that takes as long for 
petitioners to get a final decision. Certainly, broadcasters 
can get a license to broadcast from the FCC, drugs can be 
approved by the Federal Food and Drug Administration in a 
fraction of the time.
    Whether or not the proposed legislation can succeed in 
streamlining the acknowledgement process also comes down to a 
question of resources. The provisions of H.R. 2837 have the 
potential of vastly improving the process, as well as bringing 
it to closure. However, in my view, this legislation can only 
reach this potential if Congress provides generous 
appropriations.
    For that reason, I recommend that the proposed legislation 
specify an initial budget for the Commission on Indian 
Recognition, as well as the amount to be initially appropriated 
to the Department of Health and Human Services, to aid 
acknowledgement petitioners, both of which should be based on a 
realistic needs assessment, perhaps developed by the Government 
Accountability Office.
    In order to be of maximum benefit to petitioners, I 
recommend further that the Department establish a grant program 
that is not fiercely competitive; but rather, one that would be 
fairly generous in providing limited seed money to a majority 
of petitioners. Those petitioners that make progress 
demonstrable to the Department with their initial grants should 
then be made eligible for implemental increased funding.
    In order to keep both continuity with the current process 
and to meet the demands of its ambitious schedule, I also 
recommend that the proposed legislation specify that the 
commission would have its own legal and research staff, 
consisting of an office of a general counsel and several teams 
of cultural anthropologists, genealogists, and historians.
    In my opinion, timelines set forth in the proposed 
legislation are overly ambitious and problematic. The majority 
of petitioners would not be able to produce a documented 
petition within eight years unless they received substantial 
funding. The commission would face a herculean task in trying 
to resolve all of the pending documented cases within its first 
year, as well as all of the remaining cases within its 12-year 
life span.
    In a hypothetical scenario I describe in my written 
comments, the commission might face a potential docket of as 
many as 386 cases that would have to be resolved in 12 years. 
This would require an average of 32 decisions a year, or 
approximately one every eight working days.
    Federal acknowledgement of a tribal group can have a 
significant impact on surrounding communities, including 
neighboring tribes and state and local governments. Because of 
this potential impact, interested informed third parties have 
played a key role in the acknowledgement process in supporting, 
monitoring, and opposing the Federal acknowledgement of tribal 
petitioners.
    H.R. 2837 gives the appearance of having reduced the role 
of interested parties in the acknowledgement process. For that 
reason, I would suggest that the Committee consider revising 
the language of the bill to give interested parties a role in 
nominating commissioners, participating in all hearings, and 
appealing final determinations.
    Finally, because litigation is also expensive and could be 
beyond the means of most petitioners, I do not favor a 
provision for an appeal of the commission's final 
determinations to the U.S. District Court for the District of 
Columbia. Instead I recommend an appeal process to an 
independent panel of administrative law judges, dedicated to 
the purpose of hearing Federal acknowledgement appeals.
    This concludes my statement. I would be happy to answer any 
questions that the Committee may have. And I would also be 
willing to submit further written comments to the Committee 
upon request.
    [The prepared statement of Mr. Lawson follows:]

                 Statement of Michael L. Lawson, Ph.D.

    Mr. Chairman and members of the Committee, I thank for inviting me 
to provide testimony today in regard to House Bill 2837, the Indian 
Tribal Federal Recognition Administrative Procedures Act. I am a 
historian and a senior associate with Morgan Angel & Associates, a 
public policy consulting firm here in Washington. I offer my comments 
today not as a representative of any organization or group, but rather 
as a professional researcher and consultant who has been deeply 
involved in issues regarding Federal tribal acknowledgment and 
recognition for more than 23 years. My background and experience has 
allowed me to gain a broad perspective on these issues. The academic 
training for my career included earning a Ph.D. in American history at 
The University of New Mexico, with a specialty in the history of 
Federal Indian policy. I subsequently worked as a historian for the 
Bureau of Indian Affairs (BIA) for 13 years. For nearly ten of those 
years, I served as a historian in the BIA's Branch of Acknowledgment 
and Research, where I helped to evaluate petitions and also 
participated in the process of revising the Federal Acknowledgment 
regulations that were published in 1994.
    Since my retirement from the Federal Government in 1993, I have 
provided consultation and research for dozens of tribal groups to 
assist in their pursuit of Federal acknowledgment through the 
administrative process or Federal recognition from Congress. During 
this same period, I have also provided consultation and research to 
interested parties in the acknowledgment process, including State and 
local governments and law firms.
    There has long been a broad awareness that the Department of the 
Interior's current Federal acknowledgment process is essentially 
broken, if not fundamentally flawed. Many observers view the mandatory 
criteria as unjust and unfair because, at their core, the requirements 
demand that marginalized people who seldom kept good records 
extensively document their tribal and family histories and describe in 
detail their social and political relations since first sustained 
contact with Euro-Americans.
    The most serious deficiencies of the Interior Department's current 
acknowledgment process are that:
    1.  It has not been able to provide due process to petitioners in a 
timely manner.
    2.  It has escalated the burden of evidentiary proof required of 
petitioners and interested parties.
    3.  It has failed to provide petitioners and interested parties 
with adequate guidelines and meaningful technical assistance, and
    4.  Despite its efforts to respond to a 2001 General Accounting 
Office report critical of its procedures, the Department has not 
succeeded in making the acknowledgment process more open and 
transparent for all partied involved.
    Since at least the late 1980's, Congress has consistently 
considered legislation that might help fix the process and bring it 
under the authority of statutory law. The provisions of H.R. 2837 have 
the potential of vastly improving and streamlining the process, as well 
as bringing it to closure. However, this legislation can only reach 
this potential if Congress provides adequate appropriations to both the 
Commission on Indian Recognition and the Department of Health and Human 
Services
    The provisions of H.R. 2837 that I think are best suited to 
revising the process include those
    1.  that reduce the evidentiary burden on petitioners by providing 
that they only need document their historical continuity since 1900 
instead of from first sustained contact with Euro-Americans. However, 
in my opinion, the burden could be further reduced another 50 years to 
1950. This further reduction of the evidentiary burden would hasten the 
process even more, in my view, without significantly changing the 
number of groups that could ultimately meet the historical continuity 
standard.
    2.  that recognize the critical need to provide greater funding to 
petitioners for the purpose of documenting their petitions through a 
expanded grant system of the Department of Health and Human Services.
    3.  that provide more direct interaction between decision makers 
and petitioners through the process of preliminary and adjudicatory 
hearings.
    4.  that give priority in the process to tribal groups that have 
had a previous Federal relationship.
    The fundamental problem with the Interior Department's current 
process is a lack of resources. The task of fully documenting a 
petition for Federal acknowledgment is beyond both the physical and 
financial capability of the vast majority of unrecognized Indian 
tribes, which tend to be small groups with few resources. No petitioner 
has ever been successful in gaining acknowledgment without significant 
professional help from scholarly researchers, lawyers, and others. Yet, 
it has become increasingly difficult for petitioners to obtain the 
funding necessary to sustain professional help. The Administration for 
Native Americans (ANA) of the U.S. Department of Health and Human 
Services no longer provides the ``status clarification'' grants, which 
helped so many unrecognized groups launch their acknowledgment efforts.
    Federal acknowledgment has gained wider public attention in recent 
years because newly acknowledged tribes have the potential of 
developing casino gaming facilities in accordance with the Indian 
Gaming Regulatory Act of 1988. There is a myth out there that gaming 
investors are providing financial backing to a large number of 
acknowledgment petitioners. However, in reality, only a small 
percentage of petitioners have received such backing and their numbers 
are dwindling.
    Financial backers with gaming interests have become significantly 
less interested in funding unrecognized groups after witnessing the 
losses sustained by some major players that invested tens of millions 
of dollars in supporting petitioners that were ultimately unsuccessful 
in the process. Gaming interests quest for the big jackpot, but they 
also want favorable odds and a quick return on investment, neither of 
which is a realistic scenario in regard to the chances of unrecognized 
tribes gaining Federal acknowledgment. In my opinion, few, if any, 
financial backers will be drawn to petitioners in the future, unless 
they are far along in the process with a high likelihood of success. 
The rub is that few, if any, petitioners can make it to that stage 
without significant financial backing.
    At the same time that resources are lacking on the tribal side, the 
Interior Department has not been provided sufficient resources to 
evaluate petitions in a timely manner. Since the Acknowledgment 
regulations were established in 1978, 324 petitioners have become part 
of the Acknowledgment process, submitting at least a letter of intent 
to petition (based on February 2007 data). Yet, during this period of 
nearly 30 years, only 60 groups have submitted sufficient documentation 
to be declared ready for active consideration and allowed to advance 
further through the process. In the meantime, the Department has only 
managed to resolve 43 cases during this 29-year period, a historical 
average of a little less than 1.5 (1.48) cases per year.
    Because of its lack of resources, the Department now faces an 
overwhelming backlog of 17 fully documented but not yet resolved cases. 
If the Department cannot increase its historical rate of resolution, a 
petition declared ready for active consideration today might have to 
wait more than 11 years for a final determination. If the resolution 
rate is not increased, it will also take the Department considerably 
more than 175 years to resolve the 260 cases of all of the present 
petitioners, assuming that each can somehow find the wherewithal to be 
able to document its petition. Factoring in new petitions received 
during this period might easily expand the workload of the present 
process out beyond two centuries.
    I am not aware of any other administrative process in Government 
that takes so long to issue a decision. Pharmaceutical companies can 
get new medicines approved by the Food and Drug Administration, and 
broadcasters can get new stations licensed by the Federal 
Communications Commission in a fraction of this time.
    The reason that the acknowledgment process is not timely is because 
unrecognized tribal groups do not represent a politically significant 
constituency. The Department is not eager to extend services to new 
tribes and most recognized tribes are not excited about splitting their 
share of the Federal budget with new groups. Some of the most 
aggressive opposition to the acknowledgment of groups has come from 
federally recognized tribes. If it becomes known that a petitioner is 
considering gaming in its future, the group is more often opposed than 
supported by State and local governments and surrounding communities. 
It may also be opposed by nearby tribes that already have gaming or are 
planning casino development.
    Whether or not the proposed Commission on Indian Recognition can 
succeed in streamlining the acknowledgment process also comes down to a 
question of resources. The Commission's ability to meet its ambitious 
agenda will be dependent on a generous appropriation, one that is 
exponentially higher than the Interior Department's present budget for 
acknowledgment purposes. It is impossible to predict what the 
Commission can accomplish and whether it will provide a better 
acknowledgment process without knowing how much it can spend. For that 
reason, I think that the proposed legislation should specify an initial 
budget for the Commission. In order to determine the amount needed, I 
would recommend that the Committee request the Government 
Accountability Office (GAO) to determine an estimate of startup costs.
    Similarly, it is my view that the amount appropriated to the 
Department of Health and Human Services to aid acknowledgment 
petitioners should likewise be specified in the legislation and 
realistically based on a needs evaluation (perhaps also conducted by 
the GAO). The experience of most tribal groups that formerly received 
status clarification grants from the Department has proven that a grant 
cap of approximately $65,000 to $100,000 per year was not adequate to 
meet the needs of documenting a petition. I would recommend a grant 
system that is not fiercely competitive, but one that is fairly 
generous in providing limited seed money to a majority of petitioners. 
Those petitioners that make progress demonstrable to the Department 
with their initial grants should then be eligible for increased 
funding. In the past, Health and Human Services was not effective in 
measuring the progress of status clarification grantees. Many groups 
that had not yet proven their Indian ancestry continued to receive 
substantial funding. Proving descent from a historical tribe should be 
the first priority for petitioners, as well as the Department's initial 
measurement of a petitioner's progress.
    The proposed legislation should also specify that the Commission 
would have its own legal and research staff. To both keep continuity 
with the current process and to meet the demands of its ambitious 
schedule, the legislation should specify that this support staff shall 
consist of an office of general counsel with attorneys solidly 
experienced in Federal Indian law, and several teams of cultural 
anthropologists, genealogists, and historians that have extensive 
training and experience in the history and relations of Native American 
tribal communities and families.
    The timelines set forth in this proposed legislation are overly 
ambitious and problematic. The majority of petitioners would not be 
able to produce a documented petition within 8 years unless they 
received substantial funding from the Department of Health and Human 
Services. Even if only half of the current 243 petitioners without 
fully documented petitions managed to submit a documented petition, the 
Commission would face a Herculean task in trying to resolve all of 
these cases within its 12-year lifespan. In this hypothetical scenario 
the Commission would have basically 11 years to resolve approximately 
122 cases (assuming that the Commission would spend its first year 
resolving the Interior Department's backlog of documented petitions). 
This would require an average of 11 decisions per year or approximately 
one every five weeks.
    The Interior Department received approximately 102 new letters of 
intent from petitioners during the last eight years. If the Commission 
received a similar amount of new petitioners during its 8-year 
lifespan, and half of those petitioners were able to fully document 
their petitions, the demand on the Commission would further increase to 
almost 16 decisions per year or one every three weeks (total of 173 
decisions over 11 years if half of the petitioners succeed in 
presenting a documented petition).
    Under the most miraculous scenario, all of the 243 present 
undocumented petitioners and all of the approximately 102 potential 
petitioners would be able to fully document their petitions. In that 
case, the Commission would face the challenge of resolving 345 cases in 
11 years or an average of approximately 31 per year or one every week 
and a half.
    Add to this workload the challenge of resolving the Department's 
pending 17 documented petitions within the first 360 days of the 
Commission's existence. If you further consider the potential of having 
24 groups that have been denied acknowledgment by the Department 
requesting adjudicatory hearings the Commission might face a potential 
docket of 386 cases in 12 years (which would require an average of 32 
decisions a year or approximately one every eight working days).
    Federal acknowledgment of a tribal group can have a significant 
impact on surrounding communities, including neighboring tribes, and 
State and local governments, Because of this potential impact, 
interested and informed third parties have played a key role in the 
acknowledgment process in supporting, monitoring, or opposing the 
Federal acknowledgment of tribal petitioners. H.R. 2837 gives the 
appearance of having reduced the role of interested parties in the 
acknowledgment process. For that reason, I would suggest that the 
Committee consider revising the language of the bill to give interested 
parties an opportunity to make recommendations to the President 
regarding fitting candidates for the Commission, to submit evidence to 
and participate in all hearings, and have the right to appeal the 
Commission's final determinations.
    I do not favor the provision for an appeal of the Commission's 
final determinations to the U.S. District Court for the District of 
Columbia. This is because litigation is expensive and could be beyond 
the means of most petitioners. In addition, this Court already a 
prodigious docket of cases and has limited experience, if any, on the 
subject of Federal tribal recognition. The current appeal process to 
the Interior Board of Indian Appeals (IBIA) allows petitioners to 
appeal without legal counsel and fees. The problem with the IBIA 
process is that the appeal criteria are limited and its decisions are 
not timely. For that reason, I recommend an appeal process to an 
independent panel of administrative law judges thoroughly experienced 
in Federal Indian law and dedicated to the purpose of hearing Federal 
acknowledgment appeals. This appeal board should have the power to deny 
the appeal, remand it back to the Commission, or recommend that the 
appeal be further pursued in a Federal court of the petitioner's 
preference.
Other Problems With the Existing Process
    The Acknowledgment regulations are complex and convoluted and the 
Interior Department has been notoriously deficient in providing 
adequate technical assistance in explaining both the regulations and 
its acknowledgment decisions. The best way that anyone can begin to 
gain a realistic comprehension of how the Department interprets and 
applies the Acknowledgment procedures and requirements today is by 
thoroughly reviewing the findings and determinations it has issued 
since 2000, as well as the decisions issued by the IBIA since that 
time, and the procedural notices that the Department published in the 
Federal Register in 2000 and in 2005. The questions that remain after 
such a review should then be directed to the Department.
    The evidentiary burden for both petitioners and interested parties 
has increased over the years as the Department has established new 
precedents for analysis and evaluation in its decisions. One need only 
compare the size of early documented petitions, interested party 
submissions, and Departmental findings with those of recent years to 
measure the escalation of required evidence. For example, the 
Department's first summary of evidence and recommendations for a 
Proposed Finding (Grand Traverse Band of Ottawa and Chippewa, 1979) 
totaled 67 pages. Its summary of evidence and recommendations for a 
Proposed Finding for the Nipmuc Nation in 2001 ran to approximately 455 
pages. Both of these documents were in single-spaced type. In response 
to this negative Proposed Finding, the Nipmuc petitioner submitted 
narrative reports that totaled approximately 900 pages (double-spaced) 
and a digital database containing in excess of 15,000 documents.
    In addition to establishing a heavy evidentiary burden, the 
Acknowledgment regulations are complex, convoluted, and beyond the 
ability of most readers to fully grasp. Above all, they fail to 
communicate how the Department really interprets the mandatory criteria 
and the evidence necessary to meet the requirements. To this end, the 
Department issued Official Guidelines for the Acknowledgment process in 
September 1997. However, in its attempt to dummy down the regulations, 
these guidelines oversimplified the criteria and process to the point 
of being unrealistic. For example, the guidelines suggest that 
petitioners can easily document a petition through volunteer efforts of 
their members and that professional help is not necessary. Yet, no 
petitioner has ever succeeded without professional help and if 
professional consultation is not necessary in the process, then why 
does the Department employ a staff of scholars and attorneys to 
evaluate petitions?
    The Acknowledgment regulations establish that the Department must 
provide technical assistance to petitioners and interested and informed 
parties, and the Department encourages all parties to request such 
assistance. However, the reality is that the Department is notoriously 
unresponsive and unhelpful, and it is difficult to establish any 
meaningful dialogue on Acknowledgment issues. It is hard to schedule 
meetings or conference calls and it can take weeks or months for the 
Department to respond to a letter.
    The OFA thinks that it is providing guidance in its Technical 
Assistance letters to petitioners, but most readers of these TA letters 
probably also need a weeklong seminar with the authors to understand 
what the OFA is trying to communicate. Much of the OFA's advice to 
petitioners and interested and informed parties is neither clear, 
cooperative, or realistic. The best opportunity that petitioners and 
interested parties have to obtain technical assistance from the 
Department regarding a particular petition is when they request a 
formal on-the-record meeting to inquire into a proposed finding.
    For most of the history of the Acknowledgment process, the 
Department's research teams conducted independent research as part of 
their petition evaluation. This purpose of this research was to 
validate, support, rebut or modify evidence submitted by petitioners 
and interested and informed parties. The research routinely included 
field trips to the petitioner's locale to interview tribal officials 
and knowledgeable tribal and community members and review documents 
that were not included in the petition. The team also conducted 
research in relevant libraries, repositories, and collections in the 
petitioner's region. In addition, the team looked for further 
information in some of the primary research facilities in Washington, 
D.C., such as the Library of Congress, the National Archives, the 
Smithsonian Institution's National Anthropological Archives, and the 
Library of the Daughters of the American Revolution (DAR), a good 
source for family history and genealogy. I would hope that a Commission 
on Indian Recognition would encourage its support staff to return to 
this more intensive and personally interactive model of evaluation.
    I conclude my remarks by stating that I support H.R. 2837 in 
principle as a generally well-conceived plan to revise and hasten the 
Federal acknowledgment process. However, I think it could be improved 
along the lines I have recommended in my comments. This concludes my 
statement and I would be happy to answer any questions the Committee 
may have. I would also be willing to submit further written comments to 
the Committee upon request.
                                 ______
                                 
    Mr. Faleomavaega. Thank you very much, Mr. Lawson.
    Mr. Cramer.

 STATEMENT OF DAVID CRAMER, ATTORNEY, ANDREWS AND CRAMER, LLC, 
   LINCOLN CITY, OREGON, ACCOMPANIED BY CHAIRMAN DONNY FRY, 
      CONFEDERATED TRIBE OF LOWER ROGUE, COOS BAY, OREGON

    Mr. Cramer. Thank you, Mr. Chairman, members of the 
Committee. I certainly appreciate the opportunity to testify.
    I am David Cramer, legal counsel for the Confederated 
Tribes of the Lower Rogue. With me today is Donny Fry, who is 
the Chairman of the Tribal Council.
    The Confederated Tribes of the Lower Rogue is an entity 
composed of Chetco and Tututni tribes residing in their 
homeland in the Rogue River Valley in southwestern Oregon.
    In the latter part of the 19th century and the first half 
of the 20th century, the Federal government maintained a 
regular relationship with these tribes, just as it did with 
many of their sister tribes in Oregon. But that all changed in 
1954, when Congress passed 25 U.S.C. 691 to 708, commonly known 
as the Western Oregon Termination Act.
    This sweeping Act terminated all Federal relationships with 
``any of the tribes, bands, groups, or communities of Indians 
located west of the Cascade Mountains in Oregon,'' and went on 
to list dozens of tribes by name, including the Chetco and 
Tututni.
    This enormous social experiment was part of a social policy 
of the day that could be summarized as kill the Indian to save 
the man.
    There have been five groups of Oregon Indians who have been 
able to overturn this Act and win restoration for their 
individual tribes. In passing those restoration bills, this 
committee had opportunities to evaluate the Western Oregon 
Termination Act. This committee's conclusion was that it was a 
complete failure, with disastrous consequences for the tribes 
who were given no opportunity to defend their standing, but 
were terminated solely because of geography.
    The Western Oregon Termination Act is not merely a dark 
chapter in our nation's past legal history. For us, the 
termination era is happening right now. For the last 10 years, 
the Confederated Tribes of the Lower Rogue has been seeking 
restoration of the relationship the Chetco and Tututni tribes 
held with the Federal government before termination. We have 
been told time and again that Congress is no longer as 
receptive to requests for legislation granting Federal 
recognition because an administrative proceeding through the 
Office of Federal Acknowledgement has been established for that 
purpose.
    The problem for us, though, is that the regulations 
governing the Office of Federal Acknowledgement specifically 
exclude tribes that have been terminated by Act of Congress. As 
25 C.F.R. 83.7(g) of the seven criteria that have been talked 
about, that is criteria no. 7. We are ineligible to apply for 
acknowledgement through the Office of Federal Acknowledgement. 
We can't even get on the waiting list.
    Likewise, if we turn to the bill under consideration here 
today, section 5(a)(3)(d) contains the same exclusion language. 
So even if this bill passes, we will still be left out, still 
barred by an unjust and racist 50-year-old law that should 
never have been enacted.
    So we are not here today either to support or oppose H.R. 
2837 as it is presently written; we are here to ask for your 
help.
    Five times between 1973 and 1989, you and your predecessors 
who sat in those chairs in this committee condemned the Western 
Oregon Termination Act in the strongest language. But we now 
have before us a bill that would, in effect, ratify the 
Termination Act, and essentially give it a stamp of approval, 
as though it were not an unjust law, because it would again 
close the door to any terminated tribes. This is just as the 
existing OFA procedure does.
    So I am here today to ask what remedy can there be for us 
who are still living in the era of termination? And I am not 
really sure what that is. Possibly an amendment to this bill. 
If it is an amendment to this bill, maybe there could be set up 
a separate procedure for tribes that were terminated.
    Mr. Faleomavaega. Mr. Cramer, so that I won't lose my train 
of thought, what do you think of just simply rescinding the 
law?
    Mr. Cramer. I think that is a wonderful idea, if the entire 
Western Oregon Termination Act were simply repealed. That would 
be a good start, although I would have to say then, our next 
step I guess would have to be to get in line and start a 
petition with the Office of Federal Acknowledgement. That is a 
daunting task, because we would have to get in line behind 
everybody else. And just as has been mentioned by some of my 
colleagues on this panel, I don't think we can afford it.
    It took most of this tribe's available cash to provide the 
plane tickets for Mr. Fry and I to come here today. I represent 
this tribe pro bono as best as I can, and still provide for my 
family. We don't have $8 million.
    Mr. Faleomavaega. I am sorry, I didn't mean to interrupt 
you.
    Mr. Cramer. No, that is quite all right. I was actually 
about wrapping up.
    [The prepared statement of Mr. Cramer follows:]

 Statement of Attorney David V. Cramer, Legal Counsel for Confederated 
Tribes of the Lower Rogue, accompanied by Donnie Fry, Chairman, Tribal 
                                Council

I. From 1856 to 1954: A few left behind grow into a distinct, federally 
        recognized tribe.
    The Confederated Tribes of the Lower Rogue is an entity consisting 
of Chetco and Tututni tribal remnants residing in the lower Rogue River 
valley in southwestern Oregon, in the traditional homeland where Chetco 
and Tututin peoples have lived from time immemorial. White settlers 
began moving into this area of Oregon in the mid 1800's. Between 1854 
and 1856, the U.S. Army forced the bulk of the Chetco and Tututni 
tribes, and many other southern Oregon coastal tribes and bands, to 
leave their homeland, marching them north along the coast to the Siletz 
reservation.
    However, not all members of the tribes were taken. Small numbers of 
Chetco and Tututni people (mostly women) were able to hide in the 
wilderness and remain in their homeland. Though they intermarried with 
white settlers, they maintained their ethnicity and their cultural 
identity, and preserved their traditions, stories, handicrafts, and 
their language. From those early days until the present, they have 
recognized themselves as a distinct and cohesive tribe. Throughout this 
time they have recognized the authority of their council of elders in 
matters of tribal governance. Although the Chetco and Tututni tribes 
recognize their blood kinship to present day members of the 
Confederated Tribes of Siletz Indians (now a Federally recognized 
tribe), they themselves are not eligible to join the Siletz tribe, 
because their ancestors were never on the original Siletz reservation 
rolls, as they are the descendants of those few who were never taken to 
the Siletz reservation.
    In the late 19th and early 20th Centuries, the U.S. Government 
maintained a relationship with the combined Chetco and Tututni tribes 
living in their homeland. The historical records of many tribal 
families show that they were given Indian land allotments. Through the 
first half of the Twentieth Century, a Bureau of Indian Affairs agent 
was stationed there in Agness, Oregon. Until it was deliberately 
terminated, a government-to-government relationship remained in place 
for decades.
II. The Western Oregon Termination Act of 1954: A wall across the 
        Cascades.
    In 1954, Congress passed 25 U.S.C. Sec. Sec. 691-708, commonly 
known as the Western Oregon Termination Act. This law effectively 
terminated any federal relationship with western Oregon tribes, 
terminating Federal supervision over trust and restricted property 
lands and administration of federally owned land and distributing the 
same. The act applied to ``any of the tribes, bands, groups, or 
communities of Indians located west of the Cascade Mountains in 
Oregon,'' and went on to list dozens by name, including specifically 
the Chetco and ``Tututui'' (an alternate spelling of Tututni) tribes. 
25 U.S.C. Sec. 692.
    Reading the Termination Act itself, along with its legislative 
history and secondary legal, historical, and sociological sources of 
the day, the clear social policy behind it was to ``Kill the Indian to 
save the man.'' The theory was that termination of the tribes would 
result in assimilation into white society, with resulting economic 
improvement for Oregon's Native Americans. In short, this social 
experiment was a failure. The Native Americans of western Oregon did 
not experience improved socio-economic circumstances. Neither did they 
cease to be Indians. Despite their poverty, which became markedly worse 
following the Termination Act, they remained strong in their cultural 
identity.
    One by one, different groups of western Oregon Indians have made 
the difficult journey to Washington to obtain restoration. Although 
Congress has never repealed the Western Oregon Termination Act as a 
whole, on five separate occasions, it has repealed the Act for specific 
tribes and passed laws recognizing them. The tribes and restoration 
acts are as follows:
        Confederated Tribes of Siletz Indians, 25 U.S.C. Sec. 711 
        (1977)
        Cow Creek Band of Umpqua Tribe, 25 U.S.C. Sec. 712 (1982)
        Co nfederated Tribes of the Grand Ronde Community of Oregon, 25 
        U.S.C. Sec. 713 (1983)
        Co nfederated Tribes of Coos, Lower Umpqua, and Siuslaw 
        Indians, 25 U.S.C. Sec. 714 (1984)
        Co quille Indian Tribe, 25 U.S.C. Sec. 715 (1989)
    In the committee reports and other legislative history of these 
restoration acts, we see that Congress came to a clear conclusion as to 
the merits of the Termination Act of 1954, calling it a ``disastrous 
experiment,'' ``ill conceived.'' Rather than accelerating the merging 
of Indians into mainstream America, Congress found that Indians 
affected by the Termination Act had ``more often than not suffered 
great psychic, social, and economic hardships as a result.'' 95 Cong. 
Rec. H.R. 7259, 36279-86 (Nov. 1, 1977). ``This policy did not 
work....It was a disastrous mistake....The terminated tribes found 
themselves stuck between two cultures--ignored by the government as 
Indians, yet lacking the economic wherewithal to successfully manage 
entry into the white society.'' 95 Cong. Rec. S. 1560, 36768-69 (Nov. 
3, 1977). ``Rather than realize the anticipated socioeconomic benefits 
of this policy...terminated Indians experienced steadily deteriorating 
conditions.'' 98 Cong. Rec. H.R. 5540, 22420-23 (Aug. 6, 1984). ``This 
termination came without notice, explanation, or hearings to defend 
their standing. It appears the only reason the tribes were terminated 
was because they resided west of the Cascade Mountains.'' 98 Cong. Rec. 
H.R. 5540, 27764-66 (Sept. 28, 1984). ``The termination era was one of 
the darkest periods of Federal Indian policy. It represented an attempt 
to eradicate government-to-government relations, abolish cultural 
values, and abrogate treaties. That era is over and let us hope it will 
never return.'' 101 Cong. Rec. H.R. 881, 10032-34 (May 23, 1989).
III. The Confederated Tribes of the Lower Rogue: Our Journey.
    When the Confederated Tribes of the Lower Rogue first began asking 
how they could follow in the footsteps of sister tribes like the 
Coquilles and obtain Federal recognition, they were informed that 
Congress was no longer receptive to such petitions from Indian tribes. 
The reason for this was that Congress had established the Board of 
Acknowledgement and Research (BAR) within the Bureau of Indian Affairs 
for the purpose of hearing petitions from Indian groups wanting to 
establish relations with the Federal government.
    Our next step was to contact the BAR. However, this did not get us 
far. We soon learned that there are seven criteria, listed in 25 CFR 
83.7(a)-(g) that we must prove to establish our validity as a tribe and 
gain acknowledgment. The first six criteria pertain to historical 
authenticity and legitimacy, of which we feel we can make a strong 
case. The seventh criterion, however, is a simple yes/no test which we 
fail: Neither the petitioner nor its members are the subject of 
congressional legislation that has expressly terminated or forbidden 
the Federal relationship. 25 CFR 83.7(g). We were told by BAR 
representatives, in effect, that since we had not yet submitted a 
petition, they were not sure who we were, but if we were who we said we 
were, and were indeed Chetco and Tututni descendants, since those two 
tribes were listed by name in the Western Oregon Termination Act, we 
were not eligible for acknowledgment under their proceeding. Our only 
hope would be an act of Congress. Since then, we have been working with 
Congressman DeFazio's office to do just that. However, if the 
Termination Act itself were repealed, or some other means were created 
to circumvent it, such as this H.R. 2837 presently before the 
Committee, we would not then need to go through the exhaustive 
procedure of seeking a restoration act for our individual tribe.
                                 ______
                                 
    Mr. Faleomavaega. Your testimony hit me like a rock here, 
in terms of saying can you share for the record what surrounded 
this whole idea of terminating the Oregon tribes? I mean, why 
did Congress pass this law 50, 60 years ago?
    Mr. Cramer. To tell you the truth, I am not entirely sure. 
The social policy of the day was termination; that by wiping 
out----
    Mr. Faleomavaega. No, first it was to kill the Indians.
    Mr. Cramer. Yes.
    Mr. Faleomavaega. Then assimilate the Indians.
    Mr. Cramer. Yes.
    Mr. Faleomavaega. Then terminate the Indians, and now 
recognize the Indians.
    Mr. Cramer. Right. The research that I have been able to 
find on the legislative history research and so forth--and I am 
not a historian; maybe I should ask a gentleman like yourself--
on that Act itself is not too extensive. I am not entirely sure 
what prompted it.
    As far as I can tell, there was really no input whatsoever 
from the terminated tribes themselves.
    Mr. Faleomavaega. I am going to request staff that we put 
this as a matter of history, finding out exactly what prompted 
the Congress in that point in time to specifically pass a law 
to terminate the tribes of just your state. I am curious, why 
pick on Oregon?
    I thought maybe it was flat-out everybody is to be 
terminated. But to say that this was done specifically against 
the Oregon tribes, that surprises me.
    Mr. Cramer. I know of other termination laws, but I don't 
know of any other sweeping laws like that that just, an entire 
geographical area, all of the Native Americans in it, none of 
you exist any more. I think that that law is somewhat unique.
    And the legislative history for the Restoration Acts, you 
know, this committee had in its reports discussed that law in 
more detail, and said that apparently its intention was that it 
would create, it would essentially force an assimilation into 
White society; that it would alleviate poverty somehow. 
Obviously it had the reverse effect of that. And that was the 
Committee's finding on each of the times of when the 
Restoration Acts came up.
    Mr. Lawson. I can provide some analysis.
    Mr. Faleomavaega. Please, Mr. Lawson.
    Mr. Lawson. In the screening that the Bureau of Indian 
Affairs was doing during that time of tribes who were eligible 
for termination was that, whether or not they had enough 
resources, that they thought that they could become essentially 
a county government. That they would be self-sufficient based 
on the resources they had. And that is the first tribes that 
they targeted.
    Mr. Faleomavaega. That was the first mistake.
    Mr. Lawson. And tribes like Menominee in Wisconsin, and in 
Klamath in Oregon, but other tribes, primarily based on their 
timber resources, were added to that list because they thought 
that they could be self-sufficient and thrive without 
government aid, based on having these resources.
    Mr. Lawson. I could add also that there was a Western 
Washington termination bill, but it was never passed. It was 
proposed, but never passed. So as a point of contrast, you 
might want to look into why one was passed, and one wasn't.
    But I will tell you what I think is most frightening about 
the termination era, is I am hearing discussions now from the 
current Administration that filter into the recognition issue, 
of trying to limit the Federal government's responsibility and 
liability to Indian tribes.
    And one of the outcomes of that, I think, is some of the 
decisions that we have seen recently, is to damper the number 
of new tribes that are going to be approved, because they 
simply don't want to have more responsibility and more expense 
caused by having more tribes on the recognized tribes list.
    I think that termination, while it was first proposed 50-
some years ago, I am afraid that we are seeing it raise its 
ugly head again in the current day. It is something to be very 
aware of, because I don't think Indian tribes are necessarily 
taking it in quite as strongly as they need to. I am not 
hearing enough outcry from Indian country, as much as I think 
is warranted on that issue.
    Mr. Faleomavaega. Isn't it ironic that it was President 
Nixon that was pretty much the, probably one of the few 
presidents that have really been a great advocate of Indian 
rights and the problems in the mid-seventies? And now how 
ironic that it is a Republic Administration that is trying to 
get rid of the Indians? Or at least have the least 
responsibility to provide for their needs?
    I am sorry, Mr. Cramer, I didn't mean to interrupt your 
statement. Are you through with your statement?
    Mr. Cramer. I was. I was just at the close of my statement. 
Thank you, sir.
    Mr. Faleomavaega. All right. I just want to ask the members 
of the panel, I really appreciate the recommendations and the 
suggestions that you offered. Definitely the staff and myself 
and other members of the Committee, Chairman Rahall and Mr. 
Cole, will definitely review some of the suggestions that you 
are offering here.
    I don't know when we are going to be putting this up for 
markup, but I sincerely hope very soon, in a way that we might 
get some more positive results and response from the Department 
of the Interior. And then hopefully by then we will have the 
official letter from the Department of Justice challenging the 
Constitutionality of the right of Congress to pass legislation 
to provide for the needs of Native Americans. I am very curious 
about this.
    But gentlemen, I cannot thank you enough for being here. I 
hope that maybe at another time we will have another hearing on 
this issue, if there is still going to be more questions that 
maybe some of the Members may want to raise concerning this 
proposed bill.
    And again, I cannot thank Chairman Rahall for his 
leadership in finally taking this issue more seriously than 
ever; and that by the fact that we are holding this hearing, to 
me is a very strong indication that he really wants to do 
something about this. And we are certainly going to push this 
legislation as much as we can on this committee.
    And with that, gentlemen, thank you again. The hearing is 
adjourned.
    [Whereupon, at 2:30 p.m., the Committee was adjourned.]

    [Additional material submitted for the record follows:]

    [A statement submitted for the record by the Schaghticoke 
Tribal Nation follows:]

               Statement submitted for the record by the 
                       Schaghticoke Tribal Nation

    Many in Congress are spurning legislative recognition of tribes on 
the grounds that an administrative process exists through the Bureau of 
Indian Affairs (BIA) through which groups may achieve a government-to-
government relationship with the United States. These legislators rest 
in a misguided belief that the administrative process produces the 
fairest, most reliable and least political determinations of whether a 
group constitutes a tribe deserving that relationship. The Schaghticoke 
Tribal Nation wishes it were so. Unfortunately, the Federal 
Acknowledgment Process (FAP) as it exists now suffers inherent problems 
that result in unfair outcomes. In our case, for the first time in the 
entire history of the Bureau's Federal Acknowledgment Process, the 
Bureau reversed its own published Final Determination acknowledging 
Schaghticoke Tribal Nation (Schaghticoke or STN) as a tribe and, bowing 
to intense political pressure, manipulated implementation of its 
criteria and standards to justify withdrawal of its acknowledgment. The 
injustices visited upon Schaghticoke can and should be legislatively 
corrected.
    As it now exists, the federal acknowledgment process is governed by 
BIA's regulations, found at 25 C.F.R. Part 83. These regulations 
establish the administrative process for acknowledging groups as tribes 
as a prerequisite to engaging in a government-to-government 
relationship with the United States. The regulations require 
petitioners to satisfy all of the criteria at 25 C.F.R. 83.7. The seven 
mandatory criteria are:
    (a)  The group has been identified as an American Indian entity 
continuously since 1900;
    (b)  A predominant portion of the group has been a community from 
historical times to the present;
    (c)  The group has maintained political influence over its members 
from historical times to the present;
    (d)  The group has submitted a copy of its governing document, 
including membership criteria;
    (e)  The group's membership consists of individuals who descend 
from a historical Indian tribe or a combination of tribes that 
functioned as an single entity;
    (f)  The group's membership is composed principally of people who 
are not members of other acknowledged tribes; and
    (g)  There is no law that expressly terminated or forbids a federal 
relationship with the group.
25 C.F.R. 83.7.
    Schaghticoke, based upon its experience with the BIA's 
implementation of the Federal Acknowledgment Process, urges that 
Congress require changes to the FAP and its criteria that encompass the 
following in order to rectify inequities in the process. Changes we 
recommend include:
    1.  Long-standing occupation--that is, the use for tribal 
purposes--of a state-recognized reservation should under certain 
circumstances be considered as evidence that the petitioner 
historically has comprised a distinct community and that the petitioner 
historically has maintained political influence over its members.
    2.  Criteria (c), political influence, should be abandoned as 
unnecessary and redundant, and therefore unjustifiably adding to the 
petitioning tribe's already extreme document collection burden.
    3.  Policies and definitions adopted in a proposed finding should 
be maintained throughout the process; at a minimum, tribes should not 
be denied acknowledgment based on changes of policy by the Department 
of the Interior (DOI) made midway through review of a petition.
    4.  Petitioners whose petitions have been denied under the current 
administrative process should be allowed to resubmit petitions under 
certain circumstances.
Each of these recommendations is discussed in more detail below.
    1.  Long-standing occupation--that is, the use for tribal 
purposes--of a state-recognized reservation should under certain 
circumstances be considered as evidence that the petitioner 
historically has comprised a distinct community and that the petitioner 
historically has maintained political influence over its members.
        a.  Why this change is needed.
    By refusing to consider long-standing occupation of a state-
recognized reservation in its acknowledgment process, the BIA 
arbitrarily rejects solid evidence of the continuity of the 
petitioner's existence as a tribe. Very few tribes can show long-
standing occupation of a reservation but in instances where they can, 
that occupation is highly indicative that the group has survived since 
the creation of the reservation, and continued as a community. 
Nonetheless, BIA has chosen to ignore such evidence. We urge Congress 
to instruct BIA that long-standing occupation of a state-recognized 
reservation should be viewed as probative of continuous existence from 
the time the reservation was first occupied.
        b.  Schaghticoke Tribal Nation's experience.
    In 2004, the BIA published a positive Final Determination by which 
it extended federal acknowledgment to the Schaghticoke Tribal Nation. 
Eighteen months later, for reasons driven by political pressure, 
Associate Deputy Secretary James Cason withdrew that acknowledgment. 
BIA accomplished this by adopting a strained, exaggerated reading of an 
Interior Board of Indian Appeals (IBIA) order remanding the Final 
Determination back to the BIA so that the BIA could more fully explain 
how it weighed Connecticut's long-standing relationship to Schaghticoke 
as evidence. Rather than following IBIA's remand, the BIA reversed 
itself and refused entirely to consider long-standing occupation on a 
state-recognized reservation as evidence of criteria (b), community, 
and ``, political influence. The BIA then based its reversal of its 
earlier published acknowledgment of the tribe on insufficient 
documentation.
    In the case of Schaghticoke, the BIA's post-acknowledgment decision 
not to give any weight to the Tribe's state recognition has led to the 
wildly inequitable result of withdrawal of that recognition. 
Schaghticoke's relationship with what is now the State of Connecticut 
is continuous from the period pre-dating the creation of the State and 
the United States. Schaghticoke has had and maintained what has now 
been reduced to a 400-acre Reservation in Kent, Connecticut, since 
colonial times. The State has treated the tribe as a separate political 
entity, as evidenced by passing legislation determining oversight, 
protecting the Reservation, and exempting the Reservation from 
taxation. In fact, the State historically has played the role that is 
typically played by the federal government, administering funds and 
services for tribal members and their land, exercising oversight of the 
Reservation, and providing services to individuals based on their 
status as members of the tribe.
    Schaghticoke's Federal Acknowledgment Process petition included 
direct evidence of both community and political influence from colonial 
times to the present. In its Final Determination acknowledging the 
Tribe, BIA relied on our continuing relationship with the State as 
evidence of community and political influence. This was helpful to us 
because, of course, it is difficult to collect large amounts of other 
documentary evidence for these criteria precisely because a government 
that often maintained policies trying to ruin Indian communities and 
political entities is not likely to have kept records that support 
tribal existence. Furthermore, for much of our history, tribal members 
were self sufficient on the reservation and tried to avoid unnecessary 
contact with outsiders. In other words, the extreme burden placed on 
petitioners by the document-intensive criteria set forth in the BIA's 
regulations could and should be alleviated to some degree where there 
is clear evidence of state recognition and of the tribe's use of a 
state reservation. Within that context, Schaghticoke's reliance on the 
tribe's relationship with the State, as was made in the positive Final 
Determination, was fair and appropriate. The law should make clear, as 
did the positive Final Determination, that ``[c]ontinuous state 
recognition with a reservation provides additional evidence--where 
specific evidence of community exists.''
    2.  Criteria ``, political influence, should be abandoned as 
unnecessary and redundant and therefore unjustifiably adding to the 
petitioning tribe's already extreme document collection burden.
        a.  Why this change is needed.
    The BIA requires that tribes provide extensive documentation of 
both community (criterion (b)) and political influence (criterion ``) 
continuously from historical times to the present. Presumably both of 
these criteria speak to the question of whether the petitioning tribe 
can demonstrate a continuity of existence. Failure to document either 
one of these criteria allows BIA to decline to acknowledge a tribe.
    This administrative rigidity leads to unreasonable results, in part 
because BIA's consideration of whether a tribe's production of 
documentation meets these two criteria is ``adequate'' is highly 
subjective. making production of direct evidence extremely difficult. 
It is an unconscionably difficult standard to meet, particularly given 
tribes' historical relationships with both the federal government, 
whose policies toward Indians has included extermination and 
assimilation, and state governments, who were similarly hostile to 
continued tribal existence, yet are relied upon to have kept tribal 
documentation in their archives.
    More importantly, the requirement that both community and political 
influence be documented is redundant and overly burdensome. The kinds 
of evidence used to document community and political influence overlap. 
BIA itself recognizes this in its allowance of ``cross-over'' evidence, 
that is, allowing proof of political influence--through (1) allocation 
of group resources, (2) settlement of disputes among members on a 
regular basis, (3) exertion of strong influence on individual members' 
behavior, or (4) organizing economic subsistence among members--to meet 
the community criterion and allowing ``more than a minimal level'' of 
community evidence to be used to meet the political influence 
criterion. 25 C.F.R. Sec. 83.7(b)(v), (c)(iv). Thus, the regulations 
themselves admit the interdependence of the criteria. Maintaining them 
as separate analyses is unnecessarily, sometimes impossibly, burdensome 
to tribes and not helpful in answering the ultimate question of whether 
a group has had continuous existence giving rise to the right to a 
government-to-government relationship with the United States. If a 
tribe has maintained its community, political leadership and influence 
can be assumed. Maintaining the regulations as they are thus serves 
only BIA's self-imposed needs and perpetuates a system that encourages 
and enables the agency's ever-widening, potentially endless paper chase 
for documentation.
        b.  Schaghticoke Tribal Nation's experience.
    Schaghticoke's experience with criteria (b) and--shows that the BIA 
has become unreasonable in its approach to its criteria. STN's own 
odyssey in the FAP began 23 years ago, when in 1981 it filed its Letter 
of Intent. Schaghticoke filed tens of thousands of documents in support 
of recognition. The sheer number of documents submitted by the Tribe 
resulted in the petition being used by BIA to develop a new database 
for electronic access to the information, a database that is now used 
for other recognition petitions. In short, many years and resources--
both of STN and of the BIA--have been expended in researching and 
evaluating documentation pertaining to both criteria (b) and ``, when 
ultimately the question of continuous existence can be answered by a 
combination of evidence supporting either. A separate evaluation of 
each of the criteria does not render Schaghticoke either more or less 
deserving of acknowledgment, but serves only BIA's interest in meeting 
its own artificial criteria.
    3.  Policies and definitions adopted in a proposed finding should 
be maintained throughout the process; at a minimum, tribes should not 
be denied acknowledgment based on changes of policy by the Department 
of the Interior (DOI) made midway through review of a petition.
        a.  Why this change is needed.
    To the detriment of tribes going through the process, the BIA has 
changed its policies and definitions in the middle of evaluating 
certain petitions. BIA has, for example, changed its policy on allowing 
state recognition to meet community and political criteria (see 
discussion above). It has changed its methodology for calculating 
whether at least 50 percent of marriages in the group are between 
members of the group, as set forth in the regulations on community at 
25 C.F.R. Sec. 83.7(b)(2)(ii). Finally, it has changed its policy on 
whether unenrolled community members may be considered in determining 
whether the community criterion is met. While there may be instances 
where the agency, based on additional knowledge, needs to change its 
scientific methods, there is no fairness in changing its policies or 
approaches midway through an individual petitioner's evaluation (or in 
our case after our positive Final Determination had been published) and 
using that change as grounds for declining acknowledgment. At a 
minimum, a petitioner should be given the opportunity to comment on any 
proposed changes in BIA's methodology and be able to respond and submit 
additional evidence for the record.
        b.  Schaghticoke Tribal Nation's experience.
    Ten years after it began examining STN's documentation, BIA issued 
its 2004 Final Determination finding that STN met all of the seven 
mandatory criteria, including community and political influence. It 
found sufficient evidence in the record to substantiate each criterion; 
as to criteria (b) and ``, BIA accepted both direct historical evidence 
of community and political influence and corroborating evidence based 
on the fact that the State of Connecticut had recognized the group as a 
tribe since colonial times and had established the group's reservation 
in 1736.
    In Associate Deputy Secretary Cason's 2005 Reconsidered Final 
Determination withdrawing recognition, BIA abruptly reversed its 
acknowledgment of Schaghticoke based on criteria (b) and ``, community 
and political influence or authority. BIA rejected its previous use of 
continued state recognition as evidence for both criteria (see 
discussion above), thereby creating ``gaps'' in time periods which in 
its 2004 Final Decision BIA had found to be adequately covered. BIA 
rejected its own positive Final Determination's conclusion that STN had 
met the political influence criterion by showing that at least 50 
percent of the marriages in the group were between members of the group 
(25 C.F.R. Sec. 83.7(c)(3)) for periods 1801 to 1820 and 1840 to 1870. 
1 Unbelievably, the DOI Office of the Solicitor went so far 
as to prohibit the Office of Federal Acknowledgment staff from reading 
documentation that STN submitted to try to rebut this change in policy. 
The BIA also reversed its own positive Final Determination evaluation 
of community which used unenrolled members who could be enrolled in its 
calculations of community and political authority for the period after 
1996. These changes in the method of evaluating community and political 
influence were used by the Department as justification for reversing 
Schaghticoke's acknowledgment. A fair process would not countenance 
such reversals.
---------------------------------------------------------------------------
    \1\ In the Final Determination, BIA had analyzed marriage rates by 
counting each individual tribal member's marriage in calculating the 
percentage of marriages in the group. The State of Connecticut argued 
that the calculation should be based only on the number of actual 
unions between tribal members. In the RFD the BIA adopted Connecticut's 
method of calculation, thus lowering the percentage calculated, and 
rendering the requirement of 50 percent unmet.
---------------------------------------------------------------------------
    4.  Petitioners whose petitions have been denied under the current 
administrative process should be allowed to resubmit petitions under 
certain circumstances.
        a.  Why this change is needed.
    The criteria as they now exist and have been implemented by the BIA 
do not assure fair results. The BIA has declined to acknowledge tribes 
for failure to document each criterion to its satisfaction, including 
for those periods during which the federal government's policies were 
to destroy Indian community and political influence and during which 
State policies mirrored those of the federal government. In addition, 
petitions have been rejected as a result of BIA's changing policies 
regarding evidence and BIA's own changing definitions, sometimes with 
no notice to the petitioners and no opportunity to comment. In 
fairness, any tribe that has been denied recognition through FAP as it 
is now implemented should be allowed to re-submit its petition if any 
legislative amendments affect the merits of the petition. Because the 
goal of Federal Indian policy should be absolutely to ensure that all 
tribal groups meriting acknowledgment receive that acknowledgment, 
groups that have been denied fair consideration of their petitions 
should not be precluded from receiving fair re-consideration. 
Schaghticoke thus approves of Rep. Faleomavaega's concept, set out in 
H.R. 2837, which allows re-evaluation of applications whose outcomes 
might have been different if judged under more fair criteria.
        b.  Schaghticoke Tribal Nation's experience.
    For most tribes, BIA's publishing a positive final determination 
represents the end of the very long Federal Acknowledgment Process. Not 
so for Schaghticoke. The State of Connecticut and its congressional 
delegation--for political reasons, intent on fighting against an 
additional Indian casino in the State--inserted themselves squarely in 
the process and DOI, inappropriately, responded to that pressure. On 
the very day the Final Determination was issued, Representative 
Christopher Shays (R-CT) issued a public statement excoriating the 
Department of the Interior for acknowledging Schaghticoke. In the 
statement, he made clear that his opposition was entirely driven by his 
desire to prevent STN from gaming rather than from a genuine concern 
about the propriety of BIA's acknowledgment of STN: ``It is extremely 
disappointing the Bureau of Indian Affairs recognized the Schaghticokes 
as a federal tribe...This recognition may enable the Schaghticokes to 
build a casino, which I believe would be very detrimental to the 
state.'' He vowed to join forces with Connecticut's Attorney General 
Richard Blumenthal to assist in getting the Final Determination 
reversed. Thus began the final long, sustained attack, presumably on 
the expansion of Indian gaming, but carried out on the Department and 
the STN's petition for acknowledgment.
    I am sorry to report that the Department bent to that political 
pressure. While we do not fully understand why the Department succumbed 
to political pressure, we know the result: summary rejection of the 
reasoned analysis of decades of research. The Department manipulated 
the FAP's criteria, particularly the community and political influence 
criteria, abruptly changing its policy after issuing the Final 
Determination, in order to accommodate political ends. Justice requires 
that petitions such as Schaghticoke's be given a second chance when 
Congress renders the process more fair and when justly considered 
evidence of a tribe's historic survival, not political pressure, may 
determine the outcome.
Conclusion
    It is this great body, the Congress of the United States, which 
first extended federal recognition to tribal governments through the 
treaty making process. When the Department of the Interior unilaterally 
sought to create an administrative process to perform that same 
function, it did so without any statutory guidance from the Congress. 
We believe that it is highly appropriate for Congress to provide 
direction and guidance to the Department in these matters, and we 
appreciate this Committee's efforts to tackle these difficult issues.
    I thank you for giving me this opportunity to express the deep 
frustrations of the Schaghticoke Tribal Nation, and I urge you to give 
us a reason to have continued hope for the future.
                                 ______
                                 
    [A letter submitted for the record by the Cherokee Nation 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                               
