[Senate Hearing 111-470]
[From the U.S. Government Publishing Office]
S. Hrg. 111-470
FIXING THE FEDERAL ACKNOWLEDGMENT PROCESS
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
NOVEMBER 4, 2009
Printed for the use of the Committee on Indian Affairs
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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
JON TESTER, Montana
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
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
FIXING THE FEDERAL ACKNOWLEDGMENT PROCESS
WEDNESDAY, NOVEMBER 4, 2009
Committee on Indian Affairs,
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.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
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.
STATEMENT OF HON. JOHN 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.
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
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.
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.
STATEMENT OF HON. BILL NELSON,
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,
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
Mr. Skibine, you may proceed. Thank you for being with us.
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. 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
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
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
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
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
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
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
Mr. Fleming. Correct.
Mr. Skibine. Yes.
Senator Tester. The reconsideration process goes through
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,
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
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
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
Senator Tester. So it is more than just an election of
Mr. Fleming. Election is factored in, but it is more than
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?
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
STATEMENT OF HON. LISA 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. 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
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.
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
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
So you add all of those together, it comes up to 25 months.
Senator Franken. But that is a much shorter period than the
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
The Chairman. Mr. Fleming, let me ask if Senator Franken
Senator Franken. Please.
The Chairman. My understanding is, you have six petitions
that are active in the current workload, is that correct? You
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
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
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
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
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.
STATEMENT OF FRANK ETTAWAGESHIK, CHAIRMAN, FEDERAL
ACKNOWLEDGEMENT TASK FORCE, NATIONAL CONGRESS OF AMERICAN
Mr. Ettawageshik. Thank you, Mr. Chairman and members of
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.
STATEMENT OF HON. JOHN SINCLAIR, PRESIDENT, LITTLE SHELL TRIBE
OF CHIPPEWA INDIANS OF MONTANA
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
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.
[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
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
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
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.
STATEMENT OF HON. ANN D. TUCKER, CHAIRWOMEN, MUSCOGEE NATION OF
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
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.
[The prepared statement of Ms. Tucker follows:]
Prepared Statement of Hon. Ann D. Tucker, Chairwomen, Muscogee Nation
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
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.
STATEMENT OF PATTY FERGUSON-BOHNEE, DIRECTOR,
INDIAN LEGAL CLINIC; CLINICAL PROFESSOR OF LAW,
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
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 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
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
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
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-
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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/