[Senate Hearing 110-189]
[From the U.S. Government Publishing Office]
S. Hrg. 110-189
PROCESS OF FEDERAL RECOGNITION OF INDIAN TRIBES
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 19, 2007
__________
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota TOM COBURN, M.D., Oklahoma
DANIEL K. AKAKA, Hawaii JOHN BARRASSO, Wyoming
TIM JOHNSON, South Dakota PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri RICHARD BURR, North Carolina
JON TESTER, Montana
Sara G. Garland, Majority Staff Director
David A. Mullon Jr. Minority Staff Director
C O N T E N T S
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Page
Hearing held on September 19, 2007............................... 1
Statement of Senator Burr........................................ 46
Statement of Senator Dorgan...................................... 1
Statement of Senator Murkowski................................... 4
Statement of Senator Tester...................................... 2
Witnesses
Dole, Hon. Elizabeth, U.S. Senator from North Carolina........... 3
Fleming, R. Lee, Director, Office of Federal Acknowledgement,
Office of the Assistant Secretary--Indian Affairs, U.S.
Department of the Interior..................................... 39
Prepared statement........................................... 41
Goins, Hon. James Ernest, Chairman, Lumbee Tribe of North
Carolina....................................................... 6
Prepared statement........................................... 8
Levin, Hon. Carl, U.S. Senator from Michigan..................... 12
Prepared statement with attachment........................... 13
McIntyre, Hon. Mike, U.S. Representative from North Carolina..... 5
Sinclair, Hon. John, President, The Little Shell Tribe of
Chippewa Indians of Montana.................................... 15
Prepared statement........................................... 17
Tucker, Hon. Ann Denson, Chairwoman, Muscogee Nation of Florida.. 24
Prepared statement........................................... 26
Yob, Hon. Ron, Chairman, Grand River Bands of Ottawa Indians of
Michigan....................................................... 29
Prepared statement with attachments.......................... 31
Appendix
Chambers, Curtis, Tribal Chairman, Burt Lake Band of Ottawa and
Chippewa Indians, prepared statement........................... 54
Cook, Michael, Executive Director, United South and Eastern
Tribes, Inc., prepared statement............................... 57
Easley, Michael F., Governor, State of North Carolina, prepared
statement with attachments..................................... 58
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, prepared
statement...................................................... 53
Martinez, Hon. Mel, U.S. Senator from Florida, prepared statement 53
Rivera, Jr., Hon. Anthony, Chairman, Juaneno Band of Mission
Indians, Acjachemen Nation, prepared statement with attachment. 64
Skinaway, Monroe, Chairman, Sandy Lake Band of Ojibwe, prepared
statement with attachments..................................... 69
Venne, Carl E., Chairman, Crow Tribe, letter to Senators Baucus
and Tester..................................................... 68
Wright, James, Tribal Chief, Ma-Chis Lower Creek Indian Tribe of
Alabama, prepared statement.................................... 63
PROCESS OF FEDERAL RECOGNITION OF INDIAN TRIBES
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WEDNESDAY, SEPTEMBER 19, 2007
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m. in room
628, Dirksen Senate Office Building, Hon. Byron L. Dorgan,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. The hearing will come to order.
This hearing of the Committee on Indian Affairs is a
hearing on the process of federal recognition of Indian tribes.
This morning the Committee will meet to hear testimony
regarding the administrative process for the Federal
recognition of Indian Tribes. This is intended to be the first
of several hearings on the Federal recognition process. My own
feeling is that the process does not work very well at this
point and needs to be repaired and fixed.
Today we are going to focus on the experiences that
petitioners have encountered in the administrative process that
have led them to seek legislative recognition. We will also
hear from the Department of the Interior, and I intend to hold
a hearing at a later date that will focus on proposed
recommendations for change and reform of the process.
There were a number of tribal groups and organizations who
wished to participate in today's hearings. The four witnesses
here today represent tribal groups whose Senators have
introduced recognition bills on their behalf. I should note
there are others who wish to testify. We had a limited
capability today. But I believe that the hearing today will
have tribal groups and organizations who are representative of
a broader group.
The Federal acknowledgement process was established in 1978
by the Department of the Interior at the request of the
American Indian Policy Review Commission. It was not a process
expressly required by statute, although there has been
considerable Congressional interest in that process over the
years. It was developed through consultation with Indian tribes
and other interested parties.
During the initial development of the regulations, there
were over 400 meetings and discussions and conversations, I
understand. That consultation resulted in what is an
administrative process requiring petitioning groups to meet
seven criteria to prove that they had a ``substantially
continuous tribal existence since historical times.''
The recognition process, for better or for worse, has
evolved over the years into a lengthy--an unbelievably
lengthy--and costly process requiring substantial research,
substantial documentation. I'm told that some petitions can
fill an entire room. It is unbelievable to me that two of our
four witnesses today have waited nearly 30 years for the
Department of the Interior to make a decision.
I think it is important, if tribes are seeking recognition,
that there be a complete and a substantial record. I understand
the requirements that must go into making that record. So I'm
not suggesting that we shortchange the requirement to establish
the historical record. I am saying that a process that in many
cases lasts 20 or 30 years for tribal recognition or for a
decision on tribal recognition is a process that's broken and
ought to be fixed. We're not serving anybody's interest with
those kinds of lengthy, lengthy delays.
So we will be holding the hearing this morning, we will
hold other hearings as well on this process and recommendations
for trying to fix this process.
Let me call on my colleague, Senator Tester, from Montana,
for comments.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman. Just very briefly,
I appreciate your kindness.
As I look at this whole process, which I knew very little
about before Chairman Sinclair approached me about a year ago.
He asked me to carry a bill to legislatively recognize the
Little Shell Tribe. It is absolutely apparent to me the process
is totally broken and overburdened with bureaucratic red tape.
A decision needs to be made in a lot of these areas on a timely
basis yes or no and move forward. So if there's ways through
this hearing, Mr. Chairman, if we can get the Department of
Interior in a better position to make a timely decision on this
particular topic so that the process serves our Native
Americans better and creates better government.
Thank you, Mr. Chairman. I look forward to hearing from our
witnesses.
The Chairman. Senator Tester, thank you very much.
As I indicated, the four witnesses today represent tribal
groups whose Senators have introduced recognition bills on
their behalf. There are two ways to be recognized as a tribe.
One is recognition by the legislative authority and the second
is going through the process at the Department of the Interior.
When I talk about the process not working, I'm talking about
that Department of the Interior process. It is not
unprecedented that Congress has passed legislation in these
areas. My preference would be that we have a process that works
at the Department of the Interior, rather than the U.S.
Congress taking up these bills and passing them on an
individual basis. We are talking today about the process at the
Department of the Interior.
But we are joined today by Senator Dole and Congressman
McIntyre. They have been involved in a legislative initiative
on behalf of a tribal government, and they've asked if they
could make a comment at the beginning of this hearing. We're
pleased to have our colleague Senator Dole join us. Senator
Dole, why don't you proceed?
STATEMENT OF HON. ELIZABETH DOLE,
U.S. SENATOR FROM NORTH CAROLINA
Senator Dole. Thank you very much, Mr. Chairman, for
holding this hearing and for giving me the opportunity this
morning to introduce my friend, the Lumbee Tribal Chairman,
Jimmy Goins. I've been proud to work with Chairman Goins over
the years on our shared goal: full Federal recognition of the
Lumbee Tribe.
It's apparent that Chairman Goins is driven by his strong
desire to serve his fellow Lumbee tribal members, his country,
and his family. He was awarded the Purple Heart for his
distinguished service and sacrifice in Vietnam. A man of faith,
he teaches Sunday School and serves as a trustee, board member
and steward at Union Chapel Holiness Methodist Church. And he
is dedicated to his wife, Diane, three daughters and five
grandchildren.
Chairman Goins has long been a leader for the Lumbee Tribe
in its quest for Federal recognition. As a member of the tribal
council, he oversaw the Federal recognition committee and as
the Chairman of the tribe, he has traveled across North
Carolina and to Washington to educate policymakers on the
importance of Federal recognition, not only for the Lumbee, but
also the southeastern region of North Carolina where most of
the tribe's 55,000 members reside. In fact, since my arrival in
the Senate in 2003, this is the fourth hearing Chairman Goins
has journeyed to Washington to attend.
The Lumbee Recognition Act was the very first bill that I
introduced in the U.S. Senate. I have continued to champion
this cause alongside Chairman Goins and other Lumbee leaders
and allies, because I passionately believe that Congress should
act to provide the tribe full Federal recognition. It is a
matter of fairness.
North Carolina formally recognized the tribe in 1885, and 3
years later, in 1888, the tribe began its quest for Federal
recognition. In 1956, Congress finally passed legislation
recognizing the tribe, but it included a terribly unfair
caveat: the Lumbee were denied the benefits that every other
federally recognized tribe receives. Moreover, the 1956 Lumbee
Act actually prohibits the tribe from going through the Bureau
of Indian Affairs process for full recognition. As the law now
stands, the Lumbee Tribe can only be recognized by an act of
Congress.
Just one other tribe, the Tiwas of Texas, faced a similarly
unfair situation following the passage of a comparable bill in
1965. But in 1987, Congress enacted special legislation to
recognize them. This makes the Lumbee the only tribe in the
Country still trapped in this limbo.
The BIA process is reserved for tribes whose legitimacy
cannot be established. But the Lumbees' legitimacy has been
established time and time again in studies by the U.S.
Department of Interior beginning as early as 1912, then again
in 1914, and yet again in 1933. Furthermore, the Government
Accountability Office has documented that getting through the
BIA is an arduous and lengthy process, as the Chairman has
pointed out.
I welcome the attention the Committee is giving this
problem. However, it is clear that even if the Lumbee could
legally go through the BIA, this would only impose yet another
delay. Earlier this year, the Lumbee cleared a significant
hurdle. The House passed the Lumbee recognition bill sponsored
by Congressman Mike McIntyre, who's here with us this morning.
It has been my joy to work with Mike over these many years.
The Lumbee are now this close to securing the recognition
for which they and their ancestors have tirelessly fought. The
ball is in the Senate's court. Now is the time for us to do
what is fair and right. In the last two Congresses, this
Committee has approved my Lumbee Recognition Bill. I strongly
urge again that this Committee report the bill to the full
Senate. The Lumbee deserve better than a partial nod to their
legitimacy. They deserve full recognition and the time is now.
I thank you, Mr. Chairman.
The Chairman. Senator Dole, thank you very much.
I would like to recognize the Vice Chair, who has joined
us, for an opening statement.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman.
I am very pleased that we are holding this hearing on the
Federal recognition process for Indian Tribes.
We recognize that it has been 3 decades since the American
Indian Policy Review Commission issued its final report
regarding recommendations on the Federal Indian policy. Over
the past 30 years Congress has made strides in developing a
more progressive Indian policy and improving the government-to-
government relationship with Indian Tribes, but one area that
has lagged is the Federal recognition process. Since 1978 the
BIA office has reviewed and resolved some 62 petitions for
Federal recognition, unfortunately this is only about 20
percent of the 324 petitions that have been submitted for
Federal recognition.
Three of the four tribes that are testifying before the
Committee today have been waiting at least 13 years for action
to be taken on their Federal petitions. The good news for these
tribes is that they've got the ability to go through the
Federal recognition process. But as Senator Dole has mentioned
this morning, for some, such as the Lumbee Tribe, the
administrative recognition process is not available, thus
forcing them to seek legislative recognition.
I too would like to extend a warm welcome to the Lumbees
this morning. The Native people of Alaska have long supported
the Lumbees in their quest for Federal recognition. I was proud
to support your legislation in the 109th Congress.
One of the issues that I hope that we will review today is
whether an examination of the staffing levels at the OFA and
whether their budget is adequate for their large and complex
workload. Another issue is whether the Federal recognition
process itself, does it need to be changed, either by Congress
or by the Secretary through rulemaking, to provide for
deadlines and standardized criteria for the OFA to determine
which tribal petitioners are appropriate for Federal
recognition.
I appreciate those witness that have traveled so far to be
with us today. And with that, Mr. Chairman, I look forward to
the testimony from those who will be here.
The Chairman. Senator Murkowski, thank you very much.
Congressman McIntyre, we're pleased that you've joined us.
STATEMENT OF HON. MIKE McINTYRE,
U.S. REPRESENTATIVE FROM NORTH CAROLINA
Mr. McIntyre. Thank you, Mr. Chairman. Thank you for
holding this very important hearing on Federal recognition and
the Federal process for Indian tribes.
Mr. Chairman, fellow members of the Committee, I was born
and raised in Robeson County, North Carolina, which is the
primary home for the Lumbee Indians, in addition to several
counties that adjoin it. I have the high honor to represent the
Lumbees in the U.S. House of Representatives which, after a
century of delay, recently passed a bill to grant the Lumbee
Tribe Federal recognition by a bipartisan two-thirds margin in
the U.S. House this summer.
I am especially pleased today to welcome the Chairman,
Jimmy Goins, who will shortly be testifying. Jimmy is a
decorated Vietnam veteran, a successful businessman and an
outstanding leader for the Tribe, as well as an outstanding
citizen in our county and our State.
As you will hear from Chairman Goins, there is no question
the Lumbee Indians constitute an Indian tribe. In response to
numerous bills introduced in the U.S. Congress over the last
century, the U.S. Department of Interior has already studied
the Tribe 11 times and has always concluded that the Lumbees
are Indian.
As you will hear from Chairman Goins, Congress itself--51
years ago this summer--in fact, on the very day that the House
remedied this situation in passing the recognition bill, 51
years ago this past June, Congress put the Lumbee Tribe in
Indian no-man's land with the enactment of the 1956 Lumbee Act,
which according the 1989 Solicitor General's ruling, precludes
the Tribe from going through the regular BIA process.
There is exact legal precedent to remedy this situation. In
two similar situations where Congress has precluded two other
tribes from going through the BIA process, Congress passed
special legislation correcting the problem by extending full
Federal recognition to those tribes. Thus, the Lumbees are now
the only tribe in America left in this legal limbo.
Congress should now do the same with the Lumbees to go
ahead and correct this inequity which Congress caused back 51
years ago in 1956. The House indeed took action this summer to
correct this injustice. It is our hope now that the Senate will
do the same this session of Congress, so for once and for all,
after 100 years, this matter can finally be resolved.
Mr. Chairman, thank you for this opportunity to welcome Mr.
Goins today and others who are here from the Lumbee Tribe. I
look forward to continuing to work with you and with all of you
on this Committee and our colleagues in the Senate to pass
Lumbee Federal recognition that--after a century of delay--
recognition may finally proceed.
Thank you, and may God bless you.
The Chairman. Congressman McIntyre, thank you for venturing
to this side of the Capitol once again. We appreciate having
you. You and Senator Dole are certainly welcome to stay as long
as you wish. We know that you have to leave at some point for
other business.
Let me call the first panel to the table, if I might. The
Honorable Jimmy Goins, and Mr. Goins, you have had a pretty
substantial introduction here by your Senator and Congressman.
Tribal Chairman, Lumbee Tribe of North Carolina. You may take
your seat.
The Honorable John Sinclair, the Tribal President of the
Little Shell Tribe of Chippewa Indians of Montana, Great Falls,
Montana. The Honorable Ann D. Tucker, Tribal Chairperson,
Muscogee Nation of Florida, in Bruce, Florida. And the
Honorable Ron Yob, the Tribal Chairman of the Grand River Band
of Ottawa Indians in Grand Rapids, Michigan.
We welcome all of you. We will have Mr. Fleming with us as
well. Mr. Fleming, would you proceed to take a seat at the
table as well? We were going to do two panels, but because of
the timing here, I hope you will all recognize we want to hear
from all of you. My understanding is we have a vote beginning
at about 10:30 today, so we may have a brief recess. But we'll
proceed as well as we can.
Mr. Goins, as I indicated, you've had a very substantial
introduction. We appreciate your appearance before our
Committee and appreciate your having served our Country in so
many ways. Why don't you proceed? And then I will go down the
row to Mr. Sinclair, Ms. Tucker and Mr. Yob.
STATEMENT OF HON. JAMES ERNEST GOINS, CHAIRMAN, LUMBEE TRIBE OF
NORTH CAROLINA
Mr. Goins. Thank you, Mr. Chairman and members and guests
of the Committee. I appreciate the opportunity to appear today
on behalf of the Lumbee Tribe of North Carolina.
The Chairman. Let me interrupt you just to say that your
entire statement will be part of the record--for all of you--
and we will ask that all of you summarize today. Thank you very
much.
Mr. Goins. Let me begin by extending the Tribe's gratitude
to Senator Burr and Senator Dole for their support for the
Tribe's cause. With their help, and of course that of
Congressman McIntyre, whose bill to recognize the Tribe
recently passed the House of Representatives, it is our fervent
hope that our long quest for Federal recognition is about to
come to an end with the enactment of Mr. McIntyre's bill into
law.
The Committee has asked out our experience with the BIA
acknowledgement process. We have no experience with the present
process. There's a simple reason why. The Lumbee Tribe is not
eligible for the BIA present process. In 1956, the Congress
enacted the Lumbee Act. This is one the nearly a dozen bills
that had been introduced since 1899 to achieve Federal
recognition for the Tribe. Congress amended it, though, at the
request of the BIA. The BIA wanted to make sure that the Lumbee
Tribe was not eligible for Federal services, so it asked
Congress to add termination language to the bill. Congress did
so, basically acknowledging us and terminating us at the same
time.
In 1989, the Solicitor's Office ruled that the 1956 Lumbee
Act bars the Tribe from the present BIA process. By that time,
the Tribe had already submitted a documented petition. But the
BIA has not and cannot process it. Some have proposed that the
answer for the Lumbees is to repeal the 1956 Lumbee Act and
send the Tribe through the BIA process now. That is not the
answer. It is not fair, it is not necessary and it will not
work.
Why is it not fair? Only a few other tribes have
experienced anything like we did in the 1956 Lumbee Act. And in
every such case, Congress has enacted special legislation to
recognize the tribe. The Ysleta del Sur Pueblo is the best
example. That tribe was subject to an unusual act like the 1956
Lumbee Act that also left it ineligible for the BIA recognition
process. Congress fixed this for the Ysleta del Sur Pueblo, or
the Tiwas, by enacting special legislation in 1987. Congress
should in all fairness do the same for the Lumbee Tribe, the
only, the only tribe left in the Country in this position.
Why is it not necessary to send the Lumbee Tribe through
the BIA process? The whole purpose of the BIA process is to
study a tribe's history and community, something that's already
been done repeatedly at Lumbee. In response to all the Federal
bills to recognize the Lumbee Tribe, the BIA testified to
Congress about the Tribe's history and community and several
times sent special Indian agents to Robeson County to study the
Tribe. This produced numerous Congressional hearing reports and
11 BIA studies on the Tribe. Every single one of these reports
and studies concludes that we are an Indian community, one that
descends from the coastal North Carolina tribes and one that
has resided near the Lumber River, formerly known as Drowning
Creek, since the time of white contact.
Since Congress and the Department have already studied the
Lumbee Tribe so many times and find a longstanding Indian
community there, there is no reason yet for another study of
the Lumbee. Why won't the administrative process work for the
Lumbee? We have not gone through the present BIA process, but
we've been dealing with the BIA and recognition since 1890. Our
experience convinces us that the present BIA process just won't
work for the Tribe. In 1934, the BIA specifically told Congress
that the Lumbee Tribe descends from the historic Cheraw and
related Siouan-speaking coastal North Carolina tribes. But now
the head of the present BIA process says there may be
insufficient documentation of the Tribe's descent from this
historic Cheraw community.
How can this be? Certainly the Lumbee Tribe's history has
not changed since 1934, when the BIA was confident of the
Tribe's Cheraw descent. This must be because of the limitation
in the present BIA process. It depends completely upon
documentary evidence by the Indian groups generated by the
dominant society.
Documentary evidence is sparse for many Indian groups at
the time of early contact for very good reasons. For example,
we Lumbees took refuge in the swamps of Drowning Creek to avoid
non-Indian settlements. This protected us, but it also meant
that very few documents about us were generated in the early
contact period. Dr. Vine Deloria observed that the Lumbee Tribe
is in a difficult position under the present regulations,
because limited contacts produce limited documents. But Dr.
Deloria had no doubt that the Lumbee Tribe is entitled to and
should be recognized by Congress.
The bottom line is that the BIA's recognition process has
nothing to do with the Lumbee Tribe and should have nothing to
do with the Lumbee Tribe. John Shepard, retired BIA employee,
who wrote the acknowledgement regulations and set up the
acknowledgement process, said it best recently in a letter to
the Committee: ``The Government does not need to waste any more
time or money for additional assurances of the Lumbee's
background and credentials.'' There is enough research material
on file now about the Lumbees for Congress to enact solid
legislation, certainly with the knowledge that it has all been
documented.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Goins follows:]
Prepared Statement of Hon. James Ernest Goins, Chairman, Lumbee Tribe
of North Carolina
Mr. Chairman and members of the Committee. I appreciate the
opportunity to appear before you today on behalf of the Lumbee Tribe.
The Lumbee recognition issue is pending before this committee once
again and our people have high hopes that this Congress, after nearly
120 years of effort, we will finally achieve Federal recognition of the
Lumbee Tribe of North Carolina. I bring with me the deepest gratitude
of our people for the efforts of Senator Burr and Senator Dole on
behalf of our people for their support for our cause. Of course, I also
bring with me our people's joy at the passage of the Lumbee recognition
bill in the House of Representatives, H.R. 65, on June 7 of this year
by a two to one margin--all due to the hard work of Congressman
McIntyre.
The Committee has asked the Tribe to comment on the process of
Federal recognition of Indian tribes. This is something with which the
Lumbee Tribe has considerable experience: it has sought Federal
recognition since 1888. Since that time, the Tribe has sought Federal
recognition from the Department of the Interior through administrative
processes and from Congress directly through the enactment of special
recognition legislation. This experience is rooted deep in our history.
Our experience has not yet resulted in Federal recognition for the
Tribe. However, in 1956, Congress passed a peculiar statute dealing
with the Lumbee Tribe--a statute that makes the Tribe ineligible for
the administrative process for recognition of tribes. Some have
proposed that the answer for the Lumbee Tribe is to repeal this act of
Congress and send the Tribe to the current administrative recognition
process. That is NOT the answer--this solution would be unfair, it is
not necessary, and it will not work. The only fair solution is the
enactment of special recognition legislation for the Tribe.
Federal Recognition--The Lumbee Experience
The Lumbee Tribe first sought Federal recognition in 1888. That
year, tribal leaders submitted to Congress a petition seeking Federal
Indian education assistance for the Lumbee Indian Normal School that
had been created by the State of North Carolina the previous year. The
school was established to train Indian teachers for the all Lumbee
school system that had been established in 1885, but the State provided
too little funding for the normal school. The Congress referred the
Tribe's petition to the Department of the Interior and the Commissioner
of Indian Affairs told the Tribe:
While I regret exceedingly that the provisions made by the
State of North Carolina seem to be entirely inadequate, I find
it quite impractical to render any assistance at this time. The
Government is responsible for the education of something like
36,000 Indian children and has provision for less than half
this number. So long as the immediate wards of the Government
are so insufficiently provided for, I do not see how I can
consistently render any assistance to the Croatans [as the
Tribe was then denominated under state law] or any other
civilized tribes.
In other words, the Department acknowledged that we were an Indian
community but denied assistance because of the cost of services.
So the Tribe then turned directly to Congress. Between 1899 and
1956, approximately a dozen bills were introduced in Congress to
recognize the Tribe. The Department of the Interior testified on these
bills and consistently acknowledged that we constituted an Indian
community that has been on the Lumber River, formerly known as Drowning
Creek, since the time of sustained white contact. Yet the Department
consistently opposed recognition of the Tribe, usually on the grounds
of cost.
During this same period, the Department also undertook its own
direct studies of the Lumbee Tribe and community, sometimes at the
direction of Congress. Altogether, the Department produced 11 reports
on the Lumbee Tribe between 1912 and 1956. The 1924 report prepared by
James Henderson, Superintendent of the Cherokee agency in North
Carolina, is representative. He found that, ``There are many to be
found among them who to all appearances are full blood Indian.''
Henderson observed that the Lumbee were similar to other tribes and
recommended that Lumbees be allowed to attend Haskell Institute, at a
minimum. Once again, though, the Department testified against
recognition of the Tribe.
The Lumbee Tribe also sought to avail itself of other
administrative processes. After the passage of the Indian
Reorganization Act in 1934, Commissioner Collier wrote to the Tribe and
suggested we might organize under that act if some of our members were
certified as one-half or more Indian blood. The Tribe requested that
the BIA send a physical anthropologist to the community, but only about
200 members agreed to submit to the required physical examination. The
BIA did certify 22 half-bloods out of those members it examined, but
the BIA ultimately refused to take land into trust for these
individuals so that they were not able to organize.
1956 Lumbee Act--Lumbee Tribe Ineligible for Administrative
Acknowledgment
Congress finally enacted one of the many Lumbee bills in 1956 at
the height of the Federal termination policy for Indians. Like the
others before, the 1956 bill had been introduced as a recognition bill.
The original bill tracked verbatim the language of the most recent
state recognition legislation passed in 1953 that recognized the Tribe
under the name Lumbee. However, the Department opposed enactment of the
bill, once again because of its concern about providing Federal Indian
services to the Tribe:
We are therefore unable to recommend that the Congress take any
action which might ultimately result in the imposition of
additional obligations on the Federal Government or in placing
additional persons of Indian blood under the jurisdiction of
this Department. The persons who constitute this group of
Indians have been recognized and designated as Indians by the
State legislature. If they are not completely satisfied with
such recognition, they, as citizens of the State, may petition
the legislature to amend or otherwise to change that
recognition . . . If your committee should recommend the
enactment of the bill, it should be amended to indicate clearly
that it does not make these persons eligible for services
provided through the Bureau of Indian Affairs to other Indians.
The Senate adopted the Department's recommendation and amended the
bill to include classic termination language before enactment. Pub. L.
570, Act of June 7, 1956, 70 Stat. 254.
Since 1956, Federal agencies and courts have reached different
conclusions regarding the purpose and effect of the 1956 Lumbee Act. In
1970, the Joint Economic Committee of Congress described the Lumbees as
having been officially recognized by the act, although not granted
Federal services. See ``American Indians: Facts and Future,'' Toward
Economic Development for Native American Communities, p. 34 (GPO 1970).
Also in 1970, the Legislative Reference Service of the Library of
Congress described the 1956 Lumbee Act as legislative recognition of an
Indian people. See Memorandum, April 10, 1970, on Extending Federal
Jurisdiction and Services to Hill 57 Indians, LRS, Library of Congress.
And in 1979, the Comptroller General ruled that the 1956 act left the
Lumbees' status unchanged, i.e., it neither recognized the Tribe nor
terminated the Tribe's eligibility for services it might otherwise
receive. The one court to construe the statute concluded that it was
intended ``to designate this group of Indians as `Lumbee Indians' and
recognize them as a specific group . . .'' but not to take away any
rights conferred on individuals by previous legislation. Maynor v.
Morton, 510 F.2d 1254, 1257-1258 (D.C. Cir. 1970) [holding that the so-
called half-bloods certified under the Indian Reorganization Act were
eligible to receive BIA services]; see also September 28, 1988 CRS
Memorandum, reprinted at S.Rep. No. 100-579, 100th Cong., 2d Sess.
One thing is certain about the 1956 Lumbee Act--it makes the Lumbee
Tribe ineligible for the administrative acknowledgment process. Under
the acknowledgment regulations, the Secretary of the Interior cannot
acknowledge tribes that are subject to legislation terminating or
forbidding the Federal relationship. 25 C.F.R. sec. 83.3(e). In a
formal opinion issued on October 23, 1989, the Solicitor for the
Department of the Interior concluded that the 1956 Lumbee Act is such
Federal legislation and, as a result, the Department is precluded from
considering any application from the Lumbee Tribe for Federal
acknowledgment.
Sending the Lumbee Tribe to the Administrative Recognition Process--
Unprecedented and Unfair
Congress has very seldom done what it did to the Lumbee Tribe in
1956--i.e., acknowledge the tribe as Indian but simultaneously prohibit
the application of Federal Indian statutes and services. And in no such
case has Congress ever repealed the termination-type statute and then
required the tribe to seek acknowledgment from the Department of the
Interior. In every single other such case, the Congress has enacted
special recognition legislation for the Tribe. It would be
fundamentally unfair to treat the Lumbee Tribe any differently from any
other tribe that Congress has placed in this peculiar position.
The most directly analogous situation is that of the Ysleta del Sur
Pueblo of Texas. Like the Lumbee Tribe, this tribe had been long
recognized by Texas before Congress passed special legislation
acknowledging them as Indian. This special statute, enacted in 1968 for
the Tiwas of Texas (as Ysleta del Sur was then called) was modeled on
the 1956 Lumbee Act. See S.Rep. No. 1070, 99th Cong. 2d Sess. The
Department of the Interior concluded that the 1968 Tiwa Act made that
tribe ineligible for the administrative process, the same determination
it made regarding the 1956 Lumbee Act. And for that reason, Congress
enacted special legislation to recognize the Ysleta del Sur Pueblo in
1987. Pub. L. 100-89, Act of August 18, 1987, 101 Stat. 667.
The Lumbee Tribe is the only tribe left in the country that was
placed in this peculiar position by Congress. Congress should fix it
the same way it has for every other tribe in this position. There is no
fair or rationale basis for treating the Lumbee Tribe differently.
Sending the Lumbee Tribe to the Administrative Acknowledgment Process--
Unnecessary
There is no good purpose to be served by requiring that the Lumbee
Tribe go through the current administrative process. That process gives
the Department an opportunity to examine a group's history and
community to determine whether the group is, in fact, an Indian tribe.
The Department of the Interior and Congress have already made that
inquiry regarding the Lumbee Tribe. As noted above, there are numerous
congressional reports and 11 BIA studies on the Lumbee history and
community. All of these reports consistently conclude that Lumbee is an
Indian community that has been in the same place--on the Lumber River--
since the time of sustained white contact. Not a single congressional
report or BIA study doubts these fundamental facts.
Recently, the committee received a letter on this from John
Shapard, a retired BIA employee who wrote the acknowledgment
regulations, set up the acknowledgment office, and ran that office for
its first 9 years. Mr. Shapard concludes that there is no need to send
the Lumbee Tribe to the current administrative process for yet another
study:
It must be clearly understood that the Lumbees are not
``Johnnies-come-lately.'' They have been actively seeking
recognition for more than one hundred years. They have been
studied by sociologists, anthropologists, and by historians.
Their personal and tribal lineage has been anatomized by
genealogists. Books have been written about the tribe and its
plight. Bureaucrats and legislators have wrestled with the
``Lumbee problem'' since the 1890s. The Interior Department and
the bureau's files are packed full of reports, survey, studies,
and miscellaneous documents relating to the Lumbees. The State
of North Carolina, which recognizes the Lumbees as a tribe, is
equally cumbered with documents about the tribe. The government
does not need to waste more time or money for additional
assurances of the Lumbees' background and credentials.
Letter of Johan A. Shapard to Chairman Dorgan, dated September 5,
2007. Because of this record, no point is to be served by sending the
Lumbee Tribe to the administrative acknowledgment process.
Sending the Tribe to the Administrative Acknowledgment Process--It Will
Not Work
The administrative acknowledgment process is intended to verify the
tribal status of Indian groups so that legitimate groups can be
recognized. But the process depends completely upon documentary
evidence generated by the dominant society to establish the seven
mandatory criteria that define a tribe under those regulations. If a
tribe fails to produce the necessary documents, the tribe is not
recognized. Sometimes, though, documents are not available, even if the
Indian group actually is an Indian tribe. There can be several reasons
for this--suppression of Indian identity for periods of history due to
particular state or Federal policies, or avoidance of record keepers by
the Indian groups for reasons of self-protection or even survival. When
this happens, the administrative acknowledgment process fails to
identify or recognize all legitimate Indian tribes. The Lumbee Tribe
may be such a tribe.
As noted above, the BIA testified repeatedly to Congress over a
fifty year period that the Lumbee are an Indian people. In 1934, the
BIA witness, relying on a report by the eminent John Swanton,
explicitly advised Congress that the Lumbee descend from the historic
Cheraw and related Siouan speaking tribes from coastal North Carolina.
But those who administer the current acknowledgment process have
recently testified that there may be too few documents proving Cheraw
descent for the Lumbee Tribe under the acknowledgment regulations. In
other words, the BIA may now change its mind about the ancestry of the
Lumbee Tribe only because the current regulations require rigid
reliance on a mass of documents that may not have been generated about
a group.
Current scholars outside the BIA have noted this problem. Dr. Vine
Deloria, for example, testified to Congress in 1988 in support of
special legislation to recognize the Lumbee Tribe. He told Congress
that the Lumbees may be in a difficult position on this issue under the
regulations for a very good reason--in the early 18th century, the
ancestors of the Lumbees took refuge in the swamps around Drowning
Creek (now Lumber River) in order to minimize contact with nearby white
settlements and protect themselves. Nonetheless, Dr. Deloria had no
doubt that the Lumbees constitute an Indian tribe and urged Congress to
recognize it as such.
If the Lumbee Tribe descended from the Cheraw and related Siouan
speaking tribes in 1934, it still descends from the Cheraw and related
Siouan speaking tribes. The BIA said so then and it is still the truth
of Lumbee history. The Congress should not tolerate picking and
choosing of processes and results only for the purpose of avoiding
recognition of the Lumbee Tribe. That is clearly the purpose of those
who urge the Congress to ``protect the integrity of the administrative
process'' by requiring the Lumbee Tribe to go to the BIA: it's really
about opposition to Lumbee recognition, not about preserving any
process.
Recommendation Regarding the Administrative Process
The Lumbee Tribe has no direct experience with the current
administrative process. Eighteen months after the Tribe submitted a
petition for acknowledgment under the regulations, the Solicitor's
Office concluded that the Tribe is precluded from that process because
of the 1956 Lumbee Act. Soon thereafter, it became clear to us that the
BIA was prepared to repudiate much of what it had said to Congress over
the last fifty years about Lumbee history and ancestry. If the
regulations require this, then the regulations cannot be relied upon to
identify every legitimate tribe that should be recognized.
But the Lumbee Tribe has a long and unhappy history with the BIA on
the recognition issue before the current regulations were adopted. Our
history teaches us one truth: the BIA has an institutional bias against
non-federally recognized Indian tribes and should not be the agency
charged with processing petitions for acknowledgment from such tribes.
This is not intended as a criticism of any particular Administration or
BIA employee. Rather, it simply reflects the mission of the BIA to
serve and protect the interests of federally recognized Indian tribes.
As the Commissioner of Indian Affairs put it to us in 1890, his first
obligation was to provide services to those tribes already recognized.
This being so, it is not fair to either the BIA or non-federally
recognized tribes to expect the BIA to also pass on the status of other
Indian groups. Based on this experience, we would urge the committee to
consider transferring the tribal acknowledgment process to another
agency or an independent commission, one without any ties or
obligations to federally recognized tribes.
Conclusion
Since the early days of the Republic, the Congress has been in the
business of recognizing Indian tribes. If the Alaskan native villages
(which were acknowledged in modern times by the Department of the
Interior) are excluded, then the overwhelming majority of tribes
recognized today achieved that status directly from Congress. Neither
has Congress passed an act or expressed it judgment that it should
never again directly recognize an Indian tribe. The question, then, is
under what circumstances should Congress exercise its authority, not
whether Congress should ever recognize an Indian tribe.
If any tribe should appropriately be recognized by Congress, it is
the Lumbee Tribe. The Lumbee Tribe is unique in all of Indian country--
it is the only tribe left in the kind of legal limbo imposed by the
1956 Lumbee Act and it has surely been studied as often as any other
tribe (and concluded to be an Indian community) by the BIA. There has
been sufficient process. Instead of singling the Tribe out for unfair
treatment unlike any other tribe, the Congress should simply recognize
the Lumbee Tribe of North Carolina.
The Chairman. Mr. Goins, thank you very much. Mr. Chairman,
your remarks are, as always, on point, and we appreciate the
contribution you've made.
We are joined by Senator Levin, and I believe Senator Levin
wishes to make a comment to introduce the witness from the
State of Michigan. I will recognize Senator Levin to speak of
the Chairman from Michigan, and then I will call on Senator
Tester, who I will ask to introduce the next witness, who is
Chairman Sinclair from Montana.
Senator Levin, we knew that you were coming and I know you
wish to make a comment about the witness from Michigan.
STATEMENT OF HON. CARL LEVIN,
U.S. SENATOR FROM MICHIGAN
Senator Levin. Mr. Chairman, thank you and the Committee
for allowing me to spend a couple of minutes introducing
Chairman Yob of the particular group of Native Americans, the
Grand River Bands of Ottawa Indians, who have spent such a long
time awaiting Federal recognition. I just want to spend a few
minutes to welcome him on behalf of the Committee.
I want to thank the Committee for giving tribes an
opportunity to share their experiences and their frustrations
with the Federal recognition process. I hope that this hearing
brings us closer to fixing a broken system.
One of the tribes here today, the Grand River Bands of
Ottawa Indians, is from my home State of Michigan. I am pleased
to introduce its Chairman, Ron Yob, to the Committee. The Grand
River Bands has been in some form indigenous to the State of
Michigan for over 200 years. The Grand River Bands consist of
the 19 Bands who occupy the territory along the Grand River in
which is now Southwest Michigan, including the cities of Grand
Rapids and Muskegon, Michigan.
The members of the Grand River Bands are the descendants
and political successors to signatories of the 1821 Treaty of
Chicago and the 1836 Treaty of Washington. They are also one of
the six tribes who are original signatories of the 1855 Treaty
of Detroit.
However, the Grand River Bands is the only one of those six
tribes which is not recognized by the Federal Government and
still cannot benefit from a number of Federal programs. Earlier
this year, they lost millions of dollars when they were unable
to take part in a Federal judgment fund because they were still
waiting in this long, arduous Federal recognition process.
The Grand River Bands first started their Federal
recognition effort in 1994 and they have since been waiting for
the Bureau of Indian Affairs at the Department of Interior to
make a Federal recognition determination for 13 years.
Currently, they are still waiting to be moved to active status.
This is totally unacceptable, and unfortunately, it is not
unusual for tribes caught in the Federal recognition process,
as you will hear today from other tribes who have been waiting
for far too many years for a determination.
I hope that what we will learn from today's hearing will
result in a more efficient and timely Federal recognition
process. Again, I want to thank you and the Committee, Mr.
Chairman, for allowing me to interject myself in this way in
the middle of your hearing this morning. I want to thank you
and the members of the Committee for all the good work that you
do. And I particularly again want to welcome our constituent,
Ron Yob, and to introduce him to the Committee.
[The prepared statement of Senator Levin follows:]
Prepared Statement of Hon. Carl Levin, U.S. Senator from Michigan
Good Morning. I would like to thank the Chairman and the Indian
Affairs Committee for giving me the opportunity to appear before you
today.
I would also like to thank the Committee for giving Indian Tribes
the opportunity to voice their experiences with the Federal recognition
process. I hope that this means we are one step closer to fixing this
broken process.
One of the tribes here today, the Grand River Bands of Ottawa
Indians, is from my home state of Michigan.
The Grand River Bands has been in some form indigenous to the State
of Michigan for over 200 years. The Grand River Bands consists of the
19 bands of Indians who occupied the territory along the Grand River in
what is now southwest Michigan, including the cities of Grand Rapids
and Muskegon. The members of the Grand River Bands are the descendants
and political successors to signatories of the 1821 Treaty of Chicago
and the 1836 Treaty of Washington. They are also one of six tribes who
are original signatories of the 1855 Treaty of Detroit. However, the
Grand River Bands is the only one of those six tribes which is not
recognized by the Federal Government and still cannot benefit from a
number of Federal programs. Earlier this year, they lost millions of
dollars when they were unable to take part in a Federal judgment fund
because they were still waiting in this long arduous Federal
recognition process.
The Grand River Bands first started their Federal recognition
process in 1994 and have since been waiting for the Bureau of Indian
Affairs at the Department of Interior to make a Federal recognition
determination for 13 years. Currently, they are still waiting to be
moved to ``Active'' status. This is unacceptable, and unfortunately, is
not unusual for tribes caught in the Federal recognition process as you
will hear today from other tribes who have also been waiting for far
too many years for a determination. I hope that what we learn from
today's hearing will translate into recommendations for a more
efficient and timely Federal recognition process for the future.
Attachment
The Chairman. Senator Levin, thank you very much. I know
Chairman Yob will testify in a bit, but I know he appreciates
your introduction.
I know you have other business with the Armed Services
Committee right now, so we appreciate your stopping in to give
us that introduction.
Let me recognize Senator Tester, who will introduce the
next witnesses from the State of Montana.
Senator Tester. Thank you, Mr. Chairman. Indeed, it is an
honor for me to introduce the Honorable John Sinclair,
President of the Little Shell Tribe of Chippewa Indians of
Montana. John is following in the footsteps of his grandfather
and father as President of the Little Shell Tribe.
I have worked with John in the State legislature and it
truly is a pleasure to work with him at this level. Our work at
the State level was to pass resolutions in favor of recognition
of the Little Shell Tribe. Those resolutions passed, if my
memory serves me correct, by a resounding vote. There is good
support within the State government.
And just to dovetail on what folks have been saying around
the table today, I think John feels a certain amount of
frustration with being caught up in the process. And they have
waited for a long time and they have done the work at their
end. Hopefully, he will, and I am sure he will tell that story,
and hopefully this Committee hearing will end up in some
decisions being made by the Department of Interior. Because
quite honestly, I don't mind a bit carrying the legislation
through the Senate. But the fact is, it really shouldn't have
to come to that.
So I want to welcome John to Washington, D.C. and to this
Committee, and we look forward to your comments, John.
The Chairman. You may proceed, Mr. Sinclair.
STATEMENT OF HON. JOHN SINCLAIR, PRESIDENT, THE LITTLE SHELL
TRIBE OF CHIPPEWA INDIANS OF MONTANA
Mr. Sinclair. Thank you. Chairman Dorgan, Vice Chairman
Murkowski and honorable members of the Senate Committee on
Indian Affairs, I thank you for the opportunity to testify this
morning.
To my good friend, Jon Tester, I thank you for your
tireless efforts on behalf of the Little Shell Tribe.
My name is John Sinclair, and I am the President of the
Little Shell Tribe of Chippewa Indians of Montana. Like my
father and grandfather before me, I have had the honor the
serve as President of the Little Shell. I am here today to
share with you our experience with the Federal acknowledgement
process, or FAP.
We have a long history with the U.S. Government. My written
testimony goes into more detail, but I want to note that my
tribe, which is sometimes referred to as the Landless Indians,
or Trash Can Indians, has been the subject of Federal
legislation since the early 1900s. We sought recognition from
the Federal Government for decades, filing a letter petitioning
for Federal acknowledgement in April, 1978.
This date, almost 30 years ago, represents more than a
generation. Our efforts to achieve recognition through the BIAs
administrative process predate the enactment of the Indian
Gaming Regulatory Act, and in fact, predate the birth date of
some of the people in this room. We have worked hard to play by
the recognition rules, and up to this point have been
successful. We have submitted tens of thousands of documents to
the BIA. Each of these documents was submitted to satisfy the
seven mandatory criteria. Because we are a very poor tribe, we
have had to rely on pro bono help of others to amass these
documents.
In 2000, the Department of Interior proposed to acknowledge
the Tribe. Interior found that we had satisfied each one of the
criteria. So you might ask, why are we seeking Federal
legislation when we are so far along in the process? The answer
is simple: we don't trust the Federal Government to see that
everyone else can see that we are now a tribe and have always
been a tribe.
Kevin Gover, the Assistant Secretary of Indian Affairs, who
concluded that we satisfied BIA's criteria, said that Little
Shell's was somewhat different from the previous
acknowledgements. The difference was in the weight given to
various types of evidence. He concluded that taken together,
the evidence as a whole showed that Little Shell is a tribe. He
acknowledged that more documentation could be helpful, but he
said, ``To rigidly impose a mechanistic burden of proof on a
people whose lack of formal organization is attributable to
misguided Federal policy would be manifestly unjust and
inconsistent with the regulations.'' In our case, I think this
means that BIA should not be rigid in always requiring
extensive documentation. Our history is that of a buffalo-
hunting society, and the Government's own policies worked
against us.
We weren't worried about keeping records when we were
living in tar paper shacks and eating out of garbage piles. But
this kind of mechanistic burden of proof is what we and many
tribes have labored under. We have worked for years, submitted
tens of thousands of pages of documentary evidence, received a
proposed favorable finding, concluding that we had enough
evidence to prove we are a tribe, submitted thousands more
pages of reports and appendices, supported by boxes of
documents. And still, the Office of Federal Acknowledgement is
not done.
Others already recognize us as a tribe. Our Congressional
delegation supports our recognition. Montana State and local
governments support us. The Turtle Mountain Band of Chippewa
Indians in North Dakota and federally recognized tribes in
Montana support us. We are the only non-federally recognized
tribe that has been invited to sit on the Montana-Wyoming
Tribal Leaders Council, and the Council of Large Land-Based
Tribes.
Shouldn't the fact that others recognize us as a tribe be
persuasive? The administrative process is terribly burdensome
and expensive, and it provides no guarantee of success. We know
that in this Administration, there is at least one instance in
which the BIA withdrew Federal recognition to a tribe even
after it had issued formal final determination recognizing that
tribe.
In short, we are concerned that BIA has forgotten that
different tribes have different kinds of histories. A cookie-
cutter approach to the seven mandatory criteria doesn't work.
Those criteria often can't be met when historically, it was
others, often hostile, who created and kept the documentary
evidence of our existence.
In 30 years, the Department of Interior has collected tens
of thousands of documents. But it has not yet finally concluded
that we are a tribe. We urge you to help us by enacting
legislation that will force this paper chase to come to an end
and bring justice to our people.
In closing, you may think that a glacially slow process is
a fair price to pay for the return to recognition. But with
delay comes a terrible human cost. Let me share a story about
those costs. You may have read this story in the press, and I'm
sorry I have not shared it with you first. This story has many
details that I would like to share with you, but because the
time is short, let me just say this.
There were three Little Shell children that were taken away
from their mother. She was not healthy and could not provide
for them. These three children were placed in a non-Native
family, but that family was an unfit foster home. These
children were badly abused, the foster mother made one little
girl, two and a half year old Tamisa, put her hands in boiling
hot squash. The two older girls were abused, both mentally and
physically.
This story had no happy ending. Tamisa, the two and a half
year old baby, was beaten to death. She had injuries all over
and inside her body. This happened to our people because we had
no Federal support. We didn't have a Federal right to know
where the children were and we had no tribal infrastructure to
deal with such problems. We lost that baby and so many others
because we could not provide for our people as a federally
recognized tribe.
Thank you for your time.
[The prepared statement of Mr. Sinclair follows:]
Prepared Statement of Hon. John Sinclair, President, The Little Shell
Tribe of Chippewa Indians of Montana
Chairman Dorgan, Vice Chairman Murkowski, and honorable members of
the Senate Committee on Indian Affairs, I thank you for the opportunity
to testify this morning. To our good friend and strong advocate Senator
Jon Tester, I thank you for your tireless efforts on behalf of the
Little Shell Tribe.
My name is John Sinclair, and I am the President of the Little
Shell Tribe. Following in the footsteps of my father and grandfather, I
have had the honor to serve as President of my Tribe for the past 4
years. I am here today to share with you our history with the Federal
Government, our experience with the Federal Acknowledgment Process
(FAP) and our request that this honorable body act to ensure Federal
recognition for my people. The recognition for which we ask you today
has been promised to us for more than seventy years. The following 1935
letter from the Department of the Interior from which I quote below is
just one piece of a large volume of documentation reflecting the
Federal Government's long, but as of yet unsuccessful, efforts to
provide official recognition and a land base for the Little Shell
people:
This [letter] acknowledges your letter of January 28, [1935]
written in behalf of landless Indians in northern Montana and
suggesting that a certain tract of land be set aside for their
use.
This Office [the Lands Division for Indian Affairs] in general
and the commissioner [John Collier] in particular are
thoroughly cognizant of the unfortunate situation in which
these landless Indians find themselves. To no other groups of
Indians is so much constructive thought and persistent effort
being directed, for it is fully realized that theirs is the
greatest need.
Also it is most heartening to read in your letter your
forthright assurance that, once lands are placed to your use,
you will be proud to make good.
All government enterprises move slowly in spite of the best of
intentions, but it is hoped and believed that in the not too
distant future a satisfactory plan will be consummated for
landless Indians in general, including, of course, the group to
which you belong.
Letter to Joseph H. Dussome from J.N. Stewart, Chief, Land
Division, Indian Affairs, Department of the Interior (March 2, 1935)
(emphasis added).
Federal recognition for our Tribe enjoys long-standing broad, bi-
partisan support. Identical legislation to recognize the Little Shell
Tribe has been introduced this Congress by Senators Tester and Baucus
in the Senate (S. 724) and by Congressman Rehberg in the House (H.R.
1301). Tribes in Montana and our cousins the Turtle Mountain Band of
Chippewa Indians in North Dakota, have expressed their support of our
Federal recognition.
Governor Schweitzer and the Montana State Legislature, by Joint
Resolution, have expressed their support for our Federal recognition.
Hill, Cascade, Glacier and Blaine County as well as the city of Great
Falls, the local governments most directly impacted by our recognition,
have expressed their support of legislation to recognize the Little
Shell Tribe. In fact, over the past year the State of Montana has
provided us land from which we can provide essential governmental
services--something the Federal Government had promised to do
throughout the twentieth century but has yet to succeed in doing.
The Department of the Interior has issued a proposed finding in
favor of Federal recognition for our Tribe. Within the next year, we
anticipate that the Department of the Interior could issue a final
determination as to whether to recognize our Tribe. On the surface, it
may seem odd that we would seek Federal legislation when we appear to
be so far along in the administrative process. The answer is simple.
First, as leader of the Little Shell Tribe, I cannot in good conscience
let another day go by without doing everything in my power to secure
recognition that has been wrongfully withheld. Every day that passes
has real life consequences for my people, consequences that never make
the headlines in Washington, D.C.--tribal members denied the most basic
health care services, a tribal government without a federally secured
land base or Federal funding to provide and maintain essential
governmental services.
Second, the Department has acted on our petition in a unique
manner. The Department concluded in its proposed favorable finding that
we are a Tribe, but it ``encouraged'' us to submit more documentation.
Basically, the Department found that the available evidence supported
its findings on each of the criteria, that no evidence was submitted in
opposition to the particular finding, but that the Department would
prefer to have additional records for certain time periods before the
1930's. We took the Department's suggestions to heart, submitting
approximately 1,000 pages of additional reports and appendices
supported by several boxes of documentation.
We are therefore in a situation where the Department essentially
stated in 2000 that it believes we are a tribe but that without
additional documentation it could walk away from its favorable finding.
Concerned with its application of the regulations to our Tribe, the
Department expressly invited comment on the consistency of the proposed
finding with the existing regulations. To the best of our knowledge,
not a single recognized tribe or state governmental entity commented on
or objected to the Department's proposed favorable finding as
inconsistent with the regulations. We now find ourselves in an
uncertain situation where we fear that the Department may reverse its
finding even though we have submitted thousands of pages of additional
evidence and neither the State, its local governments nor other
federally recognized tribes have submitted evidence to the contrary or
objected to the Department's proposed favorable finding.
Third, our legislation does more than simply confirm Federal
recognition. It addresses many of the issues newly recognized tribes
and local communities struggle with for decades after formal Federal
recognition--the establishment of a land base, a tribal service area
and certainty that our recognition will not be revoked. It is well
documented that it takes years and sometimes more than a decade for the
Department of the Interior to take land into trust for newly recognized
tribes. For example, it took 8 years after the Jena Band of Choctaw
Tribe was recognized before Interior took that Tribe's cemetery and
governmental offices into trust. Some of this delay is due in part to
the application of the National Environmental Policy Act to these
acquisitions. Further, many tribes suffer from the years it takes for
the Department to establish a service area for the newly recognized
tribe. For example, after completion of administrative challenges to
the Department's final determination acknowledging the Cowlitz Indian
Tribe in 2002, the Cowlitz Tribe still does not have a BIA-designated
service area. Thus, we know that even if Interior issues a decision
within the year, the Tribe could be forced to endure many additional
years in legal limbo as it struggles to establish a land base and
service area.
Although the State of Montana, the federally recognized tribes
within Montana and local governments support our recognition, it is
becoming increasingly common for parties to challenge the Department's
acknowledgment decisions. And most recently, the Department reversed
its decision to acknowledge a tribe because of such a challenge. While
we do not expect a challenge from a governmental entity within the
State of Montana, we cannot say with certainty that a decision by
Interior to acknowledge our Tribe will not be challenged. Such
challenges typically take years to resolve. Thus, we believe that
legislation makes sense even if Interior is on track to issue a
decision within a year. The legislation reflects the desires of the
Tribe, the State and the local governments most directly impacted by
our recognition. That is why we seek legislative recognition.
I. Our History With the Federal Government
My Tribe, historically often referred to as the ``landless
Indians,'' has been the subject of Federal legislation since the early
1900's. The Little Shell Band is the successor in interest to the
Pembina Band of Chippewa Indians in North Dakota. We were buffalo
hunters who lived and hunted around the Red River and the Turtle
Mountains in North Dakota in the early 1800's. The Pembina Band was
recognized by the United States in an 1863 Treaty ratified by the
Senate. This treaty gave the United States possession of the section of
our lands near the Red River. After that treaty, while some members of
the Pembina Band settled on reservations in Minnesota others followed
the buffalo herds into western North Dakota and Montana, eventually
settling in Montana and in the Turtle Mountains of North Dakota.
In 1890, the United States authorized the creation of a commission
to negotiate for a cession of land from the Turtle Mountain Chippewa
and provide for their removal. Chief Little Shell and his followers
walked out on the negotiations and refused to accept the terms of the
eventual agreement. In the years that followed the 1892 Agreement, some
of Little Shell's followers moved to Montana and joined with other
members of the Pembina Band that had settled in Montana. After their
traditional livelihood came to an end with the disappearance of the
buffalo, Little Shell people were left to barely eke out an existence
in a number of shantytowns across Montana, competing with both local
reservation Indians and white settlers for resources. The Little Shell
became known as the ``landless Indians'' of Montana. Like many American
Indian people, we faced severe racism and discrimination throughout
Montana, some of which continues today.
A. Congressional Efforts to Assist the Little Shell Band 1900-1920
Congress began appropriating money to buy land for the landless
Little Shell as early as 1914, when it set aside funds to be used for
``support and civilization of Rocky Boy's Band of Chippewas, and other
indigent and homeless Indians in the State of Montana[.]'' 38 Stat. L.
582. Every year thereafter until 1925, Congress consistently
appropriated funds for the Rocky Boy's Band and the ``homeless Indians
in the State of Montana.'' Nearly simultaneously, in 1916, Congress
enacted legislation establishing a ``reservation for Rocky Boy's Band
of Chippewas and such other homeless Indians in the State of Montana as
the Secretary of the Interior may see fit to locate thereon . . ..''
Shortly after the reservation was set aside, the Department established
a tentative roll of the Indians of the reservation. The initial list
consisted of 657 individuals. In preparing the final roll, Interior
eliminated 206 applicants from the list. The Indian Inspector reported
that he had ``given first consideration to the needs of the older and
homeless Indians, without means of support.'' Department of the
Interior, Proposed Finding for the Little Shell Tribe of Chippewa
Indians of Montana, Technical Report (``Technical Report'') at 86. Shut
out by the Department, Little Shell members were forced to subsist on
vacant lands in north-central and north-western Montana.
B. The Little Shell Band's Repeated Pleas for Assistance: 1920-1934
Newspaper articles of the 1920s chronicled the plight of our
ancestors. Newspapers in the Great Falls area reported the City's
failed attempts to remove ``the Indians who have been long encamped''
on the edge of town. Technical Report at 90. In December 1931, Little
Shell Tribe/Homeless Indians leader Joseph Dussome explained to the
Commissioner of Indian Affairs that the landless Indians of Montana
lived on the ``dump piles of our Towns . . . going to the back allies,
digging down the swill barrels for their daily bread.'' Mr. Dussome
pleaded for help, stating ``that a great injustice has been done to my
fellow Chippewa and Cree Indians of Northern Montana. Are we not
entitled to a Reservation and allotments of land in our own Country,
just the same as other Indians are[?]''
Less than 2 weeks after receiving Dussome's plea for assistance,
Interior responded that because we had refused to sign a Treaty and had
removed from the land in North Dakota, we did not retain rights to land
at Turtle Mountain:
The Indians referred to are Chippewas of the Turtle Mountain
Band. They were under the leadership of Little Shell who became
dissatisfied with the treaties of the United States and the
Turtle Mountain Band of Chippewas. He accordingly refused to
accede thereto . . .. The disaffected band, by its failure to
accede to the terms of the treaty and remove to the reservation
is now unable to obtain any rights thereon for the reason that
the lands of this band are all disposed of, and the rolls
became final[.] . . . There is now no law which will authorize
the enrollment of any of those people with the Turtle Mountain
band for the purposes of permitting them to obtain either land
or money.
The Little Shell Tribe thus remained homeless.
C. Interior's Efforts to Establish a Reservation and Reorganize our
People Under the Indian Reorganization Act
Reflecting the significant shift in modern Federal Indian policy, 3
years after Interior's rejection of Dussome's plea, Congress sought to
remedy situations such as ours through the enactment of the Indian
Reorganization Act (IRA) in 1934. We had continued our pursuit of a
tribal land base by meeting with Interior Department officials shortly
before the passage of the IRA. During one trip, tribal leader Dussome
impressed upon the Commissioner of Indian Affairs the dire straits of
our people. This trip, combined with passage of the IRA, triggered a
flurry of activity by the Department to acquire lands for the Little
Shell. Initially, Interior officials in Washington, D.C. pursued lands
near the Ft. Belknap Reservation, stating:
The Office [of Indian Affairs] referred to certain plans to
purchase tracts of land in Montana which could be set aside for
the use of the Chippewa Indians, special mention being made of
a project to acquire ``some 20,000 acres near the Fort Belknap
reservation.'' Plans for the use of this area do not in any
sense contemplate the mixing of the Chippewa Indians with those
now on the Fort Belknap reservation. The area under negotiation
is not part of the Fort Belknap reservation and justification
for its purchase is not based on the needs of the Fort Belknap
Indians. If it is purchased it will be available for the use of
the Chippewa Indians exclusively[.]
Plans for settling the Little Shell Band on the parcel near Ft.
Belknap were abandoned by the Department based on the belief that our
ancestors were not willing to settle on that land.
In the mid 1930s, the Department expended considerable effort to
acquire land near the Rocky Boy's Reservation for our people. Assistant
Commissioner Zimmerman explained that the land could be established as
a new reservation for the landless Indians or added to the Rocky Boy's
Reservation. Although original estimates suggested that the acquisition
would be sufficient for approximately 100 families, the Department
ultimately concluded that the purchased land could only accommodate 25
families.
The conclusion that the parcel near the Rocky Boy's Reservation was
insufficient to meet existing needs did not deter the Department from
its efforts to find land for the Little Shell. Interior officials
underscored the Department's determination to secure a land base for
our people, explaining:
The landless Indians whom we are proposing to enroll and settle
on newly purchased land belong to this same stock, and their
history in recent years is but a continuation of the history of
wandering and starvation which formerly the Rocky Boy's band
had endured.
Out of the land purchase funds authorized by the Indian
Reorganization Act, we are now purchasing about 34,000 acres
for the settlement of these Indians and also to provide
irrigated hay land for the Indians now enrolled on Rocky Boy's
Reservation. The new land, if devoted wholly to that purpose,
would take care of only a fraction of the homeless Indians, but
it is our intention to continue this program through the years
until something like adequate subsistence is provided for those
who cannot provide for themselves. . . . The fact of these
people being Indian and being entitled to the benefits intended
by Congress has not been questioned.
The Department realized that although ``it would be highly
desirable to secure a single area or reservation which would meet the
needs of all the Chippewa Indians of Montana . . . this seems to be
impossible at this time . . . [and] the Indians must adjust their plans
to take advantage of the best that we can secure for them.'' Reflecting
this sentiment, during this time period, the Bureau of Indian Affairs
acquired a 42-acre tract of land near Great Falls, Montana. The land
was acquired for the benefit of landless Indians located in the
vicinity of Great Falls. Although Little Shell members were ready to
move to the parcel, Interior explained that ``[l]ocal public opinion
forced the abandonment of the project. Local residents of the vicinity
did not wish the Indians as their neighbors.'' In 1950, Congress
enacted legislation providing for the sale of those lands. P.L. 714,
81st Congress, 2d Session, August 18, 1950.
D. The Roe Cloud Roll--The Department of the Interior Prepares an
Indian Roll to Facilitate Organization Under the IRA
In addition to its efforts to secure a reservation near the Rocky
Boy's Reservation, Interior took steps to prepare a detailed census of
our people who were one-half or more Indian blood. In December 1935,
the Commissioner of Indian Affairs submitted a proposed form of
enrollment under the IRA. The Commissioner explained that the form was
modeled upon a number of other tribal enrollment forms. In his
memorandum seeking approval, the Commissioner emphasized the plight of
the Little Shell people, stating:
It is very important that the enrollment of homeless Indians in
the State of Montana be instituted immediately, and it is
proposed to use this form in the determination of Indians who
are entitled to the benefits of the Indian Reorganization Act.
This enrollment process resulted in the Roe Cloud Roll, named after
Dr. Henry Roe Cloud, an Interior official who played a large part in
the enrollment project. Leaders of the Little Shell Tribe provided
invaluable assistance to the enrollment project. As one Indian Affairs
official explained, Joseph Dussome's ``services were indispensable in
identifying the Indians and in advising us where to locate them.''
Our current members are generally the descendents of Indians who
were either on the Roe Cloud Roll or immediate kin to someone on the
roll. The Roe Cloud Roll is important for a number of reasons,
including that it is a Federal document certifying our ancestors as
being one-half or more Indian blood and it reflects the efforts and
intentions of the Department to provide for the reorganization of our
Tribe. These efforts were taken to reverse the destructive Federal
policies of previous decades.
E. State and Federal Efforts to Secure Federal Recognition for Our
People: 1940-1950
As Interior moved forward on the enrollment project, its progress
in acquiring lands for the Little Shell slowed largely because of the
lack of Federal appropriations to acquire land. In other words, had
appropriations been sufficient to acquire land, it appears that both
the Department and the State of Montana strongly supported
establishment of a reservation for our people. Had a reservation been
established, we would be recognized today.
Records from this time period provide ample evidence that the lack
of appropriations prevented our recognition. For example:
Assistant Commissioner Zimmerman explained to Senator Murray
in 1940, ``[t]he Indian Office is keenly aware of the pressing
need of the landless Chippewa Cree Indians of Montana. The
problem thus far has been dealt with only in a very small way.
I sincerely hope that additional funds will be provided for
future purchases in order that the larger problem remaining can
be dealt with in a more adequate manner.'' May 13, 1940 Letter
from Assistant Commissioner Zimmerman to Senator James E.
Murray.
In 1941, the Montana State Senate and House highlighted our
plight of ``living in makeshift dwellings on the outskirts of
our various Montana Cities'' and sent a Joint Memorial to the
U.S. Congress urging the Congress ``to immediately enact
appropriate legislation to create an Indian Reservation for all
Montana landless Indians.''
In response to the local Superintendent's request for funds
so that tribal leader Dussome could travel to Washington to
advocate for the purchase of land, Commissioner John Collier
(largely credited as the architect of the IRA) explained:
[Our] Office, as you know, has been sympathetic toward the
desires of these people to secure land upon which they could
settle and build homes. Unfortunately appropriations have not
been sufficient to permit us to do much in the way of
rehabilitating this group upon newly acquired lands. Various
Members of the Congressional delegation from Montana have been
interested in the condition of these people . . . [l]ittle can
be accomplished by the Indian Office until funds have been made
available by Congress for their rehabilitation[.]
That same year, Assistant Commissioner Zimmerman underscored
the Department's dilemma--that it desperately wanted to assist
our people but that it could not do so because of a lack of
appropriations.
We have on several occasions studied this problem and can
see no way in which any solution can be arrived at without
specific, adequate appropriations. There are more than 500
families in the State without resources of any kind, who have
no equity in any reservation, and who constitute a serious
social problem. Essential to any scheme of self-support for
them is an adequate land base. . . . To provide necessary land
for this number of families would require a million dollars, in
addition to some lands now part of the public domain. Another
million would be required for loans and grants for cattle
purchases, machinery, homes, and farm buildings. . . .
We are ready to undertake this task if the Congress is
willing to provide the necessary funds. . . . The project is
perfectly feasible; the Indians undoubtedly are in great need;
they deserve some effort on the part of the Federal Government.
We shall be happy to cooperate in any way.
Responding to a petition requesting that a nearby ranch be
purchased for our benefit, the Office of Indian Affairs
explained their predicament to Joseph Dussome:
As mentioned in prior correspondence there are no funds
available with which to enter into a land purchase program for
the benefit of the landless Indians of Montana. We fully
appreciate the land needs of these Indians, and it is our
desire to aid them at the first opportunity. As stated before,
such action will be dependent upon the availability of funds. .
. . As previously intimated, a large sum will be necessary to
take care of the land needs of the group in which you are
interested, and until such time as Congress appropriates the
necessary funds for this purpose, we will be able to do very
little.
In 1949, the Department reiterated its desire to assist my
people and its inability to establish a land base because of
the lack of appropriations. In a letter to Representative Mike
Mansfield, Acting Commissioner William Zimmerman explained:
Receipt is acknowledged of your letter of February 1,
enclosing one from Hon. John W. Bonner, Governor of Montana,
concerning the landless Indians of Montana with particular
reference to their destitution and need for rehabilitation.
Our files contain considerable correspondence concerning
the needs of these Indians and suggested plans for their
rehabilitation, but due to lack of funds this office has been
unable to do very much to relieve the situation. . . . Before
anything can be done for the relief of these Indians, it will
be necessary for Congress to appropriate adequate funds for
that purpose.
In 1940, a tribal representative of the Little Shell Tribe
perfectly summarized the quandary of the Tribe, stating:
[Assistant Commissioner] Zimmerman . . . told us that we
couldn't have any allocation or organization or corporate
charter under this act until we have land. He said ``we haven't
got money to buy land and appropriations have been drastically
cut from year to year and there is nothing we can do.'' Summing
up our negotiations with the Interior Department we come to
this conclusion: First, we are entitled to rights as an Indian
but as to forming an organization, borrowing from the revolving
loan, we must first have a charter. We can't get a charter
unless we have land. We can't have land because the Indian
Office is broke . . .
Because adequate funds were never appropriated to acquire land for
my people, the Tribe continued to struggle over the decades that
followed to satisfy the basic needs of our members. As you know, in the
late 1970s the Department of the Interior formulated an administrative
process. Because we are in the final stages of that process, I do not
feel it is in the best interest of my Tribe to criticize the process or
the Department. I will, however, provide a few general observations
regarding our petition for acknowledgment.
II. Our Experience With the Administrative Process
We originally filed a letter petitioning for Federal acknowledgment
on April 28, 1978, almost 6 months before Interior's administrative
process for acknowledgment was created. The process has proved to be
extremely resource intensive. I believe that the lack of available
resources greatly hinders both the tribes in the process and the
Department.
Over the past 29 years, we have been fortunate to receive the
services of the Native American Rights Fund. Without their assistance,
it's unfathomable that we could have found the funds necessary to
retain legal counsel and consultants for this extended period of time.
Over the past 15 years, NARF has spent over 3,400 attorney hours on our
administrative petition. Consultants and graduate students put in
thousands and thousands of additional hours. Tribal consultants, such
as historians, genealogists and graduate students, donated substantial
amounts of time pro bono or worked at substantially reduced rates in
compiling large portions of the petition. Even with this generosity,
however, the total cost for consultants and associated expenses over
the last fifteen years exceeds $1 million dollars. Literally tens-of-
thousands of documents have been provided with regard to our petition.
The lengthy process also inflicts an immeasurable human cost,
wherein the acknowledgement torch is passed from one generation to
another. The task of securing professionals to assist us with our
petition and the collection of documents from repositories across the
United States, Canada and England is itself demanding, but it pales in
comparison to the demands of providing for my people without the
protection of Federal recognition, without a land base. And our current
status impacts the prospects for our future generations. Moreover, it
is heartbreaking to consider the idea that after nearly 30 years in the
administrative process, in the politically charged atmosphere of
Washington, D.C., the Department could reverse its proposed favorable
finding and decide not confer Federal acknowledgment.
Our tribal status is well documented. Interior's proposed finding
documents include a 234 page technical report that provides evidence to
satisfy each of Interior's mandatory criteria. Interior expressly
concluded that each of the mandatory criteria were satisfied,
requesting the Tribe to search for additional evidence to supplement
the evidence that already exists. We have submitted additional
documentation, as requested by the Department. Notably, we have
provided additional documentation to demonstrate that 94.4 percent of
our members descend from a historic tribe. In all, we estimate that we
have submitted thousands of pages of additional documentation for our
petition.
One criterion that the Congress may wish to consider for
modification is criterion (a)--since 1900, identification of a Tribe by
external sources. Although we clearly satisfy this factor (as the
Department concluded in its proposed finding), we submit that it is
nonsensical that a petitioner could satisfy all of the other criteria,
thus demonstrating that it is a Tribe, and yet potentially fail to be
recognized simply because a non-Indian never documented the Tribe in
the early 1900s or that documentation no longer exists.
III. This Honorable Body Should Act to Recognize the Little Shell Tribe
I respectfully implore this honorable Committee to act favorably on
the legislation introduced by Senators Tester and Baucus to confirm our
Federal recognition. I submit that this Congress should complete the
efforts of previous Congresses to secure to us a fraction of the Indian
lands lost by our people over time. Congress undertook this honorable
effort in the 1910s and 1920s, appropriating money for the purchase of
land for our ancestors but, as Interior officials acknowledged, it was
woefully inadequate to meet our desperate needs. In the 1930s and
1940s, the Department of the Interior made substantial efforts to
enroll our ancestors and acquire land for us, but Congress never
appropriated the funds necessary to secure a land base for us. This
Congress has an opportunity to finish what it started by acting on our
pending legislation. Legislation that will cost the public very little,
but will be a giant first step in putting our Tribe on an equal footing
with our sister Tribes.
From time to time, representatives in this honorable institution
have rightly questioned Congress' ability to determine whether a
particular group constitutes an Indian tribe. I submit that this
Congress has a more than ample record on which to enact this
legislation. In addition to the tens of thousands of records held by
the Department in connection with our Petition, the Congress has a long
legislative record of acting for our benefit. Congress also has a
history of enacting similar legislation. In recent history, Congress
enacted such legislation for tribes like the Little Traverse Bay Band
and the Little River Band--Tribes for whom Department attempted to
recognize in the 1930s but because of the lack of appropriations
recognition was never completed. And unlike other tribes acknowledged
by Federal legislation, here the Congress can rely upon the Department
of the Interior's proposed favorable finding to recognize our Tribe.
Our strong historical record is reinforced by the fact that our
recognition is not politically controversial in the State of Montana.
Our Congressional delegation supports this legislation. Montana's State
and local governments support our recognition. And in addition to the
Turtle Mountain Band of Chippewa Indians, every federally recognized
Tribe in the State of Montana supports our recognition. Indeed, we are
the only non-federally recognized tribe included in two significant
inter-tribal organizations--the Montana-Wyoming Tribal Leaders Council
and the Council of Large Land Based Tribes. Area tribes recognize our
legitimacy. Indeed, we know of no opposition to this legislation by any
recognized governmental entity within the State.
As I've previously mentioned, Senator Tester and Baucus'
legislation resolves more issues than our recognition. The legislation
also addresses issues that often present significant challenges to
tribes and local communities after a tribe is recognized through the
acknowledgment process. This legislation provides certainty to all
interested parties regarding land acquisition and establishes a service
area in which the Tribal members can immediately begin to receive long
over-due Federal services. And finally, the bill provides the certainty
of Federal acknowledgment. While we fully expect to the Department to
affirm it favorable finding--particularly since to the best of our
knowledge no party has submitted a single historical record that would
undermine Interior's previous finding--such certainty is understandably
important. For almost 100 years we have relied on the Federal
Government's promises to take the steps necessary recognize our
government and secure a home for our people. We often get so very close
and then something goes awry. This legislation is your opportunity to
ensure that previous mistakes are not repeated.
Every day that passes has concrete impacts on the Tribe. For
example, even though we are eligible for Indian Health Care services,
for several years now over 1,200 Little Shell members have been taken
off of the Indian Health Service rolls because they were not on the
original roll the Little Shell Tribe presented to the Bureau of Indian
Affairs in 1989. Many of these members were not even born at the time
of the original roll or are not on the rolls because of clerical
oversight. Federal recognition would alleviate this situation and
ensure that all of our tribal members receive necessary health
services.
IV. Conclusion
I greatly appreciate the opportunity to provide this Committee with
an overview of our history, our experience with the Federal
Acknowledgement Process, and why this honorable Committee should
favorably report S. 724 out of Committee. I am happy to answer any
questions from the Committee.
The Chairman. Chairman Sinclair, thank you very much for
your testimony. I understand the passion and the emotion and I
very much appreciate your being here today on behalf of your
tribe.
Next we will hear from Chairperson Ann Tucker, from the
Muscogee Nation of Florida in Bruce, Florida. Chairperson
Tucker, thank you for being here.
STATEMENT OF HON. ANN DENSON TUCKER, CHAIRWOMAN, MUSCOGEE
NATION OF FLORIDA
Ms. Tucker. Chairman Dorgan, Vice Chairwoman Murkowski,
members of the Committee, I am Chairwoman Ann Denson Tucker of
the Muscogee Nation of Florida. I am honored to represent my
tribal government and my people on the subject of Federal
recognition.
As Petitioner Number 32 in the Office of Federal
Acknowledgment, we now have the dubious distinction of being
one of the three oldest petitioners. We have seen many things.
This year marks 60 years since the longest serving community
leader, my great grandfather, wrote to the BIA and explained
that our people should share in land claim settlements under
the Treaty of Fort Jackson. The BIA's written response: well,
you are mistaken, you cannot possibly be who you say you are,
because the members of that tribe are either dead or removed.
Ten years later, the BIA admitted they were wrong. But it
took until 1971 to receive a notice of settlement. By then, my
great-grandfather had been dead for 2 years. Telling you this
today is important, because in 1852, State law made it illegal
to be an Indian living freely in the State of Florida. So the
settlement letter was our mechanism to confirm our racial
identification in a place where Jim Crow laws had forced us to
become either white or black. Indian wasn't allowed where we
lived. And I guess today that would be called ethnic cleansing.
We continued with a petition submitted in the mid to late
1970s. That was returned because the rules had been restated.
And we started again.
But in our case, this Federal recognition is not only about
self-determination. It is about our very survival as a
community of Indian people. My tribe has the same desperate
needs that it had 30 years ago. Little has changed in this
respect. But the urban sprawl of the Gulf of Mexico coastline
has pushed newcomers into the rural interior, and that
seriously threatens our community's integrity. It has come at
us from all sides, and we are running out of time.
We cannot afford property taxes that come with coastal
subdivisions. It is a way of life that we have never had to be
a part of. So in our world, we worry about where are we
supposed to remove to this time, when we are priced out of our
home land and still waiting for an answer from the OFA.
Time, a lack of money, new precedents, urban sprawl,
inaction when this process first needed fixing, these are our
enemies. It is our understanding that you want to know why our
tribe came to this Committee with legislation. We are here
because no American, particularly the first Americans, should
have to wait across generations to be recognized. We are a poor
community. We have no more resources to battle the OFA. There
are no grants that pay for recognition. There is no
grandfathering in. Old tribes must follow current regulations
without regard to what the regulations were when we started.
There is little to no staff assistance, no written
communication. Our universe becomes 100 years of 10 year
increments, scanned and digitized, sorted 4 ways and subject to
interpretation by people who have never left their office to
understand the nature of our community. For them, our world is
a paper trail put together by highly educated and expensive
professionals. But that is not our world. We have buried two
generations of people waiting for self-determination. I would
like to not have to bury the last survivors of the third
generation. They are in their 80s.
So I am here. I have traveled from Bruce, Florida to tell
you that we are a 150 year old community of this Country's
indigenous people and we are still waiting for justice. Our
quality of life matters. The preservation of our culture and
our tradition matters. Righting a 150 year old wrong matters,
and it matters now. It doesn't matter 10 years from now when a
limping agency can maybe make a decision that may or may not be
just and may or may not be reversed.
We are here because we are an Indian government. We are a
people who have managed to survive Andrew Jackson as a
territorial Governor. We have survived Indian removal and
genocide, the Civil War, the Jim Crow laws, and a battle to
prove that we were not eradicated, we still exist. These things
we have faced and survived for 150 years as an Indian
community. But if we cannot get resolutions to problems
inherent in the OFA process, we honestly do not believe that
our tribal population will survive Federal recognition.
From the age of four, when I remember my first council
meeting, it was taught to me that Congress is where tribal
governments go to seek relief for their people. It is as you
said, Chairman Dorgan, you can delegate authority, but you
cannot delegate responsibility. On behalf of the tribal
government and the people of the Muscogee Nation of Florida,
thank you for allowing our voice to be heard today.
[The prepared statement of Ms. Tucker follows:]
Prepared Statement of Hon. Ann Denson Tucker, Chairwoman, Muscogee
Nation of Florida
I. Introduction
Chairman Dorgan, honorable Committee Members, my name is Ann Denson
Tucker. I am Chairwoman of the Muscogee Nation of Florida, the Florida
Tribe of Eastern Creek Indians. I am honored to be here representing my
Tribe and my people to testify about my Tribe's experience with the
Federal recognition process.
My Tribe needs and deserves Federal recognition, and we appreciate
this Committee's interest in reviewing the flaws in the Bureau of
Indian Affair's (BIA) current recognition procedures.
My Tribe is not just another victim of the recognition
bureaucracy--Petitioner Number 32 in the Office of Federal
Acknowledgement--we are also the second oldest. We have been trapped in
the BIA recognition system since the mid-70s. After filing multiple
Petitions and surviving a number of rule changes over 25 years, we were
finally classified as ``Ready, Waiting for Active Consideration.'' That
was 4 years ago. We are still on the list, without any indication of
when the BIA will act on our Petition. All told, we have been trapped
in BIA's bureaucracy for over 30 years and we have nothing but expense
and frustration to show for it.
My Tribe has exhausted its resources. It can no longer pursue or
respond to the BIA's failed process--a process that requires applicants
to re-do and re-file papers and studies and to comply with rules,
regulations, and interpretations that did not exist when our initial
application was made--a process whose pace can be characterized, at
best, as glacial or, perhaps, as no pace at all. My Tribe has worked,
waited, struggled, and sacrificed in this process for over 30 years. At
every turn, we have learned that the BIA tribal recognition process is
enormously burdensome, confusing and unfair. The recognition process
represents a clear failure of the Federal Government's trust
responsibility to Indian Tribes and should be addressed by Congress.
II. Background on the Muscogee Nation of Florida
The Muscogee Nation of Florida, also known as the Florida Tribe of
Eastern Creek Indians, is a Tribe of Creek Indian people whose home is
centered in Bruce, in Walton County, Florida. Our ancestors were one of
the Tribes that made up the Historic Creek Confederacy, and were
signatories to the 11 treaties with the United States between 1790 and
1833 that led to the Creeks forced removal from their traditional
homelands. In response to attempts to remove our community, our
ancestral tribal leaders left their Indian enclave in Daleville,
Alabama and followed the Choctawhatchee River south to Bruce Creek,
where they re-established our community, traditions and homes. Since
that time--150 years ago--my Tribe has lived, fished, hunted, farmed
cooperatively, raised cattle, and practiced our traditional ceremonies
on this land as a community and as a distinct cultural, social and
political unit.
By the time we migrated from Daleville to Bruce, Jim Crow laws had
been enacted in Florida. By 1850 it was illegal to trade with Indians.
And in 1852, it became illegal--under penalty of death--for Indians to
be ``Indian,'' unless the Indian was confined to a Reservation. Under
the general outlawing of Indians, people could be white or ``colored,''
but could not be openly Indian. Because my Tribe had no formal
reservation, the Jim Crow laws made it nearly impossible for us to
openly embrace our cultural heritage and community. We survived until
the Jim Crow laws were repealed only by cooperatively maintaining our
communal anonymity. Allow me to repeat this, for nearly 100 years our
Tribe was forced to hide its government, traditional ceremonies, and
culture. As a result, under the best of circumstances, satisfying BIA's
tribal recognition requirements became difficult. The fact that BIA
continuously changes its tribal recognition requirements, and ignores
the impact of the Jim Crow laws, has made the task almost impossible.
Most of my Tribe's members continue to live in and around Bruce,
just as our ancestors did after migrating from Alabama. We have lived
together, worked together, married one another, and buried one another
as a community. We have our own rules and we have our own leaders. We
have kept our ways and our ceremonies. We even built our own school in
which our people teach our children about our traditions.
III. The Muscogee Nation of Florida's Experience with the Recognition
Process
My Tribe's experience with BIA's recognition process is not unique.
Let me tell you our story.
It has been 60 years since our community leader--my great
grandfather--wrote to the BIA and explained that our people deserved
compensation for lands taken under the Treaty of Ft. Jackson. BIA's
response, which is on file in the Federal Archives, was dismissive,
declaring curtly, ``You are mistaken. You cannot possibly be who you
say you are because the members of that Tribe are either dead or
removed. . .'' Fast forward 10 years to 1957 (the same year the
Seminole Tribe of Florida was granted Federal recognition), when the
BIA finally acknowledged that it had not rid the Southeast of the
Florida Tribe of Eastern Creek Indians; the same year the Seminole
Tribe of Florida was granted Federal recognition. Fast forward again 14
years, to 1971, when BIA finally verified our racial identification to
the U.S. Government and, in turn, to the State of Florida. By then, my
great grandfather had been dead for 2 years, and we had already spent
24 years getting the BIA to acknowledge our existence as Indians. Now,
36 years later, I am here to tell you that our Indian community and
tribal government are still waiting for the BIA to acknowledge that we
are a Tribe, and, with no end to the regulatory process in sight, we
need Congress to intervene. \1\
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\1\ The following is a brief summary of my Tribe's efforts to
achieve recognition through the administrative process:
1978--The Tribe submits an initial petition for
recognition. The petition is returned later that year purportedly
because of changes to BIA regulations.
1978-1995--The Tribe prepared three separate petitions
for recognition. The first two petitions were not submitted because of
continuing changes to agency regulations and policies. The third was
submitted to BIA in June, 1995.
1996--The Tribe received a ``Technical Assistance''
letter from BIA requiring additional research and document preparation.
The Tribe submitted its response in 2002.
2003--The Tribe was placed on the ``Ready, Waiting for
Active Consideration'' list. At the same time, the Tribe was notified
that because of additional changes to agency regulations the Tribe
needed to electronically submit in excess of 840,000 pages of
documents.
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Because we are one of the oldest Tribes still seeking Federal
recognition, having sought recognition before there even was a formal
process, and because we have ridden the tail of the regulatory tiger as
it has run haphazardly through change after change, we can offer the
following specific examples of some of the problems that have crippled
the BIA tribal recognition process:
The lack of an accountable standard of interpretation--Staff
members' interpretations are inconsistent; and when inconsistencies
arise, staff is not accountable. \2\ Additionally, in making its
findings and final determinations, BIA does not apply the standards set
forth in BIA's own regulations, electing, instead to cite to standards
for review and have been developed by academics. Rather than observing
the intent and letter of applicable Federal regulations, BIA's process
has become an ad hoc jumble of regulatory interpretation in which
Federal regulations are ignored. \3\
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\2\ The Acknowledgment Precedent Manual offered as a guide has a
qualifying statement that its contents do not serve to constraint the
staff or any decisions made.
\3\ Final Determinations and other formal findings from OFA cite
historical, anthropological and genealogical standards. The only
standards of these type are academic communities, not the regulations.
Undue influence by ``parties of interest'' before a factual
determination is made. OFA no longer defers comments by parties
opposing acknowledgment petitions until OFA has made its
factual determination based on the evidence submitted by the
Tribe. Protesters now are free to oppose petitions and wage
public relations campaigns even before BIA has fully considered
the Tribe's petition. These activities make it impossible for
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the process to be a fair, factually-based evaluation.
OFA's unwillingness to provide documentation that it
possesses. The sheer magnitude of the BIA's requirements
regarding the format, size and amount of documentation are not
justifiable and cause the cost of preparing a filing a petition
for acknowledgment prohibitive. To make matters worse, if
evidence of conditions precedent to recognition is not
available to the tribal petitioner but is in OFA's possession,
OFA will reject a Tribe's petition for lack of evidence rather
than supplementing the Tribe's petition with evidence OFA has
in its files. \4\
Please allow me to identify one final, overarching problem that has
impacted us dramatically: the ever shifting goal line.
In 1978, when my Tribe filed its first petition for acknowledgment,
Tribes were not required to do multiple filings. However my Tribe has
been required to continually file new papers to address changes in
BIA's regulations, changes in BIA's ``internal operating procedures''
of the BIA and changes in BIA's own interpretations of evidence in
support of our petition that we previously submitted to it.
My Tribe has expended untold human and financial resources trying
to satisfy the BIA. We have been forced by the process to retain
attorneys, historians, genealogists, archaeologists and other experts
to satisfy the BIA's requirements ad new legal precedents. And we have
done it all over again when the BIA's requirements changed. After each
attempt we have been met with new demands and no substantive action.
After more than 30 years of trying to satisfy changing BIA demands of
our initial Petition approaches, it is clear that the BIA's process is
patently defective and terminally inefficient.
IV. The Importance of Fair and Efficient Federal Recognition
Regulations
The BIA's rules and procedures cause it to withhold recognition
from Tribes who have made proper application for, and who are entitled
to, recognition. The BIA's intransigence threatens the survival of
Tribes and the well-being of Tribal members. I understand that this
hearing is not being held to hear my Tribe's argument for Federal
recognition. However, understanding the importance of Federal
recognition makes it easier to see that my Tribe's frustrations with
BIA are neither unique nor inconsequential.
Federal recognition acknowledges the significance of tribal
governments and the U.S. government's responsibility to Tribes. It also
opens opportunities to Tribes under various Federal programs reserved
for federally recognized Tribes, facilitates economic development and
enables Tribes to qualify for Federal funding. As Congress has stated:
``Recognized'' is more than a simple adjective; it is a legal
term of art. It means that the government acknowledges as a
matter of law that a particular Native American group is a
Tribe by conferring specific legal status on that group . . .
This Federal recognition is no minor step. A formal political
act, it permanently establishes a government-to-government
relationship between the United States and the recognized Tribe
as a ``domestic dependent nation,'' and imposes on the
government a fiduciary trust relationship to the Tribe and its
members. Concomitantly, it institutionalizes the Tribe's quasi-
sovereign status, along with all the powers accompanying that
status such as the power to tax, and to establish a separate
judiciary. Finally, it imposes on the Secretary of the Interior
specific obligations to provide a panoply of benefits and
services to the Tribe and its members. In other words,
unequivocal Federal recognition of tribal status is
prerequisite to receiving the services provided by the BIA and
establishes tribal status for all Federal purposes. \4\
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\4\ H.R. Rep. 103-7811 103d Cong., 2nd Sess. (1994) at 2; 1994
U.S.C.C.A.N. 3768, 3769.
The Department of the Interior's website boasts that ``[t]he scope
of Indian Affairs programs is extensive and includes a range of
services comparable to the programs of state and local government,
e.g., education, social services, law enforcement, courts, real estate
services, agriculture and range management, and resource protection.''
\5\ None of these services and benefits is available to my Tribe so
long as it is trapped in the BIA's recognition process.
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\5\ Available at: http://www.doi.gov/benefits.html
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The importance of Federal recognition cannot be overstated. Tribes
have endured forced relocation, aggressive and open government
discrimination, and years of neglect by government bureaucrats. In
spite of these trials, Tribes have worked, and continue to work
diligently to address pressing economic, education, and resource
issues. We should be able to avail ourselves of programs intended to
support our efforts. We should not be thwarted by the ineptitude and
further neglect of the BIA.
V. Conclusion
Congress must take action to reform the tribal recognition process.
Put simply, it is unreasonable for the BIA to have a regulatory review
process that takes decades to complete, requires Tribes to pay
exorbitant sums for attorneys, historians, genealogists, archaeologists
and other experts and relies on a body of regulations that constantly
change, making compliance nearly impossible.
Applicants should not be made to wait decades for fair BIA action.
Federal recognition is not only about self-determination. It is about
our very survival as a community of Indian people. My Tribe has the
same desperate needs that it had 35 years ago: housing, health care,
education, elderly services and emergency management. These needs--
critical to the survival of our Tribe's members--have been compounded
by the passage of time and the BIA's neglect.
As each year passes my Tribe struggles to care for its members
needs as it becomes more and more difficult to imagine when we will
receive the Federal recognition to which we are entitled. The tribal
leaders who began the recognition process in their youth are now tribal
elders. Our elders, like my mother, deserve to be recognized before
they pass leaving the burden of engaging the BIA bureaucracy to the
next tribal generation.
I appreciate the invitation to speak to you today on behalf of the
Muscogee Nation of Florida. My Tribe hopes that Congress will take
action to ensure that Federal recognition process is reformed and
streamlined in ways that produce timely, fair, and predictable
responses to petitions for recognition.
Thank you.
The Chairman. Chairperson Tucker, thank you very much for
coming to Washington and offering that testimony. We appreciate
it.
And Chairman Yob, you have been properly introduced as well
by our colleague, Senator Levin. So you may proceed with your
testimony. Your formal testimony will be part of the permanent
record.
STATEMENT OF HON. RON YOB, CHAIRMAN, GRAND RIVER BANDS OF
OTTAWA INDIANS OF MICHIGAN
Mr. Yob. Good morning, Mr. Chairman and members of the
Committee. My name is Ron Yob and I am Chairman of the Grand
River Bands of Ottawa Indians of Michigan. With me this morning
is Fran Compo, Vice Chairman of the Tribe.
I am honored to appear before the Committee this morning to
talk about why tribes such as Grand River are seeking
legislation to resolve their Federal status. The short answer
is that the process at the Bureau of Indian Affairs is too
slow, too expensive and too cumbersome for all groups in the
Federal acknowledgement process.
Quite simply, I would not be here today except that the BIA
failed to meet a statutory deadline for considering our
petition. Congress set the deadline by law in 1997.
Unfortunately in that law, Congress did not include any
provisions for making the BIA accountable for failing to meet
the deadline. And there is no penalty against the BIA for not
doing their job. It is only the Grand River Bands that suffers.
We are lucky to live in the same places that our ancestors
lived and those are the very same ancestors who signed treaties
in 1821, 1836 and 1855, ceding vast amounts of territory to the
United States. Last year we were proud to bring home the
original 1855 Treaty of Detroit to the Gerald Ford Museum in
Grand Rapids where the signing was exactly 150 years ago. I
happen to have a great, great, great, great-grandfather that
signed that treaty.
We are a treaty tribe, and our members trace from ancestors
who signed those treaties. In 1997, Congress enacted the
Michigan Indian Lands Claims Settlement Act to provide for
distribution of Ottawa and Chippewa judgment awards for payment
of lost lands. The Grand River Bands of Ottawa Indians was
eligible to receive funds if the tribe submitted its full
petition by December, 2000. The BIA had to complete action on
the petition before the deadline for distribution of the funds
to individuals, which was March 2007.
Unfortunately, while the Grand River met the legal date for
filing its petition, the BIA failed to act on our petition by
the deadline set in the bill. Our own members voluntarily did
the very technical work of verifying the memberships through
authenticated birth, death, baptism and marriage records. We
provided a full response to the BIA in May 2006 and were placed
on the ready for active list 9 months later. This was 4 months
before the BIA actually paid out the judgment funds to
individual members in June 2007.
This payment, while welcomed by many of our members, means
that the Tribe will not receive either the statutory 20 percent
of judgment funds or the bonus money for newly recognized
tribes authorized by the 1997 Act while $3 million will revert
to the U.S. Treasury. Senators Levin and Stabenow introduced
legislation in the 109th Congress to require a timely review of
our petition by the BIA. This Committee held a hearing in June
2006 and the members seemed very sympathetic to our plight.
However, the Committee did not report the bill to the Senate
for action.
Again, early in this 110th Congress, Senators Levin and
Stabenow re-introduced the legislation, and we are grateful to
them for their unfailing support. However, while the time has
now passed for the Tribe to receive the judgment funds, we feel
strongly that the BIA should be held accountable to act on our
behalf. Congress should require the BIA to review our petition
on an expedited basis.
There is no mistake: we are a tribe by any objective
measure and should be federally recognized. We were never
terminated and we have been mentioned in several statutes
enacted by Congress in the past 50 years. We are recognized by
the State of Michigan and by other recognized tribes in our
State. Our ancestors signed three treaties with the United
States. Our reservation lands were taken from us. The only
positive here is that the Tribe has survived with its culture,
language and tribal traditions intact. We are in grave danger
now of losing our Tribe if we are forced to wait another 15, 20
or 25 years for the BIA to act on our petition.
The first petitioner on the ready for active list was
placed there 11 years ago, and we are number 10 on that list.
Our children do not have the health and education benefits that
their cousins now enjoy. Our inland hunting and fishing rights
in the State of U.S. v. Michigan are being negotiated by others
as we speak because the Tribe cannot be at the table. Our
jurisdiction over our children under the Indian Child Welfare
Act could be eroded and our ability to provide for re-burial of
our ancestors' remains under NPCRA is also in danger.
There is enormous pressure on our members to enroll in
other tribes where benefits are available to them. The BIA is
slow in the process and inherently biased against recognition.
It is also very, very expensive. We believe the bias should be
the other way around. It should be in favor of recognition
unless there is strong evidence that the petitioning group is
not a tribe.
Again, I want to thank the Committee members for your
interest in helping Indian tribes who purely by accident of
history are not now part of the Federal family of Indian
tribes. We are ready to help in any way possible to make
recognition a reality for all legitimate Indian groups.
Megwich.
[The prepared statement of Mr. Yob follows:]
Prepared Statement of Hon. Ron Yob, Chairman, Grand River Bands of
Ottawa Indians of Michigan
Chairman Dorgan, Vice Chairman Murkowski and members of the Senate
Indian Affairs Committee, it is an honor to be asked to testify this
morning on behalf of the Grand River Bands of Ottawa Indians on the
very important topic of how Indian tribes are granted recognition by
the United States.
Overview: There are three ways Tribes are granted recognition: by
Congress, by the Administration or by a Federal court. In recent years,
Congress has been reluctant to enact bills to grant tribes recognition
status though numerous tribes were recognized by statute before the
advent of gaming. Since the beginning of this Administration in January
2001, the Secretary of the Interior has recognized two groups as
Federal tribes but has denied recognition to ten tribes. Recent Court
cases are few, but some have resulted in negotiated settlements that
deal with timing of review of petitions by the Administration.
The Federal acknowledgment process (FAP) is governed by regulations
found at 25 C.F.R. 83 that were first published in 1978. It is
important to note that Congress has never weighed in on either the
criteria outlined in the regulations, or on the process used by the
Bureau of Indian Affairs (BIA) to implement those regulations. There is
no clear statutory underpinning for the regulations administered by the
Office of Federal Acknowledgment (OFA) at the BIA, the office that
processes petitions from Indian groups to determine whether or not they
meet the seven criteria in the regulations.
The Grand River Bands of Ottawa Indians Story: The Grand River
Bands of Ottawa Indians is petitioner #146 in the Federal
acknowledgment process at the BIA. In February 2007, our petition was
placed on the OFA ``Ready'' list--we are number 10 on that list. The
group at the top of the list was placed there in 1996, so we do not
anticipate early review of our petition. In fact, we are told that it
will be 15 to 20 years at least, maybe longer, before our petition will
be reviewed if the current pace of review is not changed.
We are fortunate that our Michigan Senators Levin and Stabenow
support recognition for the Grand River Bands of Ottawa Indians and
introduced legislation in both this Congress (S. 1058) and in the 109th
Congress (S. 437). The legislation would require the BIA to expedite
review of our petition because of our unique circumstances. We will
discuss those circumstances briefly here but we also refer you to our
testimony at a hearing before this Committee on June 21, 2006 on S.
437.
The Grand River Bands of Ottawa Indians (``Tribe'') is located in
south central Michigan. Our tribal ancestors signed three treaties with
the United States: the 1821 Treaty of Chicago, the 1836 Treaty of
Washington and the 1855 Treaty of Detroit. Our members trace their
ancestry to signatories of these treaties and we have maintained
continuous tribal relationships to this day. In the mid-1930's, we
sought to organize under the 1934 Indian Reorganization Act but there
was no money for land purchases which the BIA believed was necessary
for us to organize. By then all of the Tribe's treaty lands in Michigan
had been wrongfully alienated. BIA's Commissioner at that time, John
Collier, determined that the Tribe was eligible for reorganization
under the 1934 Indian Reorganization Act (25 U.S.C. 461). The Tribe,
thus, has never received the Federal health, education, welfare and
housing services that its members so desperately need.
Nevertheless, in 1976, BIA Commissioner Morris Thompson said in a
letter to the Solicitor at DOI that the Grand River Bands of Ottawa
Indians were ``functioning as or at least are accepted as tribal
political entities by the Minneapolis Area and Great Lakes Agency.''
See: Senate Report 103-260 that accompanied S. 1357, a 1994 bill to
recognize the Little River Bands of Ottawa Indians and the Little
Traverse Bay Bands of Odawa Indians (P.L. 103-324; 25 U.S.C. 1300k).
While the Grand River Bands is mentioned throughout the Report on the
bill to recognize its two sister Ottawa Tribes, the final bill did not
include the Grand River Bands of Ottawa Indians.
This Senate Committee report concludes that ``the Bands were not
terminated through an act of the Congress, but rather they were
unfairly terminated as a result of both faulty and inconsistent
administrative decisions contrary to the intent of the Congress,
Federal Indian law and the trust responsibility of the United States .
. . the Committee strongly affirms that the trust responsibility of the
United States is not predicated on the availability of appropriated
funds. Further, the possession of a tribal land base is not the
foundation for determining tribal status.''
The Final Report of the American Indian Policy Review Commission
(AIPRC) chartered by Congress listed the Grand River Bands of Ottawa
Indians among the tribes who had suffered from ``the inequitable
administration of Federal programs and laws and . . . the accidents and
vagaries of history.'' Attached is a summary of the AIPRC Report and
Recommendation on Recognition prepared by our attorneys. You will note
that very little has changed since then except that the process has
become almost impossible to navigate.
Even though Grand River was not recognized in 1934, we have
continued to act as a Tribe. For example, our leaders were instrumental
in forming the Northern Michigan Ottawa Association (NMOA), the group
that brought land and accounting claims before the Indian Claims
Commission in the late 1940's and early 1950's. Those claims took many
years to process and the Grand River Bands' first judgment award was
enacted by Congress in 1976. (P.L. 94-540, October 18, 1976) The Tribe
continued to work on these claims and in 1994 we filed a letter with
the BIA stating our intent to file a documented petition for
recognition. In that same year, Congress legislatively recognized two
of our sister tribes: the Little River Band of Ottawa Indians and the
Little Traverse Bay Bands of Odawa Indians. Our elders preferred the
BIA process because they feared that if we were not successful, we
might be precluded from going through the BIA/OFA process.
In 1997, Congress passed the Michigan Indian Land Claims Settlement
Act (P.L. 105-143) which, in addition to providing for distribution of
judgment funds to the successor recognized treaty tribes, also provided
for distribution to treaty tribes not yet recognized, particularly the
Grand River Bands. The proviso was that the tribe had to submit its
full petition by December 2000 and the BIA had to complete its action
by the statutory deadline for distribution of the funds to individuals
(March 2007).
Unfortunately, while the Grand River Bands of Ottawa Indians met
its statutory deadline in filing its petition, the BIA failed to act on
our petition. We did not even receive a technical assistance letter
until January 2005 and by then we had approached Congress seeking help
to secure a review of our petition. It took the Tribe nearly 17 months
to gather the necessary documentation to respond to the technical
assistance letter. We accepted money from investors to pay for the work
of our historians and anthropologists. Our own members voluntarily did
the very technical work of verifying our memberships through
authenticated birth, death, baptism, and marriage records. We provided
a full response to the BIA in May 2006.
We were placed on the ``Ready for Active'' list 9 months later in
February 2007, just 4 months before the BIA paid out the Judgment Funds
to individual members in June 2007. This payment, while welcomed by
many of our members who have waited a lifetime for payment, means that
the tribe will not receive either the statutory 20 percent of judgment
funds or the bonus money for newly recognized tribes authorized by the
1997 Act. Those funds, about $3 million, will revert to the U.S.
Treasury. For some, this would seem to mean less incentive to pursue
expedited recognition, but we disagree. While the time is now past for
the Tribe to receive the judgment funds, we feel strongly that the BIA
should be held accountable for its failure to act on our behalf and
should be required to provide expedited review of our petition.
The Grand River Bands of Ottawa Indians are in grave danger of
losing our Tribe if we are forced to wait another 15, 20 or 25 years
for the BIA to act on our petition. The first petitioner on the Ready
for Active list was placed there 11 years ago. Our Tribe is the tenth
tribal group on that list. Our children do not have the health and
education benefits that were promised in our treaties and that their
cousins from Little River and Grand Traverse now enjoy. Our elders are
dying without being sure that the Grand River Bands of Ottawa Indians
will survive. Our hunting and fishing rights are being negotiated by
others because the Tribe cannot be at the table due to its unrecognized
status. The Tribe's jurisdiction over our children under the Indian
Child Welfare Act could be eroded and our ability to provide for the
reburial of our ancestors' remains under NAGPRA is also in danger. The
State of Michigan is also considering the elimination of its higher
education assistance to Michigan Indians. Most Indians in the State are
now recognized and can access Federal and tribal education benefits.
In fact, there is significant pressure on our members to enroll in
other tribes where benefits are available. Since the judgment funds
were paid in June 2007, at least two or three members each week have
advised us that they are giving up their membership in the Tribe. They
all continue to believe that the Grand River Bands of Ottawa Indians is
their tribe, yet they become members at Little River or at Little
Traverse or at Grand Traverse in order to be eligible for services.
However, not all our members are eligible for membership in these other
tribes. The Grand River Bands of Ottawa Indians must survive and to do
so it must be recognized by the United States.
In the years since the Tribe first filed its petition, we have
observed the process closely and have reach several conclusions we
would like share with the Committee:
Accountability: A serious problem with the Federal acknowledgment
process is that the OFA often does not follow its own regulations and
there is no accountability of any kind for its failure to do so. Indian
groups seeking Federal recognition have no recourse when OFA does not
meet the requirements of 25 C.F.R. 83. For example, the regulations say
that ``Within 1 year after notifying the petitioner that active
consideration of the documented petition has begun, the Assistant
Secretary shall publish proposed findings in the Federal Register. The
Assistant Secretary has the discretion to extend that period up to an
additional 180 days.'' (25 C.F.R. 83.10(h)) An objective read would say
the Department is entitled to one extension but the Department has
interpreted this rule to mean that the Assistant Secretary can extend
the time for proposed findings for multiple 180 day periods. In one
recent case, the Department has extended the review period three
times--an additional one and one-half years and counting. Unless
Congress enacts statutorily enforceable rules, the BIA will continue to
proceed at its own very slow pace with no recourse by petitioning
tribes. And, as the Committee might imagine, petitioning groups are
naturally reluctant to object because they can object only to the very
people who will ultimately decide the fate of the tribe.
Inherent Bias at the BIA: Another fundamental problem is the
inherent bias against recognition of new tribes within the agency
tasked with granting recognition. This bias is evidenced by the numbers
of positive determinations and negative determinations in recent years.
Recognized tribes are not anxious to share with newly recognized tribes
the scarce money available at the BIA for tribal programs. The BIA, an
Indian preference agency, serves only recognized tribes and Indians who
can show that they are one-half Indian blood. An independent agency
with recognition authority would be more suitable for this purpose.
The burden of proving each and every detail of its existence over
many decades--even hundreds of years--should not be on the petitioning
tribe. If a group is recognized as a tribe by other tribes, if it is
recognized by the state, if it can show dealings with the United States
through treaties and statutes, and if its members can show that they
descend from an historic tribe--these items should be sufficient to
show the group is entitled to recognition. Any reasonable person
looking at an unrecognized group of Indian people now, in the early
21st Century, should be amazed that the group has preserved its tribal
traditions, culture and sometimes even its language. This survival
alone deserves much weight, given the poverty and other obstacles that
unrecognized groups face, but there is seemingly no consideration given
to such issues.
The Grand River Bands of Ottawa Indians believes that if a prima
facie case can be made to show that a group has held together as a
tribe, despite the tremendous pressures against survival, then the
burden should be on others to prove that the group is not, in fact, an
Indian tribe deserving of Federal recognition. Grand River is a treaty
tribe, our members descend from treaty signatories, we have our
language, we have our tribal traditions, we have demonstrated tribal
leadership, we have our land and accounting claims. In fact, we have
everything but recognition and the Federal services our members so
desperately need. It is taking hundreds of thousands of dollars to
prove our case and, until our petition is acted upon, we do not know if
we have proved it to the BIA's satisfaction.
Certainly, a very critical issue is the subjective way in which the
BIA/OFA staff review and interpret the documents that have so
diligently been assembled for them. One tribe, the Miami Nation of
Indiana, was told that, in the opinion of the BIA, their tribal picnic
held annually from 1917 was not in fact a tribal event but merely a
social gathering of related people. Thus, documenting the gatherings
was pointless because even though the tribal members themselves
believed they came together regularly as a tribe, some staff researcher
``believed'' otherwise. Like any community of people, tribes are
organic and they do not put up walls to keep people in or keep people
out.
Influence of Gaming: The allegations made by some critics that the
petitioning groups are in the process because of gaming are absurd and
insulting. It would be short work indeed to weed out the groups that do
not belong in the process and who are only looking at the gaming
rainbow. But the fact is that many petitioning groups, including the
Grand River Bands of Ottawa Indians, have to rely on gaming investors
to cover the costs of the basic research needed to document the Tribe's
existence. While it can be argued that many of the petitions filed
after enactment of the Indian Gaming Regulatory Act were influenced by
gaming, we can flatly state that ours was not. Grand River is a very
traditional Tribe of Ottawa Indians and most members have never
supported any attempts by out of state gaming developers to invest in
us for gaming purposes. About 4 years ago, a group in Muskegon
approached us because the City had agreed by referendum to explore
gaming as a way to counter the growing economic decline in that area.
The Tribe accepted their help because we needed the financial support
and because the investors are our neighbors who solidly support our
recognition efforts. If the Tribe can develop a gaming and resort
complex, it would mean a great deal to the entire area. We are
grateful, not just to our investors, but to the numerous civic groups
and officials and even ordinary citizens who are rooting for us to
become recognized.
On the gaming point, our attorneys have done an analysis of the
petitions submitted to the OFA. They found that on the average 10 or 11
groups have filed every year since the regulations were first published
in 1978. There is no sign of a huge influx because of Indian gaming
that began in earnest in the early 1990's. While we do agree that there
may be marginal groups that would not have filed except for the lure of
gaming, those petitioners can probably be dispensed with rather quickly
under the current procedures.
One Size Does Not Fit All: Another finding of our attorneys is that
23 percent of the petitioning groups are from California. As the
Committee knows, the Indian tribes in California have a very special,
and often dark, history of relations with the United States. We are not
experts on their history but we know there was a concerted effort by
the U.S. Government to exterminate the Indian people in California.
Like many Indian groups in the Eastern United States, who basically
went underground to survive racist laws, California Indians groups were
quiet for decades and that quietness allowed them to survive. Now they
are ready to take their rightful place among federally recognized
tribes but the seven criteria do not always fit the small groups
remaining on the Rancherias that were set aside for them. The Federal
acknowledgment process needs to honor the special circumstances of
these Indian tribes and to provide a system for acknowledgment that
fits their needs and their culture.
Conclusion: The Grand River Bands of Ottawa Indians believes our
situation is very unique and is deserving of Congressional action. In
addition, we would like very much to assist the Committee in
understanding and addressing the Federal acknowledgment issues
presented today by us and by other witnesses. When the regulations were
first formulated, petitions were less than 100 pages with minimal
documentation. Now they are thousands of pages, dozens of boxes of
documents and backup CDs, and the process has gone from a few months
per petition to 20 or 30 years per petition. It is no longer tenable.
We hope that the Committee and the Congress will act very soon to
remedy this process that is strangling in minutiae.
Attachment A
Recognition Revisited--Notes from the Final Report of the 1977 American
Indian Policy Review Commission--Prepared by Virginia W. Boylan, Esq.,
Drinker Biddle & Reath, Attorney for the Grand River Bands of Ottawa
Indians
Introduction: Public Law 93-580 established the American Indian
Policy Review Commission. The Commission was Chaired by Senator James
Abourezk (SD), * and was directed to undertake a comprehensive review
of the historical and legal status of the Indians' relationship with
the Federal Government and to make recommendations on policy and
program revisions needed to meet the Federal Government's
responsibility to Indian people. The Commission established 11 Task
Forces; Task force 10 was devoted to ``Unrecognized Indians.''
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* The Commission's other members were Representative Lloyd Meeds
(WA), Vice Chairman; Senators Lee Metcalf (MT) and Mark Hatfield (OR);
Representatives Sidney Yates (IL), Sam Steiger (AZ) and Don Young (AK)
and five tribal leaders, John Borbridge (Tlingit-Haida), Louis Bruce
(Mohawk), Ada Deer (Menominee), Adolph Dial (Lumbee) and Jake White
Crow, (Quapaw-Seneca-Cayuga).
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The findings of the Commission are as instructive and relevant
today as when they were made to the House and Senate in 1977. The Final
Report (``Report'') said that ``the past must be used as a backdrop,
rather than as an indictment.'' (p. 1, vol. 1, FR) The Commission
addressed the historical ambivalence of the Federal Government toward
Indians where, on the one hand, multiple methods were employed to force
them to stop being Indians and, on the other hand, promises were made
that the United States would protect their right to live as Indians and
to practice their beliefs in accordance with their own tribal
traditions. In developing recommendations to resolve problems and to
insure that the United States would keep its promises, the Commission
heard--for the first time in history--directly from the Indian people
themselves.
The recommendations contained in this seminal Final Report led
Congress to restore virtually all of the tribes that were terminated in
the 1950s. The Report also led the Congress to enact the Indian Child
Welfare Act, the Indian Civil Rights Act, and numerous other laws to
protect and enhance the right of American Indian tribes to determine
for themselves how to operate their governments and to provide for
their citizens. The importance of the Commission and its
recommendations can hardly be overstated, particularly in conjunction
with the virtually simultaneous enactment of the Indian Self
Determination and Education Assistance Act, P.L. 93-638, that was
signed by President Ford in January 1975, the same month that he signed
P.L. 93-580. Taken together, these initiatives helped to lift the heavy
hand of the Federal bureaucracy from the backs of tribal governments
and allow them to move ahead financially and socially, while still
preserving the trust responsibility of the United States for Indian
resources.
Unfortunately, Congress has failed to address the recommendations
of the Commission on Federal recognition of Indian tribes. Given the
other areas of such great success, it is unfathomable that Congress has
neglected to give the Department of the Interior any statutory guidance
about this very important issue. The rights of Indians everywhere in
this Nation are being trampled daily by the failure of the Congress and
the Department to even understand the extent of this failure or the
very urgent need to remedy it.
Summary of Recognition Recommendations: Fourteen of the
Commission's 206 recommendations (numbers 164 to 177) to the Congress
on Indian issues deal with recognition issues. The most pertinent
recommendations are shown below:
166. To insure that the above declaration is carried out,
Congress, by legislation, create a special office, for a
specific period of operation, such as 10 years, independent
from the present Bureau of Indian Affairs, entrusted with the
responsibility of affirming tribes' relationships with the
Federal Government and empowered to direct Federal Indian
programs to these tribal communities. . . .
168. A tribe or group or community claiming to be Indian or
aboriginal to the United States be recognized unless the United
States acting through the special office created by Congress,
can establish through hearings and investigations that the
group does not meet any one of the following definitional
factors:
(a) The group exhibits evidence of historic continuance as
an Indian tribal group from the time of European contact or
from a time predating European contact. ``Historic
continuance'' includes any subsequent fragmentation or division
of a specific tribe or group, and any confederation or
amalgamation of specific tribes, bands, or groups and
subdivisions.
(b) The Indian group has had treaty relations with the
United States, individual States, or preexisting colonial and/
or territorial governments. ``Treaty relations'' include any
formal relationship based on a government's acknowledgment of
the Indian group's separate or distinct status.
(c) The group has been denominated an Indian tribe or
designated as ``Indian'' by an Act of Congress or executive
order of State governments which provided for, or otherwise
affected or identified the governmental structure,
jurisdiction, or property of the tribal groups in a special or
unique relationship to the State government.
(d) The Indian group has held collective rights in tribal
lands or funds, whether or not it was expressly designated a
tribe. ``Lands'' includes lands reserved for the group's
exclusive use, occupancy, or related general purposes which
have been acquired by the group through Act of Congress,
Executive or administrative action, or through such related
acts by preexisting colonial and/or territorial governments, or
by State governments or through the purchase of such lands by
the group. ``Funds'' includes money designated for the group's
exclusive use, possession or related general purposes by Act of
Congress, Executive or administrative action, or by such
related acts of preexisting colonial and/or territorial
governments, or by State governments, or by judgment awards of
the U.S. Court of Claims, U.S. Indian Claims Commission,
Federal or State courts.
(e)The group has been treated as Indian by other Indian
tribes or groups. Such treatment can be evidenced by
relationships established for purposes connected with crafts,
sports political affairs, social affairs, economic relations,
or any intertribal activity.
(f)The Indian group has exercised political authority over
its Members through a tribal council or other such governmental
structure which the Indian group has determined and defined as
its own form of government.
(g)The group has been officially designated as an Indian
tribe, group, or community by the Federal Government or by a
State government, county (or parish) government, township, or
local municipality.
169. If the United States finds that the claimants do not meet
any of these definitional factors, such a determination must be
made in writing to the claimants and the decision shall be
reviewable by a three-judge Federal district court with the
burden remaining upon the 'United States to establish that the
claimants are not an Indian tribal community.
170. If the United States affirms through the special office
that a claimant tribe or group meets any one of the standards
set forth above, it shall promptly begin negotiations with the
tribe or group for purposes of extending all benefits and
protections of the laws of the United States directed toward
Indians to the extent agreed to by the tribe or group. The
agencies designated to provide for the negotiation of
protection and benefits shall submit to the Congress such
additional requests for appropriations as are necessary to
fulfill these obligations.
The key to the Commission's recommendations was that Congress
itself should adopt a statement of policy directing the executive
branch to serve all Indian tribes and, further, that Congress should
create a special Office outside the BIA to establish, by hearings and
investigations, that a group met any one of seven factors. The
recommendation was that if a group met any one of the seven enumerated
factors, the Tribe should be recognized by the United States and its
members should receive services. Only if the Office found that the
group did ``not meet any of these definitional factors'' would the
group not be considered an Indian tribal community. That would be
subject to appeal.
Compare this to the system at the BIA's Office of Federal
Acknowledgment where there are also seven criteria (that are far more
rigid) and where the Department demands that a group meet all of the
seven criteria. And while the criteria were developed by the
Department, not the Congress, the intent of the drafters is not to be
faulted. In 1978, staff who drafted the criteria with no statutory
underpinnings believed it would take 2-3 months to review each
petitioner's file. Compare that to the current time range of 15 to 20
years for the Office of Federal Acknowledgment at the BIA to complete
its work on any single petition, as well as the amount of expensive and
even excessive documentation required by the OFA--which is simply
numbing.
Highlights of Task Force 10 Findings: With the exception of
specific termination acts of Congress, the Commission found 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.'' The Final Report found that non-recognition
was incomprehensible to Indians who had been neglected and forgotten.
The major indictment was the Department's inconsistent determination
about which groups it chose to recognize or not. ``Trying to find a
pattern for the administrative determination of a federally recognized
Indian tribe is an exercise in futility. There is no reasonable
explanation for the exclusion of more than 100 tribes from the Federal
trust responsibility.'' (p. 462, F.R.)
The Final Report determined that before treaty-making was outlawed,
treaties were the usual predicate for the special Federal-Indian
relationship. However, the Report found that some tribes with treaties
were not recognized while some tribes without treaties were recognized.
Similarly, tribes mentioned in legislation sometimes received no
Federal attention while tribes which never received any mention in
legislation did receive services. The Report found that the BIA ``never
. . . rationalized its vague policy of excluding a particular tribe.''
Further, ``there is no foundation for the executive branch's refusal to
serve any tribe.'' (p. 462, F.R.)
The Final Report quotes the following from the Task Force 10 Report
at page 1695:
The results of ``nonrecognition'' upon Indian communities and
individuals have been devastation . . . : The continued erosion
of tribal lands, or the complete loss thereof; the
deterioration of cohesive, effective tribal governments and
social organizations; and the elimination of special Federal
services, through the continued denial of such services which
Indian communities in general appear to need desperately.
Further, the Indians are uniformly perplexed by the current
usage of ``Federal recognition'' and cannot understand why the
Federal Government has continually ignored their existence as
Indians. Characteristically, Indians have viewed their lack of
recognition as Indians by the Federal Government in utter
disbelief and complete dismay and feel the classification as
``nonfederally recognized'' is both degrading and wholy (sic)
unjustified.
The Final Report discussed the impact of colonialism, post-colonial
treatment including removal, and various other Federal Indian policies
on the tribes that are not recognized. The criteria expressed by Felix
Cohen in his Handbook of Federal Indian Law in 1940 apparently gave
guidance to the Department for determining whether a group is a tribe
and those criteria were:
(a) Tribe had treaty relations with U.S.;
(b) Tribe was mentioned in a Federal statute;
(c) Tribal members have collective rights to tribal lands or
funds;
(d) Tribe is treated as a tribe by other Indian tribes;
(e) Tribe exercises political authority over members.
The Department's adherence to these guidelines was inconsistent
and/or arbitrary and the Report notes that Members of Congress,
``especially when they are not members of the House or Senate Interior
Committee . . . have been as confused by recognition policy as their
tribal constituents are.'' (p. 478, F.R.) In one early 1970's court
case, the Department stipulated that the tribe was an Indian tribe but
that because it was ``unrecognized'', the Department was not required
to prosecute the tribe's claim against a state. The court found that
the Department had a trust obligation to the tribe.
The Commission's policy recommendations included the following:
There must be a firm legal foundation for the establishment
and recognition of tribal relationships with the United States.
There must be a valid and consistent set of factors applied to
every Indian tribal group which seeks recognition.
Every Indian tribal group which seeks recognition must be
recognized; every determination that a group is not an Indian
tribal group must be justified soundly on the failure of that
group to meet any of the factors which would indicate Indian
tribal existence. (p. 479, F.R.)
Subsequent treatment of unrecognized groups by the Department has
turned these recommendations upside down so that groups are not
recognized unless they meet each and every one of the seven criteria
found in the regulations drafted by the BIA (see: 25 C.F.R. 83).
Conclusion: The Final Report recommends that Congress act in the
area of recognition by establishing, for a specific period (e.g., 10
years), a special Office that is independent of the BIA. The Office
would be responsible for affirming a tribes' relationship with the
Federal Government and ensuring that duties are spelled out in the
recommendations (see #166 through #171). It is not too late for
Congress to implement the directives of this Commission. In fact, it is
even more urgent that Congress act--and act soon--because the system
now in use even is more broken than the one visited by the Commission
in 1976 and 1977.
Attachment B
Questions About Federal Recognition of Indian Tribes--Prepared by
Virginia W. Boylan, Esq., Drinker Biddle & Reath LLP, Attorney for the
Grand River Bands of Ottawa Indians
What does Federal Recognition Mean?
Only Indians who are members of federally recognized tribes are
eligible for the services provided by the United States through the
Bureau of Indian Affairs and the Indian Health Service.
Tribes that are federally recognized enjoy a government-to-
government relationship with the United States and, under self-
determination, can contract to operate Federal programs for Indian
people.
There is a trust relationship from the United States to each of the
recognized tribes .
Where are the Tribes located that are Recognized by the Federal
Government?
According to the latest list published by the Secretary of the
Interior in December 2003, there are 565 federally recognized tribes:
Fully 58 percent of all tribes are located in just two states: 40
percent in Alaska (229 Native Villages and tribal entities) and 18
percent in California (103 tribes).
Another 20 percent of the tribes (111 tribes) are located in just
five other Western states: Washington, Oregon, Oklahoma, Arizona, and
New Mexico.
Less than 4 percent of the total number of recognized tribes (21
tribes) are located in Eastern states such as Florida, South Carolina,
Connecticut, Alabama, and Louisiana.
The other 18 percent (101 tribes) are located in 17 other states
that span Nevada, Idaho, the Great Plains, the Great Lakes, and the
mid-West.
What is the Process for Achieving Recognition?
Most tribes were ``formally'' recognized by the Secretary of the
Interior after passage of the 1934 Indian Reorganization Act, although
many did not actually organize under that Act.
Since 1978, regulations have been in place to allow Indian groups
who believe they are eligible for Federal status to petition the Office
of Federal Acknowledgment (OFA) for recognition. The group will be
granted Federal status if it fully meets seven enumerated criteria
regarding its history, its identification, its cohesion as a political
entity, its descendancy from an historic Indian tribe and certain other
requirements.
Since 1934, through legislation, the U.S. Congress has recognized a
number of tribes or has restored to recognized status tribes that had
been previously terminated.
In some cases, the Bureau of Indian Affairs (BIA) at the Department
of the Interior has recognized tribes after it determined that an
administrative error was responsible for the tribe not being on the
``list'' of federally recognized tribes.
Some courts cases led to the restoration of tribes, particularly in
California, through negotiated settlements of lawsuits.
How Does the OFA Process Petitions?
As of February 2007 a total of 309 groups had sent letters of
intent to petition since the criteria were first published in 1978.
The OFA maintains four ``lists'' that indicate the stage of review
for each petitioning group.
The first list is the ``Active'' list of 8 petitions. These are the
petitions that the OFA is actively considering for either a proposed
finding (positive or negative) or a final determination (positive or
negative) based on whether (or not) the petitioner meets the seven
criteria.
The second list is the ``Ready for Active'' register of nine (9)
petitioners that have fully documented petitions ready for review. The
earliest petition was placed on the Ready register in February 1996 and
the last was added in 2003 (another group was transferred from the
Incomplete list to the Ready list in May 2007, the first in 4 years to
make any movement to this list).
The third list is the ``Register of Incomplete Petitions'' which
includes the 78 groups that have provided some documentation to the
OFA. OFA has provided some technical assistance to all but 29 of these
petitioners.
The final is the ``Register of Letters of Intent''--as noted, there
are 147 groups on this list that have only sent letters indicating
their intent to file a petition; of these, 26 were sent before 1990.
What is the Status of the Petitions?
Over a period of nearly 30 years, the BIA has ``resolved'' 75
petitions or about 2.5 petitions per year (4 of these are in post-
determination appeals). There are now 95 groups that have submitted all
or part of their documentation that are awaiting BIA review. At the
current rate, it will take 38 years to finish these. In reality, the
BIA/OFA actually reviewed only 40 petitions when the number of
petitions addressed by Congress or resolved in another manner is taken
into account. The real rate of BIA/OFA review is just over 1.3
petitions per year. Therefore, unless the Congress steps in, it will
take 73 years to address the 95 petitions that have already provided
some documentation to the BIA. And of course the 147 petitioners with
only letters of intent will never receive any review or attention
unless the Congress alters the system. In addition, some of the 26
petitioning groups that were denied acknowledgment by OFA are seeking
opportunities to appeal those denials, some of which many observers
agree were grossly unfair.
The average number of groups filing letters of intent to petition
has remained fairly constant at an average of 10 or 11 each year from
1978 through 2006.
Since 1978, the Secretary of the Interior has acknowledged 16
groups as Federal tribes; another 26 groups have been denied
acknowledgment-of these, two are in litigation and two have appeals
pending before the Interior Board of Indian Appeals.
Congress legislatively recognized 10 tribes that had filed
petitions with the OFA.
Another 23 groups have either withdrawn their petitions (5), merged
with another group (4), are no longer in touch with the OFA (11),
dissolved (1), been administratively recognized (1), or been determined
not to be an Indian group (1). Six other petitioners are not eligible
to go through the OFA process unless Congress acts to allow them to do
so.
Where are the Petitioners Located?
Of the 309 total petitioning groups, 72 (or 23 percent) are located
in the State of California.
There are 128 petitioners (41 percent) from 22 states east of the
Mississippi.
The Chairman. Chairman Yob, thank you very much for your
testimony as well.
Finally, we have representing the Bureau of Indian Affairs
and the Department of the Interior Mr. Lee Fleming, Director of
the Office of Federal Acknowledgement with us today, Mr.
Fleming, would you please proceed?
STATEMENT OF R. LEE FLEMING, DIRECTOR, OFFICE OF
FEDERAL ACKNOWLEDGEMENT, OFFICE OF THE
ASSISTANT SECRETARY--INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. Fleming. Good morning, Mr. Chairman and members of the
Committee. My name is Lee Fleming, Director of the Office of
Federal Acknowledgement, and I am submitting the
Administration's statement on the process that the Federal
Government follows when it receives a petition from a group
seeking Federal acknowledgement as an Indian tribe under 25
C.F.R. Part 83 and changes we are undertaking to expedite this
process.
The acknowledgement 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 acknowledgement enables that sovereign entity to
participate in Federal programs for Indian tribes and most
importantly, acknowledges a government-to-government
relationship between an Indian tribe and the United States.
These decisions have significant impacts on the petitioning
groups, the surrounding communities and Federal, State and
local governments. Acknowledgement carries with it certain
immunities and privileges, including partial exemptions from
State and local jurisdictions and the ability of newly
acknowledged Indian tribes to undertake certain economic
opportunities.
Established in 1978, the Department's Federal
acknowledgement process 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 existence and have functioned as autonomous entities
throughout history until the present.
Under the Department's regulations, petitioners must
demonstrate that they meet each of the seven mandatory
criteria. Let me abbreviate these criteria. First, the
petitioner must have identifications as an American Indian
entity since 1900. Two, the group must show distinct community
from historical times until the present. Three, the petitioner
must demonstrate political influence or authority from
historical times until the present. Four, provide a copy of the
group's present governing document.
Five, demonstrate that descent from a historical Indian
tribe is there and provide a current membership list. Sixth,
the petitioner must show that the group is composed principally
of persons who are not members of any other federally
recognized Indian tribes. And last, seven, the group must
demonstrate that neither the petitioner nor its members are
subjects 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 the group as an
Indian tribe.
The Federal Acknowledgement Office is composed of 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, the Office of Federal Acknowledgement has a
contract that provides research and administrative assistance.
Currently, the Office of Federal Acknowledgement workload
consists of 17 petitions, broken down as 7 petitioners are on
active consideration and 10 are fully documented petitions that
are ready, waiting for active consideration. We are considering
several actions to expedite and clarify the Federal
acknowledgement process. Some of these would require changes to
internal workload processes to eliminate backlogs and delays,
and some would require revisions to the regulations.
We plan to distribute revised regulations and 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. OFA could recommend an
application form for petitioners to use to point to specific
evidence in their submission that meets the criteria for
specific time periods. OFA could also recommend that
petitioners present their genealogies in a common format used
by genealogists known as GEDCOM, and provide membership lists
in an electronic data base.
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. We also plan on developing a list of common questions
and procedures that the research teams or new research staff
would 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 in 1934, if
the group appears to have met subsections (e), (f) and (g) of
the regulations.
Limiting the number of technical assistance reviews and
imposing a time period for petitioner response to a technical
assistance review letter would also help 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 the 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 OFA's
tasks.
Our goal is to improve the process so that all groups
seeking acknowledgement can be processed and completed within a
set timeframe. We are considering various ideas for improving
the acknowledgement process. Options including hiring and
contracting additional staff, establishing a time line for
responding to each step of the regulations to ensure that
petitions move along, and moving the first sustained contact
requirement 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.
Thank you for the opportunity to provide my statement on
the Federal acknowledge process, and I will be happy to answer
any questions the Committee may have.
[The prepared statement of Mr. Fleming follows:]
Prepared Statement of R. Lee Fleming, Director, Office of Federal
Acknowledgement, Office of the Assistant Secretary--Indian Affairs,
U.S. Department of the Interior
Mr. Chairman and Members of the Committee, I am submitting the
Administration's statement on the process that the Federal Government
follows when it receives a petition from a group seeking Federal
acknowledgment as an Indian tribe under 25 C.F.R. Part 83 and changes
we are undertaking to expedite this process.
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 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 once it has met
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 a historical Indian tribe or from historical
Indian tribes that combined and functioned as a single
autonomous political entity, and provide a current membership
list;
(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 data base. 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 data base
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 ideas for improving the Federal
acknowledgment process. Several options we may consider include:
Hiring or contracting additional staff.
Establishing a timeline for responding to each step of the
regulations to ensure that petitions move along.
Issuing negative proposed findings or final determinations
based on a single criterion would also speed work and maximize
researcher time use.
Allowing 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.
Moving the ``first sustained contact'' requirement of 25
C.F.R. Sec. 83.7(b) and (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.
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. Mr. Fleming, thank you very much for your
testimony.
I am going to ask a couple of questions, then I have to
depart. Senator Murkowski is going to complete the hearing and
I very much appreciate that.
Let me ask, Chairperson Tucker, you have had a petition in
front of the Interior Department for how long?
Ms. Tucker. Our first one was filed in 1978. It didn't make
the new restated regs, so it was returned. We started over. We
wrote two in between. Our latest one, I think, was filed in the
1990s. And now, we have had to revamp that petition. So when we
go on active consideration, we will have another restated
document with the changes that have taken place, including the
digitizing of information.
The Chairman. Of the three tribes recognized here, Mr.
Goins, I am not asking this question of you, because you are
actually prevented at the moment from going through this
process, of the three tribes represented here, is it your
testimony that your petitions are completed, you have filed all
that is required to be filed, you have a complete petition in
the process and you are only waiting at this point for action
by the Interior, is that correct?
Mr. Sinclair. Yes.
Mr. Yob. Yes.
Ms. Tucker. Yes.
The Chairman. And Mr. Fleming, in your testimony, you talk
about working on seven current petitions. What I have here is,
those seven petitions started in 1979, 1974, 1982, 1980 and
1978. Is that about right, do you think?
Mr. Fleming. That's about correct.
The Chairman. So, at least the oldest of those petitions
would be 33 years.
Mr. Fleming. Petitioners submit letters of intent and then
the ball is in the court of the petitioner to do research and
then to provide documentation.
The Chairman. I understand. Ten petitioners are now
awaiting review, the oldest of which is 1971. That is 36 years,
and again, recognizing that is not necessarily the date in
which all the information has been produced. But it describes,
it seems to me, if you have petitions that you are now working
on dating back to 1971, what we here in Congress see is,
``Look, we have been working on this process with the
Department of the Interior for 36 years. We have put all of our
information in, we have submitted everything that was required
of us, and still we wait.''
Now, your testimony says there are 243 other groups not
ready for evaluation, because they have submitted only letters
of intent. Does that mean that in addition to what I have just
described--seven that you are currently working on, ten that
are awaiting a review--you have not yet started to review, and
there are 243 other potential groups that say, we want Federal
recognition as tribal organizations?
Mr. Fleming. That is correct. We have a good number of
groups that have only contacted us by submitting a letter of
intent which is a letter that says we are interested in going
through your process. And then when we publish notice of that
letter of intent, then the groups are then responsible for
documenting their petitions.
The Chairman. Mr. Fleming, when Chairperson Tucker,
Chairman Yob, Chairman Sinclair have submitted everything that
you have requested, how long does it take you to make a
decision?
Mr. Fleming. The Federal acknowledgement process regulation
itself designed a due process system that is 25 months, which
is broken down into a 12 month review, formal review. At the
end of that review, a proposed finding is published, so that
the petitioner and interested parties know of the proposed
decision to acknowledge or not to acknowledge. Then it opens to
a 180 day public comment period to allow the petitioner and
interested parties to provide any additional documentation
regarding the proposed finding.
Then there is the preparation of responses to those
comments by the petitioner and then after that period, there is
the period of 2 months for the Department to review all the
evidence to issue a final determination. You also then have a
3-month period after a final determination is published to
allow the petitioner or interested parties to request
reconsideration.
So under the regulation, just by those time phases, it is a
25 month process. However, we do have the backlog that we have
been working under for quite some time. And add that to the
waiting list, then you see how the delays have been----
The Chairman. And that backlog would be, would add to the
delay of the 25 months how long? Twenty-five months is a period
which you now describe. But the backlog would extend that to
how many years, do you think?
Mr. Fleming. The GAO estimated it to be approximately 15
years, I believe.
The Chairman. All right, now, Mr. Fleming, you indicated on
page four of your testimony that you are considering hiring,
contracting additional staff, perhaps, establishing time lines
and so on. Do you have authority at this point, or have you
requested authority or has the Department of Interior requested
funds to hire additional staff?
Mr. Fleming. The budget process is being undertaken and
those considerations are----
The Chairman. Was a request made by your office and the
Secretary of the Interior for additional staff?
Mr. Fleming. It is a joint effort.
The Chairman. But that request was made?
Mr. Fleming. Yes.
The Chairman. Let me just make a comment. I don't really
know how long you have worked in this area, Mr. Fleming. This
is a process that has, over several decades, and many
administrations, proven to be a process that relates to undue
delays, unfortunate misery, I would think, and expenditure for
tribes or for those who seek to be recognized.
I understand the recognition of a sovereign is a pretty
awesome responsibility, because there are very substantial and
important results from that determination. So I understand that
we don't say, send us some papers and let us take a look at it,
we will get back to you next month. I understand that. But I
also understand that establishing a process that in some cases
takes 15 years, 25 years or 30 years is untenable. And it is
unfair, it is unfair to the folks that Mr. Sinclair has
described and Mr. Yob, Chairperson Tucker. It is just unfair.
And we have got to find a way to fix this. We can't say there's
a process if the process doesn't work.
Mr. Goins is in a different situation. And it seems to me
that Congress has two choices with Mr. Goins' situation. One is
to enact legislation directly, as my colleagues have suggested,
or the second is to eliminate the impediment for them to go to
the Department of the Interior and require of the Department of
the Interior an expedited opinion.
But it seems to me that whether it is Mr. Goins or Chairman
Sinclair, Chairperson Tucker, Chairman Yob, it seems to me that
everyone who has testified here has a very legitimate complaint
about the Federal Government, its bureaucracy and its inability
to meet a time line or a reasonable time line to make the
decision, yes or no.
My understanding is that since the regulations were
established in 1978, 40 decisions have been made. So that is
about, in 30 years, 40 decisions, 16 petitioners were
acknowledged, 24 were denied. During the period that the
Interior Department has rendered 40 decisions, of which 16
petitioners were given sovereign status, Congress in that same
period has recognized, restored or otherwise changed the status
of 28 tribal groups by an act of the Congress.
So that is where we are. We are going to hold other
hearings on this subject. But Mr. Fleming, I must say, and I am
not denigrating your work, because I don't know how long you
have been there or what your role is, whether you have asked
for additional funding and you are not getting it. But somebody
is bleeding this process dry and the process isn't working for
a lot of folks who are vulnerable and who at some point will
deserve recognition, tribal recognition, in my judgment. And
they are not getting it at this point. So your page four
describes what you would like to do. I am going to ask in six
or 8 months, Senator Murkowski and I will ask you back and I
want to find out what you have done as opposed to what you are
thinking of doing.
Mr. Fleming. I will be here.
The Chairman. You will. We will ask you.
Mr. Fleming. Hopefully.
The Chairman. All right. This is important business, and
let me thank all four of you for testifying. We are trying to
think through this, Senator Murkowski and I and other members
of the Committee. And we consider this something that is a
serious responsibility of the Federal Government, a Federal
responsibility to those that believe they have the
documentation to establish their historical recognition as a
tribe or their historical circumstances that would give them
tribal status. So we appreciate very much your being here
today.
Let me ask Senator Murkowski to continue the chairmanship
of this Committee, as I have to go down to the other meeting.
We are joined, however, by Senator Burr. And Senator Murkowski,
if you perhaps want to recognize Senator Burr for a statement.
Senator Murkowski [presiding]. That is certainly
appropriate at this time. Senator Burr?
STATEMENT OF HON. RICHARD BURR,
U.S. SENATOR FROM NORTH CAROLINA
Senator Burr. I thank the Chairman, I thank the Vice
Chairman. I apologize to the Committee and my colleagues, but I
am also in a Veteran's hearing downstairs. I apologize to our
witnesses.
Mr. Chairman, I want to commend you on your understanding
of the challenges we have before us, and I think you stated
them very clearly. I am delighted to be here today. I want to
take this opportunity to thank my colleagues, Senator Dole and
Representative McIntyre for their unbelievable work as it
relates specifically to the Lumbee issue. I believe it is long
past time that the Lumbee Tribe receive the full recognition
they deserve. I have been an advocate for Congressional
consideration of Lumbee recognition since my tenure as a member
of the House of Representatives representing the Fifth District
of North Carolina.
In fact, I testified before the House Committee on
Resources in 2004 to facilitate a decision on Lumbee
recognition. I felt then and still do today that the pursuit of
Lumbee recognition, which has touched three centuries, should
finally be resolved. I want it to be clear that the Lumbees are
in a unique situation, as the Chairman stated. In 1956,
Congress designated the Indians residing in Robeson County and
adjoining counties as the Lumbee Indians of North Carolina.
However, this act also prevented the Lumbees from ever being
eligible for any services performed by the Federal Government
or any benefits derived by law or on behalf of other recognized
groups.
When the Bureau of Indian Affairs established this process
for formal recognition in the 1970s the Lumbees were denied
from seeking recognition due to the 1956 Act. In 1989, the
Department of Interior decided that the 1956 Act prevented the
Lumbees from being considered for Federal recognition under the
administrative process. Therefore, the limited Federal
recognition of the Lumbees in 1956 has been as much of a
detriment as a benefit.
Since my testimony last year, the full Senate has still not
given consideration to Lumbee recognition. I have not wavered
in my advocacy for Lumbee recognition and it is my hope that
the Senate will fulfill its commitment to achieve fairness and
justice for the Lumbees.
I certainly appreciate the Vice Chairman's indulgence so
that I could get back to the Veterans hearing. I would say to
this group, I think the Chairman stated it very simply, we have
two choices. Not the Bureau of Indian Affairs. The Congress of
the United States has two choices. And any group, individual
who had fought a process since 1956 deserves some resolution to
that process.
I thank the Chair.
Senator Murkowski. Thank you, Senator Burr. I appreciate
your advocacy and that of Senator Dole's and the Congressman on
this important issue to the Lumbees.
We are scheduled to have a vote beginning at 10:45, but
Congressman, I would turn to you for any questions that you
might have prior to us recessing and Senator Dole, if you would
like to direct any questions to the witnesses. Then we will
take a short break so I can go vote and come back.
Congressman, do you have anything?
Mr. McIntyre. I have no questions at this time but thank
you.
Senator Murkowski. Thank you. Senator Dole?
Senator Dole. Let me just ask Chairman Goins, the Lumbee
Tribe, as we have all heard, has sought Federal recognition for
more than 100 years. Why do you think the Tribe has never
succeeded? Could you just sum that up for the record?
Mr. Goins. Very simply put, Senator, and thank you for
asking. Since 1890, the BIA leadership has repeatedly opposed
our recognition because of one thing: our size.
Senator Dole. How important do you think State recognition
is in the Federal process? Do you think that the current BIA
process gives enough weight to State recognition, Chairman
Goins?
Mr. Goins. Senator Dole, it should be very important. My
understanding of the current process does not give much weight
to such a relationship. I don't understand how the Federal
Government can cast aside such a relationship, particularly in
a case like Lumbee, when the Lumbee has enjoyed such a
relationship for over 120 years with the State of North
Carolina.
Senator Dole, you know personally, you know that we have an
active, longstanding political relationship with the State of
North Carolina.
Senator Dole. Thank you, Chairman Goins, and thank you.
Senator Murkowski. Thank you, Senator Dole. We will keep on
until we get the notification of the vote.
I want to ask Chairmen Sinclair, Tucker and Yob, the
stories that you have conveyed here today in terms of the many
years of basically trying to do what you have been asked by the
Federal Government, by the Bureau, in terms of the records that
you have had to pull together, everything that you have done,
you are now sitting here decades out with no resolution to your
issue. And if I understand Mr. Fleming correctly, even though
you are the lucky ones to be on the active consideration, those
cases on the active file, you may still be decades from
resolution.
In your opinions, what could be done to help facilitate
this process? And we are talking about installing new data
bases and digitizing records. I am not convinced that that is
going to yield you a quicker result to this. What could make
the process move more expeditiously? Are there deadlines that
need to be put in place? You surely have given some thought to
this. What can be done?
Mr. Sinclair. That is a hard question, because I am not
completely familiar with how OFA internally operates, just from
day to day. But I think some sort of time limit, because we
want an answer, yes or no. Right now we have been dangling,
basically. Well, we have been dangling for almost 200 years.
But it has been dangled over our heads for the last 30, almost.
That would be my best----
Senator Murkowski. So some form of deadline. How about you,
Chairwoman Tucker or Chairman Yob?
Ms. Tucker. From our experiences in this process, there are
some things that Mr. Fleming has said that I understand for new
tribes. But what we have found is that when agencies reform,
that this causes delays. While you are beefing it up and you
are putting the allocated resources in there, and then the
burden of proof is on the tribe to answer this back.
I think that the process does need to be looked at. I think
that there are time lines that need to be established. I think
that there are open doors of communications that need to be
made now between the agency and those of us who are sitting. We
are considered ready, waiting for active consideration.
Senator Murkowski. Do you think that communication has been
lacking in the past? Is that what you are suggesting?
Ms. Tucker. Yes, I do. And if I can add one thing, the
elder stateswoman of our council, who volunteers 5 days a week
at our tribal house, is 83 years old. And if we have to wait
another 15 years, I mean, I love her dearly, but I am just not
sure about that. I would really like Congress to act on the old
ones and then let's see what can be done for the rest.
Senator Murkowski. Chairman Yob?
Mr. Yob. That is a really hard question. It is probably
where I put my foot in my mouth, here, but I do appreciate what
Mr. Fleming is doing. Because I know if this wasn't such a
thorough process, there would be probably 2,000 people on that
list instead of 200. I just know that whatever they ask us, we
will do for them, and we hope that they do it in a fair manner
back to us.
Senator Murkowski. That is fine. And several of you have
mentioned not only the time and energy that the delays cause,
but the expense. Is the expense of going through this process
prohibitive to some? I think it was you, Chairwoman Tucker,
that indicated you are not only burying generations, but the
expense is perhaps debilitating as well.
Ms. Tucker. Yes, because any time you are looking at a
process that requires anthropologists, genealogists,
sociologists and all those other ologists, you are looking at a
tremendous amount of money. They are not going to come and work
for nothing. We dealt with volunteers for many, many years,
Senator. The Administration for Native Americans, they had
status clarification. We used that process to help solve our
problems and at the same time, maintain our culture. Because
that was the way that we could keep our language safe.
But now those grants are not there. So we are in a state
now where we are desperate, we don't know where to turn.
Senator Murkowski. Chairman Sinclair, you wanted to add
something?
Mr. Sinclair. Yes, what we wanted to say was one thing. We
had a preliminary proposed finding of recognition back in 2000.
We had no Government entity that opposed us, no tribal entity
that opposed us. And we also have the Supreme Court, Montana
Supreme Court has ruled that we meet the Federal criteria as a
tribe of this Country.
We would like to see that used to short-circuit this
system. We should be able to be recognized at this point,
because of those factors.
Senator Murkowski. So an expedited process, because of the
factors that had been laid in your case?
Mr. Sinclair. Right.
Senator Murkowski. Let me ask you, Mr. Fleming, when
Chairman Dorgan asked you what the timeframe is, and you set
out the timeframe within the regulations at about 25 months,
and I have to admit, when I heard 25 months I thought, well,
that is within the realm of reason. But then when pressed
further to appreciate that because of the backlog, that has the
potential to add an additional 15 years, potentially, or even
more, I have to concur with the Chairman, it is unacceptable.
It is not right, it is not a system that is working under any
stretch of the imagination.
Now, you have indicated that you are going to be presenting
some revised guidelines. What will this do to those who are
waiting who have submitted, the seven tribes that have
submitted their petitions and they are in that active status?
Do they have to now conform to something new? Is this going to
cause further delay to them?
Mr. Fleming. No. The revised guidelines would be for those
petitioners who are currently documenting their petitions.
Senator Murkowski. So those that have just submitted their
intent, is that correct, or does the other ten under active
consideration, are they under new requirements?
Mr. Fleming. There are no new requirements. These are
guidelines that simply will provide technical assistance for
those petitioners who are working on documenting their
petitions. A good part of the work is done by the petitioner. A
good part of the work is done by the Department.
If the petitions are better prepared, then that will help
ease the review. Many of the groups have been documenting their
petitions, I will give you an example. One petitioner submitted
their letter of an intent in 1978. They did not submit their
documented petition until 1998. Whatever the delay was on their
part for 20 years, we then get part of the blame for that
delay.
Once the petitioner submits their material, we provide a
technical assistance review letter that points out any
deficiencies or significant omissions, and this one particular
group then took 5 years to respond to that letter.
Senator Murkowski. Do you believe that it is entirely clear
on its face as to what is expected to be submitted, or is this
part of the problem, that perhaps the tribes are left guessing
as to what it is that you need and require?
Mr. Fleming. This is why we are recommending to revise the
guidelines to allow clarity on what is expected, not only by
what the review teams are looking for, but also what is
required under the regulations.
Senator Murkowski. When do you anticipate those guidelines
will be out?
Mr. Fleming. Very soon. It is one of the ideas that we have
expressed that we would like to get out to the petitioners and
the interested parties.
Senator Murkowski. How many employees do you actually have
within OFA?
Mr. Fleming. We have 14 full-time employees and we have 7
contracted individuals that help with the research and
administrative tasks.
Senator Murkowski. And in order to get your time line
addressed, or your backlog addressed, how many employees do you
think you would need to bring on?
Mr. Fleming. We have expressed that analysis in the GAO
report and review, and I would be happy to provide that to the
staff.
Senator Murkowski. Do you need to double it?
Mr. Fleming. It depends on expectations. If you want the
backlog to be completed by X number of years, then here are the
resources necessary to do that.
Senator Murkowski. Well, then let me ask you another way.
If our regulations say that basically there is a 25 month
process, that is an expectation that I think your petitioners
can reasonably expect. That is what is outlined in your own set
of regulations.
Mr. Fleming. Correct. And I might point out that the
regulations do allow for extensions. There are opportunities
for the petitioner, if they need more time to develop their
comments during the public comment period, then they may wish
to ask for an extension. We have had one group that has asked
for over ten extensions. And with that in mind, the current
Administration is looking conservatively at granting extensions
because of these concerns of delay. The extensions are in
increments of 180 days or less. And so we want to give the
petitioner the opportunity to enhance their petition. If they
have a plan on how they are going to use their extension, that
is another idea that we would like to institute, so that we
know that extension time is being warranted and used
effectively. Because one extension in one group may also cause
a delay in the review of other groups, because we have the
limited resources.
Senator Murkowski. I appreciate what you are saying. I do
not believe that a 15 year backlog is acceptable within your
department or agency or any that we are dealing with. As I have
said before, it is not fair, it is not right. We do need to
have some better resolve to how we are going to process this
and provide an answer, either up or down, for those that are
seeking this recognition.
Mr. Goins, I appreciate, too, your travel here today. It
has been suggested by some that what you need to do is pursue,
rather than pursue the legislative recognition that you are
doing, is to start down the road of administrative recognition.
My guess would be that after this hearing, this is not a road
that you are interested in at all.
Mr. Goins. No, ma'am.
Senator Murkowski. I just wanted to confirm that.
If in fact you had no other choice but to do that, and I am
just playing devil's advocate here, do you have any idea how
long it might take you to compile a petition to submit to the
Office of Federal Acknowledgment?
Mr. Goins. Senator, I have no idea. Let me go back to Mr.
Fleming's comment about limited resources. Now, the tribes, not
only the Lumbees, but everyone here at this table, we don't
have a lot of money. We are out here asking the churches to
have plate sales, love offerings, we are having to raise this
money like this, this is a heavy burden on the tribes. So it
costs millions of dollars to go through the process. And that
is something I couldn't give you an answer, it depends
basically on the funding.
Senator Murkowski. Sure. One last question for you. You had
mentioned in your written testimony that Congress should
transfer the Federal acknowledgement process to another agency
or perhaps some kind of an independent commission. Do you have
any suggestions on where that might be, what kind of an agency,
or what would be appropriate to consider administering the
acknowledgement process?
Mr. Goins. No, but the reason for that statement was this.
When you look at the mission of the BIA itself, it is to give
service and protect the rights of federally recognized tribes.
Then you are turning around and asking the same BIA to qualify
a tribe to come in that is not federally recognized. That is
why we would just like to see this whole process just go to an
independent commission, whatever the Congress could come up
with, an independent commission outside of the BIA.
Senator Murkowski. So just remove it from BIA altogether?
Mr. Goins. Yes, ma'am.
Senator Murkowski. Let me just check quickly and make sure
I have had all my questions answered. I believe that I have. It
appears that we have beat the clock to the vote, so we don't
need to take a break. Again, I appreciate the testimony of each
of you who has appeared before the Committee today. I
appreciate what you do for those that you represent, those you
serve.
This Committee will keep working on this issue. The
testimony I think has been very, very helpful this morning to
allow us to better appreciate what you are dealing with on a
daily basis as you attempt to work through the Federal
bureaucracy to achieve that recognition.
I concur with Chairman Dorgan that we probably need to do a
followup with your agency, Mr. Fleming, to see how this process
is coming, because I do think that it is clear we need to be
doing more to achieve the very important goals that have been
mentioned by so many here.
So with that, we will conclude this hearing.
[Whereupon, at 11 a.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Mel Martinez, U.S. Senator from Florida
Chairman Dorgan and Vice Chairman Murkowski:
I want to thank you for holding this hearing to examine the federal
tribal recognition process and for inviting Chairwoman Ann Tucker of
the Muscogee Nation of Florida to testify before you today.
As Chairwoman Tucker will outline very eloquently, the Muscogee
Nation has been struggling for nearly 30 years to gain federal
recognition through the bureaucratic and broken federal recognition
process at the Bureau of Indian Affairs (BIA). She has been a tireless
advocate for the Muscogee Nation and for her people to prove that they
actually exist, and are eligible for important programs at the BIA.
The Muscogee Nation is headquartered in Bruce, Florida, which is a
small community situated in the northwestern part of the state. The
Tribe has a 7-acre land base in Bruce and has 13 acres of 4,000 year
old shell mounds that it keeps in protective trust for the benefit of
all people in their community to enjoy.
The Muscogee Nation are descendents of Creek Indians native to
Florida that were relocated by the U.S. Government during the Trail of
Tears. The Treaty of Washington and Treaty of Fort Gibson (1832-1833)
required that the Creek Nation relocate from Florida to land west of
the Mississippi River. Not all of the Creek agreed to leave and
resisted being removed by President Jackson. These remaining Creek
later became named the Muscogee Nation of Florida. In 1852, the General
Assembly of Florida enacted legislation that made it illegal for any
Native American to remain in Florida. The Tribe was also subjected to
the racial segregation of Jim Crow laws in Florida.
Even though the Tribe was impacted by 1852 laws, the Muscogee
Nation of Florida continued to function. The Tribe maintained its
traditional form of leadership, subsistence type of living, and shared
economic practices. During the early 20th century, the Tribe saw an
increase in its membership, and the BIA made an announcement in 1947 of
a Land Claim Settlement impacting the historic Creek Nation. The people
of the Muscogee Nation of Florida were parties to this litigation, and
it was determined in 1957 that they were eligible to share in the
settlement.
Unlike the controversies surrounding others involved in the
recognition process, the Muscogee Nation is not interested in acquiring
gaming rights. They have not petitioned our Governor or state
legislature in pursuit of these rights, or sought to acquire additional
lands to expand gaming operations. Instead, the Tribe is seeking an
acknowledgement of the simple fact that they are indeed a tribe. The
Tribe has been recognized by the State of Florida and has the support
of local leaders, business, and hundreds of individuals who have signed
petitions in support of recognition.
Under the leadership of the Senate Indian Affairs Committee, the
myriad of problems with the Federal recognition process have been
highlighted and exposed. Chairwoman Tucker's testimony today will shed
further light on the past inadequacies of this process. I look forward
to working with the Committee and assisting in their efforts to bring a
more open and transparent tribal recognition procedure at BIA.
______
Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii
Thank you, Mr. Chairman. I commend the Committee for holding this
important hearing on the process of Federal recognition of Indian
tribes.
Although the Federal acknowledgment process was set up with the
intent of providing tribes with a fair and unbiased track for obtaining
Federal recognition, there are some tribes that cannot go through the
process, and there are some tribes that feel the process is too slow,
too expensive, and too cumbersome. I agree with you, Mr. Chairman that
this process needs to be looked at carefully and remedied where
appropriate. However, that may take many years. Today, we will hear
from tribes that have been waiting a long time--13 years and 29 years--
just to go through the Federal acknowledgement process. These figures
do not include the decades they have been waiting for Federal
recognition prior to the establishment of the process. How much longer
must they wait for an efficient and effective process?
Of the four tribes we are examining today, the Lumbee's experience
is particularly disheartening because they are ineligible to go through
the Federal acknowledgement process. Since 1885, the Lumbee have been
recognized by the State of North Carolina, yet their tribe is the only
tribe in the country acknowledged as Indian by Congress but have no
access to the Bureau of Indian Affairs recognition process because of
an act of Congress. I think the time has come to correct this wrong
that was done so many years ago and extend Federal recognition to the
Lumbee Tribe. Over the years, the Congress has attempted to do so. Most
recently, the House of Representatives passed H.R. 65, the Lumbee
Recognition Act.
In addition to the Lumbee's experience, today we are examining the
plights of the Little Shell Tribe, the Muscogee of Florida, and the
Grand River tribe. All three of these tribes are at different stages in
the federal acknowledgment process. Little Shell and Muscogee submitted
their petitions when this process was first developed back in 1978.
Grand River has been going through this process for the past 13 years.
Although, I understand that there many requirements that the tribes
must meet, there must be a more efficient way for tribes to gain
federal recognition.
According to the Department of Interior, since 1978, there have
been 314 groups who have stated their intent to seek acknowledgment
through the administrative process. Of this number only 82 groups have
submitted completed petitions. Of the 82 completed petitions, the
Department of Interior has resolved 41 cases. Also, it should be noted
that of the 82 completed petitions, 19 cases were resolved by an act of
Congress or through other means. Currently the Department has 10
petitions under active consideration and 9 petitions are awaiting
active consideration.
The four tribes who are represented here today all have unique
circumstances, as well as experience with this process, and I hope that
they will have adequate time to provide their thoughts and insights on
this issue.
I look forward to working with my colleagues on the Committee to
ensure that the legislation for these tribes receive fair consideration
before the U.S. Senate.
______
Prepared Statement of Curtis Chambers, Tribal Chairman, Burt Lake Band
of Ottawa and Chippewa Indians
My name is Curtis Chambers. I am the Tribal Chairman for the Burt
Lake Band of Ottawa and Chippewa Indians. This prepared statement is
submitted for your last hearing on the Federal Recognition Process, it
is my hope that this will give you some insight on how this entire
process has completely failed my people. My statement will be strong,
and I am sorry about that, but my level of frustration is over the top
and someone has got to start telling the truth about what is really
going on here.
The historical facts and background) including our two ratified
treaties and the approximately 40,000 pages of pictures, documents and
cd's etc. . .submitted by my Tribe to the BIA are irrefutable proof
that Burt Lake was and is a treaty tribe which still exists. The other
federally recognized tribes in Michigan agree with this position. Now
the last that I understood it, the BIA does not have the authority to
terminate a treaty tribe unless Congress gives it that power. I may not
have the same education that some of the BIA staff have, but I do
understand separation of powers. What Congress passes the BIA cannot
undo on its own. If it can and we are not going to get our Federal
benefits, can you please help us get our land back from the U.S.
because we need to sell it to someone who will actually pay for it!
As a matter of fact, the OFA does not disagree that the Burt Lake
Band signed two treaties with the United States, that those treaties
were ratified by the Congress, and that the U.S. represented the Burt
Lake Band in Federal court as our ``guardian and trustee'' well after
1900. They also do not disagree that our members comprised a distinct
Indian community until 1989. That's right 1989!!! Yet, according to the
BIA we no longer exist. Now if that does not sound ridiculous, my
members and I do not know what does.
According to the BIA, we ``ceased to exist as a distinct Indian
community'' in 1989 simply because some of our members, many of who
were quite sick, became convinced that the U.S. was never going to hear
our case, so they took the advice of our local BIA Agents and signed up
for health care and education services with the Little Traverse Bay
Band. Little Traverse opened its doors to help our people, until our
recognition status could be resolved by the Congress, but when you are
dealing with the BIA, no good deed goes unpunished. The problem,
according to the BIA is that even though these people signed up with
Little Traverse, they never left Burt Lake. So because, on paper, we
have members in two tribes and that violates some Federal regulation,
we have to be terminated. It does not matter that our community is
still intact, that the majority of our people never signed up for those
Little Traverse services, or that Little Traverse itself continues to
argue that Burt Lake is still a separate community, according to the
BIA all that counts is what is on paper and what's in their
regulations. After all, they are lawyers, and we are just dumb
Indians!!!!
The mere fact that some of our people took these steps only after
being assured by the BIA Agency staff that they could return to Burt
Lake's rolls as soon as it was reaffirmed did not matter either,
because OFA is separate from the rest of the BIA and should not be
bound by the fact that these other BIA people gave ``bad advise.'' So
in short, OFA cares more about what is in its regulations than it does
about what really happened. I guess Indians just do not think like
that!
The whole idea that Burt Lake ceased to exist as a separate tribe
is ridiculous to us, because we know how our people see themselves and
who we are seen by other Indians in the state. Besides, we see these
people who the BIA says have ``left'' our community every day and I
personally have seen almost all of them at Burt Lake functions in just
the last month. No other Little Traverse people were there, just those
who ``left Burt Lake'' and those who stayed! But the BIA spent a whole
4 days up here with clipboards and tape recorders and that was enough
time for them to see'' the true picture.'' Me, I just live here.
Now it does not matter that the other federally recognized tribes
in Michigan, the University of Michigan whose professors worked with
us, and which has studied Michigan Indians since the University was
formed, the local governments who deal with our tribe on a regular
basis, the Catholic Church which has had a Burt Lake Indian Mission
Church on our land at Burt Lake from the early 1800 through today, the
State of Michigan, and our State Representatives and Congressional
delegation who all have met with our community regularly for over 50
years all disagree with the BIA, because the BIA spent 4 days here with
clipboards and tape recorders and knows better than all of them. After
all, it interviewed 10 people!!1!!
This is what is wrong with this process; To this day, the BIA has
not been able to point to one legal document terminating our tribe, so
when NARF and our other lawyers demanded that they give us the services
that we are legally entitled to under our treaties, the BIA went into a
panic and spent four whole days interviewing ten to twelve people, and
another 8 months comparing us to their own picture of what a federally
recognized tribe should look like and declared us extinct. That was
some 4 days--these people must be brilliant.
Let's put aside for a minute our two signed and ratified Treaties,
the Federal court case that the United States litigated as the
``guardian and trustee'' of our ``federally recognized tribe'', the
opinions of the federally recognized tribes in Michigan, the opinion of
the folks at the University of Michigan, the opinion of the State of
Michigan, and all the documentation we presented, and look at the
process that has become so complex and convoluted that nobody is
satisfied with it. Now I am the first to admit that I am just a stump
jumping halfbreed from northern Michigan, but it seems to me that the
process is exactly backward. Instead of figuring out how to live up
their treaty obligation as the Supreme Court and the Constitution say
they are supposed to, this OFA group just ignores the Treaty, ignores
the Constitution and sets out to prove why a treaty tribe who they
mistakenly left off their list has ceased to exist.
The list they use to do that is a good one too--less than 60
percent of our people voted in the last election, our Tribal Council
meetings do not draw more than 25 percent of our people, even though
these are Council meeting not public meetings, less than 50 percent of
our people live on our tribal land (even though we lost virtually all
of our reservation land to taxes so there is no place for them to
live), and oh yes, some of our people were members of inter-tribal
organizations and some married into other tribes. Under these tests,
they could terminate the Navajo, the Blackfeet and every Sioux Tribe
tomorrow and use our decision as precedent. So who knows, maybe the BIA
will go after them next.
Don't think they couldn't do it either--because in many cases our
numbers are as good as theirs--we have two ratified treaties, the
majority of our people lived next door to one another until WWII, we
had 80 percent Indian to Indian marriage at the end of WWII and 50
percent of our people were still speaking the language at the end of
WWII, but that does not count to the BIA.
I know a lot of federally recognized tribal leaders and a lot about
how federally recognized tribes actually function because these are my
cousins, and I thank God that they have never had to face the BIA's
tests, because I know that they would end up in the same boat we are
in. Standing Rock, Rosebud, Pine Ridge and Three Affiliated for example
would not qualify because their members come from more than one band--
thus they are not technically ``from a single Tribe or tribes who
combined to form a single entity.'' Under the BIA's test, they are
merely a group of people from different historic Bands who got forced
to move to a specific location--so in that regard they are worse off
than we are. Less than 60 percent of Oglala's members voted in the last
tribal election according to Indianz.com, and the tribal council
meetings for every one of these tribes generally don't draw more than
40 non council members, which is less than 1 percent of their
population. So. that is far below our numbers as well. Also, a lot of
Oglala Sioux are married to Rosebud members, and Standing Rock members
are married into other Sioux Bands so that too is a negative as well.
Finally less than 50 percent of the Oglala Sioux actually live on the
reservation. The fact that many live in Rapid City and go back and
forth every week does not count in the OFA process. So God help them if
they ever had to face the BIA's regulations.
Are we Indians--well yes. The BIA own genealogists just recently
awarded most of our Tribal members judgment fund monies of over
$12,000.00 each as \1/4\ blood Indians who descend from the two
ratified treaties that we gave the BIA, so they do not dispute that we
are Indians, just not the Indians they want us to be. They also do not
dispute that our entire council is descended from historic treaty
signers, we just do not fit into the pigeon hole they want us to. The
OFA's assertion that we somehow ceased being a Tribe because: we did
not continue using services that no one offered to us in the first
place; some of our people had to leave the area in order to get jobs to
feed their families and only made it home once a month, and that our
people should be punished for doing what they had to do to get the
health care that they needed and that the U.S. denied to us illegally
is patently absurd and pretty damn cruel too, That would be like the
Catholic Church closing a church and then saying wow--no church--I
guess that means that there are no more, Catholics living there.
Incidentally, the Burt Lake Indian Mission Catholic Church we
rebuilt on our tribal lands after our Burn-out in 1900 is still is use
today, so I guess they must be violating their obligation by keeping it
available to those of us who are ``no longer Burt Lake Indians.'' Maybe
that's why the Catholic Church supports our reaffirmation so strongly.
Sir, the entire process started off in an adversarial situation.
First we had to wait 24 years for someone to tell us when and how they
had incorrectly concluded that we were terminated and then instead of
doing that they sent us to OFA, Then, we finally got a chance to inform
the BIA who we were and what our intentions were and from that moment
on the Bureau started trying to prove that we were liars. I don't know,
maybe they were afraid that we would sue them or something for the
services that we had been illegally denied. Our treaty meant nothing
because after all, it was signed and ratified ``over 100 years ago.''
The fact that the majority of our members traced directly back to the
signers of that treaty meant nothing because ``maybe they didn't want
to be Indians anymore?'' Can't prove that they don't have a treaty, so
you better prove that they decided to terminate themselves!!! A treaty
tribe not on their list of federally recognized tribes gets to wait,
get called liars and then try to find the money to fight back. That Sir
is how the OFA process really works, in just three sentences. And if
your like us, living in an area where gaming is never going to make a
lot of money, good luck finding the money that you need to fight back.
The BIA hires lawyers, historians, genealogist and staff to prove
what bad liars we are. They have their own idea of what a tribe should
look like, and the fact that their picture conflicts with what every
federally recognized tribe in the state looks like does not matter.
They have the formula because they are anthropologists. We on the other
hand are just Indians. We are then forced to hire lawyers, historians,
genealogists, and staff to challenge their arguments. We are also
forced to give the BIA every single thing that they ask for no matter
how much it costs to collect, because the BIA decides whether our
people get the medicine they need for their diabetes, cancer and other
problems or whether they die at home without it. That is what happened
to one of our most beloved elders Bernie Parkey just last month. He
died at home, because he could not afford a hospital bed and IHS said
he was not Indian enough! Imagine that, a treaty Indian of almost full
blood, living on his original land, dying without medical attention
because he is not the right kind of Indian!! So when we complain and
demand that they prove that they terminated us, the Bureau hires more
of the same along with a solicitor for each. ``Do you see a pattern
here?'' The Tribes do not have much money, so they are forced to find
investors and the process starts all over again. All because living up
to the terms of our treaty might cost them some money to pay for the
land that those treaties took away.
It seem to me that things would be much simpler if the Bureau would
use its resources to help live up to the Treaties that we signed
instead of trying to get rid of treaty Indians! It has been my
experience that it is much easier to prove a positive than a negative.
But, if we disagree with the ruling that the BIA hands down, the burden
of proof falls on us and that is dam hard to deal with when you are up
against Federal lawyers paid for by our own tax dollars.
Sir, the bottom line is that we are treaty Indians still living
together as a community. Our Tribe still honors the agreements and
commitments made by our ancestors and your predecessors in those
treaties. I do not believe the Bureau does. Will you?
______
Prepared Statement of Michael Cook, Executive Director, United South
and Eastern Tribes, Inc.
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Prepared Statement of Michael F. Easley, Governor, State of North
Carolina
Attachments
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Prepared Statement of James Wright, Tribal Chief, Ma-Chis Lower Creek
Indian Tribe of Alabama
Chairman Dorgan, Vice Chairman Murkowski, and honorable members of
the Senate Committee on Indian Affairs, I thank you for the opportunity
to present this testimony to the Committee. As Tribal Chief of the Ma-
Chis Lower Creek Indian Tribe of Alabama my name is James Wright and it
is an honor to submit our information to this Committee for the record.
This Tribe is recognized at many different levels of government but
we have been unable to get the Federal Recognition from BIA because of
the process that now is in place. We recommend that the process be
changed to a realistic format that will allow an affordable process for
Native American Tribes.
The Ma-Chis Tribe was denied Federal Recognition with the present
format that is in place because a number of reasons that we as Native
Americans were unable to comply with, such as: we had to deny who we
were to government officials in order to stay in our homeland in the
southeastern part of the present day United States of America so we
were not killed or removed in the Indian Removal Act of the 1830's. By
doing this act of survival, we can not show the continuous
``government-to-government'' relations that is in the present process.
Without going into a long explanation of our unique circumstances,
we will offer a little background information.
The Ma-Chis Tribe is made up of Native Americans who are
descendants of the Creek Confederacy and Native Americans who have kept
the native ways close to their hearts and remain today in our homeland.
We are party to signatures to several treaties with the United States
between 1790 and 1836, which led to many of our ancestors being forced
in a march west.
Our tribal members who stayed in our homeland retreated into the
forested lands, swamps, caves, and lived along the following streams:
Pea River, Conecuh River, Yellow River, Coosa River, Tallapoosa River,
Little Tallapoosa River, Alabama River, Choctawhatchee River, Little
Choctawhatchee River, White Water Creek, Big Judy Creek, Little Judy
Creek and others located in our homeland. We maintained a close knit
community and at times the closeness was only known by tribal members.
We are proud to be united as a Native American Tribe that is anti-
gaming and faith based. Our tribal owned businesses and tribal church
is spreading its' work base and faith base in and ever-growing World
Wide recognition.
We note that it has been brought to the attention of this
committee, a number of flaws in the existing process of Federal
Recognition and would like to work with you in the process to rework
the process for Federal Recognition of Native American Tribes.
When we become BIA Recognized, it will allow us to overcome some
present day problems we have as Native Americans in Alabama such as
allowing us to put Native American on the Drivers License in the State
of Alabama, and allowing us to overcome a number of educational
problems that our tribal members go through with discrimination.
We still face the fact today of not being BIA Recognized with such
issues as getting the HUBZone Certification. As an example, we have
been denied this certification for our tribal business because we ``do
not exist'', but the fact is we live in a HUBZone and are United States
Citizens but because BIA does not have us listed on their (BIA List),
we can not get the certification, and that denies our tribal 8(a) SDB
Company the opportunity to bid on HUBZone projects.
In conclusion, you can see there are many problems that we have
with the present process, and I urge you to change the process for the
better.
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Prepared Statement of Hon. Anthony Rivera, Jr., Chairman, Juaneno Band
of Mission Indians, Acjachemen Nation
Chairman Dorgan, Vice Chairman Murkowski, on behalf of the Juaneno
Band Of Mission Indians, Acjachemen Nation of Orange County, CA, I
would like to thank you for holding today's ``Hearing on the Process of
Federal Recognition of Indian Tribes''. For the reasons I set out
below, today's exercise of the Committee's oversight responsibilities
over the Federal recognition process is long overdue and needs to be
continued in order to reform a badly broken administrative process.
For the record, my name is Anthony Rivera, Jr. and I am the
Chairman of the Juaneno Band of Mission Indians, Acjachemen Nation
(``the Nation'') located in San Juan Capistrano, Orange County,
California.
First western contact with the Nation came with the arrival of
Spanish missionaries in 1769 and our history is not unlike the many
other California tribes that suffered under the yoke of Spanish
oppression yet persevered and fought to preserve our culture and
political integrity. It is a testament to those that went before me
that I am here before you today, on behalf of the Nation and still
fighting for formal acknowledgment by the U.S. Government. Today I am
indeed standing on the shoulders of giants who never gave up hope that
the Nation would assume its rightful position among the family of
federally recognized Indian tribes in the U.S.
Our contemporary fight for recognition really began in 1919, when
the Nation joined the Mission Indian Federation to protest the abuses
to Indian people carried out by the Federal Bureau of Indian Affairs--
the same Bureau of Indian Affairs that literally has the power of life
or death over the Nation's petition for acknowledgement. Around the
same time the Nation submitted a signed petition to the Department of
Interior requesting Federal acknowledgement and restoration of tribal
lands.
The Nation has been in the queue of the administrative federal
recognition process since 1982, when a formal letter of intent was
filed with what was then called the Branch of Acknowledgment and
Research, and currently bears the name ``Office of Federal
Acknowledgement'' (``OFA''). The letter and the subsequent filing of
the application and related documents were done pursuant to the
regulations found at 25 CFR Part 83, ``Procedures for Establishing that
an American Indian Group Exists as an Indian Tribe.'' These regulations
were first promulgated in 1978 and continue to govern the review of
recognition petitions.
The recognition by the U.S. of a sovereign Indian tribal entity is
an occasion of some solemnity because with it comes all the privileges
and immunities of Indian tribal status under Federal law. The event
also marks the establishment of a unique legal, political, and
government-to-government relationship between two sovereigns: the
United States and the Indian tribe.
In theory, the OFA is guided by and operates according to
regulations intended to establish a uniform administrative process for
Indian groups seeking formal recognition.
Petitioners are required to satisfy seven strict criteria before
recognition will be accorded. The recognition process, like all
administrative processes, should be rigorous, transparent, fairly
administered in a timely fashion, and include procedural safeguards and
certainty. The process, and those that administer the process, should
instill in petitioners, interested parties, and the Congress a high
level of confidence that petitions will be reviewed in timely fashion
and decisions will be made on the merits of the application--without
passion or prejudice.
In America we demand of our officials and decisionmakers
transparent decisions made in a timely fashion not only because huge--
and sometimes unsustainable and prohibitive--economic costs are borne
by petitioners due to the extremely long administrative process but out
of our collective belief in fundamental fairness and decency.
The Nation first filed its letter of intent in August 1982 and has
been extremely patient with the administrative process for over 25
years. We have worked diligently to gain national, state, and local
support for our petition. For example, the California State Assembly
issued a Resolution of support for our Federal recognition in 1993; the
National Congress of American Indians, on behalf of the General
Assembly, unanimously passed a Resolution in support of our Federal
recognition petition in the fall of 2005; and the Southern California
Tribal Chairman's Association has also endorsed a Resolution of full
endorsement for our recognition efforts. On the local level, in 2006
the Orange County of Supervisors passed a County Resolution supporting
the Tribe's ancestral lands and Federal recognition; the cities of San
Juan Capistrano and San Clemente have also endorsed our bid for
recognition. The ``Jewel of all California Missions''--the Mission San
Juan Capistrano--and the Orange County Archdiocese have similarly
submitted letters of support as well.
Our diligence in garnering support has been matched by our work at
presenting a solid and comprehensive application for recognition. Since
1982, the Nation has been not only patient with the OFA but also
cooperative with OFA's demands for additional information; requests
that I might add did not significantly add to the weight or content of
the petition.
In September 2005, the Nation's petition finally reached ``Active
Status'' within the OFA due to the Federal court filing in the Mashpee
Wampanoag vs. Norton case. Since then, the OFA has not adhered to the
decisionmaking schedule it agreed to and instead has granted no fewer
than five extensions of time within which to issue a ``Proposed
Finding.'' The stated rationales behind OFA's need for extensions have
been various, vague, and unjustified according to our tribal
government. For example, the OFA has alternatively indicated that:
1. The ``Department needs more time in order to finalize its
analysis and legal review of the two proposed findings'';
2. The ``OFA is working on its recommendations for the proposed
finding but needs additional time to complete its
recommendations'';
3. The ``Department needs additional time in order to finalize
its analysis and legal review of the two findings'';
4. The ``Department needs the full 180-day extension of time in
order to finalize its analysis and legal review of the two
findings''; and
5. The ``OFA has requested and received an extension of the
deadline for completing the recommended proposed findings.''
In extending the deadline for a Proposed Finding, the OFA has
repeatedly relied on an interpretation of 25 CFR 83.10(h) that defies
logic and the plain meaning of the regulation. The regulation states:
``Within 1 year after notifying the petitioner that active
consideration of the documented petition has begun the
Assistant Secretary [for Indian Affairs] shall publish proposed
findings in the Federal Register. The Assistant Secretary has
the discretion to extend that period up to an additional 180
days.''
The OFA's interpretation of the phrase ``up to an additional 180
days'' is that such extensions are ``limited to increments of not
longer than 180 days, but allow for more than one extension.'' This
interpretation strains credulity, logic, and the plain meaning of the
regulation.
On a more substantive matter, the Nation has been informed that the
OFA is combining the membership list of the Nation with a variety of
other entities, including petitioners outside of the tribe and other
unrelated entities without providing us, the Petitioner, with ample
justification or adequate reasoning for this action. This unorthodox--
and ultimately destructive--effort is unfounded and we question the
reasoning and appropriateness of such an activity.
As the congressional body which undertook the investigation of Jack
Abramoff and his associates, this Committee knows that the Abramoff
Affair raised an important question about good government which is
especially relevant to the recognition process: What protections are
there in the law or in the political arena for legitimate tribal
petitioners, often of modest means, facing intense, well-heeled
lobbying by private interests?
It is sad that in our time there are Indian tribes actively working
against the aspirations and needs of their sister tribes when it comes
to efforts to acquire land, to develop economically, or--in our case--
whether or not we will be accorded recognition. These actions are
disgraceful.
Mr. Chairman, Jack Abramoff may be on the sidelines but
``Abramoffism'' is alive and well in 2007. If the tactics by OFA in
delaying the Nation's Proposed Finding were not enough, economic
interests including, sadly, already-recognized Indian tribes and
privately held card rooms are taking advantage of the OFA's elongation
of the administrative process to lobby Members of Congress and others
in an effort to have the Nation's petition delayed or denied. The last
time I checked Mr. Chairman, ``market share'' was not a criteria
included in the regulations found at 25 CFR. I am profoundly and
personally disappointed to have learned about these efforts but those
responsible should know that in the end they will fail.
Today the Committee is asking the question as to why Indian groups
see the value in pursuing Federal legislation in lieu of the OFA
administrative process. With all respect, I would ask a slightly
different question: how can Congress countenance a situation such as
ours and then with a straight face suggest that Indian groups pursue
the administrative route? The Nation has been nothing but diligent and
cooperative and these efforts and our reasonableness have been met with
endless delay and dilatory tactics by the OFA, political interference
by Members of Congress, extant Indian tribes, and corporate interests,
and no end in sight to our battle for justice.
I will close with this thought Mr. Chairman. This Committee has
done the required hard work over the years to protect and enforce the
rights and prerogatives of Indian nations. I urge you to continue this
good work and find ways to ensure that the Federal recognition process
is transparent, free from outside and undue political influence, and
gives this committee and Congress sufficient confidence so that
pursuing a legislative remedy is left to those groups which, for one
reason or another, are not eligible to pursue the administrative
process. Due process, let alone fundamental fairness and traditional
notions of decency, require no less.
I thank you for your commitment to Indian country and the important
work that you do and I look forward to working with you and your staff
on improving the federal recognition process.
Attachment
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Prepared Statement of Monroe Skinaway, Chairman, Sandy Lake Band of
Ojibwe
Attachments