[Senate Hearing 110-468]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-468

   RECOMMENDATIONS FOR IMPROVING THE FEDERAL ACKNOWLEDGEMENT PROCESS

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 24, 2008

                               __________

         Printed for the use of the Committee on Indian Affairs
























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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
      Allison C. Binney, Majority Staff Director and Chief Counsel
     David A. Mullon Jr., Minority Staff Director and Chief Counsel
























                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on April 24, 2008...................................     1
Statement of Senator Dorgan......................................     1
Statement of Senator Murkowski...................................     1
Statement of Senator Tester......................................     2

                               Witnesses

Artman, Hon. Carl J., Assistant Secretary, Indian Affairs, U.S. 
  Department of the Interior.....................................     4
    Prepared statement...........................................     5
Ferguson-Bohnee, Patty, Clinical Professor of Law and Director, 
  Indian Legal Clinic, Sandra Day O'Connor College of Law, 
  Arizona State University.......................................    11
    Prepared statement with attachment...........................    14
Rivera, Jr., Hon. Anthony, Chairman, Juaneno Band of Mission 
  Indians, Acjachemen Nation.....................................     8
    Prepared statement...........................................     9

                                Appendix

Johnston, Hon. Sonia, Chairwoman, Juaneno Band of Mission 
  Indians, Acjachemen Nation, prepared statement.................    73



























 
   RECOMMENDATIONS FOR IMPROVING THE FEDERAL ACKNOWLEDGEMENT PROCESS

                              ----------                              


                        THURSDAY, APRIL 24, 2008


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:21 a.m. in room 
562, 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. Next we will go to a hearing on the Federal 
acknowledgment process. I thank all my colleagues for being 
here today for the business meeting.
    The Federal acknowledgment process is, as all of us know, 
very difficult and controversial. Mr. Artman, if you would be 
willing to allow us to do this, I would like to call you to the 
witness table. We have two additional witnesses; with your 
permission, I would like all three witnesses to appear at the 
table.
    We will be hearing from Mr. Carl Artman, who is the 
Assistant Secretary for Indian Affairs; Patricia Ferguson-
Bohnee, a clinical professor of law and Director of Indian 
Legal Clinic, Sandra Day O'Connor College of Law, Arizona State 
University; and Anthony Rivera, Jr., the Chairman of the 
Juaneno Band of Mission Indians in California.
    I am going to wait just a moment while the room clears. I 
will make a couple of comments, but let me call first on the 
Vice Chairman of the Committee, Senator Murkowski.

               STATEMENT OF HON. LISA MURKOWSKI, 
                    U.S. SENATOR FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman.
    I appreciate the short order that we have conducted the 
business meeting in. I think there were some good things on the 
agenda, certainly, the nomination of Mr. McSwain, good to get 
that through.
    I am pleased that we are holding the hearing this morning 
on the recommendations for improving the Federal 
acknowledgement process. I want to welcome you, Mr. Rivera, I 
know you have traveled some ways to be here. But also, your 
Tribe's ongoing, truly decades-long experience with this 
administrative recognition process at the OFA, we appreciate 
your trials, if you will, and your willingness to be here this 
morning.
    Mr. Chairman, since 1978, the BIA Office of Federal 
Acknowledgement and its predecessor agency have reviewed and 
resolved over 60 petitions for Federal recognition. 
Unfortunately, this is only about 20 percent of the nearly 330 
petitions that have been submitted by the tribal groups for 
Federal recognition. We know that the process takes just too 
long. And this is for almost every group that has been through 
the process.
    The current administrative recognition process is seen by 
many of our tribal applicants, as well as those of us here in 
Congress, as excessively burdensome. Given the current backlog 
of acknowledgment petitions at the Department, it is therefore 
hardly surprising that some groups seek the legislative 
recognition rather than the administrative route, just as we 
have seen with the Lumbee here. It is my hope that this hearing 
will provide us with some acceptable ways to improve the 
process. I think some of us feel that imposing specific 
deadlines and adopting standardized criteria to the OFA's 
regulatory process would help things a great deal.
    I do appreciate that the Department has a difficult job 
when it comes to determining which groups should get 
recognized, which should not. I know it is often much easier 
for us to sit here and criticize a decision than it is to make 
one. So I am here with an open mind, especially to listen to 
our witnesses' hopefully constructive recommendations and 
comments. Again, I appreciate the length that people have 
traveled to be here and your willingness to hold the hearing, 
Mr. Chairman.
    The Chairman. Thank you very much.
    Senator Tester?

                 STATEMENT OF HON. JON TESTER, 
                   U.S. SENATOR FROM MONTANA

    Senator Tester. Thank you, Mr. Chairman. Just a real quick 
remark. First of all, I appreciate the panelists being here 
today and appreciate your time.
    I would just say that, kind of dovetailing on the remarks 
that have already been made, at this point in time, I think the 
process is too long. I think when the Senator from Alaska talks 
about criteria and deadlines, I don't think that is something 
any of us want to do. But the fact is, we need to do it to push 
the process along, I would certainly consider myself.
    But I think the bottom line is that we have to, you have to 
do a better job in making decisions in a timely manner. Whether 
those are yeses or noes, they have to be made. Delaying is not 
an option. We have a tribe in Montana that hopefully we will 
have a decision out on this summer. I look forward to that 
decision on the Little Shell.
    But the truth is, they have been at it for 30 years. That 
is a little too long. And that is an understatement, by a large 
margin.
    So thank you for being here, and I look forward to hearing 
what you are doing to improve the process and what you see in 
the future as the process entailing to expedite, and still do a 
thorough job, but just moving through the process in a timely 
manner, I guess is a better term. Thank you, Mr. Chairman.
    The Chairman. Senator Tester, thank you very much.
    This is a very challenging area for this Committee and for 
the Congress, because we have a number of tribes coming to the 
Congress saying, give us recognition. Well, the fact is, this 
Congress, no Congress really, has the capability to do the kind 
of work and investigation that is necessary to make good 
decisions.
    That is why in 1978 there was a process established at the 
Department of the Interior, and it required a tribe to prove 
substantially continuous tribal existence since historical 
times. It sets out seven criteria they have to meet. I am told 
that petitioning groups have to put together material that 
sometimes fills an entire room, and at a great deal of cost.
    The frustration of the groups is something I understand. 
There are a good many tribes who have been at this 15, 20, 25 
years, some longer, trying to work through the process at the 
Department of the Interior. My own view is the process at the 
Department of Interior doesn't work. That is not a judgment of 
mine about the merits of the decisions. I don't have a basis 
for deciding whether you make the right decisions or the wrong 
decisions.
    But I do think that there should be some capability for a 
tribe to make its case in a reasonable period of time. Is it 
five years? I don't know. But it is not 30 years. So what we 
are trying to do today is to see how does this process work, 
how can it be improved, what has happened recently to improve 
it, and how can we rely on this process to take the burden off 
us of having tribes come to this Committee and say, we want 
recognition because the recognition process doesn't work at 
Interior. We can't allow this to continue any more. This has to 
work at Interior.
    The Lumbee Tribe was different. As you note, Assistant 
Secretary Artman, the Lumbee Tribe couldn't go to Interior. It 
is the only tribe with a bill pending before the Senate that is 
prevented from going to Interior. My preference would be to 
say, let's let it go to Interior and require you in two years 
to make a judgment. So we passed out the Lumbee bill.
    But this is a serious problem we have to correct. How do we 
make this system at Interior work? We are not going to force 
you to say yes or no; we shouldn't do that. We shouldn't 
involve ourselves in individual cases. That should be left to 
historians and anthropologists and genealogists, et cetera. We 
don't have that in this Committee, but you do, or you have the 
capability of accessing these petitions.
    So I appreciate the three witnesses coming to our 
Committee. I am interested in hearing their testimony. We will 
ask some questions and my hope is that we will hear that there 
is some significant progress being made.
    Mr. Artman, we, Senator Murkowski; Senator Tester; myself 
and other members of this Committee, approved your nomination 
after that position had been empty, vacant, for over two years 
which is shameful in my judgment. I am glad you are there. Your 
leadership now has to give us the opportunity to make progress 
on these issues. So you have great opportunities and great 
challenges, and this Committee is partly responsible for your 
being there. We appreciate that you are there and that you come 
here today to describe those issues to us.
    You may proceed.

          STATEMENT OF HON. CARL J. ARTMAN, ASSISTANT 
       SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Mr. Artman. Thank you, Senator Dorgan, members of the 
Committee. I am here to provide the Administration's statement 
on the Federal acknowledgement process under 25 C.F.R. Part 83, 
and the changes we are undertaking to expedite that process.
    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 
acknowledges a government-to-government relationship between an 
Indian tribe and the United States.
    Acknowledgment carries with it privileges and immunities. 
The Part 83 regulations require groups to establish that they 
have had a substantially continuous tribal existence and have 
functioned as autonomous entities throughout history until 
present. Under the Department's regulations, petitioning groups 
must demonstrate that they meet each of the seven mandatory 
criteria. Since the promulgation of the Department's Federal 
acknowledgement regulations, the Department has issued 101 
decisions to date.
    The Department has taken several actions to expedite and 
clarify the Federal acknowledgement process. Some of these 
required changes to our internal workload process, and some 
will require changes to the regulations. Internal changes 
include OFA's instituted changes in its review of a documented 
petition to help speed up the review process.
    We revised the FAIR computer data base, allowing OFA 
researchers to make efficient use of their time. OFA is 
revising its Guidelines for Petitioners and the Guidelines for 
Petitioner Reviewers. These guidelines will assist the 
petitioners, interested parties and the researchers to better 
understand what the Department expects and what the regulations 
require to provide more clarity in their submissions.
    Our goal is to continue to improve the process, so that all 
groups seeking acknowledgement can be processed and completed 
within a set time frame. We are considering various ideas for 
improving the Federal acknowledgement system, such as 
recommending a waiver of the recommendations to move 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 on the Indian Reorganization Act in 1934, if 
the groups appear to have met subsections (e), (f) and (g) of 
the Part 83 regulations.
    Another is to limit the number of technical assistance 
reviews and impose a time period for petitioner response to a 
technical assistance review letter to move the petitions along 
at a faster rate; creating more concise decision documents to 
speed the process and improve the public's ability to 
understand the decision; issuing negative proposed findings or 
final determinations based on a single criterion which would 
speed the work and maximize the use of researcher time; 
clarifying the ``first sustained contact'' provision to ease 
the burden of petitioners and reduce time-consuming research 
into colonial histories.
    Reviewing the regulations to provide for a sunset provision 
of 15 years for the Federal acknowledgment process. This 15-
year sunset provision would include deadlines for groups to 
submit letters of intent, petitioners to complete the 
documented petitions, for the Department to issue technical 
assistance letters, petitioning groups to respond to technical 
assistance review letters, a deadline for the Department to 
issue proposed findings and a deadline for the Department to 
provide comment and response period and final determinations.
    The regulations are only under review now. If we go forward 
with those, they will of course go through with the process of 
consultation and comment period. This 15-year sunset provision 
would not include a post-final determination reconsideration 
process before the IBIA, the Interior Board of Indian Appeals, 
or litigation under the APA.
    I would like to thank you for the opportunity to speak to 
you today about our acknowledgement process and I look forward 
to your questions.
    [The prepared statement of Mr. Artman follows:]

Prepared Statement of Hon. Carl J. Artman, 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, 
Tribes and the surrounding communities, and Federal, state, and local 
governments. Acknowledgment carries with it certain privileges and 
immunities, including a government-to-government relationship with the 
federal government and partial exemptions from state and local 
government jurisdictions, and the ability of newly acknowledged Indian 
tribes to undertake certain economic opportunities.
    Newly acknowledged Indian tribes are 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 Acknowledgment Process
    The Federal acknowledgment process set forth in 25 C.F.R. Part 83, 
``Procedures for Establishing that an American Indian Group Exists as 
an Indian Tribe,'' allows for the uniform and rigorous review necessary 
to make an informed decision on whether to acknowledge a petitioner's 
government-to-government relationship with the United States. The 
regulations require groups to establish that they have had a 
substantially continuous tribal existence and have functioned as 
autonomous entities throughout history until the present. Under the 
Department's regulations, petitioning groups must demonstrate that they 
meet each of seven mandatory criteria. The petitioner must:

        (a) demonstrate that it has been identified as an American 
        Indian entity on a substantially continuous basis since 1900;

        (b) show that a predominant portion of the petitioning group 
        comprises a distinct community and has existed as a community 
        from historical times until the present;

        (c) demonstrate that it has maintained political influence or 
        authority over its members as an autonomous entity from 
        historical times until the present;

        (d) provide a copy of the group's present governing document 
        including its membership criteria;

        (e) demonstrate that its membership consists of individuals who 
        descend from an historical Indian tribe or from historical 
        Indian tribes that combined and functioned as a single 
        autonomous political entity, and provide a current membership 
        list;

        (f) show that the membership of the petitioning group is 
        composed principally of persons who are not members of any 
        acknowledged North American Indian tribe; and

        (g) demonstrate that neither the petitioner nor its members are 
        the subject of congressional legislation that has expressly 
        terminated or forbidden the Federal relationship.

    A criterion is considered met if the available evidence establishes 
a reasonable likelihood of the validity of the facts relating to that 
criterion. A petitioner must satisfy all seven of the mandatory 
criteria in order for the Department to acknowledge the continued 
tribal existence of a group as an Indian tribe.
    The Federal acknowledgment process is implemented by the Office of 
Federal Acknowledgment (OFA). OFA is currently staffed with a director, 
a secretary, three anthropologists, three genealogists, and three 
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 and one computer programmer for the 
Federal Acknowledgment Information Resource (FAIR) database system.
    OFA's current workload consists of six petitions on active 
consideration and ten fully documented petitions that are ready, 
waiting for active consideration. OFA describes its workload according 
to when an application is ready for review and when it makes a proposed 
or final determination.
Improvements to the Federal Recognition Process
    The Department has taken several actions to expedite and clarify 
the Federal acknowledgment process. Some of these required changes to 
internal workload processes to eliminate backlogs and delays and some 
will require amendments to the regulations.
    Since the last hearing before this Committee on Federal 
Acknowledgment in September 2007, the Department has made several 
decisions on petitions.

   Around the time of the last hearing, the Department's final 
        determination to acknowledge the Mashpee Wampanoag Tribe had 
        just become final and effective for the Department.

   In October 2007, the Department made a final determination 
        not to acknowledge the St. Francis/Sokoki Band of Abenakis of 
        Vermont. This determination became final and effective for the 
        Department on October 1, 2007.

   On November 26, 2007, the Department issued two proposed 
        findings for the Juaneno Band of Mission Indians, Achachemen 
        Nation (Petitioner #84A), and the Juaneno Band of Mission 
        Indians (Petitioner #84B) and published notice on December 3, 
        2007, starting 180-day comment periods for both of these 
        California petitioners and interested parties.

   On January 28, 2008, the final determinations to not to 
        acknowledge the Nipmuc Nation (Hassanamisco Band) and the 
        Webster/Dudley Band of Chaubunagungamaug Nipmuck Indians of 
        Massachusetts became final and effective for the Department.

   On March 12, 2008, the Department issued a negative final 
        determination on the Steilacoom Tribe of Indians.

    The Department just conducted two day-long formal technical 
assistance meetings on April 17 and 18, 2008, for the Juaneno 
Petitioners #84A and #84B.

    OFA has instituted a change in its review of a documented petition 
in order to help speed up the review process. We have a genealogist 
review the petition first, followed by the historian and 
anthropologist. The genealogist's advance work, prior to the petition 
going on the ``active'' list, prepares the way for the other 
professionals during the active review process.
    We revised the FAIR computer database. FAIR provides OFA 
researchers with immediate access to the records, and the revised 
version speeds up the indexing of documents and allows for more data 
review capabilities, allowing OFA researchers to make efficient use of 
their time.
    OFA modified its contract to include a computer programmer to 
complete and to maintain FAIR and to design the final version of FAIR 
2.0 to allow for electronic redaction of documents under the Freedom of 
Information and Privacy Acts. In addition, OFA has started the process 
to purchase a heavy duty scanner, new computers, printers, and software 
for faster scanning and work.
    The OFA is revising its ``Guidelines for Petitioners'' and the 
``Guidelines for Petitioner Researchers.'' These guidelines will assist 
petitioners, interested parties, and researchers to better understand 
what the Department expects and what the regulations require in order 
to provide more clarity in submissions. Better prepared submissions 
will speed up the evaluations and prevent potential deficiencies in the 
petitions.
    In the ``Guidelines for Researchers,'' OFA will provide a 
recommended format for petitioners to use to point to the specific 
evidence in their submission that meets the criteria for specific time 
periods. OFA also will recommend that petitioners present their 
genealogies in a common format used by genealogists (GEDCOM) and 
provide membership lists in an electronic database.
    Our goal is to continue 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 system such as:

   Recommending a waiver of the regulations to move 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 on 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 to move petitions along faster.

   Creating more concise decision documents to speed the 
        process and improve the public's ability to understand the 
        decision.

   Issuing negative proposed findings or final determinations 
        based on a single criterion which would speed work and maximize 
        use of researcher time.

    Clarifying the ``first sustained contact'' provision of 25 C.F.R. 
Sec. 83.7(b) & (c) to ease the burden on petitioners and reduce time-
consuming research into colonial histories.

   Hiring additional professional researchers.

   Revising the regulations to provide for a sunset provision 
        of 15 years for the Federal acknowledgment process. This 15-
        year sunset provision would include deadlines for: (1) groups 
        to submit letters of intent, (2) petitioners to complete their 
        documented petitions, (3) the Department to issue technical 
        assistance letters, (4) petitioning groups to respond to 
        technical assistance review letters, (5) the Department to 
        issue proposed findings, (6) the Department to provide comment 
        and response periods, and (7) the Department to issue final 
        determinations. This 15-year sunset provision would not include 
        the post-final determination reconsideration process before the 
        Interior Board of Indian Appeals or litigation under the 
        Administrative Procedure Act.

    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. Assistant Secretary, thank you very much.
    I am going to ask the other two witnesses to testify, and 
then we will have questions.
    Mr. Rivera, who is Chairman of the Juaneno Band of Mission 
Indians in California, as I understand it, you will provide 
recommendations. You have a petition that is under review and 
you are going to give us your perspective as someone who is 
going through this process. You may proceed, and your entire 
statement will be part of the record.

 STATEMENT OF HON. ANTHONY RIVERA, JR., CHAIRMAN, JUANENO BAND 
             OF MISSION INDIANS, ACJACHEMEN NATION

    Mr. Rivera. Very well. [Greeting in native tongue.]
    Good morning, Chairman Dorgan, Vice Chairman Murkowski, and 
distinguished members of the Committee, I am Anthony Rivera and 
I am Chairman of the Juaneno Band of Mission Indians, 
Acjachemen Nation in California, petitioner on active status in 
the Office of Federal Acknowledgement.
    It is my honor to appear before you today to discuss the 
Tribe's 26-year experience with the administrative process in 
the Interior Department's Office of Federal Acknowledgement. 
You do have my prepared statement, and I hope that you have an 
opportunity to review it. But I would like to spend just a few 
minutes to emphasize a couple of the major points relating to 
the acknowledgement process as far as our experience is 
concerned.
    The Acjachemen Tribe has been in the process for the last 
26 years, since 1982, of our letter of intent submission. We 
are one of about seven petitioners on the active consideration 
list. We are not talking 700, we are only talking 7 petitioners 
who are actively being considered by the Office of Federal 
Acknowledgement.
    In our case, an acknowledgement has been made and a 
proposed finding, which was issued, which demonstrates that 
there was in fact a historic Acjachemen Tribe in the area of 
San Juan Capistrano, California. That allows us to proceed 
forward with the evidence on the next stage.
    With this experience, this 26-year experience that we have 
in this process, we offer the following improvements and 
discussion points to the acknowledgement process. Two points, 
first of all, the delay issue. There are numerous delay issues, 
one of which takes place in the ``ready'' status portion. In 
our case, we had a removal from ready status which delayed our 
petition for moving into active approximately 13 years. The 
letter of intent assessment process, that means new petitioners 
who are submitting letters of intent to engage the process, 
needs some work on how you assess that these are capable and 
qualified petitioners, some of which compete with petitioners 
who have already sent in a letter of intent.
    And then of course, the active status movement, there has 
to be movement with those seven petitions in the active status. 
That leads to the second issue, and that is the petitioners, 
including ours, in the active status portion of the recognition 
process.
    The numerous extensions, which are granted in the active 
status portion of the acknowledgement process, need to be 
regulated a little bit more. The regulations state that after 
12 months, a proposed finding is to be issued on the evidence 
which has been submitted up to that point, after which the 
Assistant Secretary has the discretion of an approximately 180-
day extension if it is needed.
    Our petition and our case, we have experienced 
approximately seven extensions, not requested by the Tribe, but 
by the Department, which causes further and further delay of 
the process. We understand some of the reasons for the 
extension needs, many of which have to do with the need for 
resources and funding, to be able to concentrate on the various 
different elements of the process here.
    The Tribe has experienced, since our proposed finding has 
been issued after seven extensions, we have been experiencing 
progress, which we are pleased with. We have conducted, with 
the Office of Federal Acknowledgement, technical assistance 
meetings which have been very beneficial to understanding what 
evidence is required, so that they can do their portion of the 
process.
    Finally, we would like to suggest that our petition 
particularly be a test case or a, we offer that we can assist 
in some of these recommendations a little further perhaps at 
another time or during our question and answer to help you 
understand what really needs to be done with this extensive 
experience we have.
    Finally, as the Committee has stated, the unnecessary 
delays need to cease and action needs to take place. These 
petitions need to move. Once the active petitions move, 
including ours, then the petitions that are ready for active 
can move and also take place.
    I am happy to take any questions that you have on that.
    [The prepared statement of Mr. Rivera follows:]

Prepared Statement of Hon. Anthony Rivera, Jr., Chairman, Juaneno Band 
                 of Mission Indians, Acjachemen Nation
    Good morning Chairman Dorgan, Vice Chairman Murkowski, and 
distinguished members of the Committee. My name is Anthony Rivera, Jr. 
and I am the Chairman of the Juaneno Band of Mission Indians, 
Acjachemen Nation.
    It is my honor to appear before you today to discuss the Tribe's 
experience with the administrative process in the Interior Department's 
Office of Federal Acknowledgment (OFA).
    At the outset I want to say that we have experienced real delays 
with the OFA that have prejudiced the Tribe and its members in a number 
of ways.
    We have lost many elders in the nearly three decades we have been 
in this process. We are not a wealthy people and we have had to scrape 
together enough money to locate documents, hire professionals, and do 
the necessary travel that this process requires.
    Our first contact with Europeans came in the 18th century when the 
Spanish occupied what they called ``New Spain'' in Alta California. 
Spanish missionaries went on to establish a series of mission churches 
along the west coast from San Diego to Monterrey. The historical lands 
of the Tribe are in and around what was and is the Mission San Juan 
Capistrano, located just south of Los Angeles and north of San Diego.
    My Tribe's efforts to be recognized by the U.S. Government began 
many decades before there was an OFA. Indeed, throughout much of the 
19th and 20th centuries my Tribe has worked hard to regain this status.
    However, since acknowledgment regulations were promulgated in 1978, 
my Tribe has pursued federal recognition through this administrative 
process. I would like to walk you through our progress since it 
illustrates areas that are in dire need of reform.

        1. In August 1982, our Tribe submitted its Letter of Intent for 
        acknowledgment. We were designated Petitioner #84.

        2. The Tribe then worked hard to prepare and submit a fully 
        documented petition that satisfied the evidentiary requirements 
        of the regulations. We met with BIA staff and addressed the 
        shortcomings it had identified in our petition.

        3. In 1993, after reviewing the thousands of pages of 
        genealogical, anthropological, and historical evidence that we 
        had submitted, the Branch of Acknowledgment and Research 
        (BAR)--the predecessor to the OFA--determined that our evidence 
        was sufficient and accordingly placed our petition on the 
        ``ready, waiting for active consideration'' list. Up to this 
        point, our progress in the acknowledgment process was not 
        problematic.

        4. However, in May 1995, the BAR unjustifiably and without 
        opportunity for appeal, removed our petition from the ``ready, 
        waiting for active consideration'' list.

        5. In February 1996, we were returned to the ``ready, waiting 
        for active consideration'' list but a month later our petition 
        was re-assigned #84A and another group which submitted a new 
        letter of intent was assigned petitioner #84B.

        6. It would take my Tribe, the original petitioner 84, almost 
        10 years to regain our position at the head of the ``ready, 
        waiting for active consideration'' list.

        7. My Tribe's petition finally went on ``active consideration'' 
        in September 2005. The Department treated the other group, 
        #84B, in essence, as a co-petitioner and placed it on the 
        ``active consideration'' list in September 2005 along with my 
        Tribe.

        8. More than two years later, in November 2007, the OFA issued 
        a Proposed Finding on our petition. We are currently preparing 
        an evidentiary response to those areas in our petition which 
        OFA considers deficient.

    Since the late 1980s, this Committee has reviewed a series of 
reforms to the acknowledgment process. Today I will focus on procedural 
difficulties the Tribe has experienced and want to state up front that 
I am limiting my comments to procedural deficiencies in the process, 
i.e. how petitioners and evidence are handled. I do not believe this 
hearing to be the appropriate forum for discussing the factual 
foundation of my Tribe's history and continuity.
    Being Removed from ``Ready'' Status. OFA made a fundamental mistake 
by removing our petition from ``ready'' status and we are still feeling 
the impact of this decision 13 years later. The OFA received an 
application from a disgruntled member of the Tribe who disagreed with 
the results of the most recent tribal election. Rather than deferring 
to the Nation's political process, the OFA chose to give legitimacy to 
the other group. Rather than spend time reviewing this application, 
which would have demonstrated its illegitimacy, the OFA insinuated it 
into the process and processed it in tandem with my Tribe's petition. 
This has caused us severe problems that continue to this day. So while 
OFA routinely states that it defers to the internal political workings 
of petitioning groups, in fact it does get involved and often to the 
detriment of the group involved.
    Serial Extensions by OFA to Issue Proposed Finding (PF). The 
regulation at 25 CFR 83 provides that one year after going on active 
status, the OFA is required to issue a Proposed Finding. The regulation 
authorizes an additional 180-day period of time which may be granted by 
the Assistant Secretary--Indian Affairs. In our case the OFA/AS-IA/
Department granted to itself no fewer than 7 extensions before issuing 
a Proposed Finding.
    Most significantly, these procedural difficulties caused my Tribe 
to lose more than 10 years, and we have had to spend considerable 
resources updating our petition, including additional documentation and 
evidence. The fact that the Department accorded a newly-created group 
co-petitioner status has meant that every step of the active 
consideration stage has taken longer because the Department is dealing 
with two petitioners, not one. We maintain that a factual finding on my 
Tribe's governing procedures in 1995 could have quickly resolved the 
identity of the legitimate petitioner and saved the Department and all 
parties considerable time, effort, and expense.
    For this Committee it is indeed tempting to want to comprehensively 
reform a process it believes to be badly broken. I urge you to continue 
to focus on reform and to tackle those elements of the process that can 
be reformed and bring relief to other petitioners that find themselves 
in the same position we have been since 1982. I respectfully offer the 
following recommendations to improve the process.

   Starting with this Committee's recommendation, the Congress 
        should provide the OFA with sufficient resources and funding to 
        accomplish their mission, including informal technical 
        assistance sessions with petitioners before any filing is made 
        to guide them on the process.

   Likewise, the Committee should require OFA to provide 
        periodic progress reports on Active Status petitions and should 
        hold OFA and the Assistant Secretary accountable for developing 
        proper policy for Tribes to be treated fairly.

   OFA should not be authorized to remove petitioners from the 
        queue without procedural safeguards, including notice to the 
        petitioner, an opportunity to comment on the proposed action, 
        and some appeals process so that the removal decision can be 
        reviewed by a higher authority.

   OFA should formalize and promulgate a policy of non-
        interference in the internal political and electoral workings 
        of petitioning groups. OFA's decision in 1995 that resulted in 
        the insinuation of another group has caused years of delay, 
        additional costs to the Nation and the U.S. government, and 
        enormous administrative problems for us as the petitioner.

   OFA should have the decision-making flexibility to secure 
        reasonable extensions of time within which to issue Proposed 
        Findings. But that flexibility should not be open-ended and 
        should not allow for the kind of delays we experienced in 
        waiting for our Proposed Finding.

    I intend to submit for the record additional thoughts and 
recommendations based on our experience and thank you again for the 
opportunity to appear before you this morning. I would be happy to 
answer any questions you might have at this point.

    The Chairman. Mr. Rivera, thank you very much for your 
testimony.
    We will now hear from Patty Ferguson-Bohnee, Clinical 
Professor of Law and Director of the Indian Legal Clinic at the 
College of Law at Arizona State University. You may proceed.

         STATEMENT OF PATTY FERGUSON-BOHNEE, CLINICAL 
          PROFESSOR OF LAW AND DIRECTOR, INDIAN LEGAL 
          CLINIC, SANDRA DAY O'CONNOR COLLEGE OF LAW, 
                    ARIZONA STATE UNIVERSITY

    Ms. Ferguson-Bohnee. Thank you, Mr. Chairman.
    My name is Patty Ferguson-Bohnee, and I am the Director of 
the Indian Legal Clinic at the Sandra Day O'Connor College of 
Law at Arizona State University.
    The Clinic was requested by a staffer of the Senate 
Committee to analyze the Federal acknowledgement process and to 
provide some insights. I would like to recognize my students 
who are here today who prepared the preliminary analysis that I 
have attached as part of our testimony and hopefully can be 
submitted for the record. Those students are Alejandro Acosta, 
Jerome Clarke, Sebastian Zavala, Chia Halpern and Tana 
Fitzpatrick. This has been a great experience for them and we 
appreciate the opportunity to present the students' analysis.
    I would like to touch on a few of the highlights in their 
analysis that focus on issues the students have identified in 
the process. The initial intent of the process was not to 
create an extremely burdensome requirement for petitioners, but 
to provide an avenue for unrecognized tribes to request 
official recognition.
    In 1978, the American Indian Policy and Review Commission 
identified 130 tribes that had not been recognized. The initial 
regulations were offered in an attempt to help those individual 
tribes through the process.
    The four issues that the students have identified should be 
addressed if there is any hope for meaningful reform. These 
issues include the lack of resources, timeliness, the increased 
burden on petitioners and the lack of access and transparency.
    The first issue of resources permeates the entire process. 
The resource issue includes both funding for the Office of 
Federal Acknowledgement and funding for petitioners. We 
understand that OFA's efficiency, the Office of Federal 
Acknowledgement's efficiency is impacted by the amount of 
resources that are allocated to the process.
    Without sufficient funding the Office is unable to employ 
the requisite number of staff and research teams to administer 
an efficient process. We have reviewed testimony and spoken to 
past researchers who were in the office, and a past assistant 
secretary, who have identified that yes, there is indeed a need 
to increase the staff within the office and to employ more 
research teams if the petitions are able to be evaluated in a 
timely manner.
    The second resource issue is funding for the petitioners. 
Many of the petitioners lack necessary resources to complete 
petitions and to hire the necessary experts to compile the 
research and analyze the data. There are currently no funding 
mechanisms to assist petitioners in the process. Initially 
petitioners could submit petitions in any readable format, and 
now petitioners must analyze all data submitted, and it is a 
truly onerous burden for mostly poor, unfunded tribes.
    The second issue is the issue of timeliness which has been 
addressed. And this issue, we believe, also derives from the 
lack of resources. We believe that there should be realistic 
time lines for the petitioners and we also believe that the 
Office should follow these time lines that are identified in 
the process.
    In addition, the amount of time it takes to complete the 
process should not be as long as it currently is. I think that 
you have already identified this issue.
    The third issue is the increased burden for petitioners. 
Since its implementation there have been few petitioners who 
have actually completed the process. There seems to be an 
increased burden by requiring more evidence than was initially 
required for those petitioners who completed the process in the 
first five years.
    Also, there seems to be a change in the burden of proof. 
There seems to be a higher burden of proof than was required in 
the initial regulations, and the reasonable likelihood standard 
which indicates there should be a low burden and should allow 
for inferences has been interpreted to mean conclusive proof or 
a higher burden. In addition, there are some provisions within 
the acknowledgement process that are unknown to petitioners as 
to how they are to be interpreted. So there should be some 
clarity in that respect.
    The fourth issue is the lack of access to documents and the 
lack of transparency. I would like to note that now the Office 
has a website which is accessible to petitioners or any 
researchers or anyone who wants to review this information on 
the internet or online. This was previously unavailable for a 
number of years. This is now currently online and provides some 
information about petitioners.
    But one issue that we would like to point out is that FOIA 
requests that are submitted by petitioners are sometimes 
unnecessary. It seems that petitioners should not have to 
submit FOIA requests to obtain information that is contained in 
their files that the Department is reviewing, because these 
requests take a long time to receive a response to.
    The recommendations by the students are to identify a time 
frame by which petitions should be decided and then to provide 
sunset provisions for each stage of the process. The second 
recommendation is to assess the funding needs that correspond 
with this time frame that Congress or the Office may propose, 
so that petitions can be timely processed. Such funding needs 
would include the staff needed to administer the petitions, and 
funding for petitioners, so that the petitioners can provide 
the necessary information to be evaluated by the staff.
    Another recommendation would be to employ sufficient staff 
so that researchers can be assigned to regions and can develop 
familiarity in those regions. This may increase the efficiency 
of the process.
    Also, the students reviewed the possibility of implementing 
a commission or task force to either administer the process or 
to serve as a peer review or task force working in conjunction 
with the Office so as to lessen the burden of the 
administrative tasks that are undertaken during the petition 
processes.
    Most of the recommendations that the students identified 
are procedural and not substantive. There is one substantive 
recommendation which deals with 25 C.F.R. Part 83(b) and (c), 
proving social and political community from historical times to 
the present. The students identified that Congress should 
consider, or the OFA should consider changing the time period 
from either 1850 to the present or from the time in which the 
petitioner's State was admitted to the Union. This would reduce 
the burden on both the petitioner and the Office. The 
petitioners would still need to prove descent from historical 
tribe or tribes, but it would lessen the burden of all of the 
research that must be undertaken in order to provide 
information.
    I am happy to answer any questions that you may have.
    [The prepared statement of Ms. Ferguson-Bohnee follows:]

Prepared Statement of Patty Ferguson-Bohnee, Clinical Professor of Law 
and Director, Indian Legal Clinic, Sandra Day O'Connor College of Law, 
                        Arizona State University




    The Chairman. Thank you very much for your testimony. I 
thank all three of you for testifying about what is a 
complicated, challenging, and interesting issue.
    I will ask questions at the end. I am going to call on Vice 
Chairman Murkowski first, Senator Tester next, and then I will 
follow.
    Senator Murkowski?
    Senator Murkowski. Thank you, Mr. Chairman, and thank you 
to the members of the panel for your willingness to provide us 
with some information here this morning.
    Listening to the specific examples that you are living, if 
you will, Mr. Rivera, and then hearing some of the 
recommendations that the students have proposed and you have 
presented, and recognizing the situation that the Department is 
in as they process these, I think we recognize that there are 
issues of timeliness. There are certainly issues of funding, 
staffing, and so perhaps the solutions are not so far away from 
this. Of course, it always comes down to a question of the 
adequacy of the funding.
    Assistant Secretary Artman, let me ask you first, in your 
testimony, you indicae that OFA currently employs about 20 
staff, including those that are under contract with the 
Department. With the present number of employees that you have, 
how long do you figure that it would take to complete the 
remaining acknowledgment cases that are currently submitted to 
the Department?
    Mr. Artman. With the current staff, right now probably the 
most important are the teams that we have that are made up of 
the historians and the anthropologists and the genealogists who 
look into the reams of materials that we receive. And assuming 
everything is complete, the entire package is complete, which 
does take up a lot of our time as well, we are doing on 
average, between one and two, each team is doing between one 
and two packages per year, being able to complete those.
    So at our current workload of approximately 260 
applications, and by the way we are looking for a fourth team, 
with that fourth team in place we are still looking at 
somewhere between 50 to 60 years to do this. That is a big 
number.
    But also it requires a little bit of explanation behind 
that. A lot of our time is also spent on fulfilling FOIA 
requests, preparing material for challenges in court. I think 
right now we have four ongoing court challenges for some of our 
most recent decisions. And almost every decision, it is almost 
a guaranteed court challenge by somebody, almost every one.
    Senator Murkowski. Let me ask you on that line, then, Ms. 
Ferguson-Bohnee has indicated that it seems that there is just 
additional evidence, additional standards for interpreting the 
criteria that have come about over the years. Is some of this 
due to the fact that you anticipate legal challenges, so you 
need to make sure that you have more documentation than less? 
Is this what we are seeing?
    Mr. Artman. I think if you look at our decisions, and being 
very familiar with the Juaneno decision, I think the Juaneno 
decision is a perfect example. We looked at, I think it was 
approximately 175 pages, 190 pages long, it was a long 
decision. And there were two Juaneno decisions that were put 
out at the same time. For me, that was a culmination of where 
we had come from. That was a result of the litigation that we 
have had, things we have learned. But I also think, when I say 
the culmination, we certainly realize that has to turn around. 
One of the things that we are proposing in guidelines and how 
you do your works management guidelines, is to create shorter 
decisions.
    One of the big problems is, people who are receiving these, 
either the parties, the petitioners themselves, or the 
interested parties, have difficult times understanding where we 
are getting to. So we are trying to bring it down to the most 
core material and putting the additional substantiation 
elsewhere. I think that is going to be easier for the teams to 
develop those documents as well and create a reduction in time.
    But that is a result of all those court cases. But yet at 
the same time, I think we are going to be able to create 
documents and we are already starting to reduce the size of our 
documents but maintain the standards that have been put in 
place by the courts previously.
    Senator Murkowski. You mentioned that to get through what 
you have current pending within the Department, it could be a 
long time, 50 to 60 years. But Mr. Rivera has indicated that 
the case with the Juaneno tribe has been under active 
consideration on that list for some years now. Is that correct, 
that there are only seven on the active consideration list?
    Mr. Artman. There are six right now on the active 
consideration list.
    Senator Murkowski. So once you get to the active 
consideration list, how long do you figure is a reasonable time 
to resolve a case that has made it that far in the process?
    Mr. Artman. Through regulation, it should take about 25 
months.
    Senator Murkowski. From the time that it gets to active 
consideration?
    Mr. Artman. Yes. That includes the time for developing the 
determination, going through the technical assistance, putting 
out the proposed findings. Then there is a review period of 90 
days and additional technical assistance time. And then there 
is the final determination. So it is a lengthy time, once you 
make it to that point.
    Now, the ready list, that is where a team is assigned to 
you and all of your documents are reviewed. You have gone 
through your prior technical assistance, your documentation is 
considered complete and it is now, you now have the ability to 
have a team look at it. And that will vary, depending upon the 
size of the organization and also in certain situations, a 
tribe which may make it to the ready list or active list may 
split, may even split a few times. That can further delay the 
process, because then we have to look at where the membership 
is. And sometimes in those cases, those splits will create 
other entities which have parallel consideration, they are 
being considered at the same time out of necessity because of 
the way the membership has divided.
    Senator Murkowski. So even though the goal would be that it 
is no longer than 25 months on this active consideration list, 
you are saying that there are circumstances that occur, Mr. 
Rivera has mentioned that there have been seven extensions 
since they have been on active consideration, not extensions 
that the Tribe has requested, but extensions that have come 
from the Department. So are we able to realistically look at 25 
months and say that from a Department perspective, that is an 
achievable goal?
    Mr. Artman. I think we are. But again, the 25 months is a 
perfect scenario. Everything is complete. And in addition, for 
example, in the Juaneno case, Juaneno is a good example of 
where there was a split. Part of those delays, part of those 
extensions that we were seeking was to consider the impact of 
the split in the membership or in the split of the entity.
    So those externalities do impact that time line I have 
given you.
    Senator Murkowski. Then in your proposal that there be a 
sunset provision of 15 years for the Federal acknowledgement 
process, your comments here right now indicate to me that there 
are things that can happen that can delay a process. Is it fair 
to impose a 15 year deadline on the petitioner when they may 
require more assistance to meet the requirements that you are 
imposing on them?
    Mr. Artman. Along with that is the management guidance 
which we will be putting out shortly. In that, we are able to 
move up, we will be moving entities up the list if they meet 
certain requirements. We will be taking entities out of the 
list, and therefore they won't be due to have consideration 
based on other factors, for example, immediately failing one of 
the seven criteria would take them out.
    One of the recommendations that Ms. Bohnee made about 
moving up the dates for historical consideration, we are 
looking at that as well. So we are already taking steps that 
don't require regulatory changes to pull out the individuals 
who can move up more quickly through the list.
    Senator Murkowski. Will these guidelines, one of the 
concerns that we have heard is that the rules seem to change on 
the petitioners, and now all of a sudden this is required, or 
now we need to do this. By the revised guidelines that you are 
looking at, can you give me the assurance that they are not 
going to further complicate somebody that is in the process?
    Mr. Artman. Yes, we have looked at that specific issue to 
make sure that isn't the case. Usually when people say the 
rules are changed, when the petitioners claim the rules are 
changing, those changes are being caused by a recent court 
decision, most likely. We are making changes in our own system 
to adapt to that court ruling.
    So we don't want to create additional work or create any 
changes that the petitioners may not have been aware about 
already that were in the rules. These really do clarify what 
the rules state, and provide management guidance.
    Senator Murkowski. Can the Department do more to provide 
the technical assistance? Both Ms. Ferguson-Bohnee and Mr. 
Rivera have indicated that a level of technical assistance 
could help the petitioners. And if we are going to impose these 
deadlines, it seems to me there has to be a little bit of just 
technical assistance that might be provided.
    I am not suggesting that the answer has to be financial. 
But just in terms of working the process, is that something 
that could be made to happen?
    Mr. Artman. Yes, ma'am. And for making our information 
available to the petitioners to clarify for them exactly what 
is expected to actually sitting down in the room and going 
through the documents at the various stages of the 
acknowledgement process and providing the technical assistance, 
those are all things we do strive to do. As Chairman Rivera 
noted, you just had a very successful technical assistance 
session, I believe two formal technical assistance sessions 
where we sat down and we worked through all of the issues that 
came up in the proposed findings.
    So we are taking strides to do just that.
    Senator Murkowski. Mr. Rivera, what do you think of this 
proposed 15-year sunset?
    Mr. Rivera. I think it is a very interesting and perhaps a 
thoughtful process to get through what needs to be done. Again, 
I would like to emphasize that nothing is going to happen in 
the ready list until the actives get decisions made. Assistant 
Secretary Artman is correct that the technical assistance has 
been very helpful for us, because that is a time that we can 
engage the Department to find out exactly what evidence is 
needed and required. We haven't had that opportunity to do that 
until we are able to sit down and find out how the Office sees 
the evidence and how that takes place.
    So that part has been very helpful. It would be nice to 
have that part at the front end instead of at the back end.
    As far as the extensions on our case are concerned, and we 
will provide the Committee with copies of those letters, never 
once was it communicated to us that the reasons for extensions 
were because of another petition. It was always because of, 
more time is needed and resources are needed to examine the 
evidence and to work on the petition. So the communication 
part, getting up to the release of a proposed finding, is many 
times not quite as open as it should be, so that we can know 
exactly what needs to be done. There needs to be a lot more 
cooperation between the various different parties.
    The way that we see it is the Committee oversees that the 
regulations are being followed properly. The Department 
enforces those regulations. And it is up to the Tribe to 
provide the evidence to comply with those regulations. But in 
order for us to do that, we have to have to have that kind of 
tripartite understanding and the communication with the 
Department. We realize that they are burdened because of 
resources. We realize that, but at the same time, with this 25 
month period, according to the regulations, we feel that that 
is doable, when we comply with the regulations as far as 
providing our petition to be ready for active and inactive 
status.
    So all we are asking for is that those regulations are 
abided by, the communication and technical assistance is 
provided, and that the movement proceeds without unnecessary 
delay.
    Senator Murkowski. Let me ask just one final question of 
you, Ms. Ferguson-Bohnee. You have indicated that in the 
recommendations from your students that a time frame is 
identified, and a sunset provision for each stage. Were the 
recommendations more specific than that in terms of suggested 
time frames? In other words, the Secretary has proposed 15 
years for the entire process. But within the stages, did you 
identify what you felt to be sufficient time lines that could 
be shared with the Committee and with the Secretary?
    Ms. Ferguson-Bohnee. Yes, ma'am. I think to answer your 
question, the students reviewed identifying the time frame, but 
the time frame has to be dependent on funding, so that the time 
frame can be realistic. And we can't assess what that realistic 
time frame will be, and we think that either Congress or the 
Department should identify what they think the time frame 
should be.
    Senator Murkowski. Do you think 15 years is reasonable for 
the entire process?
    Ms. Ferguson-Bohnee. For each?
    Senator Murkowski. For the entire process.
    Ms. Ferguson-Bohnee. For each petitioner?
    Senator Murkowski. Yes, for each petitioner.
    Ms. Ferguson-Bohnee. I think that 15 years, if there are 
resources allocated, is a long time. But I think that 10 years 
or a shorter time period would probably be better, because a 
lot of these petitioners have been waiting on these lists and 
engaged in research for, some of them, 26 years, some of them 
longer. But the issue is, if the resources are allocated to 
them, and I think what the students identified is that perhaps 
Congress or the Office should look at how long should the 
process of Federal acknowledgement go on?
    For example, should we identify when all of the petitions 
should be assessed, and in that way, appropriate sufficient 
funding for all of the petitioners and for the Office, so that 
in 60 years, there aren't still petitioners who are submitting 
letters of intent so that the sunset provisions relate to, by 
what deadline should a petitioner submit a letter of intent, 
and then start the time frame from there.
    Senator Murkowski. Thank you. Thank you, Mr. Chairman, I 
have gone over my time.
    Mr. Rivera. Mr. Chairman, may I say one more thing on the 
15-year item?
    The Chairman. Yes.
    Mr. Rivera. I do think that it is sufficient as far as I am 
concerned. If a tribe has not provided the ample evidence to be 
ready for active within the next 15 years, then that is another 
issue that falls the burden on the tribe. There are only six 
tribes that are ready for active right now. There are only six 
tribes that are inactive. That is 12. So 12 to be completed 
within the next 15 years I think is sufficient time.
    The Chairman. Senator Tester?
    Senator Tester. Thank you, Mr. Chairman. A couple of 
things. First of all, I want to thank the panelists for their 
testimony. I also want to thank Assistant Secretary Artman for 
making changes in the regulations. I hope they are not just 
changes for the sake of changes. I am sure they are not. But 
they are to help move the process along and streamline it and 
make it work better for everybody.
    Along those lines, as you were reviewing the regulations, 
is there anything we need to do at the Congressional level to 
make that streamlining better, or can you handle it within your 
regulations?
    Mr. Artman. I think right now, though there may be 
disagreement from our point of view, we think we can handle it 
within the current regulations and the APA process.
    Senator Tester. Okay. Thank you. And then there were, by 
your own answers to the questions here earlier, you said that 
it would take 50 to 60 years to take care of the current 
backlog. Is that correct?
    Mr. Artman. That is correct.
    Senator Tester. So how, let's say you put your regulations 
into effect, are those folks grandfathered in?
    Mr. Artman. A large part of that backlog, we have six on 
the active list, we have another ten on the ready list. Then 
there are 243 on the waiting list. Now, that 243 is a very 
important number, because we don't know how many of those could 
qualify in the acknowledgement process. Many of those 243 are 
made up solely of letters of intent and little documentation to 
support them otherwise. Many of those are made up of groups who 
are not tribes, and we know already that in a handful of cases, 
the FBI is looking into them because these are essentially 
confidence operations that are being set up for one purpose or 
another, either to get Federal funds or to help speed through 
the immigration process for people who go through them.
    So that is a mixed bag in there. We still have to deal with 
that, because they have set the marker in our organization, 
they have sent in the letter of intent. So we are looking at 
all 259 over the next 15 years. What that will do, I think, if 
we put the regulations up there, if they are put in place, you 
will see the 243, members of the 243, who feel that they can 
make it into the ready list quickly begin to compile their 
documentation in the correct order, within our guidelines and 
our handbooks, and submit that for consideration to make it 
onto the ready list.
    Senator Tester. Do you have the staffing to be able to 
handle that?
    Mr. Artman. Not at the moment. But of course, if these 
regulations go in place, that is one of the things we will have 
to look at.
    Senator Tester. So you will be asking us for an additional 
appropriation.
    Mr. Artman. That may be the case.
    Senator Tester. Do you have any idea how much that might 
be?
    Mr. Artman. Not yet, Senator, and when I say these 
regulations are in the very beginning stages, we are still 
working with OMB on finalizing what these would say, for that 
reason. That is one of the many reasons.
    Senator Tester. That is fine. So the clock starts ticking 
on the 15-year sunset when you receive the letter of intent or 
when you receive the first documentation?
    Mr. Artman. Well, it is broken down into different stages. 
As they are written right now, and that is to say that they 
haven't gone through consultation yet, and they haven't gone 
through the comment period, and we are still going through OMB 
review. So right now, in our head, we have set out a time line 
that we think would work, but it will go through quite a bit.
    There is a sunset of five years to get all the information 
in, and then there is an additional ten years for us to get, 
and the petitioners, to get through the next stages.
    Senator Tester. I honestly don't have any problem with 
putting out time lines. Self-imposed time lines work the best, 
because you guys should be able to determine how quickly you 
can run through it. But I didn't hear the answer. Does the 
clock start ticking when you get the letter of intent?
    Mr. Artman. Yes. That is when our tolling period starts.
    Senator Tester. That is fine.
    Mr. Artman. But we would essentially, the 15-year sunset is 
for OFA to sunset its process.
    Senator Tester. Okay. I don't know if you have any, but 
over the last, let's say ten years, how many tribes have been 
denied recognition, how many have been accepted? Do you have 
those figures? Even the last five, I don't care. I am just 
curious.
    Mr. Artman. From 1978, when the regulations first began to 
present, we have 16 petitioners that became federally-
acknowledged tribes. Twenty-eight have been denied.
    Senator Tester. Of those 28, how many were challenged in 
court?
    Mr. Artman. I don't know. I would say probably a dozen of 
those.
    Senator Tester. I don't know if you can get that 
information, I would like to know that. I would also like to 
know how many were successful, what was done, were there 
damages awarded, what happened.
    Mr. Artman. We can compile that for you.
    Senator Tester. If you would. I am just really curious 
about that.
    I guess the last thing I want to say is the transparency 
issue. I just want to concur with Ms. Bohnee. The issue about 
transparency and making sure we have all our agencies as 
transparent as possible for information I think is critical. If 
in fact you are responsible for getting the website up and 
going, you need to be applauded for that and anything else you 
can do in that vein I think is positive. Because transparency 
is critically important, and I think we need to work at it.
    Thank you.
    Mr. Artman. Thank you, sir.
    The Chairman. Mr. Artman, Mr. Assistant Secretary, review 
with me again some numbers here. How many petitions have been 
approved since 1978 in the recognition process?
    Mr. Artman. Since 1978, there have been 16 petitioners that 
have become acknowledged through our process, or there have 
been, and 3 others whose status has been clarified through 
other means.
    The Chairman. How many of the 16 have been approved?
    Mr. Artman. Those were the ones that were acknowledged.
    The Chairman. Those were approved. How many were denied?
    Mr. Artman. There were 28 since 1978 that have been denied.
    The Chairman. Do you have material with you of how many 
tribal recognition actions have occurred as a result of 
legislative action?
    Mr. Artman. Yes, we do, nine.
    The Chairman. Over what period of time?
    Mr. Artman. Since 1978, there have been two through 
legislative restoration and seven through legislative 
recognition.
    The Chairman. Ms. Ferguson-Bohnee, you indicated that there 
are two approaches: one is to improve the current system, and 
the other is to create some sort of independent process outside 
of the system. Which do you prefer? What are the merits of 
each?
    Ms. Ferguson-Bohnee. I think if the current system as it 
rests, is not funded, then we are going to be at the same 
standstill and have the same burdens of not being able to 
evaluate the petitioners. I think that there is nothing 
inherently within OFA that is a problem. I don't think the 
students identified anything with OFA as being a problem.
    But the thought was that if Congress wanted to create a 
commission that would expire, such as the Indian Land Claims 
Commission or something of that nature, which would provide a 
sufficient number of researchers, genealogists, historians, 
anthropologists and lawyers to administer the process, and fund 
that process, then the Congress has dedicated funds and noted 
it as a priority that it would sufficiently allow time for that 
process to occur. But nothing within the process is inherently 
a problem.
    The Chairman. I see.
    Mr. Rivera, you said that you filed the letter of intent 26 
years ago?
    Mr. Rivera. In 1982, August 13th. About August 13th.
    The Chairman. You know exactly, don't you?
    Mr. Rivera. Oh, yes.
    The Chairman. You indicated that there have been a number 
of delays as a result of the Interior Department, but you also 
excuse some of those delays, correct? But there was a 13-year 
period that you described, can you tell me again what the 13-
year period was?
    Mr. Rivera. In the ready status, when a petition has all 
the evidence provided that qualifies for a tribe to be ready 
for active, it is kind of the waiting room, you sit there and 
you wait. We sat there and waited for it for a while, and moved 
up in the process as tribes moved into active. It is like 
taking a number. We moved up in the process to the point where 
we were in the first place, the next tribe to move into ready.
    We submitted our letter of intent in 1982. Another party, 
which was not affiliated as far as the membership of the Tribe, 
submitted a letter of intent approximately 14 years later under 
the same name as our Tribe. Because of that, and other issues 
surrounding that, and because the policy and procedures on how 
to deal with something like that were a little sketchy at the 
time, the Department decided under executive discretion to 
remove the Tribe from that first spot to sort things out, under 
our protest.
    The Chairman. Is that where the 13 years came in?
    Mr. Rivera. A year later, when we were put back on the 
ready status, we were put back at the number six spot. And it 
took us ten years to get back.
    The Chairman. That didn't happen under Mr. Artman's watch, 
obviously.
    Mr. Rivera. No.
    The Chairman. But that seems to me like an unfairness in 
the system.
    Let me ask Mr. Artman the other issue that has intervened 
since 1978 which is the Cabazon decision. I assume that there 
is at least, not for all, and I am not suggesting this is 
across the board, some tribal recognition activities which are 
a result of an interest in being able to conduct gaming. Would 
that be the case?
    Mr. Artman. I am sure there may be some motivation for 
that.
    The Chairman. We are talking about especially some of the 
letters of intent that are filed. I am not talking so much 
about the cases that have been going on for a long while.
    Mr. Artman. And that may be some of the motivation for 
that. But when we looked at the numbers, since the Cabazon 
case, or since 1988 with the passage of IGRA, they stayed 
relatively consistent. We receive anywhere between 9 to 12 
petitions a year. And that didn't change after 1988 or after 
the Cabazon decision.
    The Chairman. That might answer my question. I am a little 
surprised by that, because I would have thought the opposite. 
That is good news, because that suggests those that are seeking 
recognition are doing it not with respect to gaming activities. 
The gaming activities can be very lucrative.
    My understanding, you might correct this, is that there is 
in one part of this Country a tribe with a membership of one 
that owns a gaming facility. Is that correct?
    Mr. Artman. I don't recall a membership of one. There are 
tribes and bands out there that have small memberships that may 
partake in gaming. I know there are many that don't, small 
memberships that don't partake in gaming as well.
    The Chairman. The process of seeking recognition is a very 
important process to the First Americans. Many of them were 
here, they had governments, they lived, they had territory. But 
we came along later and we even rewrote the history books. It 
is interesting, I grew up understanding the father of our 
Country was George Washington. I learned later, of course, 
there were some great Indian leaders out on the prairies in my 
part of the Country and throughout the rest of America who were 
providing leadership to their tribes long before George 
Washington was born. Yet we write the history books the way we 
want to write them.
    This acknowledgement process is an interesting process, 
because in many ways it is trying to right some wrongs by 
allowing tribes to achieve the proper recognition that they are 
entitled to, if they can demonstrate to you through this 
process and through the seven criteria that they have a 
historical culture in existence.
    I do think the frustration you are seeing from tribes and 
from the Congress is that the process takes a long, long time. 
I would not today suggest that somebody ought to be able to 
apply and in 24 months get an answer from you. I think that is 
not realistic. This is about genealogy and historians, and so 
much goes into making the right decision here. So I am not 
suggesting that there has to be drive-by recognition or should 
be. I would not support that.
    But I think somewhere between 30 years and some more 
reasonable timeframe we should be able to achieve this. I 
assume there are people that have applied that are long since 
dead when the Department makes a decision, given the 20 and 30 
year time frames. I note that the budget request that is 
submitted for this activity this year is identical to last 
year, I believe. It goes to Ms. Ferguson-Bohnee's point that 
this is a process that can work if it is properly funded. Why 
are we receiving a budget request that is flat if in fact we 
have these lengthy periods of delays?
    Mr. Artman. One of our responsibilities is the Office of 
Federal Acknowledgement and overseeing the acknowledgement 
process. But also, in developing our budgets, there are a lot 
of inputs into the process, one of which is the tribal budget 
advisory committee that we work with, which is made up of 
tribal leaders from all the 12 different regions of the Nation. 
As you can imagine, being made up of tribal leaders, their 
priorities are in other areas, oftentimes. And acknowledgement 
isn't something that is often spoken about.
    So this is something that we have to work within to our 
other core responsibilities. This is part of our 
responsibility. But the majority of our budget we try to make 
sure is focused on, that we meet the trust responsibilities, be 
it enforcement, taking land into trust, education, law 
enforcement, what have you. It is difficult oftentimes to carve 
out anything more than that. Now, if we have something like 
regulations with a set time frame, where there is a cost 
benefit to that, perhaps that is a different formula then.
    The Chairman. Let me ask about regulations just for a 
moment. First of all, I appreciate the fact that today you 
talked about consultation in the development of these 
regulations. Consultation with tribes is very important; I know 
you know that since you are a tribal member. Our Committee 
emphasizes consultation. So I appreciate what you said today 
about that.
    Regulations sometimes have been pretty elusive in terms of 
getting them complete. We have hearings with this Committee on 
the subject of off-reservation gaming, the two-part 
determination, and other related issues. I think they have been 
writing regulations for 17 years now on those subjects. What is 
your estimate of when you might complete your regulatory 
process, or the process of developing these regulations on this 
issue?
    Mr. Artman. At the moment, we have a draft. We are working 
with OMB on that draft and through our own internal processes. 
Then there will be the comment and consultation.
    I can say with some surety, it will be in the next 
Administration. We just don't have the time this year to finish 
them up.
    The Chairman. I recognize it won't happen in the coming 
couple of months. But is it reasonable for us to be expecting 
that this is not going to take four years or three years to do 
regulations?
    Mr. Artman. I would hope not. Since at that time I won't be 
Lee Fleming's boss, I will say that he will get them done as 
quickly as possible.
    The Chairman. As you saw by this morning's action with the 
Lumbee Tribe, this is a very important issue. This Committee is 
pressured, when I say pressured, that is the wrong word, this 
Committee is requested by a number of tribes to pass 
recognition bills for them, because they are frustrated that 
the acknowledgement process is too slow. It is my view that we 
not get involved, as a Committee, in addressing these 
individual pieces of legislation that require us to recognize 
tribes.
    I would much prefer they go through the acknowledgement 
process. That was not possible for the Lumbees, but it is for 
other tribes. The Virginia tribes, for example, have requests 
in front of us, and they make a pretty powerful case, as do 
some other tribes. But our hope is to work with you in the 
process with these tribal governments and get them in the 
process and get these issues resolved.
    I appreciate, Assistant Secretary Artman, your appearance 
today. Mr. Rivera, thank you for coming a good long distance. 
Ms. Bohnee, the same to you. Would you ask your students, who 
worked on these issues, to stand up, so that we can recognize 
them? And these are all Arizona State law students?
    Ms. Ferguson-Bohnee. Yes, sir, they are third-year law 
students in the Indian Legal Program.
    The Chairman. We thank you very much for your work and 
welcome your participation. Thank you very much for being here.
    This hearing is adjourned.
    [Whereupon, at 10:25 a.m., the Committee was adjourned.]
                            A P P E N D I X




                                  
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