[Senate Hearing 111-470]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 111-470



                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE


                             FIRST SESSION


                            NOVEMBER 4, 2009


         Printed for the use of the Committee on Indian Affairs

56-575                    WASHINGTON : 2010
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                      COMMITTEE ON INDIAN AFFAIRS

                BYRON L. DORGAN, North Dakota, Chairman
                 JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii              TOM COBURN, M.D., Oklahoma
TIM JOHNSON, South Dakota            MIKE CRAPO, Idaho
MARIA CANTWELL, Washington           MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
      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

Hearing held on November 4, 2009.................................     1
Statement of Senator Barrasso....................................     3
Statement of Senator Dorgan......................................     1
Statement of Senator Franken.....................................    16
Statement of Senator Murkowski...................................    14
Statement of Senator Bill Nelson.................................     5
Statement of Senator Tester......................................     4
Statement of Senator Udall.......................................     5


Ettawageshik, Frank, Chairman, Federal Acknowledgement Task 
  Force, National Congress of American Indians...................    21
    Prepared statement...........................................    24
Ferguson-Bohnee, Patty, Director, Indian Legal Clinic; Clinical 
  Professor of Law, Arizona State University.....................    37
    Prepared statement...........................................    40
Sinclair, Hon. John, President, Little Shell Tribe of Chippewa 
  Indians of Montana.............................................    28
    Prepared statement...........................................    30
Skibine, George T., Acting Principal Deputy Assistant Secretary 
  for Indian Affairs, U.S. Department of the Interior; 
  accompanied by R. Lee Fleming, Director, Office of Federal 
  Acknowledgement................................................     6
    Prepared statement...........................................     9
Tucker, Hon. Ann D., Chairwomen, Muscogee Nation of Florida......    34
    Prepared statement...........................................    36


Aceituno, Pedro, Chairman, California Cities for Self-Reliance 
  Joint Powers Authority, prepared statement.....................    96
Faleomavaega, Hon. Eni F.H., U.S. Congressman from American 
  Samoa, letter, dated November 2, 2009..........................   102
Norwood, John, Pastor, Nanticoke Lenni-Lenape Tribal Nation of 
  New Jersey, prepared statement.................................    93
Towns of Ledyard, North Stonington, and Preston, Connecticut, 
  prepared statement.............................................    98
Trope, Jack F., Executive Director, Association on American 
  Indian Affairs, prepared statement.............................    95
Wyzlic Lisa, Citizen, Grand River Bands of Ottawa Indians, 
  prepared statement.............................................    95



                      WEDNESDAY, NOVEMBER 4, 2009

                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:15 p.m. in room 
628, Dirksen Senate Office Building, Hon. Byron L. Dorgan, 
Chairman of the Committee, presiding.


    The Chairman. We are going to call the hearing to order. 
This is a hearing of the Indian Affairs Committee. It is an 
oversight hearing on the Fixing of the Federal Acknowledgement 
Process. The very title implies that the process is broken, so 
our title says this is about fixing it.
    Today we are going to talk about the Federal 
acknowledgement process, which is a very important issue, and 
one I think that does need substantial oversight. Last month, 
this committee considered and approved two bills that will 
grant Federal recognition to the Lumbee Tribe in North Carolina 
and to six tribes in Virginia. I believe in both cases they 
represented unique circumstances. I stated last month, however, 
that I would not intend for this Committee to begin to become a 
committee in which we recognize Indian tribes. That is not what 
we would like to do. That is a process that has been 
established and funded at the Interior Department, and that is 
where the acknowledgement process should exist and be 
    Congress and this Committee do not have the resources nor 
the expertise to make informed decisions on recognizing Indian 
tribes. They are better left, in my judgment, for people with 
expertise in this matter.
    But I believe that the administrative process at the 
Department of the Interior is broken. Both of our tribal 
witnesses today have been in this process for some 30 years, 
that is three decades. People will be born and people will die 
in the middle of that process without ever getting answers.
    The Little Shell Band of Chippewa Indians in Montana first 
submitted their letter of intent in 1978. Their petition was 
deemed complete by the Federal acknowledgement in 1995. A final 
decision was issued last week, which I believe was denying that 
    The Muscogee Nation of Florida submitted their letter of 
intent in 1978. The petition was submitted in 1995, deemed 
complete, 18 years later, in 2003. And the Office of Federal 
Acknowledgement, however, has not started a review of the 
petition, which means they too will have to wait perhaps 
another decade before receiving a final determination.
    Regardless of the merits of these petitions, and that is 
not my point of raising them. The current process, in my 
judgment, is taking too long. I understand the frustration of 
petitioning groups. They spend decades gathering and 
documenting to complete their petitions, only to learn that it 
will take the Department decades more just to review the 
    In addition, concerns have been raised about the consistent 
application of the mandatory criteria for recognition. It is 
not clear what level of evidence is really sufficient to meet 
the ``reasonable likelihood'' standard required by the 
regulations. The Little Shell Tribe, as an example, was 
originally told in the year 2000 it did not need to provide 
evidence of being identified as an Indian entity on a 
``substantially continuous basis'' in every decade in order to 
meet the criteria. However, the Department's final 
determination last week found that the group failed to meet the 
criteria because it failed to provide the evidence for every 
    The Department's deliberations on the Little Shell petition 
reveal a significant disagreement between the Office of Federal 
Acknowledgement and the Assistant Secretary back when the 
Department's proposed positive finding was issued in 2000. It 
also shows the Department reversing its position on several 
factors midway through the process. That raises several 
concerns, not just exclusive to that petition. It brings into 
the question who is deciding the Federal recognition petitions 
at the Department of the Interior, the Office of Federal 
Acknowledgement or the Assistant Secretary? Ultimately, it is 
supposed to be the Secretary.
    Second, it is unclear what the burden of proof is for a 
petitioner to meet each of the seven mandatory criteria. The 
burden of proof is supposed to be ``reasonable likelihood,'' 
however, this standard has never been defined by the 
Department. Former assistant secretaries and the author of the 
recognition regulations have testified that the process should 
be taken out of the Department of the Interior. This would 
avoid inconsistent interpretation of data that seems to be 
    Congressman Faleomavaega recently introduced a bill to 
transfer the recognition process to an independent commission. 
Last year, the former assistant secretary testified about 
changes the Department was making internally to improve the 
process. So today, I am curious to hear about whether there has 
been an improvement in the process. I am interested in learning 
what additional steps the Department is taking to make more 
substantial changes. And I want to hear other ideas on how this 
process can be improved. My staff is analyzing whether the 
processed should use administrative law judges to provide more 
transparency and a clear legal standard for evidentiary review.
    Let me just say finally that this process, I have this 
summary in front of me that says there are, in the current 
workload, 15 petitions, 7 I believe are active status. That 
perhaps is now six from last week's decision. Nine are 
petitions in ready status. And I understand, although this is a 
hard number to get from the Interior, there are about 80 
partially documented petitions.
    In any event, as I have indicated, even petitions that have 
been ready and complete on nearly a decade ago are now just 
getting into the process of being part of the current workload. 
I just think this is not a system that works. I am not talking 
about the yeses or the noes that come from the Department. I am 
talking about the fact that when people get together and file a 
petition, they should not expect it will take three decades for 
their Government to respond to them. That is just not 
satisfactory to me, and I think it is not satisfactory to the 
    Let me call on the Vice Chairman, Senator Barrasso.

                   U.S. SENATOR FROM WYOMING

    Senator Barrasso. Thank you very much, Mr. Chairman. I 
agree completely with you. It is not satisfactory to me as a 
member of the Committee. I want to thank you for holding this 
hearing, I want to thank the witnesses for traveling great 
distances to be with us today.
    I want to be clear: I support an administrative process for 
recognizing Indian tribes as opposed to the legislative 
process. The administrative process emphasizes a thorough and 
uniform analysis of every Federal acknowledgement petition. The 
Office of Federal Acknowledgement includes professional 
historians, anthropologists, genealogists. And these are people 
who are trained to evaluate and compare each petition against 
the seven criteria found in the Federal acknowledgement 
    However, many tribal groups feel, appropriately, that the 
petition process is too costly and too protracted. Since 1978, 
only 47 petitions have been fully processed and resolved by the 
Department. Several tribal groups have been in the queue for 
over 30 years. The Department has told the Committee on the 
past that the delays are often the result of petitioners not 
adequately documenting their petitions. But we have heard 
petitioners say that the OFA keeps moving the goalpost back, 
requiring more and more documentation, Mr. Chairman.
    The fact is, the current administrative petition process 
does not impose strict deadlines. It is, practically speaking, 
open-ended, and some would say, never-ending.
    Mr. Chairman, I think this tells a story: Currently, nine 
group are on the OFA's ready and waiting list, that is, waiting 
to be considered by the OFA. One of these nine tribes has been 
in the ready and waiting status for almost 14 years. Three 
others have been there for 12 or 13 years. So I can see why 
group would conclude that it is better to avoid the process 
altogether and ask Congress to recognize them.
    But frankly, Mr. Chairman, that doesn't mean that Congress 
is the right way to go. It may be an easier way to go, but not 
the right way. So I hope to hear suggestions today, Mr. 
Chairman, to show us how this process can be improved.
    Thank you, Mr. Chairman.
    The Chairman. Senator Barrasso, thank you very much.
    I am going to recognize members for brief opening 
statements. Then what I will do is I will recognize our 
colleague, Senator Nelson from Florida, who I believe wishes to 
introduce the Honorable Ann Tucker. She will be on the second 
    We are going to hear first from Interior, but I know that 
Senator Nelson will have other things. I would like to have him 
have the opportunity to introduce Ms. Tucker.
    Senator Tester.

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

    Senator Tester. Thank you, Mr. Chairman. I want to thank 
you for this Committee meeting, and I mean that a lot.
    Before I get into my statement, real quick, I want to thank 
John Sinclair from Montana Little Shell Tribe, for being here 
today. John is a third generation president of the Little Shell 
Tribe. I know how many trips you have made back to Washington, 
D.C., just in the short time I have been here. And I know that 
it comes at great financial sacrifice and sacrifice to your 
family. I want you to know that we appreciate it. And I want to 
thank you for your lifelong dedication to your people. It means 
a lot.
    Mr. Chairman, I want to thank you for this hearing. I think 
that as you and the Ranking Member have said, the process is 
broken. I don't think there is any doubt about that. It is a 
good opportunity to have the folks from Interior here to 
discuss it to see if there are ways that we can make it better, 
because I think it needs to be better. We do need a balance on 
one hand, we don't want a rubber stamp on one hand. On the 
other hand, it shouldn't take 31 years to make a decision, $2 
million in legal fees, which is what the Little Shell have had 
to pay, and over 70,000 pages of documents, which by the way, 
if stacked on top of one another would be 35 feet tall.
    Mr. Chairman, I think you probably already know this, I 
think the decision that came out of Interior last week was 
wrong. But that is not why we are here. We are really here to 
fix a situation that needs to be fixed. You have said many 
times in this Committee that you don't think it is appropriate 
for the Committee to take up tribal recognition. I agree with 
that. I think it is a function of the Department of Interior.
    But by the same token, if their ability to do this in a 
timely basis with solid reasoning behind it doesn't happen, 
that system is broken and needs to be fixed. It falls upon us 
as people in the legislative branch to make it work or 
potentially even recognize tribes that the Department of 
Interior has shown that they weren't going to recognize because 
their process is broken.
    At any rate, I want to thank you for having the hearing, 
once again. I appreciate the opportunity to ask some questions 
once the witnesses get done.
    The Chairman. Senator Tester, thank you.
    Senator Udall.

                 STATEMENT OF HON. TOM UDALL, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Udall. Thank you, Mr. Chairman. I would also like 
to thank the Chairman for continuing his efforts to keep 
attention on the pitfalls and the long and complicated and even 
unclear process of Federal acknowledgement. It is my 
understanding that this Committee has held a hearing on this 
issue every Congress since 2002. I hope that this hearing will 
be productive for all of us, and I hope we will gain new 
determination and ideas on how we can improve this process.
    Federal tribal recognition is a serious thing. It is of the 
utmost importance to communities and nations across the 
Country. The United States has a solemn trust responsibility to 
tribes that is based on a long and often tragic history of 
treaties and contracts. It is important that the Federal 
Government take these responsibilities seriously and conduct a 
fair and transparent process of Federal acknowledgement.
    With that, thank you, Mr. Chairman.
    The Chairman. Senator Udall, thank you very much.
    Chairperson Tucker, you should know the Muscogee Nation has 
a very fierce advocate here in the form of Senator Nelson. I 
know he wishes to introduce you, even though you are going to 
be on the second panel.
    Senator Nelson, if you would come up and introduce the 
Chairperson, we would appreciate that.

                   U.S. SENATOR FROM FLORIDA

    Senator Nelson. Thank you, Mr. Chairman.
    You don't normally associate tribes with Florida, all of 
you four esteemed Senators being from the western part of our 
Country. But as you know, we have two very prominent tribes, 
the Seminoles and the Miccosukee in Florida. And the Seminoles 
are quick to point out that they are the only unconquered 
    But we have many others that are represented. And I am here 
to mirror the frustration that you all have just expressed in 
your opening comments with a process that needs to be repaired 
and that needs to be improved. And it is tribes like the 
Muscogee Nation of Florida that have waited for decades and 
they still don't have a decision. As a matter of fact, they 
participated in the Federal acknowledgement process in 1978, 
that is 31 years ago, without a decision. Even the State of 
Florida legislature recognized them in 1986. But the 
recognition is still not there.
    So what I wanted to do was to introduce Ann, the Chairwoman 
of the Muscogee Nation, Ann Tucker. She served as the tribal 
council Chairwoman since 2002. The Chairwoman has served the 
Muscogee Nation of Florida since 1979, when she first collected 
oral histories for the University of West Florida. It was a 
project funded by the Florida Endowment of the Humanities.
    She was the youngest appointee to the Northwest Florida 
Creek Indian Council by then-Governor and our former colleague 
Senator Bob Graham, in 1981. She served 12 years as an elected 
representative to the tribal council, and the Chairwoman is 
also tasked by the tribal council to complete the Federal 
recognition process for the tribe.
    So I want to thank you for your willingness to hold this 
hearing and to keep after this. While the bill that I had filed 
had a hearing, it never made it to the Senate Floor. So Senator 
Martinez and I reintroduced it as the 111th Congress started. I 
am hoping that you will be able to address this, address the 
process, and move to a markup.
    Thank you for the courtesies that you have extended to me, 
Mr. Chairman.
    The Chairman. Senator Nelson, thank you very much. Thanks 
for your work, and the Committee looks forward to continuing to 
working with you.
    Our first panel is going to be Mr. George Skibine, Acting 
Principal Deputy Assistant Secretary for Indian Affairs at the 
U.S. Department of the Interior. He is accompanied by Mr. R. 
Lee Fleming, the Director of the Office of Federal 
Acknowledgement at the U.S. Department of the Interior here in 
Washington, D.C.
    Mr. Skibine, you may proceed. Thank you for being with us.


    Mr. Skibine. Thank you, Mr. Chairman, Mr. Vice Chairman, 
Senator Tester, Senator Udall. I am pleased to be here today to 
present our views on fixing the Federal acknowledgement 
    I am appearing today as the Acting Principal Deputy 
Assistant Secretary of Indian Affairs. And it is in this 
capacity that I am appearing before you today.
    I am also the Acting Chairman of the National Indian Gaming 
Commission. But that is not what I am here to talk about.
    My statement is in the record, so I am not going to repeat 
it. I am just going to make a few comments and highlight what 
we said.
    Essentially, when Larry EchoHawk became Assistant 
Secretary, at his confirmation hearing, I think he agreed with 
you, Mr. Chairman, and with Senator Tester, that the 
acknowledgment process needed to be improved, to say the least. 
So he has asked me to be the chief architect of trying to fix 
what is broken.
    As a result, I have committed to him that this is going to 
be one of the priorities of his Administration, and that we are 
going to get that done before he leaves office, for sure. I 
became involved in the process in June of last year, when I 
became the Acting Assistant Secretary during the Kempthorne 
Administration. At that time, I really didn't know much about 
the acknowledgement process, so I am certainly no expert in 
this area. I have certainly learned a lot in the year and a 
half or so that I have been involved in it.
    One of the first issues that I tackled was a request for an 
extension of time for a petitioner. I granted it, it was my 
first week in the job. Lo and behold, I thought it was going to 
be non-controversial. The following day, I got a call from an 
angry Congressman who was wondering what this was all about. I 
became quickly immersed in the controversies that surround this 
    And what I have come to conclude at this point is that, I 
know the title of the hearing is fixing something that is 
broken. I am not sure that the system is necessarily broken. 
Certainly, Mr. Lee Fleming will tell you, if he may, when I am 
done, why it is not broken. But we have looked at the x-rays, 
and there is certainly room for disagreement there.
    But if it is not broken, I think the doctor would say, you 
had better fix this before things get worse. So that is what I 
am determined to do.
    One of the things I think we need to do is, what we can do 
here, at Interior, is revise the process in 25 C.F.R. Part 83. 
The revision that I think needs to be done is the following. We 
need to establish time frames that are going to be easily 
ascertainable, that can be followed and where a petitioner can 
see where it began and date certain of when it ends. Right now, 
as you have said, there is no certainty in that process. That 
needs to happen.
    There needs to be, besides a time line, there needs to be 
an end to what I think in reading the regulations are a series 
of discretionary extensions that can be granted. I think all of 
these extensions can combine to take years in the process. 
That, whether it is for the Government or the petitioner, that 
cannot continue if we want to have a process that is clear and 
within certain time frames.
    We also need to take a look at perhaps the elimination of 
unneeded steps. I know that in the last regulation, 1994, we 
added a review by the Interior Board of Indian Appeals. There 
are reasons for that, but I think I want the staff to take a 
look at whether that is really needed. I will talk to the chief 
judge of the IBIA about that. Their process adds two years or 
more to the process. Then after that, the decision can be 
appealed to Federal district court.
    So essentially, is this really a necessary administrative 
process that we add this many years, because of the backlog at 
    In terms of the standards, I think we are probably going to 
take a hard look at the standards. The standards were 
established a long time ago. In fact, I was reading the 
excellent article by Patty Ferguson-Bohnee from Arizona State 
University. I think that even the American Indian Policy Review 
Commission started developing standards a long, long time ago.
    So it may be something that we take a look at to see 
whether there is some redundancy or see whether this is all 
needed. Then I think I would like to take a look at 
clarification of some of the terms that are somewhat ambiguous, 
for instance, the words, ``on a substantially continuous 
basis.'' Well, to me, there is some ambiguity there. That is 
why, for instance, I think in the Little Shell proposed 
finding, Kevin Gover, the Assistant Secretary, found that the 
petitioner met criterion A. When the final outcome was decided, 
the Office of Federal Acknowledgement found that it did not.
    How can you have this kind of disagreement? I think that 
what is important is to have standards that are, where you can 
rearticulate, either they meet or they don't. I think we need 
to do that on a consistent basis.
    For instance, I remember when a couple of years ago I was 
involved in the development of regulations to implement Section 
20 of the Indian Gaming Regulatory Act. We needed to define 
what is a nearby tribe and what is the surrounding community. 
There were not a lot of agreements as to whether there should 
be a radius. I was a strong proponent for putting something in. 
Otherwise, it may be questionable, but at least the people who 
look at the regulation know exactly, are they a nearby tribe, 
are they within the surrounding community, instead of asking 
the question.
    I think we need clear standards where, if you are going to 
be recognized on a substantially continuous basis, then what 
does it mean? Can there be a break of 5 years, 10 years, 20 
years? I think that needs to be in there.
    I also think we need to clarify what the term predominant 
portion in 83.7(b) means. To me, that is again not exactly 
clear. Do we mean 60 percent, 62 percent? That should be pinned 
down, so that everybody knows exactly what it means. That 
should be in regulation.
    Finally on clarification, I think I agree that the burden 
of proof should be clarified in the regulation.
    You asked in your question who makes the decision. I think 
under our system at Interior, the Assistant Secretary makes the 
decision. In the case of Little Shell, I made the decision 
because the Assistant Secretary is recused from this matter. 
Even though I make the decision, I rely extensively on the 
proposed findings of the Office of Federal Acknowledgement. The 
office is staffed by a number of professionals. They are all 
very extensively qualified. I am not sure that it is my duty to 
substitute my judgement for that of the professional staff. We 
have a budget of----
    Mr. Fleming. About $2.2 million.
    Mr. Skibine. We pay these people $2 million a year to 
provide this advice. I think that, and I know that they are 
qualified. I am not going to essentially second guess their 
professional determinations.
    But at the same time, if we have ambiguities in the way the 
regulations are implemented, then essentially you are going to 
have problems. In fact, with Little Shell, it was an 
excruciatingly difficult decision for me and really agonizing. 
Because Kevin Gover had made a positive determination, I have 
the utmost respect for him. So we asked for an extension. We 
looked at what we could do, should we do, you know, what are 
our options here, could we do a re-proposed determination.
    Well, in the end, this is the way it came down. But it 
certainly was not easy. I think I have gone over my time at 
this point, so I am going to end and say that I am looking 
forward to working with the Committee as we proceed to develop 
regulations. We will, I think one of the things we decided that 
we will do consultation with the Indian tribes under the 
Executive Order and our consultation policy.
    But I think that I have promised our Assistant Secretary 
that we are going to get this done. And by the time we are 
done, we should have a process that works a lot better than it 
does now.
    Thank you very much.
    [The prepared statement of Mr. Skibine follows:]

   Prepared Statement of George T. Skibine, Acting Principal Deputy 
    Assistant Secretary for Indian Affairs, U.S. Department of the 
 Interior; accompanied by R. Lee Fleming, Director, Office of Federal 
    Mr. Chairman and members of the Committee, my name is George T. 
Skibine and I am the Acting Principal Deputy Assistant Secretary for 
Indian Affairs at the Department of the Interior. I am pleased to be 
here today to present the views of the Department of the Interior on 
Fixing the Federal Acknowledgment Process. We recognize Congress has 
plenary authority over this issue and look forward to working with this 
Committee to devise solutions on how to improve and streamline the 
Department's Federal acknowledgment process. Appearing with me before 
you today is Mr. Lee Fleming, the Director of the Office of Federal 
    Assistant Secretary Larry Echo Hawk is committed to reforming the 
acknowledgment process, and we are currently exploring ways to improve 
the process. One of the problems that we are aware of is the 
significant amount of time it takes for some, if not all, petitions, to 
be processed from beginning to end. We have undertaken a process to 
revise the current regulations in 25 CFR Part 83 to eliminate any steps 
in the process that we find to be unnecessary as well as to implement 
deadlines so that a timeframe for considering petitions can be 
determined with certainty.
    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 groups, 
the surrounding communities, and federal, state, and local governments. 
Acknowledgment carries with it certain immunities and privileges, 
including partial exemptions from state and local criminal and civil 
jurisdictions, and the ability of newly acknowledged Indian tribes to 
undertake certain economic opportunities.
    The federal acknowledgment process set forth in 25 CFR Part 83, 
``Procedures for Establishing that an American Indian Group Exists as 
an Indian Tribe,'' allows for the uniform and rigorous review necessary 
to make an informed decision on whether to acknowledge a group. When 
the Department acknowledges an Indian tribe, it is acknowledging that 
an inherently sovereign Indian tribe has continued to exist socially 
and politically since the beginning of European settlement. The 
Department is not ``granting'' sovereign status or powers to the group, 
nor creating a tribe made up only of Indian descendants.
    Under the Department's regulations, in order to meet this standard, 
petitioning groups must demonstrate that they meet each of seven 
mandatory criteria. The petitioner must:

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

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

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

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

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

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

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

    A criterion 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.
    OFA consists of anthropologists, genealogists, and historians who 
review, verify, and evaluate petitions from groups seeking federal 
acknowledgment. Since the process began in 1978, 67 petitions have been 
resolved, 45 through the Department's acknowledgment process (16 
acknowledged, 29 denied acknowledgment--representing 105 decisions 
composed of 51 proposed findings, 47 final determinations, and 7 
reconsidered final determinations) and 22 by Congress or other means.
    The last hearing on this topic was on April 4, 2008 and in that 
testimony the Department's witness testified the Department would 
consider various ideas for improving the OFA process. In the Federal 
Register on May 23, 2008, the Department published guidance and 
direction to the Office of Federal Acknowledgment for managing 
recurring administrative and technical problems in processing petitions 
for federal acknowledgment. This guidance and direction has or will 
produce results in dealing with the following problems:

   splintering petitioning groups,

   handling petition documentation when disputes between 
        factions of a petitioner arise,

   providing technical assistance,

   processing expedited decisions,

   reducing the time period for which petitioners must submit 

   processing expedited findings against acknowledgment,

   processing decisions against acknowledgment based on failure 
        to meet fewer than seven criteria,

   maintaining integrity of the process, and

   establishing inactive status for petitioners that are no 
        longer in contact with the Department or who have not provided 
        adequate documentation.

    Our goal is to continue to improve the process so that all groups 
seeking acknowledgment can be processed fairly, systematically and 
completed within a set time frame. This goal is in line with other 

   to ensure that when the United States acknowledges a group 
        as an Indian tribe, it does so with a consistent legal, 
        factual, and historical basis, with uniform evidentiary 

   to provide clear and consistent standards for the review of 
        documented petitions for acknowledgment; to expedite an 
        administrative review process for petitions through 
        establishing ``sunset'' deadlines for decisions; and

   most importantly, to provide adequate resources to process 
        petitions meeting the expectations of Congress and the people 
        affected by federal acknowledgment decisions.

    We welcome the interest of Congress in the acknowledgment process, 
and are willing to work with the Congress on legislative approaches to 
the Federal acknowledgment process. Thank you for the opportunity to 
testify. I will be happy to answer any questions you may have.

    The Chairman. All right, Mr. Skibine, thank you very much. 
We appreciate your testimony.
    I am going to question last, so I will call on my 
colleagues to ask questions first. I will start with Senator 
Tester. I will just use the early bird rule, if that is all 
    Senator Tester. Thank you, Mr. Chairman.
    I want to thank you for your testimony, Mr. Skibine. We 
will stick with the Little Shell here for a bit. What options 
does Little Shell have now?
    Mr. Skibine. I think at this point, Little Shell certainly 
has the option of having Congress look at legislative 
recognition. There may be very good reasons why in this 
particular case, Little Shell should be recognized 
    In terms of our process, I think Little Shell can ask for a 
reconsideration, correct?
    Mr. Fleming. Correct.
    Mr. Skibine. Before Interior, or they can go and appeal to 
the Interior Board of Indian Appeals, that I discussed before. 
Those are the administrative options at this point.
    I think they can also go directly to Federal District 
Court, correct?
    Mr. Fleming. Correct.
    Mr. Skibine. Yes.
    Senator Tester. The reconsideration process goes through 
your office?
    Mr. Skibine. Yes, it does.
    Senator Tester. And you would just go review the material 
again, is that what you would do, basically?
    Mr. Skibine. Let me ask, since I have never done one, let 
me ask Mr. Fleming to elaborate on this.
    Mr. Fleming. The request for reconsideration is before the 
Interior Board of Indian Appeals, which is an independent 
review board within the Department of Interior. It is not 
within the Office of the Assistant Secretary of Indian Affairs.
    Senator Tester. Okay, so how is that different from an 
    Mr. Fleming. It goes from the Office of the Assistant 
Secretary, Indian Affairs, that a decision was made, and it is 
reviewed by the Office of Hearings and Appeal. It is separate 
from the structure of the Bureau of Indian Affairs, or Office 
of the Assistant Secretary, Indian Affairs.
    Senator Tester. Okay, so if they appeal it, where does it 
    Mr. Fleming. To the Office of Hearings and Appeals, and 
within that office is the IBIA.
    Mr. Skibine. I think that what you are saying is that the 
request for reconsideration is a request to the IBIA. So it is 
an appeal to the IBIA.
    Senator Tester. It is the same thing?
    Mr. Skibine. Right, it is the same thing.
    Senator Tester. Has there been any appeals done before?
    Mr. Skibine. Yes, there have been.
    Senator Tester. And what have the results been?
    Mr. Skibine. I am going to have to ask Mr. Fleming about 
    Mr. Fleming. Results have been that some of the decisions 
were sustained. Some of the decisions were remanded back to the 
    Senator Tester. Can you give me, has it been half and half, 
30-70, 20-80?
    Mr. Fleming. There have been seven reconsidered final 
determinations. Out of the seven reconsidered final 
determinations, one, Cowlitz, was positive. The other five were 
    Senator Tester. They were upheld by the decision that was 
made by the Department.
    Can I ask you this? I am going to jump back to this in a 
minute, but you said you were going to work on a certain time 
frame when you are fixing the appeals process. Can you tell me 
what that time frame would be?
    Mr. Skibine. I am hoping to have proposed rules within the 
year, within a year.
    Senator Tester. Yes.
    Mr. Skibine. I know that when I appeared before this 
Committee on the Section 20 IGRA regs, I made some commitments 
that beyond my control were not----
    Senator Tester. This is a different time frame than getting 
the rules. I want to know, do you have a time frame in mind to 
make the decision-making process? In other words, if Little 
Shell were going to apply for the first time tomorrow and your 
rules were in effect, would you expect the Department to make a 
decision within six months, one year, five years? What would it 
be? Will that be defined?
    Mr. Skibine. Yes, that will be defined. I cannot tell you 
what it is right now.
    Senator Tester. Do you have any figure in mind? No?
    Mr. Skibine. Not really.
    Senator Tester. Okay. The release that you sent out on 
Little Shell, the reason that the acknowledgement was not 
given, and correct me if I am wrong, but it said it has been 
identified as an Indian entity on a substantially continuous 
basis since 1900. What you are saying is they did not have that 
entity since 1900. Can you tell me who is responsible for 
making sure that that entity exist? Does that come from an 
outside source or does it come from outside the tribe?
    Mr. Skibine. I think on criterion A, it has to be 
identified by outside sources.
    Senator Tester. Outside the Department of Interior?
    Mr. Skibine. Yes.
    Senator Tester. Okay, so what kind of sources are you 
looking at? Because the truth is, I know for a fact Mr. 
Sinclair, this has been three generations, 1900 is a little 
longer than three generations, but my guess is that they could 
probably track that back. But what kind of paperwork are you 
looking for?
    Mr. Fleming. If I may answer, the identifications are made 
by individuals outside of the group itself.
    Senator Tester. Okay, let me get this right, then. You are 
not asking the Little Shell to determine that they have been 
around since 1900?
    Mr. Fleming. Right,
    Senator Tester. You are not asking the Bureau of Indian 
Affairs or the Department of Interior to determine if they have 
been around since 1900. So who did you ask to find out if 
Little Shell has been around since 1900?
    Mr. Fleming. We rely on documentation such as newspapers, 
articles by other professionals, such as anthropologists who 
may have studied the region, correspondence that may be to and 
from Congress.
    Senator Tester. Is it public information who you reached 
out to for that information?
    Mr. Fleming. Yes, it is public information.
    Senator Tester. Could I get a list of the folks you reached 
out to for that information? The reason is because I want to 
make sure they are Montanans and have Montana connections. It 
would be very difficult for a Seminole to determine whether the 
Little Shell existed since 1900.
    Mr. Fleming. What would be helpful to you would be the 
actual decision-making document. Because it goes through the 
various identifications that were used.
    Senator Tester. Actually, I think I have that. But it 
doesn't list who was used. I think that is as important as the 
    Mr. Fleming. Okay.
    Senator Tester. You can do that for me?
    Mr. Fleming. Sure.
    Senator Tester. Okay. The second point that you said was 
that they comprised a distinct community since historical times 
and maintained significant social relationships and interaction 
as a part of a distinct community. Can you tell me what is the 
difference between that one and the first one?
    Mr. Skibine. Yes. I can tell you that between A and B, in A 
it has to be identification by outside sources that the tribe 
existed. In B, I think it is essentially evidence that there 
has been a community.
    Senator Tester. So who do you turn to for that information? 
Do you turn to the tribe?
    Mr. Skibine. I think we turn to the tribe for that.
    Senator Tester. So the tribe didn't indicate, and this goes 
back to 1900 too, then?
    Mr. Skibine. No.
    Mr. Fleming. Criteria B and C require documentation from 
first sustained contact. And this would be, in various forms of 
evidence, evidence that is found on the national level, the 
State level, the local level, the various levels where 
documentation is found.
    What is needing to be demonstrated by a group is that they 
have held events that took place where you have interactions 
between its members, which is demonstrating the community. Then 
you would have to have evidence to demonstrate the political 
authority and leadership from historical times.
    Senator Tester. Are you talking about like pow-wows? Is 
that what you are talking about?
    Mr. Fleming. Pow-wows is a good demonstration for a 
community, funerals is another example.
    Senator Tester. Then the last question on this is, you 
maintain political influence, this is one of the reasons you 
denied them, maintain political influence over a community of 
its members, or over communities that combined into the 
petitioner. I don't track the last one, but that is okay. Are 
you talking about elections?
    Mr. Fleming. Talking about leadership where there may be 
situations that arise where the leaders take action and that 
the members of the group follow the action or they don't follow 
the action.
    Senator Tester. So it is more than just an election of 
    Mr. Fleming. Election is factored in, but it is more than 
just elections.
    Senator Tester. Okay, so where do you go to get that 
information? Does that come from the tribe?
    Mr. Fleming. Again, the tribe, local records, repositories, 
newspapers, those kinds of records.
    Senator Tester. And you can give me information on where 
you got that, either the lack of information or the criteria to 
substantiate the fact that these were valid reasons to deny? 
Okay, good.
    And if I might, last question, then we will move on. Thank 
you, Mr. Chairman, for your indulgence. Who set up the seven 
criteria and how long have they been around?
    Mr. Fleming. The regulations were created in 1978. And it 
went through the Department's regulatory process, a rule was 
promulgated. Hearings were held and such.
    Senator Tester. Super. Mr. Skibine, do you anticipate these 
seven criteria being still in effect when you get done 
revamping this system?
    Mr. Skibine. Perhaps. I think we are going to take a look 
at it. I am not sure that the criteria in themselves are 
necessarily the problem. The problems fundamentally are the 
time line and how you weight the evidence. I think this is what 
we are going to have to focus on.
    But frankly, I agree that some of these criteria, we will 
take a hard look at that. That is the only thing I can say.
    Senator Tester. Thank you, Mr. Chairman. If we get a second 
round, I have some more questions.
    The Chairman. Senator Tester, if you need a second round, 
we will do that.
    By consent, let me call on the former Vice Chair. She has 
some questions to submit and a comment and then has to leave.
    So if it is okay with the Committee members, I will call on 
Senator Murkowski.

                    U.S. SENATOR FROM ALASKA

    Senator Murkowski. I appreciate that, Mr. Chairman, and 
appreciate the indulgence of the other Committee members.
    Mr. Skibine, welcome back before the Committee. In the last 
Congress, when I was sitting as the Ranking Member and had an 
opportunity to discuss these issues that we appreciate are very 
difficult. We have seen the impact in terms of the cost, the 
time lines. Resolution is multi-generational. I think we 
recognize that the process is one that just does not work.
    I don't want to speak to that today, and I am going to 
submit to you a couple of very specific questions that I would 
like you to address in some detail. And it relates to my State. 
As you know, in the State of Alaska, we have some 225 
federally-recognized tribes on the list. But there remain 
several tribes that believe that they should be on the list of 
federally-recognized tribes, and they are not. The Bureau of 
Indian Affairs has told these groups that they have to seek 
acknowledgment under the Part 83 process. The tribes' attorneys 
submit, however, that they should be using the streamlined 
process that is provided by the 1936 Alaska amendments to the 
Indian Reorganization Act. So the questions that I will submit 
to you are two very specific ones. Given that I would like some 
detail, I will just ask that you spend some time on that. But I 
would appreciate your response to that so that I can be 
responsive to my constituents.
    Senator Murkowski. And with that, Mr. Chairman, I conclude, 
and I appreciate your letting me leapfrog over the other more 
timely members of the Committee.
    The Chairman. Senator Murkowski, thank you very much.
    Senator Udall.
    Senator Udall. Thank you, Chairman Dorgan.
    Mr. Skibine, it is my understanding that 150 petitioners 
have submitted letters of intent, stating they intend to enter 
the recognition process, but have not acted to submit the 
documentation necessary for consideration, while only about 48 
groups have completed the full process since 1978. What are 
your opinions on why so many groups have noticed their intent 
but have not entered the process? Is it an issue of resources? 
I have heard the same thing that Senator Tester has, and that 
he talked about in his testimony, that this is very, very 
expensive. So is that what is going on here?
    Mr. Skibine. I think, to a large degree, that is very 
possible. Let me just say that you are right, I think that is 
probably one of the issues, and I think that is one of the 
concerns I have. I am involved also to a large degree in 
handling gaming issues for the Department. And because of the 
cost of these petitions, the tribes, or the group who are 
essentially money-less, have in some cases involved developers 
to help them to fund those petitions, which has led some to 
essentially associate the petitioning process with gaming, 
especially off-reservation gaming.
    There are no ties between the two, but because, I think, of 
the cost of these petitions, I think some of these petitioners 
really do not have a choice but to turn to outside sources, who 
essentially are not going to do this out of the goodness of 
their heart, unless they get something in return.
    So that is an issue. But I think that the cost is 
definitely one of the problems that we have had.
    Senator Udall. One of the bills that has recently addressed 
this issue is Representative Faleomavaega's bill, H.R. 3690. 
This is a proposal that tries to deal with the acknowledgement 
process. The bill would move the petition review process from 
the BIA to an independent commission of recognition of Indian 
tribes. The commission would consist of seven members appointed 
by the President with the consent of the Senate.
    My question to you is, are there any benefits in keeping 
the Federal acknowledgement process within the Department of 
Interior rather than an independent commission? What are your 
thoughts on that?
    Mr. Skibine. Without commenting on Mr. Faleomavaega's bill, 
because we haven't, we are not authorized to do that----
    Senator Udall. Well, just the concept.
    Mr. Skibine. Yes, the concept, I think the concept, 
personally I think the concept of a commission is not something 
that we can implement in Interior. But it is something that 
Congress would have to do. I think that is something we should 
explore. It is not necessarily a bad thing. I think we have to 
look at it. But I think that it is, in terms of wanting to work 
with Congress to try to improve the process, that is certainly 
one of the issues that I think the agency or the Department 
should consider.
    Senator Udall. And one of the things that he simplifies in 
his bill would be the idea of taking these seven mandatory 
criteria, and sort them down to two. And those would be proof 
that members of the petitioning group descended from a historic 
Indian tribe or historical Indian groups that combined and 
functioned as a single, autonomous entity; and two, proof that 
the petition group comprises a community, related members 
distinct from surrounding communities, continuously since 1900. 
Does that make sense to simplify these seven criteria?
    Mr. Skibine. I am not sure. I think simplification is good. 
But I am not sure that we want to simplify it that much. 
Because we have to, there is reasons we have those seven 
criteria. And I think that we want to make sure that we have 
the real thing. If you simplify too much, then essentially, you 
don't get the same level of evidence that we have with the 
seven criteria. So that is something we would have to be 
careful to look at.
    Senator Udall. Thank you very much, Mr. Chairman. I 
appreciate your doing this hearing.
    The Chairman. Senator Udall, thank you.
    Senator Franken.

                 STATEMENT OF HON. AL FRANKEN, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Franken. Thank you, Mr. Chairman. I apologize for 
being late today. I was at a Judiciary hearing. So I apologize 
if any of these questions were kind of covered in your 
testimony. I want to thank you for being here today.
    As the newest member of the Committee, this testimony is 
very valuable to me. I would like to recognize some folks from 
Leech Lake Reservation here today from Minnesota. This is off 
topic, but I just want you to bring this back to the BIA. At 
Leech Lake and other reservations in Minnesota, there has been 
an issue with the new school construction fund, where tribes 
have put in requests that are 15 years old and can't find out 
where they are on the list of projects. There is kind of no 
existing list.
    So please, if you could take that back and maybe I could 
find out something about that.
    I read through the GAO report from 2005. When they, that is 
the Government Accountability Office, and when they testified 
before the House Committee on Resources, the testimony says, 
``While the BIA could extend the time lines, it has no 
mechanism to balance the need for a thorough review of a 
petition with the need to complete the decision process.'' 
Excuse me again if you covered this in your testimony before I 
got here. Is this still the case? And what mechanisms are in 
place to ensure a complete review in a timely manner?
    Mr. Skibine. Let me ask Lee Fleming to address this issue, 
since he was around for all this time.
    Mr. Fleming. Good afternoon. The GAO actually began their 
review of the acknowledgement process in 2001, November. Their 
report was quite extensive in our process. Their ultimate 
recommendation was to improve the timeliness and the 
transparency. We provided the GAO with a plan of action on 
    Within the past ten years, we have had quite a bit of 
growth in our decisions. In the past ten years, we have had 
approximately 38 decisions that came forward. These would be 
proposed findings, final determinations and reconsidered final 
    The GAO also asked the Department to develop a needs 
assessment to see what could be applied to make the process 
more efficient and transparent. We provided that. I believe 
that as time has passed, we have indeed increased our 
production. Clearly not as fast as what the expectations are, 
but that is what we also put into the report, that if the 
expectations are such that this process be completed in three 
years, five years, ten years, then these are the resources that 
need to be applied.
    The outcome of that was we got one additional team.
    Senator Franken. So what you got is insufficient. So you 
can't do it in three or five or ten. We can't expect that. What 
is the time line? What can you expect? From soup to nuts, to 
the beginning to the end of the process, what kind of time?
    Mr. Fleming. Currently, the regulations define a 25 month 
process. That entails a 12 month review of all the evidence 
that is presented. There is a due process phase called the 
public comment period, so that when, after the first year, we 
issue a proposed finding and then it is introduced to the 
public; the petitioner, interested parties, and the public then 
have an opportunity to comment on our proposed finding, either 
to acknowledge or not to acknowledge.
    After the six month comment period, then there is a 60-day 
or two-month period for the petitioner to respond to any 
comments that came from any third parties. Again, all a part of 
due process. At the end of that two month period, then the 
Department has a minimum of 60 days to issue a final 
determination. When that is issued, then there is this 90 day 
period to request reconsideration before the Interior Board of 
Indian Appeals.
    So you add all of those together, it comes up to 25 months.
    Senator Franken. But that is a much shorter period than the 
reality, right?
    Mr. Fleming. That is ideal. That is if there are no 
backlogs, if there are no administrative tasks that are 
preventing direct attention. We have litigation that we have to 
juggle in.
    The Chairman. Mr. Fleming, let me ask if Senator Franken 
would yield.
    Senator Franken. Please.
    The Chairman. My understanding is, you have six petitions 
that are active in the current workload, is that correct? You 
had seven?
    Mr. Fleming. I have eight that are currently on active 
    The Chairman. Then nine petitions that are on ready status?
    Mr. Fleming. Seven that are on the ready status.
    The Chairman. So I will correct that, seven that are on the 
ready status. But when you talk about 25 months, the seven that 
are on the ready status, presumably these are petitions that 
are ready. I assume you are not going to get to some of those 
for five, ten years, are you? I mean, you are doing two a year.
    Mr. Fleming. We are doing----
    The Chairman. Because the 25 months seems just way outside 
the real issue, and that is you have seven petitions on ready 
status that you are not even going to be looking at for some 
years, are you?
    Mr. Fleming. No, the seven that are active are currently 
being acted upon.
    The Chairman. I am talking about ready status.
    Mr. Fleming. The ready status. Those can't go into active 
until we have the resources open and available to address them.
    The Chairman. The only reason I interrupted Senator Franken 
here is to say that the 25 months doesn't mean anything. All 
that mean is that at some point, once you get from ready to 
active and then moving on active up to the first one or two, 
then you have 25. But that might be four years from now.
    So I thank you for yielding. Go ahead.
    Senator Franken. Well, that was sort of my question. I 
understand you delineated all the different periods that lead 
up to the 25 months. But you also said you can't do it in 
three, five or ten years without the level resources that you 
don't have.
    Mr. Fleming. Right.
    Senator Franken. So, soup to nuts, from the beginning to 
the end, what would the expectation be of someone starting 
today of, of someone seeking recognition if they started today?
    Mr. Fleming. I don't think I could give you an estimation, 
because we have a work flow that is like getting into a grocery 
line. The first one in is the first one out, which is a fair 
way of working with the groups. We only have so many resources 
or teams to work each case. So we have four teams. You can 
expect that the four teams are able to work on proposed 
findings or the final determinations or the reconsidered final 
determinations. There are various different phases of this 
process and it all is complex in the processing of these 
    Mr. Skibine. Can I interrupt you? Senator Franken, what I 
said at the beginning is that when we revise the regulations, 
we are going to try to address this issue, so that there is a, 
essentially a time frame with a beginning and an end, so when 
you ask that question, there can be an answer.
    Senator Franken. Okay, thank you.
    The Chairman. Mr. Skibine, we have had these discussions 
before on other issues with respect to regulations. This set of 
laws has been in position for 31 years, 1978 the accountability 
process was established. And you are saying we don't have 
regulations with which to make judgments about some of the 
sensitive areas. I just don't understand that. But assuming you 
do regulations, now, from 2002 to 2010, the Department has 
never asked for more money. And we all know, the problem is, 
this is no more fun for you than it is for us, to have a 
hearing every two years and complain about a process that 
doesn't work. It doesn't make any sense to do this every second 
    So the question I would ask Mr. Fleming is this. Can you 
provide to this Committee what would be necessary to have some 
reasonable prospect of processing applications between a five 
and ten year interval as an end process? How much would that 
cost? If we have a tribal recognition process that by and large 
gives answers after a lot of people are dead, it is not a 
process that works very well.
    Are you asking for more money each year so that you--I am 
not a big advocate of spending here, but I am just saying, if 
you represent being able to do a job, then how much money do 
you need to do the job effectively? Are you requesting the 
funds? And if so, could you give a report to this Committee on 
what it would cost, so that we would have at least some 
measurable time frame and be able to meet some measurable 
objective on this acknowledgement process? Otherwise, maybe we 
should all just give up and say, you know what, this process 
doesn't work. The Little Shell Band, I don't know the merits of 
that. Frankly, I have not studied it. But they wait 30 years? 
And a decade ago get told that things look fine, and then a 
decade later, they are told no, you are turned down? Somehow, 
that doesn't meet any test of reasonableness.
    So Mr. Skibine, you have kind of disagreed that it needs 
fixing. You have heard my description of it. Disabuse me of the 
fact that my contention is it needs fixing.
    Mr. Skibine. Oh, I didn't say that I didn't believe it 
needed fixing. I agree, and we are going to try to do the best 
through our regulatory process to fix the problem that we have 
with the process.
    The Chairman. How long will it take you to develop 
regulations that are in force?
    Mr. Skibine. Well, it will take me, I think it will take 
about a year to develop proposed regulations. And then they 
will have to be finalized, we will have to do consultation with 
Indian tribes. So another year probably, at this point.
    The Chairman. Do you think you will still be working for 
the Federal Government when regulations are in force?
    Mr. Skibine. I am eligible to retire right now.
    Mr. Skibine. But I have committed----
    The Chairman. It is about regulations. We are not trying to 
hurry you out the door. We would like to get some regulations 
in place.
    Mr. Skibine. I have committed to Assistant Secretary 
EchoHawk that I would work on this issue until we address it.
    The Chairman. Let me say that it is not sport for us on the 
Committee to have you up here and to say, what is wrong with 
you all? That is not the issue. But the issue is this. In the 
Federal acknowledgement process, we have tribes beating on this 
door saying, we want hearings on recognition for us and we want 
the Congress to do it. And I keep saying, that is not the job 
of Congress. We can't do that. We don't have all of the folks 
that you have on your team. So I am very uncomfortable doing 
    On the other hand, those knocks are going to get louder on 
that door unless this acknowledgement process starts to work a 
bit better. We have 80 partially document petitions in front of 
you, my understanding is about 80. We have seven that are 
ready, in ready status, and I think you said eight that are 
active petitions. You have done two in this calendar year. So 
that looks to be like, if you are in a ready status, you might 
be, even if you are just completely ready status at this point 
you are not one of the 80 that is partially, you are ready, it 
might be eight or nine years if you happen to fall at the end 
of the seven on the ready status.
    I am just saying that I understand why tribes are saying, 
we want something else, something that works. So to me, I don't 
want this Committee to be the recognition committee. I want to 
fix this, so that they can have some reasonable expectation of 
a time line that is fair and that they all kind of understand 
when they file a petition. That is all.
    Senator Tester, you wanted some additional comments.
    Senator Tester. Just real quick. I want to echo your 
statements right now, Mr. Chairman, that is, you are right, the 
banging on that door is going to get louder until we get this 
process fixed. Why I bring up Little Shell is because you have 
regulations. It is much easier to look and see how those 
regulations are applied than just read the regulations for what 
they are.
    I guess that the Department has determined that the Little 
Shell are not a part of any other tribe, so they are not 
eligible for a lot of the benefits that a recognized tribe 
does. But yet they don't meet each one of these seven criteria, 
which puts them out in limbo, unless we don't think they are 
Native Americans at all.
    So how do you propose to fix that through regulations? Does 
that make any sense to you? It was a little bit convoluted, so 
you can say no, and I will say it again. But if we actually 
believe that the Little Shell, 89 percent of their members, 
were descendants from the Pembina Band of Chippewa Indians, but 
yet they are not, they are a separate band, so they are not 
part of the Chippewa, they are separate from that. How do they 
get to this kind of status? The Department makes one finding on 
one level, but yet doesn't make a finding on another level. 
They say they are Native Americans, but they are not part of 
the Chippewa, but yet they are not Native Americans to be 
recognized as a tribe?
    Mr. Skibine. I think in the Little Shell case at this 
point, of course they could, if they appealed, there could be a 
reversal of the Department's decision. So they could be 
recognized. But potentially, if they do not meet this 
regulation, it does not mean they are not a tribe. But then it 
will mean that they need legislative solution.
    Senator Tester. Okay, so does that mean you are going to 
support my bill?
    Mr. Skibine. I cannot commit to that right now. But I think 
that we will definitely take a very close look at that.
    Senator Tester. All right. Will you commit to support it 
after you take a look at it?
    Mr. Skibine. Not if I want to be working for the Government 
    Senator Tester. We will probably ask your boss that 
question, too.
    Thank you, Mr. Chairman. I appreciate your indulgence.
    The Chairman. Senator Tester, thank you very much. You came 
close to getting a commitment, it appeared to me.
    The Chairman. Let me say, Mr. Skibine and Mr. Fleming, you 
both are Federal employees, you have long careers, it is not 
our intention to suggest that your work is without merit. That 
is not my intention at all. You no doubt work hard. Mr. 
Skibine, we have had, you have, in fact, filled many roles in 
the Department recently because of vacancies. You have had a 
lot to do on a lot of issues over many years here with this 
Committee, dealing with regulations and so on.
    I do say, however, that it is frustrating, every couple of 
years, to have another hearing. So somehow, this Committee 
needs your assistance to try to evaluate what kind of process 
could exist with respect to Federal recognition so that if a 
tribe does the work that it needs to do, really develops the 
historical record in a very strong and positive way, that they 
could expect long before most of their residents have died to 
have some answer from the Federal Government. And 25 or 30 or 
35 years is too long.
    So Mr. Fleming, can I ask you, would you submit a report to 
this Committee, if the head of the Interior Department will 
allow you to do that, I expect the Interior Secretary would, 
submit to us a report, what would be necessary, in your work, 
to give you the opportunity to put some time lines and some 
reasonable time frames on the acknowledgement process, so that 
we could find a way to address this, even as Mr. Skibine and 
others begin to do the regulations that will address the things 
that Senator Tester was asking us about?
    I did not ask about the issues Senator Tester asked about 
because I don't want to duplicate it, but I have the same 
questions about criteria and what some of the provisions mean, 
how they are interpreted, why they might be interpreted 10 
years ago one way and now quite another way, in the middle of 
the process of an application. Mr. Fleming, are you able to 
provide a report to me that would give me that sense?
    Mr. Fleming. I should be able to.
    The Chairman. All right. I thank you both for being here. 
And thank you for your work and your service. I hope perhaps 
the next time we have you here, which I expect would be in the 
next Congress, that we would have some good news to report, 
finally. Thank you very much.
    Mr. Skibine. Thank you very much.
    The Chairman. Next I am going to ask to come to the witness 
table four additional witnesses on a second panel. Mr. Frank 
Ettawageshik, the Honorable John Sinclair. Frank Ettawageshik 
is the Chair of the Federal Acknowledgement Task Force, 
National Congress of American Indians. The Honorable John 
Sinclair is President of the Little Shell Tribe of Chippewa 
Indians in Havre, Montana. The Honorable Ann Tucker, Tribal 
Chairperson of Muscogee Nation of Florida, in Bruce, Florida. 
And Ms. Patty Ferguson-Bohnee, the director of the Indian legal 
clinic at Tempe, Arizona.
    If the four of you would come forward and take your seats, 
I would appreciate it. I want to tell all of you that your full 
statements will be made a part of the permanent record, so you 
don't have to read your full statement. You may appropriately 
summarize the statement if you would.
    Mr. Ettawageshik, we appreciate your being here, and we 
will ask you to speak first. You are the Chairman of the 
Federal Acknowledgement Task Force at the National Congress of 
American Indians. Welcome.


    Mr. Ettawageshik. Thank you, Mr. Chairman and members of 
the Committee.
    I have a prepared statement, as you said, and we of course 
stand by that statement. It is interesting that pretty much 
everybody here, even the Department, although not directly, has 
agreed that the process is broken. Clearly, if you are going to 
attempt to fix something, then you must think that there are 
things that aren't right within that process.
    So we all agree that this isn't working. In my case, I am 
the former chairman of my tribe, I was the chairman of a non-
federally recognized tribe when I first was elected and first 
went to work many years ago. Our tribe was not on that list of 
federally-recognized tribes. We went through the process. We 
eventually had legislation passed, because in our case, as you 
have pointed out, Mr. Chairman, at the rate that they were 
considering petitions, in our case, it would have been between 
50 and 100 years before they got to our petition. We felt that 
that was too long. Justice that is delayed is justice denied.
    And as tribes, we are very much aware, through the National 
Congress and as individual tribes, that Congress isn't creating 
a tribe through recognition. I think that is really important, 
because there are people who sort of feel that there is this 
weight of responsibility that somehow a tribe is being created 
through this. But it is not. Congress is acknowledging tribes 
    In the U.S. Constitution, we have the acknowledgment of the 
pre-existent sovereignty of tribes in the commerce clause. We 
go on, we look through, those of us who have signed treaties, 
we look to the section of the Constitution that talks about the 
signing of treaties, and that treaties are the supreme law of 
the land and that they don't go away just because they are old.
    We are very concerned that, as a tribal chairman, one of 
the things that I used to do was to ask our legal interns when 
they were coming in that, if the Supreme Court made a ruling 
that limited tribal sovereignty, how did that limit our 
sovereignty. And the answer to that question was that it 
doesn't limit our sovereignty at all. Tribes are either 
sovereign or they are not. And when they are sovereign, that is 
what the tribes are.
    But what that Supreme Court decision did would be limiting 
the ability of the Federal Government and its agencies in how 
they could acknowledge the sovereignty of the tribes. So it 
very much limits the ability of the tribes to be able to 
exercise that sovereignty.
    Well, what we have here in the case of the Federal 
acknowledgment process is we have tribes that are sovereign 
that are trying to figure out how to get the Government to 
agree that they are, and what kind of criteria do we have. I 
have heard people talk about shifting goalposts. I remember, 
the way I describe it is that we had a picture once in the 
process that we showed, we wanted to see what was going on in 
terms of voting.
    Well, we had a picture here of people voting, we had 
minutes of that meeting. So we provided that. Then they said, 
all right, well, that is fine, we really like the fact that you 
have provided this picture. But now, what are those women in 
the back of the picture talking about? In other words, we 
crossed one line, now here is another line in the sand, now 
cross that line.
    So what happened was, as tribes, what we felt was that this 
process was started originally to sort through those groups 
that clearly were not tribes. We have all read the reports, 
there were groups that clearly weren't tribes that were in the 
process or trying to be recognized as tribes. And all of us, 
tribes, everyone agrees that those folks should not be there, 
and that this process was designed to sort through that.
    What has happened is this process has deteriorated to the 
point that it today appears to those of us who are looking at 
it, either looking at the process from within it or looking at 
it from the side of trying to petition, that this process 
appears to be more one that is designed, through its 
application, to deny tribes, rather than one to actually 
provide justice for those tribes that are trying to seek that 
recognition, that status, where their governments are 
recognized by the United States.
    We realize that there are a lot of things that are involved 
in this. Mr. Chairman, the National Congress of American 
Indians and the Task Force that I chair are committed to 
working to find ways to make this process work in a better 
manner. We have looked at the new legislation and think that 
that legislation should be studied. There maybe some things in 
there that Mr. Faleomavaega's bill and that concept of having 
an outside commission look at this, that is one thing that 
people have looked at.
    We also are, however, very much aware that if the criteria 
were to be looked at and analyzed and used in a manner as they 
were originally intended, we believe that they would work. But 
the problem is that in the application of those criteria, it 
has gotten progressively more and more difficult and we believe 
inconsistent in the way those have been applied. And as have 
some of the people who will be following me here will be 
getting into the very specifics, and particularly in the most 
recent case, I think there are some very flagrant examples of 
that inconsistent application of the criteria.
    So we are very much, very much supportive of change. We 
share with you the process, we are not trying to demean people 
for good intentioned efforts and everything that they are 
working on. We really appreciate having this hearing and 
bringing this focus on it. But like you, we also are frustrated 
by the fact that about every two years or so, we seem to have 
to do this again. It seems like we are saying the same thing 
over and over again.
    But we really need to have a timely process, and one that 
removes political considerations from it. With that, Mr. 
Chairman, I will close my oral comments.
    [The prepared statement of Mr. Ettawageshik follows:]

      Prepared Statement of Frank Ettawageshik, Chairman, Federal 
   Acknowledgement Task Force, National Congress of American Indians

        *An Historical Perspective on the Issue of Federal Recognition 
        and Non-Recognition by Terry Anderson and Kirke Kickingbird has 
        been retained in Committee files.*

    The Chairman. Mr. Chairman, thank you very much. We 
appreciate your being here.
    Next, we will hear from the Honorable John Sinclair, 
President of the Little Shell Tribe of Chippewa Indians in 
Havre, Montana. Mr. Sinclair, welcome.


    Mr. Sinclair. Thank you, Chairman Dorgan.
    I appreciate the opportunity to testify today on the 
Federal acknowledgment process. I would also like to extend to 
Senator Tester our heart-felt thanks for his unwavering support 
of Little Shell recognition on behalf of myself and the Little 
Shell people.
    This is a frustrating time for the Little Shell people. 
After more than 30 years of being processed, examined, poked 
and prodded by the Bureau of Indian Affairs, we were told last 
week that we failed to satisfy three of the BIA's mandatory 
criteria and cannot be recognized. I am here to share our 
experience with the administrative recognition process with 
you, to urge the Congress to establish a new and more realistic 
recognition process, and also to press Congress to recognize 
the Little Shell Tribe.
    Let me assure you that the Little Shell people are Indian. 
The BIA found that roughly 90 percent of our 4,000 plus members 
descend from the Pembina Chippewa, the same Pembina Chippewa 
who historically had treaty relations with the United States. 
Our people kept to the old ways and followed the buffalo. 
Instead of sitting on a reservation, we migrated from place to 
place. As a result, we didn't generate enough records as far as 
the BIA is concerned.
    So the BIA concluded that we lacked enough evidence on 
three of their criteria. These criteria are all mandatory, so 
if you fail on one you cannot be recognized. The first one of 
these three, identification by outsiders as an Indian tribe, 
means nothing. No one can seriously argue that a tribe should 
not be recognized just because outsiders didn't put it in 
writing every 10 years.
    But the other two, community and political authority, are 
meaningful. They overlap and probably shouldn't be a separate 
criteria, but they are meaningful. In the BIA's jargon, this 
means that you must prove there are social and political 
boundaries between your community and outsiders. But the BIA 
looks for these boundaries in the detail, and I do mean detail, 
not in the tribe's overall history.
    It is like the BIA is looking at a chain link fence with 
their faces pressed to the fence. If you do that, you see the 
gaps between the chain links, but you don't see the links. If 
you take a few steps back, you see the links and realize the 
fence separates those on one side from those on the others.
    In the proposed finding on the Little Shell petition, 
former Assistant Secretary Kevin Gover did take a step back, 
and he saw the links that bind Little Shell, not the gaps. So 
the proposed finding on Little Shell was positive. Flexibility 
in the regulatory requirements was possible, Mr. Gover said, 
and justified the case of Little Shell because of our migratory 
    But this Administration said no, flexibility is not 
allowed, Little Shell must look like every other tribe or we 
can't be recognized. Other governments, with their experience 
with the Little Shell Tribe, though, acknowledge that we are an 
Indian tribe. Tribes in Montana, the Montana-Wyoming Tribal 
Leaders Council, the State of Montana and all local 
governments. And in the comments on the favorable proposed 
finding on Little Shell, not a single party submitted any 
negative data against the finding.
    If the BIA regulations cannot be interpreted to allow for 
Federal recognition of the Little Shell Tribe under such 
circumstances, then the fault is in the regulatory process, not 
with the Little Shell Tribe. Our experience proves that the 
administrative recognition process doesn't work.
    In my written statement, I make a number of suggestions on 
how Congress might create a new and equitable process. All of 
those ideas are contained in H.R. 3690, which is pending before 
the Natural Resources Committee. I urge this Committee to 
seriously consider the reform proposed there.
    It is time that the Congress stop the abuse of non-
federally-recognized tribes that takes place in the BIA 
recognition process. All Indian tribes, whether or not formally 
recognized by the BIA, are sovereign. And the BIA's offensive 
treatment of sovereign tribe like the Little Shell undermine 
sovereignty for all tribes.
    Finally, I am duty bound by my people to remind the 
Committee that we are the most recent tribe for which the BIA 
process failed. Justice was not done for Indian Country by 
creating a new process. But justice must also be done for the 
Little Shell people. And at this point, only Congress can 
provide this justice for the Little Shell people. We ask that 
Congress do what the BIA should have done and recognize the 
Little Shell Tribe.
    Senator Tester has introduced S. 1936 that would extend 
Federal recognition to the Little Shell Tribe. On behalf of the 
Little Shell Tribe, I urge the Committee to report out Senator 
Tester's bill while it deliberates on what it might do to 
establish a new recognition process.
    Thank you.
    [The prepared statement of Mr. Sinclair follows:]

Prepared Statement of Hon. John Sinclair, President, Little Shell Tribe 
                     of Chippewa Indians of Montana
    Chairman Dorgan, Vice Chairman Barrasso, and honorable members of 
the Senate Committee on Indian Affairs, I want to thank you for holding 
this extremely important hearing. Most particularly, I want to thank, 
Senator Jon Tester, who has always been the Little Shell Tribe's dear 
friend and tireless champion.
    You may remember me. During my six years as President of my tribe, 
I have testified before Congress on Federal Recognition issues on three 
separate occasions to provide evidence of the ways in which the 
Department of the Interior's Federal Acknowledgement Process is 
hopelessly broken. My name is John Sinclair, and like my grandfather 
and my father before me, I have been honored to serve my tribe during 
my Tribe's decades-long, painful history of petitioning the Federal 
Government for recognition and a reservation so that, finally, justice 
will be done for the Little Shell people.
    Our experience with this process proves two things: first, that the 
process is deeply flawed; second and even worse, the process cannot be 
counted on to result in the recognition of legitimate Indian tribes--
the stated goal of the process. As every government in Montana 
acknowledges, the Little Shell Band of Chippewa Indians is an Indian 
tribe. And yet, the Bureau of Indian Affairs (BIA) very recently 
refused to recognize the Tribe. Mr. Chairman, simply put, the 
administrative recognition process is a mess and, in all fairness and 
justice to Indian people, the Congress must step in and fix it. Every 
time a legitimate tribe fails, it undermines the sovereignty of all 
    The history of our Tribe is the first part of this story. Our 
history shows what every government of Montana knows--that the Little 
Shell people constitute an Indian tribe. The BIA's long and tortuous 
administrative deliberations on the Little Shell's petition for federal 
recognition is the second part of the story--that the Tribe has been 
subjected to an interminable and intrusive process that failed to see 
the reality of Little Shell tribal existence. In its insatiable desire 
for more and more paper, the BIA process missed the forest for the 
trees. Based on our painful experience with this failed process, the 
Little Shell people have serious recommendations to make to Congress to 
fix this mess.
The History of the Little Shell Tribe
    The Little Shell Tribe of Chippewa Indians is a 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 1800s. The Pembina Band 
was recognized by the United States in an 1863 treaty that was ratified 
by the Senate. See Treaty of October 2, 1863, 13 Stat. 667. After the 
treaty, some members of the Pembina Band settled on reservations in 
Minnesota but our ancestors followed the buffalo herds into western 
North Dakota and Montana, eventually settling in Montana and in the 
Turtle Mountains of North Dakota.
    In 1892, 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 of the negotiations and refused to accept the terms of the 
eventual agreement. Some of Little Shell's followers moved to Montana 
and joined with other members of the Pembina Band who had settled in 
Montana; accordingly, our collective Pembina ancestors came to be known 
as the ``Little Shell Band.'' When our traditional means of livelihood 
died with the buffalo herds, our ancestors were left to eke out an 
existence in a number of shantytowns across Montana. We became known as 
``the trash-can Indians,'' or ``the landless Indians.'' Forced to live 
in communities which did not welcome us, our people faced severe racism 
and discrimination throughout Montana, some of which continues today.
    For one hundred years now, Congress has been aware of, and has 
attempted to address, the plight of the Little Shell people. In 1908, 
Congress first appropriated funds to settle our people on a land base. 
See 35 Stat. 84. In 1914 Congress again appropriated funds for this 
purpose, and continued to do so every year thereafter until 1925--
always to provide a reservation land base on which to settle the 
``homeless Indians in the State of Montana.'' Unfortunately, no land 
was ever acquired with these appropriated funds and accordingly, 
because we had no land base, the Department of the Interior did not 
recognize us as a result of these appropriation acts.
    In the 1920s, newspaper articles chronicled our plight, and our 
leaders pleaded for help for the destitute Little Shell people. Tribal 
leader Joseph Dussome asked Congress, ``Are we not entitled to a 
Reservation and allotments of land in our own County, just the same as 
other Indians are? '' Two weeks later, the Department of the Interior 
rejected our leader's plea:

        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 Mount 
        band for the purposes of permitting them to obtain either land 
        or money.

    Letter of Asst. Secretary Scattergood, dated December 14, 1931. 
Three years later, however, Congress enacted the Indian Reorganization 
Act (IRA), which provided a mechanism for groups of Indians like ours 
to organize and apply for land. In December 1935, the Commissioner of 
Indian Affairs took steps to organize our people under the IRA. The 
Commissioner proposed a form to enroll our 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.

    BIA Letter, December 23, 1935. This effort resulted in the Roe 
Cloud Roll, named after Dr. Henry Roe Cloud, an Interior official who 
played a large part in the project. Once the roll was complete, the 
Field Administrator clearly stated that the purpose of the roll was to 
settle our people and bring them under active federal supervision:

        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 first step in the 
        program is to recognize those Indians of the group who may 
        rightfully make claim of being one-half degree, which is the 
        occasion for presenting the attached applications. The fact of 
        these people being Indian and being entitled to the benefits 
        intended by Congress has not been questioned.

    Roe Cloud Roll applications, 1937. The Department of the Interior 
was never able to fulfill this promise. The limited resources available 
to acquire land were expended for tribes already recognized. In 1940, 
Senator James Murray formally requested that the Department fulfill the 
Federal Government's promise to acquire land for the Little Shell Band. 
Assistant Commissioner Zimmerman responded that his office was ``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.'' Unfortunately, the Federal Government's 
efforts to assist the Little Shell Tribe gave way during the 
termination era of the 1950s, and, as a result, the land promised for 
our people was never forthcoming.
The Tribe's Experience with the Administrative Process
    When the acknowledgment regulations were first adopted in 1978, the 
Little Shell Tribe was hopeful that this process finally provided the 
means by which the Tribe would become federally recognized and eligible 
for the federal Indian services that all other tribes in Montana enjoy. 
As the years passed, though, this hope became fear, resulting in a 
federal pronouncement that the Little Shell Tribe does not constitute 
an Indian tribe. This pronouncement is wrong, as every government in 
Montana knows. And this pronouncement has caused intense pain and 
sadness to the Little Shell people. Now, the Tribe's only real hope is 
the passage of S. 1936, and the Tribe is deeply appreciative to Senator 
Tester and Senator Baucus for giving us this hope. Without it, our 
people would truly be despairing now.
    The administrative process is so long and so intrusive that words 
can hardly describe it. A few basic numbers, though, will give the 
committee a sense of what the Little Shell people have endured in this 
process. The Little Shell Tribe first petitioned for recognition in the 
administrative process in 1978. On October 27, 2009--31 years after the 
Tribe initiated the administrative process--the BIA issued its Final 
Determination on the Tribe's petition. During these long years that the 
BIA deliberated on the Tribe's petition, the Tribe lost a whole 
generation of tribal elders and a whole generation of Little Shell 
children was born and grew to adulthood. These 31 years of deliberation 
on the Tribe's petition produced more than 70,000 pages of material 
that constitute the administrative record in the case. Placed one on 
top of the other, these 70,000 pages would be 35 linear feet in height. 
Put another way, the BIA record includes nearly 20 pages of 
documentation and analysis for each member of the Little Shell Tribe. 
The Tribe was represented through this process by the Native American 
Rights Fund (NARF), which hired the multiple experts needed to navigate 
the process and devoted hundreds of hours of attorney time. NARF 
estimates that it has expended more than $1 million in hard costs on 
the Tribe's petition and an additional $1 million in attorney time. 
Even if the process were otherwise perfect and resulted in the 
recognition of every legitimate tribe that went through it, these 
numbers alone show that the process is completely run amok, requiring 
detailed analyses and documentation beyond anything approaching reason.
    Unfortunately, though, even if a legitimate tribe has the stamina, 
patience, and resources to make its way through this process, it cannot 
be certain that it will be rewarded with federal recognition at its 
end. There are 7 mandatory criteria used by the BIA to determine 
whether a tribe exists as such, 4 of which are substantive and 3 of 
which are mechanical (e.g., whether the tribe has been terminated.) See 
25 CFR Sec. 83.7 Some of the substantive criteria are really irrelevant 
to whether a tribe exists, others are duplicative, and the key criteria 
are so subjective as to defy even handed and fair application. The 
Little Shell Final Determination reflects all these flaws.
    First, it is important to point out that there is no question that 
the Little Shell people are descendants of the Pembina Chippewa. The 
BIA itself found in the Final Determination that nearly 90 percent of 
the Little Shell membership has proven their descent from the Pembina 
Chippewa. And remember, these same Pembina Chippewa negotiated treaties 
with the United States. It would seem reasonable that where, as in the 
case of Little Shell, the Tribe has proven its descent from a treaty 
recognized entity, there should be some flexibility in the application 
of the other criteria. Sadly, this is not the case. The BIA found that 
the Little Shell Tribe had failed to prove 3 other criteria.
    On criterion a, or identification of an Indian entity, the BIA 
found that the Little Shell had failed to give evidence of such between 
1900 and 1935. In the Tribe's view, this criterion is irrelevant to 
whether the Tribe exists as such. It basically says that, even if you 
are a tribe and can meet all the other criteria, you will not be 
recognized unless outsiders have written down someplace that you are an 
Indian tribe. What sense does this make? If a tribe is a tribe, it 
shouldn't matter whether outsiders have recorded it as such. So failure 
on this criterion is meaningless on the basic question of whether the 
Little Shell constitutes an Indian tribe.
    On criterion b, or proof of community over time, the BIA found 
insufficient evidence for Little Shell. The BIA also found insufficient 
proof on criterion c, political authority, for the same period of time. 
These 2 criteria overlap significantly, as the regulations themselves 
indicate. See 25 CFR Sec. Sec. 83.7(b) (v), 83.7(c) (3). The overlap is 
also evident from the fact that every single petitioner which has 
failed on one has also failed on the other.
    These 2 criteria, b (community) and c (political authority), are so 
subjective that any tribe's evidence on them can be viewed as 
sufficient by one researcher and as insufficient by another. The 
criteria require proof of relationships--interaction among significant 
numbers of the members, bilateral political relations, etc. Basically, 
according to the BIA, the question is one of whether there are social 
and political boundaries that separate the tribal group from others.
    As applied by the BIA, these criteria cannot be quantified. They 
require that a judgment call be made in each case. And because the data 
compiled in each case is so massive, every researcher's overall 
assessment of the data is different. The Little Shell petition suffered 
from this flaw. For example, the Final Determination essentially 
concludes that there was no historic community of Little Shell, that 
the Tribe consists of individual Indians who sort of came together over 
time. But the researcher's assessment of the data in the Proposed 
Finding on the Little Shell petition was different. The Technical 
Report in support of the Proposed Finding documents that the Little 
Shell people responded to the disappearance of the buffalo by coming 
together consciously, sometimes by decision formally made by the group. 
Technical Report, Proposed Finding, p. 45.
    This highly subjective analysis of massive amounts of data explains 
how the Proposed Finding on the Little Shell could be positive while 
the Final Determination was negative. It all depends on a personal 
judgment regarding an overwhelming amount of data. Basically, the BIA 
is looking for tribal boundaries, a tribal community that is separate 
from others. But if you look at a chain link fence with your face right 
against it, you see the holes, not the links, and you fail to see the 
boundary. If you take just a few steps back, you can see the fence and 
the links that the separate those inside the fence from those outside 
the fence.
    Former Assistant Secretary Kevin Gover understood this. He took a 
step back from the thousands of pages of data compiled on the Little 
Shell Proposed Finding to look at the Tribe as a whole in the context 
of its history. He understood that traditional, migrating tribes like 
Little Shell just do not generate the paper record that the BIA 
interprets the regulations to require. And he understood that the real 
question is does the group constitute an Indian tribe, not whether the 
group has a piece of paper on each of the mandatory criteria for every 
ten year period. The regulations themselves purport to require that 
each tribe's petition be evaluated in the light of its own historical 
circumstances, but the BIA gave no weight on the Little Shell petition 
to the federal policies that wreaked havoc on the Tribe. Rather, solely 
for the sake of administrative uniformity, the BIA takes the position 
that no departure from its analysis in every other petition is 
permissible. Every tribe must fit the BIA's mold or recognition is 
    At the end of the day, this is the most fundamental flaw in the 
administrative process. It examines every tribe not just 
microscopically, but down to the subatomic level! And unless the 
features of that tribe are just like every other tribe that has been 
recognized, recognition must be denied. The Little Shell is penalized 
because it maintained its traditional life following the buffalo as 
long as possible instead of settling down into one place. Unless the 
regulations are applied in a flexible manner as Assistant Secretary 
Gover did, the regulations simply do not work for a migratory tribe 
like Little Shell.
    Those who know the Little Shell Tribe the best all know that we are 
an Indian tribe. The State of Montana recognizes Little Shell as an 
Indian tribe. Every tribe in the State of Montana supports recognition 
of the Little Shell, including our close relatives at Turtle Mountain 
in North Dakota and at Rocky Boy's. Because of the strong support for 
Little Shell recognition, there was not a single, substantive comment 
made in opposition to the BIA's favorable Proposed Finding on the 
Little Shell petition. Nonetheless, the BIA could not see the Little 
Shell community and refused to recognize the Tribe. This is morally 
The Tribe's Recommendations on Recognition Reform
    It is essential that the Congress step in to stop this miscarriage 
of justice. Congress did not create the BIA's process and has never 
blessed the mandatory criteria applied in that process. Both must be 
examined and changed in a comprehensive way in reform legislation. And 
Congress must do so now to make sure that no other Indian tribes are 
forced to endure what the Little Shell Tribe has endured.
    Based on our nightmarish experience, the Little Shell Tribe makes 
the following recommendations to Congress regarding reform of the 

        1.  The recognition process should be taken out of the hands of 
        the BIA. Of course, the BIA has great experience with federally 
        recognized tribes. But it does not have great experience with 
        non-federally recognized tribes and has proved that it is not 
        capable of identifying all legitimate Indian tribes.

        2.  The recognition criteria must be changed. The a criterion, 
        identification as an Indian entity, should be eliminated 
        because its absence does not disprove tribal existence. And the 
        overlapping and highly subjective b (community) and c 
        (political authority) criteria should be combined and redefined 
        to eliminate the subjective and highly detailed examination.

        3.  The documentary burden must be reduced. It just makes no 
        sense to compile records consisting of tens of thousands of 
        pages in each case. Obviously, Indian ancestry is necessary. 
        But it really is not necessary to present a complete profile of 
        the community, literally showing the interaction of all tribal 
        members, every ten years.

        4.  There must be meaningful deadlines in the process. It is 
        just not acceptable that tribes spend 30 years in a recognition 

    There is a recognition reform bill that is now pending in the House 
of Representatives. It was introduced by Mr. Faleomavaega and is H.R. 
3690. This bill would abolish the BIA process in favor of an 
independent commission to process petitions for recognition. The Little 
Shell Tribe supports this idea and many of the other reforms contained 
in H.R. 3690.
    In the administration of Indian affairs, the Congress has no more 
fundamental responsibility than determining which Indian people are 
subject to federal Indian statutes and policy. Congress can no longer 
leave this fundamental responsibility to the administration of 
inflexible bureaucrats at the Bureau of Indian Affairs. In the name of 
the Little Shell people, I urge the committee to move forward 
immediately on this important issue. Justice must also be done for the 
Little Shell Tribe, the most recent victim of this flawed 
administrative process, by the swift enact of S. 1936, to extend the 
federal recognition that Little Shell deserves.

    The Chairman. Chairman Sinclair, thank you very much.
    Next we will hear the Chairwoman of the Muscogee Tribe in 
Florida, the Honorable Ann Tucker. Ms. Tucker, you may proceed.


    Ms. Tucker. Thank you. First, I want to thank Senator 
Nelson and his staff for their continued support of our tribe 
in this process.
    Chairman Dorgan and honorable members of this Committee, I 
am Chairwoman Ann Denson Tucker of the Muscogee Nation of 
Florida, a Florida tribe of Eastern Creek Indians. I am again 
honored to represent my tribe's people on the issue of Federal 
    As petitioner number 32 in the Office of Federal 
Acknowledgement, we are one of the last of the old tribes who 
filed a petition before the 1978 regulatory changes. We are 
shackled to a process describe by an in-depth report of the 
United States GAO as irrevocably broken.
    When we read the report, our tribal government had to face 
the fact that our evidence, which now fills 144 banker boxes, 
was not going to cut it in the OFA. Jim Crow laws in North 
Florida did not allow for Indians to live openly. Therefore, 
external identification is not possible for us for the first 
part of the 20th century. We have no more resources to fight 
in-house changes, or worse, legal precedents from Federal 
courts that have become a mainstay in the recognition process.
    The burden of proof is on the Indian tribe. But today there 
are no grants to help petitioners respond to the new 
precedents. There is no grandfathering in. There is little to 
no written communication on proposed agency changes, no input 
on Federal court cases involving one petitioner whose findings 
can and will impact every other petitioner left in the OFA 
    Our universe becomes nothing more than 100 years of 10-year 
increments, scanned and digitized, sorted four ways and subject 
to bureaucratic interpretation. For them, our world is a paper 
trail. We will never have enough paper for the current process, 
and we will never have the right paper. We have buried two 
generations of people waiting for self-determination. The 
elders of the third generation are now in their 80s. We did not 
come to Congress on a whim.
    It is a frightening reality that when a process is broken, 
Congress is where an Indian tribe from Bruce, Florida, has to 
come to. We have spent the last 10 years watching this same 
broken process eliminate petitioners, and now this includes the 
Little Shell, who wait in a 90 day window to receive a final 
determination that will demoralize their people and the leaders 
who have struggled to protect their rights for these past 30 
years. So it will be with us. Muscogee Nation of Florida has no 
confidence that a positive determination will be issued for our 
tribe. How can it be when we share similar experiences in a 
broken process?
    We are among the oldest petitioners left, and are destined 
to fail because we are exactly what we claim to be: an Indian 
community and government who lived separate and distinct in a 
world of Jim Crow law. We did not come to Congress to 
circumvent the administrative process. We worked for 20 years 
to try to answer every OFA criteria and filed our paperwork to 
move to ``Ready, Waiting for Active Consideration.'' We came to 
Congress because we believe we have no option. We can sit in 
the OFA and be turned down because of historical gaps directly 
caused by Jim Crow laws, or we can come here. We can sit in the 
OFA while a new process is created that we do not have the 
fiscal ability to respond to or we can come here. We can be a 
tribal government whose hands are tied while our impoverished 
people live in substandard conditions, or we can come here to 
fight for the immediate relief and honor of self-determination 
from a government-to-government relationship.
    Our tribe will never fit into pre-established criteria that 
do not allow for the devastating historical impact of State and 
local policy. We are not the exception as a tribe in this 
current process. We are the norm. And that is an unfortunate 
    One process cannot fit all, not when it comes to the 
histories of indigenous people. We are not all alike. And the 
process has to have enough flexibility that it allows for and 
accepts this fact. Once again, I have come from Bruce, Florida, 
to tell you that we are a 150 year old community of Creek 
Indians waiting for justice. Our quality of life matters. The 
preservation of our culture and our tradition matters. The 
repatriation of our dead matters. And it matters now, not five 
years from now when the OFA makes a determination on Muscogee 
Nation of Florida that may or may not be just, and may or may 
not be reversed.
    I came here because I am the head of a tribal government 
for a people who managed to survive Governor Andrew Jackson. We 
have survived Indian removal and genocide, the Civil War, the 
burning of our courthouses, the Jim Crow laws and their KKK 
enforcers. Today we find our existence threatened by a broken 
process, so we have had to place our faith in you. We still 
exist, just like we always did, and we deserve recognition. We 
have waited long enough for a broken process to determine our 
fate. I ask you today to stand for our people.
    Thank you.
    [The prepared statement of Ms. Tucker follows:]

 Prepared Statement of Hon. Ann D. Tucker, Chairwomen, Muscogee Nation 
                               of Florida
    Chairman Dorgan, honorable members of this Committee, I am 
Chairwoman Ann Denson Tucker of the Muscogee Nation of Florida, Florida 
Tribe of Eastern Creek Indians. I am again honored to represent my 
Tribe's people on the issue of federal recognition. As Petitioner 
Number 32 in the Office of Federal Acknowledgement, we are the last of 
the old Tribes who filed a petition before the 1978 regulatory changes. 
We have seen many things.
    We are shackled to a process described by an in-depth report of the 
U.S. General Accounting Office as irrevocably broken. When we read the 
report, our Tribal Government had to face the fact that our evidence 
which fills 144 banker boxes was not going to cut it in the OFA. Jim 
Crow Laws in North Florida did not allow for Indians to live openly. 
Therefore, external identification was not possible for us in the first 
part of the 20th century.
    We have no more resources to fight in-house changes or worse, the 
legal precedents from federal courts that have become a mainstay in the 
recognition process. The burden of proof is always on the Indian Tribe, 
but today, there are no grants to help petitioners respond to the next 
new precedent. There is no Grandfathering in. There is little to no 
written communications on proposed agency changes, no input on federal 
court cases involving one Tribe whose findings can and will impact 
every other petitioner left in the OFA process. Our universe becomes 
nothing more than 100 years of 10-year increments, scanned and 
digitized, sorted 4 ways, and subject to bureaucratic interpretation. 
For them, our world is a paper trail. We will never have enough paper 
for the current process. We will never have the right paper.
    We have buried 2 generations of people waiting for self-
determination. The elders of the 3rd generation are now in their 80s. 
We did not come to Congress on a whim. It was a frightening reality 
that when a process is broken, Congress is where an Indian Tribe has to 
come. We have spent the last 10 years watching this same broken process 
eliminate petitioners, and now this includes the Little Shell, who wait 
in a 90 day window to receive a final determination that will 
demoralize their people and the leaders who have struggled to protect 
their rights these past 30 years. So it will be with us. Muscogee 
Nation of Florida has no confidence that a positive determination will 
ever be issued for our Tribe. How can it be when we share similar 
experiences in the OFA's broken process? We are the oldest petitioners 
left and we are destined to fail because we are exactly what we claim 
to be: an Indian community and government who lived separate and 
distinct in a world of Jim Crow Laws.
    We did not come to Congress to circumvent the Administrative 
Process. We worked for 20 years to try to answer every OFA criteria and 
we filed our paperwork to move to Ready, Waiting for Active 
Consideration. We came to Congress because we have no other option. We 
can sit in the OFA and be turned down because of historical gaps 
directly caused by Jim Crow laws or we can come here. We can sit in the 
OFA while a new process is created that we do not have the fiscal 
ability to respond to, or we can come here. We can be a Tribal 
Government whose hands are tied while our impoverished people live in 
substandard conditions, or we can come here to fight for the immediate 
relief and honor of self-determination and a government-to-government 
relationship with the United States. Our Tribe will never fit into pre-
established criteria that do not allow for the devastating historical 
effects of state and local policies. We are not the exception as a 
Tribe in the current acknowledgement process. We are the norm. And that 
is an unfortunate truth. One process cannot fit all--not when it comes 
to the histories of indigenous people. We are not all alike and the 
process has to have enough flexibility that it allows for and accepts 
this fact.
    Once again I have come from Bruce Florida to tell you that we are a 
150-year-old community of indigenous people who are waiting for 
justice. Our quality of life matters. The preservation of our culture 
and our traditions matters, the repatriation of our dead matters--and 
it matters now--not 5 years from now when the OFA makes a determination 
on Muscogee Nation of Florida that may or may not be just, and may or 
may not be reversed within the Department of Interior or by Congress. I 
came here because I am the head of a Tribal government for a people who 
have managed to survive Governor Andrew Jackson. We have survived 
Indian removal and genocide, the Civil War, the burning of our 
courthouses, the Jim Crow Laws and their KKK enforcers. Today we find 
our existence threatened by a broken process so we have placed our 
faith in you.
    We still exist just like we always did and we deserve recognition. 
We have waited long enough for a broken process to determine our fate. 
I ask you today to stand for our people.
    On behalf of the tribal government and people of Muscogee Nation of 
Florida, thank you for allowing our voice to be heard.

    The Chairman. Chairperson Tucker, thank you very much for 
your testimony. We appreciate your coming to Washington, D.C.
    Finally, we will hear from Patty Ferguson-Bohnee, the 
Director of the Indian Legal Clinic in Tempe, Arizona. Welcome.

                    ARIZONA STATE UNIVERSITY

    Ms. Ferguson-Bohnee. Thank you, Mr. Chairman and Senator 
Tester. Thank you for inviting us here today.
    I am the Director of the Indian Legal Clinic, and the 
students in the clinic have helped to prepare the testimony, 
and they are here and present today. They are Rebecca Ross, 
Vanessa Verri, Derrick Beetso and Dan Lewis.
    The Chairman. Can we have the students stand up so we can 
identify them? Thank you. Thank you for being here.
    Ms. Ferguson-Bohnee. As it has already been stated, the 
Federal acknowledgement process has been the focus of 
legislation introduced in both the House and the Senate and of 
the Committee hearings in this chamber over the past many 
years. As I think it is fair to say, that progress has been 
slow in developing a comprehensive solution to the issues at 
hand. Indeed, since the Committee's last hearing in April, 
2008, there was some movement by the Bureau of Indian Affairs 
to address a few issues through the guidance published in May, 
2008. Notably, clarification of when from historic times to the 
present begins.
    However, in an effort to promote further progress, we are 
pleased to provide the Committee with additional views that may 
improve the process. And the issue before you is to decide 
whether the OFA process can be fixed. If so, how, and if not, 
what alternatives should Congress consider to replace or reform 
the system?
    The Federal acknowledgement process sought to redress the 
inconsistent standards applied by the Administration in 
recognizing tribes and to provide an opportunity for those 
tribes who lacked formal acknowledgement to obtain it in a 
timely and a fair manner. Neither the 1978 nor the 1994 
regulations anticipated that tribes needed experts to produce 
or to complete a petition.
    The implementation and reality, however, have been quite 
different. As you have heard the testimony, petitioners have 
spent in some cases millions of dollars preparing petitions 
that don't meet the standards of the Bureau of Indian Affairs. 
After three decades, only 45 to 48 petitions have been 
determined through the process, and the process is plagued with 
the exact problems that the regulations sought to address.
    We are left with a process that is not transparent, that 
applies an increased burden of proof on the petitioner, that is 
untimely, and that lacks resources for both the petitioner and 
the Office of Federal Acknowledgement. The current standards 
have steered so far from the intent of the regulations that the 
OFA process must be overhauled in a meaningful way to address 
these problems.
    Due to the increased burden and shifting standards, the 
rules for evaluating petitions have changed without rulemaking. 
The main reason for this is because the interpretations left to 
agency discretion have changed while the criteria have remained 
the same. Some petitioners would argue that the current process 
is adversarial, and is definitely adjudicative, without the 
benefit of meaningful discovery. The process lacks 
transparency, leaving petitioners without clear direction of 
how criteria are applied and how the regulations are 
    A major problem in the current process is the application 
of the reasonable likelihood standard. Reasonable likelihood is 
a standard identified in the regulations to evaluate the 
sufficiency of evidence supplied by the petitioners. The plain 
language of the regulations provides that in evaluating the 
seven criteria, a criterion shall be considered met if the 
available evidence establishes a reasonable likelihood of the 
validity of the facts relating to that criterion. Conclusive 
proof of the facts relating to a criterion shall not be 
    Reasonable likelihood is the lowest evidentiary burden. 
This standard means that when reviewing the available evidence, 
is it more likely than not that the petitioner met the 
criterion. While the petitioner's burden of proof, reasonable 
likelihood, is the lowest evidentiary burden, the evidence 
necessary to meet the criteria has increased, requiring 
petitioners to exceed the standard by providing more 
documentation and analysis than required in the regulations. 
Earlier petitions, for example, were not required to satisfy 
the evidentiary burdens that current petitioners must satisfy.
    From reviewing proposed findings and final determinations, 
it seems that the standard of proof for issuing decisions 
shifts based on who is making the decision. The benchmarks, 
therefore, are not clearly defined. Conflicting statements and 
decisions as to how evidence will be applied is not helpful. 
For any positive and fair reform, there must be, one, 
commitment to funding the petitioner and the adjudicative body, 
whether it is OFA or some other process; two, clarification of 
the standards; three, clarification of the burden of proof; and 
four, provide for the exchange of discovery so that the 
petitioner knows what evidence is being presented in its case.
    There are several options. The first is to do nothing and 
to allow OFA to revise the guidelines or allow Interior to 
develop revised regulations. If the OFA only revised its 
guidelines, these will not address the serious issues that have 
been identified by the GAO and others as to flaws in fairness 
and funding. Further, the agency has been given numerous 
opportunities to work within its framework to provide 
meaningful reform, and it has failed to do so.
    Another option is to pass legislation defining the 
criteria, the burden of proof, and direct the OFA to follow the 
criteria and standards set forth by Congress, and to 
appropriate funding with sufficient staff and resources for 
this purpose. A third option is to create a commission or an 
administrative law judge process that replaces OFA, allowing 
for increased transparency, funding for petition development 
and application of the appropriate burden of proof to the 
criteria. It should also include an implementation of a sunset 
provision, setting deadlines for bringing the recognition 
process to an end, and implement time frames for processing 
petition applications.
    I would like to thank you for your time and I would be 
happy to address any questions you may have.
    [The prepared statement of Ms. Ferguson-Bohnee follows:]

  Prepared Statement of Patty Ferguson-Bohnee, Director, Indian Legal 
      Clinic; Clinical Professor of Law, Arizona State University

    The Chairman. Ms. Ferguson-Bohnee, thank you very much for 
your testimony. We appreciate the testimony of all four of you.
    A couple of questions, if I might. Ms. Tucker, my 
understanding is that you filed a letter of intent in 1978.
    Ms. Tucker. Yes, sir.
    The Chairman. So that is 31 years ago. You filed all of 
your documents in 1995?
    Ms. Tucker. We had filed them before that also. They were 
returned when the regulatory change took place.
    The Chairman. This says that all documents received 9/28 in 
    Ms. Tucker. Yes, for the second regulatory process, yes, 
    The Chairman. And then nothing happened to them for eight 
years. And then in 2003, they were given ready status, is that 
your understanding of the process?
    Ms. Tucker. Yes, sir.
    The Chairman. Despite the fact that you are in ready 
status, there are, you are not in the top tier at this point, 
in active status?
    Ms. Tucker. No, sir.
    The Chairman. The reason I ask that question is that 
describes to me the difficulty here. If you filed the documents 
before and then leading up to 1995 and 2003, eight years later, 
you are put in ready status, but you are not now, six years 
even after that, in a situation where you are on the active 
    Ms. Tucker. No, sir.
    The Chairman. So it is just a system that is not working 
very well. And I assume that were I or Senator Tester a 
petitioner, we would be frustrated as well and trying to find a 
table to express that frustration.
    Mr. Ettawageshik, can I call you Frank?
    Mr. Ettawageshik. Sure. I have been on a first name basis 
with people all my life.
    The Chairman. Thank you. How long had you been in the 
process before deciding to go to the Congress for recognition?
    Mr. Ettawageshik. We had been in the process only a short 
while. We had not been in the process for a decade or more. But 
we realized, because of the number that we were at that it 
would take us, at the rate they were going, even with the 
completed petition, it would take us years before we would be 
    The Chairman. I see. I will call you Frank, you call me 
    Mr. Ettawageshik. I will call you Mr. Chairman, I think.
    The Chairman. Chairman Sinclair, what is your tribe 
planning to do next at this point? Will it appeal the decision 
to the Board of Appeals?
    Mr. Sinclair. We are considering that option. I don't know 
if I have a lot of faith in that process, so we have to 
consider that, and what does that do to this legislative 
process that we are requesting. So that is kind of where we are 
there. We are not dismissing it out of hand, but we have to 
look at it hard.
    The Chairman. Tell me about the process that it took you, 
you submitted 60,000 pages of documents, I understand.
    Mr. Sinclair. Seventy, I have heard.
    The Chairman. Seventy thousand pages that are now in the 
possession of the agency. Over what period of time? I know that 
your petition spans, or at least the notice of intent, spans 
back 31 years as well.
    Mr. Sinclair. Right.
    The Chairman. So over that lengthy period of time, some 
70,000 pages were developed. I think Senator Tester's question 
is germane. Leading up until the decision you had expected, 
because of other decisions that had been affirmative in that 
application process that there was not a problem in some of 
those areas. For example, the issue of having to demonstrate 
every 10 years. If you are a couple hundred years old, the fact 
that you can't find a 10 year period some place in the middle 
of those 20 different decades, I think it had been indicated to 
you that that is not going to be a problem, providing you can 
demonstrate the continuum.
    Mr. Sinclair. Right. I really don't know, as far as in 
detail, where the gaps were that they are saying we had, or 
what spans and why the evidence that we buried them in for 
years wasn't adequate. That is the biggest problem. They came 
back, in 2000, when they came out with the proposed positive 
finding, and they say, strengthen your petition. But they don't 
say in detail where are we lacking and how much do they need. 
So we end up just burying them in paper.
    The Chairman. Ms. Tucker, in dealing with the Office of 
Federal Acknowledgement, have they provided you with any 
guidance on how you might deal with the specific time frames 
where historical information may not be available?
    Ms. Tucker. No, sir.
    The Chairman. Ms. Ferguson-Bohnee, my understanding is that 
the petitioners are not allowed access to all the information 
that the Department is considering in the process. Is that 
    Ms. Ferguson-Bohnee. The petitioners must submit a FOIA 
request to obtain all of the documents that are being 
considered in their petition.
    The Chairman. And so, that further adds to the burden and 
expense, correct?
    Ms. Ferguson-Bohnee. That is correct. They do have a new 
process which offers some of the documents in a digital data 
base. If you have submitted information about your petition and 
it includes private information, if they then mark on that 
information then they will redact that personal information 
about a petitioner because of the Privacy Act.
    The Chairman. You mentioned, when you talked about 
alternatives, you talked about an administrative law judge, an 
ALJ process. Can you describe more fully to us what that 
process would look like, in your judgment?
    Ms. Ferguson-Bohnee. Yes, sir, and I would also like the 
opportunity to follow up on that question. Our students have 
been looking at the administrative law judge process. There 
would be, as they have in certain agencies now, administrative 
law judges who the petitioners could go to and present their 
evidence. Then they would be able to cross examine witnesses. I 
would assume that the Federal Government would have an interest 
in those petitioners, so that there would still be an office 
with experts, because they would want to know who was 
petitioning through the process. Since it recognizes a 
political relationship with the United States.
    I think one of the issues that Mr. Sinclair and Ms. Tucker 
mentioned is that there isn't funding for tribes to go through 
the process. So that would be something that would have to be 
considered, because many tribes are poor and unfunded, to have 
to go through the process. So we would recommend some sort of 
regional petitioner assistance to help tribes navigate that 
process, so that they wouldn't all be coming to D.C. for a week 
to two weeks to try to put on a trial, and to take into account 
that many people who have prepared evidence in these petitioner 
cases could actually no longer be living, are dead. So then to 
take into account certain hearsay evidence.
    But I think that the primary point that would be positive 
would be the burden of proof in the standard that an 
administrative law judge could apply, and apply in an even-
handed manner.
    The Chairman. But it wouldn't be unusual that it would cost 
money in an ALJ process. The fact is, I don't know of a tribe 
that has not had to bear substantial monetary burden to go 
through the acknowledgement process at Interior. Isn't that 
    Ms. Ferguson-Bohnee. That is correct. I think for any 
process, there needs to be some sort of funding. Because there 
is not a level playing field. And the guidance has changed. I 
don't remember which year, 2000 or 2005, where the Bureau 
doesn't do additional research on a petition. So whatever the 
Bureau is reviewing is whatever the petitioner submitted.
    The Chairman. I think it would be helpful for our Committee 
if you would wish to submit additional information about those 
    Ms. Ferguson-Bohnee. Okay, we will do that.
    The Chairman. Senator Tester.
    Senator Tester. Thank you, Mr. Chairman. I am going to stay 
with you, Ms. Ferguson-Bohnee. The previous two gentlemen, Mr. 
Skibine and Mr. Fleming, had said that the reconsideration 
appeal process, the reconsideration and appeal process were the 
same. Do you have enough knowledge about the recognition 
process that currently exists to comment on that?
    Ms. Ferguson-Bohnee. Yes, sir. The reconsideration process 
is discretionary. You can ask for reconsideration and it can be 
denied. Then if, obviously because the OHA can deny 
reconsideration because it goes back to the OFA to reconsider. 
And I don't think that very many people have been successful 
through that process. It is a higher burden also in that 
process than reasonable likelihood.
    So I think that Mr. Skibine mentioned that that may be 
something they are considering changing. If it serves really no 
function to actually process these petitioners, then I think it 
probably should be changed.
    Senator Tester. Yes, so the reconsideration process, you 
said, is a much higher standard than the appeal process?
    Ms. Ferguson-Bohnee. You would need some new evidence. And 
it is also a preponderance of the evidence. It is not 
reasonable likelihood, which is a somewhat higher standard.
    Senator Tester. Thank you. And thanks for your testimony.
    Chairman Sinclair, could you give me an indication of what 
the Government structure is for the Little Shell at this time?
    Mr. Sinclair. At this time, we have a seven-man council 
made up of an executive committee with a president, first vice 
president, second vice president, secretary-treasurer and then 
three councilmen at large.
    Senator Tester. Okay. Do you ever make decisions that would 
demonstrate influence over your community from a political 
    Mr. Sinclair. Oh, absolutely.
    Senator Tester. Give me an example of one.
    Mr. Sinclair. Well, you can take the new stimulus money 
that came out. We made the decision how to spend that money. 
That would be the latest one.
    Senator Tester. That is good. Can you give me the insight 
into why there is no available evidence between 1935 and 1900? 
The definition from the Department said, I don't know if you 
have seen this or not, Mr. Chairman, I assume you have, but it 
said that there was no external, there was no evidence that 
showed external observers that have identified the petitioner 
as an entity only since 1935, and not since 1900. Do you have 
any insight as to why that has occurred?
    Mr. Sinclair. I go back to Ms. Tucker's comments about the 
time period we are talking about. During that time, there were 
three factors I think that were involved: Federal action, which 
made us sell our lands; racism and extreme poverty. I go back 
to the old bar sign, no dogs and Indians allowed. We were 
really non-people. Unless we attacked somebody, I don't think 
they really mentioned us much, and we were not in any position 
to attack somebody.
    Senator Tester. The last thing that was a determination 
against you was you didn't comprise a distinct community since 
historical times, which sounds to me to be, distinct community 
and Indian entity seem to be very similar to me in impact. And 
then it went on to say, nor did the petitioner maintain 
significant social relationships and interaction as a part of a 
distinct community since their migration to Montana.
    When did you migrate to Montana?
    Mr. Sinclair. Well, we have always been traveling in that 
area. We have traveled into Canada. I am not supposed to 
mention Canada, but that was, the Cypress Hills which extend 
from Turtle Mountain, up into Canada about 100 miles north of 
Havre and back down and along the Milk River Valley. That was 
where we hunted.
    Senator Tester. So there really wasn't a migration to 
Montana? You have been here forever.
    Mr. Sinclair. Yes, we were back and forth with the buffalo 
hunts. That is what we did.
    Senator Tester. I want to thank you, thank you for your 
patience. I think that you do have some recourse in this, and I 
will certainly give you my opinion, but that is all it is 
worth, is an opinion. So we will go from there.
    I did have one other question, let me find it here. It was 
for Frank.
    Senator Tester. Frank, if I heard your testimony right, you 
had talked about agency conflict with the BIA. And I was 
wondering, if we take this decision away from the BIA, number 
one, where would you put it?
    Mr. Ettawageshik. Well, the proposals that have been there 
are to create this separate commission and put it there. 
Frankly, those of us who have thought about this and looked at 
it wonder if that will just be putting it in another place 
where we are still going to have some of the same kind of 
problems. But of course if you do that, you create a separate 
commission, you then have, it will take, after it is created it 
will take a year to get it peopled. Then it will take a while 
to get rules, and it will take a while more longer to figure 
out how they are going to work. So you have two or three years 
before it is really functioning. And then you don't know if it 
is going to function all that much better than the current 
    So those are some of the problems that we see. It has to be 
looked at really carefully in any ways that we do this.
    Senator Tester. Once again, I want to thank you all for 
being here. I didn't ask you any questions, Ms. Tucker, that is 
because you did such a great job on the Chairman's questions. 
But I want to thank all four of you for being on the Committee 
today and the two in the previous panel, too. Thank you all for 
being here.
    The Chairman. Let me add my thanks to all of you, and say 
that the hearing record will be held open for two weeks. If 
there are others who wish to submit formal testimony, we will 
include it in the hearing record.
    I am going to ask my colleagues on the Committee to sign a 
letter with me to the Secretary of the Interior. I am going to 
ask the Secretary of the Interior to provide formally for the 
Committee his views on how to fix this issue. Clearly, this 
needs fixing. And I don't want to the Interior Department to be 
a bystander here. I want to hear the views of the Interior 
specifically on what kinds of approaches does he believe would 
be necessary for us to be able to have an acknowledgement 
system that would set targets and time tables and have a 
reasonable expectation of completing these things before two or 
three decades.
    So we will submit that later this week to the Secretary and 
ask within 60 or 90 days if he can provide the Committee 
formally with his views on those issues.
    Ms. Ferguson-Bohnee, you and your assistants will provide 
some additional information on alternatives that you discussed 
in your testimony as well.
    So again, we thank you for traveling to Washington, D.C. to 
testify today. This hearing is adjourned.
    [Whereupon, at 4:00 p.m., the Committee was adjourned.]
                            A P P E N D I X

  Prepared Statement of John Norwood, Pastor, Nanticoke Lenni-Lenape 
                      Tribal Nation of New Jersey
    My name is Pastor John Norwood and I am from the Nanticoke Lenni-
Lenape Tribal Nation of New Jersey, which is united with the 
historically related Lenape Indian Tribe of Delaware in an intertribal 
alliance known as the ``Confederation of Sovereign Nentego-Lenape 
Tribes.'' I am writing as a Nanticoke Lenni-Lenape tribal councilman, 
delegate to the National Congress of American Indians, and the 
government agent for the confederation. I am humbly requesting that my 
statement be added to those included in the November 4, 2009 Senate 
Indian Affairs Oversight Hearing on ``Fixing the Federal 
Acknowledgement Process.''
    In 1982, the legislature of New Jersey called on the United State 
Congress to recognize our tribal nation. Having no action taken by 
congress on the request, an honored tribal elder attended a briefing 
provided to tribes involved in the federal recognition process. She 
returned to our people and indicated that the millions of dollars 
needed to go through the federal acknowledgement process made it 
insurmountable for poor tribes. Since that time, tribal volunteers have 
painstakingly gathered the information required for an application, 
while watching worthy tribal applicants wait for decades only to be 
denied recognition over minutia. The impact of such a denial is 
immeasurably and intergenerationally devastating to the psychological, 
social, and political wellbeing of tribal communities.
    The administrative process was meant to be an objective method to 
correct the relationship between the United States and historically 
verifiable American Indian Nations without federal recognition. 
However, the GAO has reported, along with other independent studies and 
congressional hearings, that the current methodology of the 
administrative process has become a cumbersome, expensive, and time 
consuming barrier to the recognition of deserving tribes. The process 
meant to aid legitimate tribes has become a burdensome obstacle to 
their recognition.
    The particular challenge for many ``eastern tribes of first 
contact'' is that legitimate tribal communities of the colonial period 
that remained in the east often had no contact with the military or 
federal authorities and were not enumerated in the manner their 
migrating sister tribal bands and the western tribal nations were. 
Treaties, which were typically the result of hostile engagements, were 
not established with tribal communities that peacefully remained in the 
east and partially assimilated into the dominant society. Some eastern 
states, eager to be rid of any land claim or treaty entanglements, 
asserted that there were no more Indians within their borders, as they 
reclassified or overlooked remaining tribal communities as they saw 
fit. Some legitimate tribes suffer from this turn of history, which for 
them, makes the current federal recognition process even more 
difficult. This reality leaves deserving tribes, which can reasonably 
document their history, still unable to meet the overwhelming burden of 
proof now required by the current administrative process.
    During the November 4, 2009 Senate Committee on Indian Affairs 
oversight hearing on fixing the federal recognition process, Senator 
Byron L. Dorgan indicated his frustration that after many years of 
review and unanimous agreement on the need for change, little has 
actually been done. Representative Nick Rahall II, in his opening 
statements during a House of Representatives Committee on Natural 
Resources hearing said on November 4, 2009, ``Whether or not the 
Congress decides to exercise our jurisdiction over an Indian tribe does 
not mean that we do not have the power to do so. If the group is an 
Indian tribe, it is under our authority as vested by the Constitution. 
As such, Congress possesses jurisdiction over any tribe that exists, 
whether formally recognized or not by the Federal Government.'' Non-
federally recognized tribes, which can document their histories, have 
still been left in limbo and need congress to exercise its authority in 
changing the federal recognition process in the following ways:

        1.  Recent federal recognition decisions appear to be focused 
        on what may lacking in an application instead of giving weight 
        to the strengths of an application. Overwhelming evidence in 
        response to one criterion can be overshadowed by missing 
        evidence in another related criterion. During much of the time 
        for which evidence is required, many tribes were more concerned 
        with survival in a socio-political environment that was hostile 
        to their existence; documenting activities was not a high 
        priority, and in some cases could have been dangerous. 
        Therefore, evidence provided for criteria (a) ``The petitioner 
        has been identified as an American Indian entity on a 
        substantially continuous basis since 1900,'' (b) ``A 
        predominant portion of the petitioning group comprises a 
        distinct community and has existed as a community from 
        historical times until the present,'' and (c) ``The petitioner 
        has maintained political influence or authority over its 
        members as an autonomous entity from historical times until the 
        present,'' should be viewed in a more unified fashion and not 
        weighed separately. The process should allow for any historical 
        documentation that provides evidence for a tribe's continued 
        communal existence as being sufficient proof to meet 
        requirements (a), (b), and (c) as a whole.

        2.  The process should give weight to the unique historical 
        situation of each applicant. One challenge for some tribes of 
        first contact is in meeting criterion (e) ``The petitioner's 
        membership consists of individuals who descend from a historian 
        Indian tribe or from historical Indian tribes which combined 
        and functioned as a single autonomous political entity.'' 
        Administrative genocide was prevalent in eastern states in 
        regard to dealing with tribes of first contact. The first 
        tribal termination began in 1813 against the Gingaskin, after 
        local officials pushed to racially reclassify tribal families. 
        Similar situations of racial reclassification imposed by the 
        dominant group upon remaining tribal communities are evident 
        in, but not limited to, Virginia, Delaware, and New Jersey. 
        Evidence provided by an applicant that meets criteria (a), (b), 
        and (c) should be viewed to have a positive impact on that 
        applicant's ability to meet criterion (e), especially in 
        geographic areas in which the dominant society's racial 
        reclassification can be demonstrated.

        3.  The expense and time involved in the current administrative 
        process is unreasonable. Some of the suggested changes 
        indicated above would address this. The process should be one 
        in which the poorest tribe can navigate its way to federal 
        recognition in a matter of no more than two or three years with 
        its volunteers completing the application. Federal assistance 
        for this could come in the form of grants for tribal research 
        and/or funded technical assistance consultants that would 
        evaluate tribal prospects for federal recognition and then 
        provide professional help to a tribe in order to assemble a 
        complete application.

        4.  There should be some logical connection between an 
        preliminary finding and a final decision. A positive 
        preliminary finding should be relative assurance that the final 
        decision will also be positive. A negative preliminary finding 
        should be a tool that the tribe can use to better focus its 
        research. The preliminary finding, which should be aimed at 
        assisting a tribe in identifying areas of historic evidence it 
        may need to reinforce or in determining its own eligibility for 
        meeting the criteria, should not be completely disconnected 
        from the final decision.

        5.  Congress should not shy away from legislative recognition. 
        The use of consultants or administrative judges who, being 
        familiar with the unique histories of their respective 
        geographic regions, could provide objective review of the 
        petitioner's evidence and provide a finding for congressional 
        action. This method could greatly reduce the backlog of 
        applicants along with the time and expense involved in the 

        6.  Tribes that can demonstrate that they meet the ``Montoya'' 
        standard used by the federal courts to determine tribal federal 
        common law recognition, should have access to that process 
        without the expense of attorneys and lengthy court cases. In 
        Montoya v. United States (1901) the court ruled that a tribe 
        was, ``a body of Indians of the same or a similar race, united 
        in a community under one leadership or government, and 
        inhabiting a particular though sometimes ill-defined 
        territory.'' Tribes should be able to file their evidence with 
        the courts and have a hearing on the matter. Positive decisions 
        through such a process should suffice for federal recognition. 
        This would reduce the backlog of applicants along with the time 
        and expense involved in the process.

        7.  ``Interested parties'' should not be able to derail the 
        recognition of a deserving tribe.

    Each of these suggestions could be implemented in complimentary 
fashion to provide objective measures to address the crisis that 
deserving non-federally recognized tribes have been in for generations. 
None of the suggestions should be exclusionary toward the others; 
tribes should be able to apply to each, thereby reducing the likelihood 
of deserving tribes being rejected.
    I appreciate the opportunity to submit this statement on behalf of 
my people and other deserving non-federally recognized tribes.
Prepared Statement of Jack F. Trope, Executive Director, Association on 
                        American Indian Affairs
    The Association on American Indian Affairs is an 87 year old Indian 
advocacy organization located in South Dakota and Maryland and governed 
by an all-Native American Board of Directors. Our current projects 
focus to a considerable extent in the areas of cultural preservation, 
youth/education, health and federal recognition of unrecognized Indian 
tribes. In regard to the latter, we have been working to support tribes 
seeking federal acknowledgment for more than 20 years, most recently 
working with the Pueblo of San Juan de Guadelupe.
    The testimony before the Committee amply documented the profound 
problems with the acknowledgment process. In view of the lengthy delays 
in considering petitions and the ever-changing and increasing burden of 
proof upon petitioners, the system clearly is broken. Federally 
unrecognized tribes that have survived in spite the array of forces 
pushing them to extinction are now being in effect terminated by a 
process that is out of control.
    The witnesses laid out a number of proposals for the Committee to 
consider and we are not going to reiterate those ideas. We would like 
to propose one additional action for your consideration, however. We 
would recommend that the Congressional Research Service be asked to do 
an analysis of the decisions by the BlA and document the application 
(and evolution) of the standards over the 30 years since the 
recognition process became codified.
    Thank you for considering this testimony.
Prepared Statement of Lisa Wyzlic, Citizen, Grand River Bands of Ottawa 
    My name is Lisa Wyzlic and I am a citizen of the Grand River Bands 
of Ottawa Indians (GRBOI). I would like to thank you and the Committee 
for the attention afforded to the inefficiency and inconsistencies of 
application of standards noted in the federal acknowledgement process 
during the recent hearing and your commitment to correcting these 
    As you are aware, as of September of 2008, GRBOI was listed as 
number lO on the Ready list. The merits on which the Tribe's 
recognition will be based are summarized in Chairman Ronald Yob's 
testimony to the Committee in both September of 2007 and September of 
2008 and the materials included in our petition, which we were required 
to submit in 2000 as a condition of the 1997 Michigan Indian Land 
Claims Settlement.
    GRBOI is recognized as a State Historical Tribe by the State of 
Michigan and has the support of our Senators and Governor as well as 
other tribes. As noted by BIA Commissioner Collier in 1935, GRBOI was 
found eligible to reorganize under the Reorganization Act of 1934, but 
did not have a land base at the time, which was a requirement for 
reorganization, and there were no federal funds available to assist in 
acquiring said land. Additionally, BIA Commissioner Thompson in 1976 
indicated that GRBOI was functioning as and was accepted as a tribal 
political entity by the Minneapolis Area and Great Lakes Agency. GRBOI 
has been found not to have been terminated by Congress, but terminated 
as a result of faulty and inconsistent administrative decisions.
    By the inaction of the OFA to act upon our submission we have lost 
significant funds never to be received. While some of our members have 
left the tribe and joined our recognized sister tribes for which they 
are eligible to gain access to services, most remain proud citizens of 
the Grand River Bands of Ottawa Indians and hope for the day that we 
are fully recognized by the Federal Government. Although we may not 
have been waiting as long as some other tribes, we have now been in the 
process for 15 years (1994 Letter of Intent) with the expectation of 
our petition being reviewed in 15-20 years. As the Committee so noted, 
this is not acceptable.
    The ancestors of Grand River members were signatories to five 
treaties dating from 1795-1955. My great-great-great-great grandfather 
was signatory to at least two said treaties, yet currently our treaty 
rights are being negotiated by other Michigan tribes. This should not 
be the case. As the witnesses testified at the hearing and the 
Committee agreed, there are significant problems within the 
acknowledgement process, most notably, the lengthy delays, inconsistent 
application of standards, and ever increasing burden of proof on top of 
the financial burden.
    Tribes are being terminated or worse, becoming extinct, by virtue 
of a broken process which has become a denial process rather than an 
acknowledgement process. Non-recognized tribes are desperately trying 
to hang on to our cultures, our languages and our sense of identity and 
provide for our communities and our future generations without the 
benefit of the financial support and eligibility for programs that 
comes with recognition. In Michigan it is getting harder and harder to 
stay connected with our tribe due to economic difficulties which would 
be relieved if recognition were granted. People would not have to 
relocate for jobs if they felt they had access to health care and other 
services, and cultural traditions would be easier to continue if people 
felt they could travel to gatherings across two counties on an already 
depleted budget without incurring sometimes devastating expenses.
    Several proposals for fixing this broken process were laid out 
during the hearing and you requested additional materials for 
consideration from Mr. Skibine and Mr. Flemming as well as from Ms. 
Ferguson-Bohnee. I ask you to please carefully consider any proposals 
and move to expedite the implementation of any solutions deemed 
appropriate. In the interim, I urge you to reconsider your stance on 
the legislative acknowledgement process.
    Thank you for considering my comments.
 Prepared Statement of Pedro Aceituno, Chairman, California Cities for 
                  Self-Reliance Joint Powers Authority
    Good afternoon Chairman Dorgan, Ranking Member Barrasso, and 
Members of the Committee. My name is Pedro Aceituno, and as Chairman of 
the California Cities for Self-Reliance Joint Powers Authority (JPA), I 
am pleased to submit the following testimony on ``Fixing the Federal 
Acknowledgment Process'' to the Committee on behalf of the JPA.
    The JPA is a coalition of local communities, chartered under 
California law, representing several hundred thousand citizens and 
thousands of local businesses and their employees in Los Angeles and 
Orange Counties. The process of federal recognition and acknowledgement 
of Indian tribes is of great interest to the members of the JPA, and we 
commend the Committee for holding this much-needed hearing on the topic 
of recognition reform. On behalf of our organization, I would 
respectfully submit the views of the JPA for the hearing record for 
consideration as the Chairman, Ranking Member, and Senators on the 
Committee work together to tackle the current problems with the 
recognition process and potentially craft recognition reform 
    Currently, the JPA is an interested party in the petitions for 
federal acknowledgement of the Juaneno Band of Mission Indians 
(designated petitioners 84A and 84B). Through our participation as 
interested parties in the Juaneno petition, as well as discussions with 
others intimately familiar with federal acknowledgment, we have noted 
many areas of serious problems where the recognition process is in dire 
need of significant reform.
    Our observations of faults that need correcting with the current 
system include:

   The recognition process as currently constituted takes far 
        too long for completion. In the case of the Juaneno 
        petitioners, they first gave notice to the Federal Government 
        in 1982 of their intention to seek federal recognition. 27 
        years later, the BIA has yet to give a final decision in this 

   Overall, there are over 250 potential petitioners who are 
        not even yet on the ready for active consideration list, many 
        of whom have last contacted the BIA decades ago with an intent 
        to pursue recognition, but who have not followed up with any 
        materials or further action. Despite their inactivity, these 
        petitioners still consume time and resources and impact 
        decision making in processing other petitioners.

   Current deadlines under BIA regulations mean little or 
        nothing to the petitioners. Over the past several years, the 
        Juaneno have continually been granted time extensions to 
        complete required work by the BIA, often based on factually-
        unsubstantiated claims by the petitioners. The routine granting 
        of extensions creates an environment where the petitioners do 
        not take deadlines seriously, do not make sufficient efforts to 
        complete work on time, and take it for granted that there will 
        always be more time available to delay their final 
        determination, even though their historical record or lack 
        thereof remains the same.

   These continual extensions of deadlines are costly to the 
        BIA, other petitioners, and the American taxpayer. The Office 
        of Federal Acknowledgement (OFA) within BIA is small, and has 
        limited resources which are wasted by petitioners who fail to 
        make deadlines. These failed deadlines in turn force other 
        petitioners, who often have their materials ready, to wait 
        longer for active consideration. In some cases, this has 
        prompted costly litigation by these petitioners against the BIA 
        to force active consideration of their petitioners sooner. 
        Taken together, all of these delays and litigation ultimately 
        waste millions of American taxpayer dollars each year.

   Splinter groups of petitioners further complicate and delay 
        the process. In the case of the Juaneno petitioners, there are 
        two official petitioners, as well as at least three splinter 
        groups, meaning that no less that five different factions are 
        claiming to be a Juaneno Indian tribe. The issues of Juaneno 
        petitioner leadership should have been sorted out years ago, by 
        the petitioners themselves. Instead, because of their failure 
        to do so, the BIA must expend additional time and funds 
        attempting to communicate with and sort out the materials 
        received from these quarreling, conflicted factions.

   Another waste of OFA time and resources is the need to fully 
        evaluate all aspects of a petition when it has been clearly 
        established that the petitioner cannot meet all 7 requirements 
        for federal recognition. In such cases, the petitioner should 
        be given an expedited denial of their petition so OFA resources 
        can be redeployed to work on other petitioners that may qualify 
        for recognition.

   The current system of communicating between the BIA and 
        interested parties needs serious improvement. While the BIA 
        does send copies of official correspondence sent to petitioners 
        to interested parties, it does not provide copies of official 
        correspondence from petitioners to the BIA to interested 
        parties. This causes petitioners to be unaware of key or 
        critical requests made by petitioners, such as requests for 
        extensions of deadlines, until after the BIA has considered the 
        petitioner's request and issued a decision. At that point, the 
        interested party receives a copy of a request decision that it 
        had no idea existed, and had no opportunity to comment upon. 
        The only present alternative to help keep interested parties 
        informed of petitioner requests is to constantly bombard BIA 
        and OFA with regular FOIA requests. These FOIA requests are 
        costly and time consuming for all involved, and lead to further 
        delays in the processing of petitions. Lee Fleming, Director of 
        OFA, testified to Congress a few years ago that one of the 
        biggest burdens for personnel in his office is the constant 
        need to comply with FOIA requests, which he cited as a major 
        reason that OFA takes so long to process and come to a decision 
        on petitions.

    The good news is that despite these numerous problems, there are 
numerous actions the Bureau could take which would improve the 
recognition process for petitioners, interested parties, and the 
American taxpayer. Based on our experiences, we would like to submit 
the following ideas for recognition reform for your consideration:

   First, and most importantly, the seven criteria for 
        determining if a petitioner qualifies for federal recognition 
        should not be weakened or loosened in any way. Weakening these 
        requirements would be unfair to currently recognized tribes who 
        have had to meet these criteria, as well as open an unnecessary 
        controversy over whether petitioners turned down under the old 
        criteria should be allowed to re-apply for recognition under 
        new, weaker criteria.

   To clear the backlog of old, inactive, or non-responding 
        petitioners who have not followed up their letter of intent to 
        seek recognition with any further actions, the Secretary should 
        initiate a program to determine whether these petitioners still 
        are seriously intent on seeking federal recognition. We would 
        suggest that each potential petitioner currently not on the 
        ``active consideration'' or ``ready for active consideration'' 
        list be sent official correspondence from the BIA requiring 
        that they re-affirm their interest in pursuing federal 
        recognition in writing within six months, and supply materials 
        necessary to satisfy documentation requirements to be ready for 
        active consideration within twelve months. If a petitioner 
        should fail to reaffirm their interest in recognition, or fail 
        to present initially required documents within the time 
        designated, they should be permanently stricken from the BIA's 
        list of petitioning tribes.

   There should be a cut-off deadline for all potential 
        petitioners to seek federal recognition, after which the 
        program should be closed to future applicants. Once all pending 
        petitioners have either reaffirmed their interest in 
        recognition and supplied all required materials to BIA, or have 
        failed to do so, the list of petitioners eligible to seek 
        recognition should be finalized and closed. In this era of 
        modern technology and communications, there is no reason that 
        if a group exists that could conceivably satisfy the seven 
        criteria for recognition it cannot at least submit its interest 
        and petition for doing so now. As each year passes, the idea 
        that a real, but currently unrecognized, Indian tribe would 
        exist but fail to even petition for recognition becomes more 
        absurd. At some point soon the process needs to be brought to a 
        close, pending petitions analyzed, and after that ends, the OFA 
        will have fulfilled its mission of identifying all legitimate 
        sovereign Indian tribes in America, and no more remain to be 

   As mentioned above, the BIA should have an expedited denial 
        process for petitioners who obviously do not meet one or more 
        of criteria for federal recognition. This would save the OFA 
        and American taxpayer significant time and resources better 
        spent elsewhere.

   Deadlines in the recognition process should be firm and 
        upheld strictly. Lax deadlines and easy extensions have helped 
        turn a recognition process designed to last months from start 
        to finish for a petitioner into one which lasts decades. If a 
        petitioner fails to do the work necessary to meet a deadline, 
        they should not be rewarded with more time, but rather be 
        forced to go forward with what materials they have at the time. 
        Once again, our supposition here is that a tribe that can 
        legitimately meet the 7 recognition criteria will have the 
        information they need to meet deadlines readily at hand, and 
        its government will be sufficiently well-organized to ensure 
        that it meets deadline requirements.

   Petitioners with multiple splinter groups, such as the 
        Juaneno, should be temporarily excluded from active 
        consideration and given a deadline to present a united petition 
        for a single tribal government entity to the OFA. If they fail 
        to meet this deadline, they should be removed from the 
        recognition process and all related petitions rejected.

   Communications with interested parties should be improved by 
        requiring the petitioners and interested parties to provide 
        copies of all written communications they make to the BIA and 
        OFA, along with proof of service, regarding deadline extensions 
        or other requests to all other interested parties and 
        petitioners. This would relieve interested parties and the BIA/
        OFA from the time-consuming and expensive FOIA process, and 
        improve the amount of information available to all petitioners 
        and interested parties.

    The members of the JPA, as well as the citizens we represent, 
greatly appreciate your time and consideration of our views on 
recognition reform. It is our hope that our experiences and insights 
bill be of value to you in the process of reviewing your policy 
options. We look forward to working with the Committee as you evaluate 
options for making legislative changes to the system. We would welcome 
the opportunity to participate further in any way possible, and of 
course, are available to answer any questions you may have or provide 
any further assistance that would be appropriate.
    Once again, on behalf of the JPA, its member communities, and their 
businesses and citizens, we thank you for this opportunity to present 
our views for the hearing record.
   Prepared Statement of the Towns of Ledyard, North Stonington, and 
                          Preston, Connecticut
    Mr. Chairman and Members of the Committee, thank you for the 
opportunity to comment on the Bureau of Indian Affairs (BIA) tribal 
acknowledgment process. This testimony is submitted on behalf of the 
Towns of Ledyard, North Stonington, and Preston, Connecticut (the 
Towns). The Towns have extensive first-hand experience with the federal 
tribal acknowledgment process, having participated for many years as an 
interested party in the review of acknowledgment petitions for the two 
Pequot petitioner groups. Any changes to this process would affect not 
only our Towns, but the entire State of Connecticut, whose petitioner 
groups have included the Schaghticoke Tribal Nation (STN), the 
Schaghticoke Indian Tribe, the Golden Hill Paugussett, and two Nipmuck 
groups, as well as the two Pequot groups. We address this Committee to 
express our strong and common concerns with respect to the potential 
for Congress to intervene in the tribal acknowledgment process and, in 
doing so, interfere with an administrative process that does not need 
to be reformed. Simply put, if the goal is to ensure fair, objective, 
and reasoned decisions on tribal acknowledgment petitions, there is no 
need for Congressional action.
    As a general matter, the primary drawbacks of the current process 
are its cost to participating parties and the length of time required 
to undertake a review. The cost problem is difficult to avoid given the 
detailed nature of the required analysis and the great importance 
associated with BIA's decision. This problem can be addressed by 
offering more technical assistance and ensuring that casino resort 
financial backers are not allowed to bankroll acknowledgment petitions. 
The time factor can be addressed through the simple solution of 
providing more funds to BIA to hire more staff. When left alone from 
political interference and adequately funded and staffed, the BIA-
administered process applying the existing regulatory standards in 25 
C.F.R. Part 83 should result in appropriate decisions. The solution to 
the problems of cost and delay is not to follow the approach outlined 
in the recently introduced House bill, H.R. 3690, which is to create a 
new bureaucracy that will give rise to entirely new coordination 
problems, demand new staff and administrative structure that lack the 
necessary expertise, operate under a procedure that is biased in favor 
of petitioner groups, not allow for full participation of interested 
parties, apply more permissive substantive standards that will favor 
petitioner groups, and allow the reopening of already decided and even 
litigated decisions. There is no basis whatsoever for taking any of 
these actions. As the Committee considers the BIA acknowledgment 
process, we respectfully request that deference be accorded to the 
decades of experience that exist under the BIA regulations in 25 C.F.R. 
Part 83 and that no action be taken to disrupt the status quo 
procedures and decisions.
Background on Connecticut Local Involvement in Tribal Acknowledgment
    The Towns have extensive experience with the tribal acknowledgment 
process, having participated for close to a decade in the review of the 
Eastern Pequot and Paucatuck Eastern Pequot petitions. The Towns 
submitted detailed technical evidence which demonstrated, as ultimately 
determined by BIA, that neither of these petitioners qualified for 
federal acknowledgment. Elsewhere in the State, a final determination 
against acknowledgment of the STN was recently upheld by the Second 
Circuit Court of Appeals. Through these experiences, we are familiar 
with all aspects of the acknowledgment process and can address the 
issues raised in the testimony of the witnesses and in the questions of 
the Committee members during the November 4 oversight hearing. We offer 
this testimony with our preliminary views and would be pleased to 
participate directly in future Committee deliberations.
Impacts on Local Governments
    Local governments such as ours are impacted by tribal 
acknowledgment reviews and decisions in a number of very important 
ways. In some cases, even before a tribe is acknowledged, the 
petitioning group files a land claim lawsuit. This was true of the STN 
group. If challenges to the title of land ownership of residents in an 
affected community are not filed prior to recognition, they very often 
either follow, or are threatened to follow, acknowledgment, as was 
threatened by the Pequot groups. Needless to say, land claim litigation 
causes serious disruption to the lives of the affected landowners and 
the economy of the local community. The inevitable connection between 
land claim litigation and tribal acknowledgment is one reason why 
rigorous standards must be applied and a timely and efficient procedure 
    In addition to disputes over land title, the acknowledgment of 
Indian tribes often gives rise to the effort to establish gaming 
facilities. The Indian Gaming Regulatory Act (IGRA) has created 
considerable incentive for financial backers to support petitioners 
seeking recognition. If successful, newly recognized tribes are in a 
position to reap the significant benefits that flow from gaming on 
tribal lands. Financial backers cash in through management contracts 
with the tribes. This is true of the Pequot and other Connecticut 
tribal petitions, which were bankrolled by wealthy casino backers who 
spent tens of millions of dollars in the effort to gain recognition for 
these groups so that massive casino resorts could be developed.
    We are well aware that gaming has become a fact of life in the 
funding of acknowledgment petitions. As we can attest, the 
acknowledgment process is expensive to participate in, and petitioning 
groups often have limited means to pursue tribal status and look to 
financial supporters for the resources to pursue their claims. The 
solution to that problem is not unfettered, unreported, and 
uncontrolled financial support from gaming interests, however. The 
involvement of these funding sources inevitably creates political 
pressures on the BIA review and adds to the expense and delay in the 
process due to the volume of evidence submitted, and the delay 
associated with the small BIA Office of Federal Acknowledgment (OFA) 
staff responding to massive records and contested proceedings.
    Yet another problem for local governments is the establishment of 
reservations and trust lands, often without regard to existing 
community land use patterns and economic needs. Trust land and 
reservation status removes land from state and local jurisdiction. BIA 
does very little to ensure that establishing such lands for a newly 
acknowledged tribe is undertaken on a negotiated basis that does not 
result in undue adverse impacts on local communities. As a result, 
local governments such as ours have no choice but to participate in the 
    Newly acknowledged tribes are, of course, entitled to certain 
benefits. The end result, however, can be a strained and contentious 
relationship between the tribe and the local governments and residents 
of surrounding non-Indian communities. As the Department of the 
Interior itself has stated, recognition has ``serious significance'' 
and ``considerable social, political, and economic implications for the 
petitioning group, its neighbors, and federal, state and local 
governments.'' Letter from William B. Bettenberg, Acting Assistant 
Secretary of the Interior, to the President of the United States Senate 
(Jan 17, 1992). Consequently, any meaningful and fair review of the 
acknowledgment process must be premised on the understanding of the 
great importance of these determinations to local governments, as well 
as the petitioner groups. Federal tribal status should be awarded to 
petitioning groups only under the most rigorous, searching, objective, 
professional, and equitable standards, and after all affected parties 
have the opportunity to participate. We are disappointed that only BIA 
and tribal groups participated in the November 4 hearing, and we 
request that any future Committee review include a balanced witness 
Weakened Criteria
    One of the themes of the November 4 hearing was the need for more 
permissive criteria than the current standards. There is no reason to 
make any changes to the current standards. They have been in effect in 
essentially the current form for nearly 30 years, and they have worked 
well. The standards and the precedents that have evolved under the 
criteria have served as the basis for dozens of decisions, both 
positive and negative. Congress should not seek to substitute its 
judgment for that of the government experts and the multiple layers of 
public review that have defined these criteria over many, many years.
    The 25 C.F.R. Part 83 acknowledgment criteria are detailed and 
complex. Even small changes in these standards can open the floodgates 
to new applicant tribes who should not be awarded federal status, but 
may qualify under the substantially weakened standards. In this regard, 
we note that the House bill would dramatically change the criteria in 
totally unjustified ways. As applied to Connecticut alone, those 
criteria would turn the several negative determinations into positive 
findings, despite decades of review and tens of thousands of pages of 
evidence from all parties. There is absolutely no reason to touch the 
25 C.F.R. Part 83 criteria other than to favor petitioner groups, 
including those previously denied.
    For these reasons we object to any change to the existing criteria. 
If Congress is to act on the acknowledgment process, it should not 
legislate standards. Those criteria should be left to BIA to establish, 
to be revised through the rulemaking process and public comment, as 
Lack of Objectivity of Commission
    Our second concern relates to the structure and composition of a 
possible commission on tribal recognition. As proposed in the House 
bill and urged by some parties, the Commission would not improve the 
administration of the tribal acknowledgment process. The current BIA 
system is not perfect, but it at least has sufficient built-in checks 
and balances to make possible fair and objective decisions. Essential 
elements of the current process that must be retained include: full 
participation of interested parties; independent review of an 
administrative law judge entity; reasonable deadlines; and decision-
making based on review by a staff of qualified experts, not political 
appointees. The proposed Commission fails on all of these fronts. The 
existing BIA process is not broken; it is simply underfunded. Creating 
a new bureaucracy is not the answer; more Congressional appropriation 
and financial assistance to parties participating in the review (on all 
sides) is.
Involvement of Interested Parties
    Numerous examples illustrate how critical the evidence and analysis 
submitted by interested parties can be to the development of a complete 
and well-balanced record upon which BIA can make a final decision. 
Without this participation in the Connecticut petitions, the record 
would have been one-sided and dominated by the pro-acknowledgment 
evidence from the petitioners, funded by wealthy gaming interests. The 
current BIA process allows for such a role for interested parties. The 
current House bill does not, and the November 4 hearing before this 
Committee gave no consideration to the important role of third party 
    We strongly encourage the Committee to make interested parties 
equal players in any revised acknowledgment process.
Reopening Past Decisions
    It must be an accepted premise of any Congressional review of the 
acknowledgment process that already completed reviews will not be 
reopened. It can be expected that most, if not all, denied petitioners 
will seek to take advantage of any such opportunity. In the case of 
groups funded by gaming financial backers, the reviewing agency will be 
overwhelmed by documentation and argument. The result will be utter 
chaos, as the ability to consider yet-undecided petitions is impeded by 
petitioner groups and their casino backers seeking a second chance. 
BIA's past decisions are well-considered and based on decades of 
process. They should be left as they stand, positive or negative.
    While certain aspects of the tribal acknowledgment process could be 
improved, the major problems, such as the lack of adequate funding, 
staff, and time to conduct appropriate reviews and avoid the pitfall of 
casino financial backers bankrolling the process, can be addressed 
without enacting legislation or trying to fix a procedural framework 
and substantive criteria that are not broken. We would support an 
effort by this Committee to improve the acknowledgment process by 
providing adequate funding to BIA and participating parties. Any 
changes to the current BIA rules cannot be justified.
    Thank you for considering this testimony. We would be pleased to 
provide additional information to the Committee.
        *H.R. 3690 has been retained in Committee files and can be 
        found at http://frwebgate.access.gpo.gov/cgi-bin/