[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
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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]