[Senate Hearing 112-684]
[From the U.S. Government Publishing Office]






                                                        S. Hrg. 112-684

     FEDERAL RECOGNITION: POLITICS AND LEGAL RELATIONSHIP BETWEEN 
                              GOVERNMENTS

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 12, 2012

                               __________

         Printed for the use of the Committee on Indian Affairs




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                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. AKAKA, Hawaii, Chairman
                 JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota            JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington           MIKE CRAPO, Idaho
JON TESTER, Montana                  MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
      Loretta A. Tuell, Majority Staff Director and Chief Counsel
     David A. Mullon Jr., Minority Staff Director and Chief Counsel

















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 12, 2012....................................     1
Statement of Senator Akaka.......................................     1
Statement of Senator Barrasso....................................     3
Statement of Senator Tester......................................     2
Statement of Senator Webb........................................     4
    Prepared statement...........................................     5

                               Witnesses

Adkins, Hon. Stephen R., Chief, Chickahominy Indian Tribe........    13
    Prepared statement...........................................    15
Anderson, Michael J., Owner, Anderson Indian Law.................    33
    Prepared statement...........................................    35
Brooks, Hon. Paul, Chairman, Lumbee Tribe of North Carolina......    17
    Prepared statement...........................................    19
Gottschalk, K. Jerome, Staff Attorney, Native American Rights 
  Fund...........................................................    30
    Prepared statement...........................................    32
Newland, Bryan, Senior Policy Advisor, Office of the Assistant 
  Secretary for Indian Affairs, U.S. Department of the Interior..     6
    Prepared statement...........................................     7
Norwood, John, Co-Chair, Task Force on Federal Acknowledgment, 
  National Congress of American Indians..........................    20
    Prepared statement...........................................    23

                                Appendix

Knugank Tribe, prepared statement................................    47
Qutekcak Native Tribe, prepared statement........................    55
Weaver, Hon. Framon, Chief, MOWA Band of Choctaw Indians, 
  prepared statement.............................................    52

 
     FEDERAL RECOGNITION: POLITICS AND LEGAL RELATIONSHIP BETWEEN 
                              GOVERNMENTS

                              ----------                              


                        THURSDAY, JULY 12, 2012


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

          OPENING STATEMENT OF HON. DANIEL K. AKAKA, 
                    U.S. SENATOR FROM HAWAII

    The Chairman. I call this hearing of the Committee on 
Indian Affairs to order.
    Aloha and welcome to all of you. And welcome to this 
Committee's oversight hearing on Federal Recognition, the 
Political, and Legal Relationship Between Governments.
    The people of the United States have long acknowledged that 
our Nation has a special relationship with and responsibility 
to our indigenous peoples, one that we first contemplated as we 
framed our Constitution and have struggled to fulfill ever 
since. We have long acknowledged that as we forge this new 
Nation, the United States, and continue our great experiment in 
democracy, we must ensure the survival of the many Native 
nations who have called these lands home long before Columbus 
first set sail.
    The United States has recognized that the trust 
responsibility to Native nations means supporting and advancing 
their ability to be self-determining and self-sufficient. 
Fulfilling that trust responsibility has meant Federal action 
in three basic areas. First, providing support to address 
barriers to self-sufficiency. Second, enacting laws to protect 
the collective rights of all Native nations. And third, 
actively engaging Native nations in a government-to-government 
relationship.
    Currently, the United States is taking action in all three 
areas of trust responsibility, with 566 federally-recognized 
Native nations. For my own people, the Native Hawaiian people, 
the United States has taken action on two out of three areas. 
The United States currently provides support for addressing 
barriers to self-sufficiency and protects the collective rights 
of the Native Hawaiian people in the same laws that protect the 
rights of other indigenous peoples.
    My bill, the Native Hawaiian Government Reorganization Act, 
which is S. 675, takes action to fulfill the third trust 
responsibility to the Native Hawaiian people by engaging in a 
government-to-government relationship with them.
    In the past, the Federal acknowledgment has come in a 
variety of ways. Federal recognition of the trust 
responsibility and status of these Native nations as sovereign 
governments has occurred through treaties, acts of Congress, 
court rulings, and administrative decisions. It wasn't until 
1978 that a uniform process existed for Federal recognition. 
Unfortunately, that process, which was intended to streamline 
Federal recognition and make it consistent, has failed to 
accomplish that goal.
    So the road to Federal recognition remains a difficult one. 
Because the administrative process is most often described as 
broken, and Congress has not recognized a Tribe through 
legislation, can you imagine, in over a decade.
    Many Native nations wait sometimes decades for the Federal 
Government to acknowledge the trust responsibility and their 
status as sovereign governments. At the beginning of the 
hearing, the monitors displayed quotes from members of Congress 
and Administration officials related to the Federal recognition 
process. Those statements, as well as testimonies from the last 
30 years, show that numerous Tribal leaders, interest groups, 
the GAO, and Senators from both sides of the aisle acknowledge 
the flaws in the recognition process.
    The length of the process, interpretation of the criteria, 
and staffing needs have been raised countless times at 
Committee hearings. Sadly, little has changed with the process 
and many of the issues raised decades ago still remain 
unresolved.
    Let me call on my colleague on the Committee, Senator 
Tester, for any opening statement he may have.

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

    Senator Tester. Thank you, Mr. Chairman. I will make it 
quick.
    First of all, I want to thank Senator Webb for being here 
today. I appreciate it, and look forward to your testimony.
    Ken Gottschalk, attorney for the Native American Rights 
Fund, thank you very much for the work you have done on Little 
Shell Tribe, and thank you, Mr. Chairman, for holding this 
hearing.
    I am going to make my comments very, very short. Basically, 
Tribal recognition should be based on history, culture and 
science, not politics. The process should be rigorous. But it 
is inefficient and time-consuming and costs a bunch of money. 
In fact, the Little Shell started their process in 1978. And 
the process continues on. They are in the appeals process right 
now in 2012, some 34 years later, $2 million in legal fees, and 
70,000 pages of documents. From my perspective, they end up 
making the wrong decision.
    So I think that there is a lot of work to be done here. I 
think you have a bill, Mr. Chairman, I have a bill, I am 
sitting here looking at the pending petitions by regional 
distribution that aren't there. Little Shell isn't on there, I 
assume that is because they are appealing the process right 
now.
    But the bottom line is that we have to be more efficient, 
we have to be more timely and we have to get better information 
and leave the politics out. Thank you for having the hearing, 
Mr. Chairman.
    The Chairman. Thank you, very much, Senator Tester.
    Let me now call on our Vice Chairman, Senator Barrasso.

               STATEMENT OF HON. JOHN BARRASSO, 
                   U.S. SENATOR FROM WYOMING

    Senator Barrasso. Thank you very much, Mr. Chairman, for 
holding this hearing today on the Federal acknowledgment 
process. I am going to keep my opening statement brief as well, 
so we can proceed to our witnesses.
    This Committee has held several hearings on this topic over 
the past few sessions of Congress. We have heard a lot of 
complaints. And they are essentially the same complaints each 
time we gather to discuss this issue. The process takes much 
too long, it costs far too much and the outcomes are not 
consistent. I want to be clear, Mr. Chairman, an administrative 
process for recognizing Indian tribes is preferable to a 
legislative process. The administrative process allows for 
thorough and fair analysis of Federal acknowledgment petitions. 
The Office of Federal Acknowledgment has experts who are 
historians, anthropologists, genealogists. These people are 
able to analyze and evaluate petitions against the exacting 
criteria in the acknowledgment regulations.
    On the other hand, the legislative process is poorly suited 
to make these complex and highly fact-specific judgments. But 
if the administrative process takes over a decade to get 
through, then something is wrong. The efficiency, the 
consistency, the timeliness of this process should be improved 
if it is to serve any meaningful purpose. In previous committee 
hearings on this topic, the Department has acknowledged the 
need to improve the process.
    So as we proceed today, I would like to know what headway, 
if any, the Department has made in addressing these issues. I 
just want to thank the witnesses for being with us and joining 
us today. Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Barrasso.
    Today we are hoping to hear good news from the 
Administration about their efforts to improve the recognition 
process. We will also hear from Tribal leaders about the need 
for Congress to exercise its plenary power to recognize Tribes.
    Finally, we will hear thoughts and ideas on how to improve 
the Federal recognition process for our Native nations, those 
displayed on the charts as well as others.
    As Chairman, it is my goal to ensure that we hear from all 
who want to contribute to the discussion. So the hearing record 
is open for two weeks from today. I encourage everyone to 
submit their comments to written testimony.
    I want to remind witnesses to please limit your oral 
testimony to five minutes today. We will begin by hearing from 
our Senator, the Honorable Jim Webb, United States Senator from 
Virginia. Welcome, Senator Webb. It is good to have you here.

                  STATEMENT OF HON. JIM WEBB, 
                   U.S. SENATOR FROM VIRGINIA

    Senator Webb. Thank you very much, Mr. Chairman, Senator 
Barrasso, Senator Tester, and others. I appreciate the 
Committee's willingness to hold this hearing.
    I have a written statement that I would ask be submitted 
for the record and I would just like to make some brief oral 
remarks today.
    I would like to thank Steve Adkins, Chief Adkins of the 
Chickahominy Tribe for being here today representing the Six 
Virginia Indian Tribes who are seeking Federal recognition. As 
the Committee knows, I am a sponsor of the Indian Tribes of 
Virginia Federal Recognition Act of 2011. This bill would give 
Federal recognition to six Indian Tribes from the Commonwealth 
of Virginia. This bill was passed out of this Committee in July 
of 2011.
    This is not a new issue for your Committee. These six 
Tribes gained State recognition in the Commonwealth of Virginia 
between the years 1983 and 1989. I would like to emphasize to 
this Committee that they have received strong bipartisan 
support from the Virginia General Assembly for Federal 
recognition and importantly, seven former Virginia governors 
and Virginia's current governor all have expressed support for 
this legislation.
    I understand the reluctance from Congress to grant any 
Native American Tribe Federal recognition through legislation 
rather than through the administrative process. However, I 
would like to emphasize my personal belief that this particular 
situation with respect to Virginia is historically unique. I 
say that as someone who studied and wrote about this well 
before I entered into the Senate.
    The unique history of Virginia with respect to its Indian 
Tribes and the harsh policies of the past have created a gray 
area for Virginia's Native American Tribes to meet the criteria 
that we have been using in the administrative process. It is a 
fact that Virginia in the past had race laws which regulated 
the activity of Virginia Indians and laws which went so far as 
to eliminate an individual's identity as a Native American on 
many birth, death, and marriage certificates.
    The elimination of racial identity records had a harmful 
impact on Virginia's Tribes when they began this process. In 
addition to this, five of the six courthouses that held the 
vast majority of the records that Virginia Tribes would need to 
document their history were destroyed in the Civil War. And 
lastly, Virginia Tribes, with respect to the treaties that you 
mentioned, Mr. Chairman, actually signed a treaty with England 
before our Country was politically formed. This predated the 
practice of most Tribes that signed a treaty with the Federal 
Government which have been relied on in the administrative 
process.
    For these reasons, I strongly believe that recognition for 
these six Virginia Tribes is justified based on principles of 
dignity and fairness and historical necessity. Moreover, given 
the current structure and the requirements of the BIA 
administrative process, it is really doubtful that our Tribes 
could successfully complete the process.
    So in conclusion, I would say this is an issue that has 
strong bipartisan support inside the Commonwealth of Virginia, 
at the State level and here at the Federal level. It has been 
in the works for a very long time and I would respectfully ask 
the Committee to work with our office in order to bring the 
legislation to the Senate Floor. Thank you very much.
    [The prepared statement of Senator Webb follows:]

    Prepared Statement of Hon. Jim Webb, U.S. Senator from Virginia

    Thank you, Mr. Chairman and members of the Committee. I 
appreciate the Committee's willingness to have this oversight 
hearing to discuss the current federal recognition process for 
Indian Tribes. I would like to thank Chief Stephen Adkins of 
the Chickahominy Indian Tribe for being here today and 
representing the six Virginia Indian Tribes' tireless efforts 
in seeking federal recognition. For the tribes in my state, the 
rigid nature of the administrative recognition process has been 
a source of delay, frustrate ion and a lingering sense of 
unfairness.
    As the Committee knows, I am the sponsor of the ``Indian 
Tribes of Virginia Federal Recognition Act of 2011'' (S. 379). 
This bill would grant federal recognition to six Native 
American tribes from the Commonwealth of Virginia. Most 
recently, this bill was passed out of this Committee on July 
28, 2011. In the past, it has also passed the U.S. House of 
Representatives--championed by Congressman Moran, who has been 
a staunch advocate for Virginia's Indian Tribes.
    This is not a new issue for this Committee. Support for 
these six Virginia tribes has been voiced many times during the 
15 years since they began seeking federal recognition. These 
six tribes are the Chickahominy, Chickahominy Indian Tribe 
Eastern Division, the Upper Mattaponi, the Rappahannock, the 
Monacan, and the Nansemond Indian Tribe.
    The tribes covered by this bill gained state recognition in 
the Commonwealth of Virginia between 1983 and 1989. They have 
received strong bipartisan support from the Virginia General 
Assembly for federal recognition. I believe it is appropriate 
for them to finally receive the federal recognition that has 
been denied for far too long. Importantly, seven former 
Virginia governors and Virginia's current governor have 
expressed support for this legislation.
    Mr. Chairman, I understand the reluctance from Congress to 
grant any Native American tribe federal recognition through 
legislation rather than through the BIA administrative process. 
I have not taken this issue lightly, and agree in principle 
that Congress generally should not have to determine whether or 
not Native American tribes deserve federal recognition.
    However, the administrative process which is the specific 
topic of your hearing today, is subject to unreasonable delays, 
lacks clear guidance and is expensive. In many cases the 
administrative process has taken in excess of 20 years before a 
determination is reached. This has been well documented by 
repeated GAO studies. In 2008, the BIA's Office of Federal 
Acknowledgment came out with new guidelines on implementing the 
criteria to determine federal recognition. While I applaud 
improvements to the process, this still does not change the 
impact of racially hostile laws formerly in effect in Virginia 
on these tribes' ability to meet the BIA's seven established 
recognition criteria.
    Virginia's unique history and its harsh policies of the 
past have created a barrier for Virginia's Native American 
Tribes to meet the BIA criteria. Many Western tribes 
experienced government neglect during the 20th century, but 
Virginia's story was different.
    First, Virginia passed ``race laws'' in 1705, which 
regulated the activity of Virginia Indians. In 1924, Virginia 
passed the Racial Integrity Law, and the Virginia Bureau of 
Vital Statistics went so far as to eliminate an individual's 
identity as a Native American on many birth, death and marriage 
certificates. The elimination of racial identity records had a 
harmful impact on Virginia's tribes, when they began seeking 
Federal recognition. In addition to this burden, five of the 
six courthouses that held the vast majority of the records that 
Virginia Tribes would need to document their history were 
destroyed in the Civil War.
    Last, Virginia tribes signed a treaty with England, 
predating the practices of most tribes that signed a treaty 
with the Federal Government.
    For these reasons, I strongly believe that recognition for 
these six Virginia tribes is justified based on principles of 
dignity and fairness. Moreover, given the current structure and 
requirements of the BIA administrative process, it is doubtful 
that our six Virginia tribes could successfully complete the 
process. As I mentioned, I spent several months examining this 
issue in great detail, including the rich history and culture 
of Virginia's Tribes before deciding to advance this 
legislation. After thorough investigation, I concluded that 
legislative action is needed for recognition of Virginia's 
tribes due to the broken and burdensome administrative process 
we are discussing here today. Congressional hearings and 
reports over the last several Congresses demonstrate the 
ancestry and status of these tribes.
    Most notably, recognition would place these tribes on an 
equal footing with other tribes in the United States by 
acknowledging their heritage and their right to be treated with 
the same dignity and respect as other Indian tribes in this 
country.
    In conclusion, Mr. Chairman and members of the Committee, 
this bill has been a long time in the works and these six 
Virginia Indian Tribes have been patiently waiting.
    I respectfully ask the Committee to work with me to bring 
this legislation to the Senate floor.
    Thank you Mr. Chairman.

    The Chairman. Thank you very much, Senator Webb, for your 
statement. I want you to know that we look forward to working 
with you on this.
    Senator Webb. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    I would like to invite our witness to the table who is the 
first panel. Serving on that panel is Mr. Bryan Newland, Senior 
Policy Advisor to the Assistant Secretary of Indian Affairs, 
Department of Interior, Washington, D.C. Welcome to the 
Committee, Mr. Newland. Please proceed with your statement.

 STATEMENT OF BRYAN NEWLAND, SENIOR POLICY ADVISOR, OFFICE OF 
              THE ASSISTANT SECRETARY FOR INDIAN 
            AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Newland. Good afternoon, Chairman Akaka. Thank you for 
having this hearing today.
    My name is Bryan Newland. I am a citizen of the Bay Mills 
Indian Community of the Ojibwe Tribe in Northern Michigan. I 
currently serve as the Senior Policy Advisor to the Assistant 
Secretary for Indian Affairs at the Department of Interior.
    I appreciate the opportunity to provide the Department's 
views on the Federal acknowledgment process. Acting Assistant 
Secretary Del Laverdure regrets that he can't be here today. He 
is traveling with the Secretary out west.
    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 confirms the existence of a nation-to-
nation relationship between an Indian Tribe and the United 
States. It permanently establishes a government-to-government 
relationship between the two.
    The Department's process for acknowledging Indian Tribes is 
set forth in regulations that were first adopted in 1978. Those 
regulations contain seven mandatory criteria that a petitioning 
entity must satisfy in order for the Department to acknowledge 
the government-to-government relationship with the Tribe.
    Since 2009, we have issued six final determinations on 
acknowledgment petitions, including a June 13th, 2010 
determination to acknowledge the Shinnecock Indian Nation in 
the State of New York. These decisions were issued pursuant to 
our regulations, which set forth the exclusive process to 
acknowledge Indian Tribes that have yet to establish a 
government-to-government relationship with the United States, 
or where that relationship has lapsed.
    The Department is well aware of the criticism expressed by 
many interested parties regarding the acknowledgment process. 
Earlier this year, we participated in a roundtable discussion 
hosted by your Committee, Mr. Chairman. I would like to thank 
you on behalf of the Department for bringing together 
leadership from various Indian communities and the public to 
discuss this issue at that roundtable discussion.
    That roundtable highlighted a number of concerns with the 
acknowledgment process, including criticism that the process is 
expensive, burdensome, intrusive, less than transparent, and 
unpredictable. Others have expressed that the Department needs 
to be more efficient in its review, and others yet stated that 
our process does not give enough weight to findings made in 
judicial proceedings or by Congress.
    We have been reviewing our existing regulations to consider 
ways to improve this process. Based upon our review and the 
views expressed by Tribes and interested parties, we believe 
that any efforts to improve the process should be undertaken 
pursuant to certain guiding principles: transparency, 
timeliness, efficiency, and flexibility.
    We have also considered a number of concepts that have been 
raised by the Tribes that have gone through the process, 
petitioning groups and staff within our Office of Federal 
Acknowledgment. I would like, Mr. Chairman and Vice Chairman 
Barrasso, to acknowledge Lee Fleming, who is here with me 
today, the Director of the Office of Federal Acknowledgment at 
the Department.
    These concepts include assessing the standards of evidence 
that the Department uses to review petitions, utilizing outside 
research tools and changing the schedule for proposed findings 
and final determinations. We believe that these principles and 
considerations have established a framework that can lead to 
improvements in our Part 83 acknowledgment process.
    With that, I would like to thank you for your time, Mr. 
Chairman and Vice Chairman Barrasso. I would be happy to answer 
any questions that you have for me today.
    [The prepared statement of Mr. Newland follows:]

 Prepared Statement of Bryan Newland, Senior Policy Advisor, Office of 
  the Assistant Secretary for Indian Affairs, U.S. Department of the 
                                Interior
    Good afternoon Chairman Akaka, Vice Chairman Barrasso, and members 
of the Committee. Thank you for the opportunity to provide the 
Department of the Interior's (Department) statement on Federal 
Acknowledgment: Political and Legal Relationship between Governments. 
My name is Bryan Newland, and I am the Senior Policy Advisor to the 
Assistant Secretary for Indian Affairs.
Implications of Federal Acknowledgment
    The acknowledgment of the continued existence of another sovereign 
entity is one of the most solemn and important responsibilities 
delegated to the Secretary of the Interior. Federal acknowledgment 
confirms the existence of a nation-to-nation relationship between an 
Indian tribe and the United States, and permanently establishes a 
government-to-government relationship between the two.
    The decision to acknowledge an Indian tribe has a significant 
impact on the petitioning group, other Indian tribes, surrounding 
communities, and federal, state, and local governments. Acknowledgment 
generally carries with it certain powers, privileges, and immunities, 
including the authority to establish a land-base over which to exercise 
jurisdiction, provide government services to tribal citizens, and 
sovereign immunity from lawsuits and taxation from other governments. 
In 1994, Congress confirmed that all federally-acknowledged tribes are 
entitled to the same privileges and immunities as one another.
Background of the Federal Acknowledgment Process
    The Department's process for acknowledging an Indian tribe is set 
forth in its regulations at 25 CFR Part 83, ``Procedures for 
Establishing that an American Indian Group Exists as an Indian Tribe.'' 
(Part 83 Process) This process allows the Assistant Secretary to make 
an informed decision on whether to acknowledge a petitioner's nation-
to-nation relationship with the United States. These regulations 
include seven ``mandatory'' criteria, by which a petitioner must 
demonstrate that:

        (a)  It 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;

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

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

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

        (f)  The membership of the petitioning group is composed 
        principally of persons who are not members of any acknowledged 
        North American Indian Tribe; and,

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

    The Department considers a criterion satisfied if the available 
evidence establishes a reasonable likelihood of the validity of the 
facts relating to that criterion. This does not mean that the 
Department applies a ``preponderance of the evidence'' standard to each 
petition. A petitioner must satisfy all seven of the mandatory criteria 
in order for the Department to acknowledge the continued tribal 
existence of a group as an Indian tribe.
    The Federal acknowledgment process is implemented by the Office of 
Federal Acknowledgment (OFA). OFA is currently staffed with a Director, 
an administrative assistant, four anthropologists, four genealogists, 
and four historians. A team composed of one professional from each of 
these three disciplines reviews each petition.
Recent Actions Under the Acknowledgment Process
    The Department has issued six final determinations on 
acknowledgment petitions since 2009. These include a June 13, 2010 
determination acknowledging the Shinnecock Indian Nation in New York, 
and five final determinations declining to acknowledge petitioning 
tribes. Those negative determinations are:

   October 27, 2009 final determination not to acknowledge the 
        Little Shell Tribe of Chippewa Indians of Montana.

   March 15, 2011 final determination not to acknowledge the 
        Juaneno Band of Mission Indians, Acjachemen Nation (#84A).

   March 15, 2011 final determination not to acknowledge the 
        Juaneno Band of Mission Indians (#84B).

   March 23, 2012 final determination not to acknowledge the 
        Central Band of Cherokee.

   April 21, 2011 final determination not to acknowledge the 
        Choctaw Nation of Florida.

Recent Actions outside the Acknowledgment Process
    The Part 83 process is the exclusive regulatory process used by the 
Department to acknowledge Indian tribes that have yet to establish a 
government-to-government relationship with the United States, or where 
such a relationship has lapsed. Nevertheless, the Department may 
include additional tribes on the list of federally recognized tribes by 
rectifying previous administrative errors that resulted in the 
exclusion of a tribe from the list or resolving litigation for tribes 
that were wrongfully terminated.
    Early in this Administration, the Assistant Secretary committed to 
consider requests for the reaffirmation of tribal status for those 
tribes that were not included on previous lists of federally recognized 
tribes due to administrative error. After a careful review of 
information submitted over a period of years, the Assistant Secretary 
reaffirmed the government-to-government relationship between the United 
States and the Tejon Indian Tribe in December 2011. The Tejon Indian 
Tribe had been omitted from the 1979 list of Indian tribes due to a 
unilateral administrative error on the part of the United States.
    In 2009, the Department entered into an agreement as part of the 
settlement of litigation to restore the United States' government-to-
government relationship with the Wilton Rancheria, in California. The 
Wilton Rancheria had been improperly terminated by the United States. 
The settlement agreement, and the corresponding court order, provides 
that the Wilton Rancheria is restored to the same status it enjoyed 
prior to the distribution of its trust assets, and that the Tribe is 
entitled to any of the benefits or services provided or performed by 
the United States for Indian tribes.
    The Department does not consider these actions to constitute 
``acknowledgment'' of an Indian tribe in the manner governed by the 
Part 83 process. Rather, these actions were undertaken in separate 
contexts, and were made after a rigorous review of the unique facts and 
circumstances of each tribe on a case-by-case basis.
Common Views of the Federal Acknowledgment Process
    The Department is well-aware of common views expressed by 
federally-recognized tribes, petitioning groups, observers, and the 
general public regarding the acknowledgment process. Earlier this year, 
the Department participated in a roundtable discussion on this issue 
hosted by the Committee. I would like to thank the Committee for 
bringing together leadership from various Indian communities and 
members of the public to discuss this important issue.
    That discussion highlighted a number of concerns with the 
acknowledgment process that have been expressed in previous 
congressional hearings in previous years. The most common concerns 
include:

   A general view that the process is expensive, burdensome, 
        intrusive, less than transparent, and unpredictable;

   The Department needs to be more efficient in its review, 
        including the expenditure of federal funds, and explore ways to 
        integrate outside experts and other Department staff into the 
        review process;

   Petitioners should be apprised of the Department's views on 
        threshold legal questions before they invest precious time and 
        resources into advancing their petition;

   The trajectory of the Department's review of a petition is 
        unpredictable, due to the research schedule demanded by 
        interested parties;

   Petitioning groups that were previously denied 
        acknowledgment should be permitted to go through the process 
        again, and present new or supplemental evidence;

   The Department's process does not give enough weight to 
        findings made in judicial proceedings or by Congress; and,

   Collateral issues raised in a federally-acknowledged tribe's 
        prior petition are now being resurrected in legal arguments 
        concerning the governmental status of those tribes, especially 
        in light of the 2009 Carcieri decision.

    These are only some of the common critiques of this process that 
emerged in the Committee's roundtable discussion and through other 
forums over the years.
Principles Guiding Improvements in the Federal Acknowledgment Process
    As noted above, the Department is well-aware of critiques of the 
existing Part 83 Process for federal acknowledgment. We have previously 
indicated that we have been reviewing our existing regulations to 
consider ways to improve the process. Based upon our review, and the 
views expressed by tribes and interested parties, we believe than any 
efforts to improve the process should be undertaken pursuant to certain 
guiding principles:

   Transparency--Ensuring that the process is open, and is 
        easily understood by petitioning groups and interested parties.

   Timeliness--Moving petitions through the process, responding 
        to requests for information, and reaching decisions as soon as 
        possible, while ensuring that the appropriate level of review 
        has been conducted.

   Efficiency--Conducting our review of petitions to maximize 
        federal resources, and to be mindful of the resources available 
        to petitioning groups.

   Flexibility--Understanding the unique history of each tribal 
        community, and avoiding the rigid application of standards that 
        do not account for the unique histories of tribal communities.

    To this end, the Department has considered a number of concepts 
that have been raised by the tribes that have gone through this 
process, petitioning groups, other interested parties, and staff within 
our Office of Federal Acknowledgment. These considerations include:

   Conducting an assessment of the standard of evidence 
        required for the seven mandatory criteria under the Part 83 
        process.

   Pairing the resources within the Office of Federal 
        Acknowledgment with outside research tools that will help the 
        Department to be more flexible and responsive.

   Adopting a streamlined and transparent process for granting 
        extensions of time or adopting changes in the schedule for a 
        Proposed Finding or Final Determination.

   Adopting single criteria negative determinations and 
        expedited review when a petitioning group can demonstrate 
        continuous existence on a reservation since 1900.

    We believe these principles and considerations have established a 
framework that can lead to improvements in the Part 83 process. Any 
efforts to improve the process must ensure that we are acknowledging 
the nation-to-nation relationships between the United States and Indian 
tribes in a manner that is both fair and defensible.
Conclusion
    I would like to thank you for the opportunity to provide my 
statement on the Federal acknowledgment process. I will be happy to 
answer any questions the Committee may have.

    The Chairman. We really appreciate your being here, Mr. 
Newland.
    In your testimony, you outline principles raised through 
years of hearings as well as at our recent roundtable. Thanks 
for expressing your appreciation for the roundtable meetings.
    My question is, how well did the Department implement these 
considerations to improve the administrative process and also 
ensure that they are fair and defensible?
    Mr. Newland. Thank you, Mr. Chairman.
    I think as we move forward we have some broad agreement 
within the Department on a number of areas within our 
regulations that deal with process that we think can help make 
this more efficient, which is one of the principles that was in 
our prepared testimony.
    With respect to the substantive provisions of the 
regulations, we would certainly engage in Tribal consultation 
and dialogue with interested parties and of course, work with 
members of the Committee and your staff and try to seek broad 
consensus and ideas that will really improve this process and 
make it work for everybody involved.
    The Chairman. Thank you for that. Even here in the 
Committee we try to spend more time to include the Tribes as 
well, and hearing directly from them.
    Mr. Newland, Congress has recognized 16 Tribes in the last 
40 years. Is there a continued need for Congress to exercise 
its authority to acknowledge or reaffirm Tribes?
    Mr. Newland. Thank you, Mr. Chairman.
    Coming from the State of Michigan, I am very familiar with 
Congressional enactments that have reaffirmed or restored the 
government-to-government relationship between the United States 
and Indian Tribes. I have seen up close that there are 
certainly times where that is appropriate or warranted.
    The Department, we have our process under Part 83, which 
was noted earlier by the Vice Chairman. It is supposed to bring 
some uniformity of review. But at times, Congress, in its 
authority over matters of Indian affairs, may be the 
appropriate route to examine, on a case by case basis, the 
needs of organizations that want to engage the United States in 
a nation-to-nation relationship.
    The Chairman. Thank you.
    Let me call on our Vice Chairman for any questions he may 
have.
    Senator Barrasso. Just a couple, Mr. Chairman.
    Thanks so much for being here. During a Committee hearing 
on Federal recognition back in November of 2009, the Acting 
Principal Deputy Assistant Secretary for Indian Affairs at that 
time, George Skibine, identified specific issues in the current 
Federal recognition process. The issues included the need for 
clear time frames for decisions, qualifying some ambiguities 
and standards in the process. He testified that the Department 
intended to publish within a year proposed rules to address 
these issues.
    I was just wondering if you could tell us what progress has 
been made to implement reforms on these sorts of issues.
    Mr. Newland. Thank you, Mr. Vice Chairman. Yes, I am well 
aware of the testimony in that hearing in 2009, where we had 
pledged to propose new rules within a year. In response to 
that, we didn't get that done. There is no sugar-coating that.
    But that is not to say we haven't made progress. I think a 
lot of the progress was highlighted at the recent roundtable 
here hosted by this Committee. Again, it was a great 
opportunity to pull together petitioning groups, federally-
recognized Tribes, members of Congress and staff, and key staff 
from the Department, where again, a lot of the issues were 
framed and a lot of good ideas were presented.
    I think that out of that roundtable, we were able again to 
develop some guideposts or key principles that will inform a 
regulatory reform effort.
    Senator Barrasso. Obviously we hear, in a bipartisan way, 
Mr. Chairman, we hear concerns and complaints about how long it 
takes to get through the Federal acknowledgment process. Some 
Tribal groups have had their acknowledgment petitions on the 
``ready and waiting'` list for over a dozen years. So I want to 
know what the principal reasons are for the slow pace of the 
process and what the Department is doing to address the 
problem.
    Mr. Newland. Thank you, Vice Chairman. The regulations 
themselves, as was highlighted in the 2009 hearing, contain a 
process time line that in a perfect world would take 25 months. 
But clearly, that is not how the process has been working. And 
we have to look at some of the other parts, the non-process 
parts of our regulations, and also take advantage of the 
flexibility that we do have under the existing regulations.
    The important part to remember is that each group, each 
petitioning group and each federally-recognized Tribe has a 
unique nation-to-nation relationship with the United States. It 
is important that when we are reviewing petitions or 
considering reform that we look at the standard of evidence, 
standard of proof that we applied and make sure that we retain 
and perhaps bolster the flexibility that we do have. We have 
all heard the stories of petitioners submitting tens of 
thousands of pages of documents. We can put time lines in the 
regulations. But when we have a burden of proof and a rigid 
application of mandatory criteria, that has a huge impact on 
the time line and the length of time it takes us to complete 
our review.
    So really delving into the substantive parts of the regs is 
also something that we are going to have to look at going 
forward.
    Senator Barrasso. Well, we want to make sure it is not 
going to take the Department as long to fix the process as it 
takes a Tribe to get through the process.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Barrasso, for 
that question. Because I think we need to work toward what you 
mentioned, the perfect solution, as quickly as we can. I think 
we can work that out together here in Congress and with the 
Administration. But it is important that we try to improve the 
process.
    Mr. Newland, similarly, at his confirmation hearing, former 
Assistant Secretary Echo Hawk discussed problems with the 
Federal acknowledgment process. Subsequently, there were 
assurances made that the Administration would seek, as we all 
are, to resolve those issues.
    Can we expect to see improvements made to the process 
before the end of this Congress?
    Mr. Newland. Thank you, Mr. Chairman.
    I can't, especially in light of our previous testimony, 
come up here and honestly answer that these reforms are going 
to be finished by then. What I can pledge is that this 
Administration, this Department of the Interior, are going to 
continue our work. Again, we have made, notwithstanding the 
fact that we did not publish proposed rules within a year as 
was indicated in the last hearing, that is not to say we 
haven't made progress. I think a lot of that progress, again, 
came out of really the roundtable that this Committee hosted. 
It was a collaborative effort, and I really think it was an 
important moment in this effort.
    I think we have a good template, we have a good framework 
to move forward. We do have a commitment to move forward, and 
we are sensitive to, Mr. Vice Chairman, the concern that we 
don't want this effort to draw out longer than it takes to 
acknowledge Tribes under the existing process. It is important, 
it is a priority for us. We are going to continue our work.
    The Chairman. Thank you. Any further questions?
    Well, this is a challenge, not only for us here and for 
you, but for the Administration as well in many of the areas. 
We continue to work on it. And in our case, we want to try to 
move it along as best we can. This is the effort.
    There being no further questions, I want to thank you very 
much, Mr. Newland, for being here, for your statement and your 
responses. I really appreciate it and look forward to working 
with you and the Administration on these challenges.
    Mr. Newland. Thank you, Mr. Chairman, Mr. Vice Chairman.
    The Chairman. I would like to invite the second panel to 
the witness table. Serving on our second panel is the Honorable 
Stephen R. Adkins, Chief, Chickahominy Indian Tribe, Charles 
City, Virginia; the Honorable Paul Brooks, Chairman of the 
Lumbee Tribe, Pembroke, North Carolina; Mr. John Norwood, Co-
Chair of the National Congress of American Indian Taskforce on 
Federal Acknowledgment, Washington, D.C.; Mr. K. Jerome 
Gottschalk, Staff Attorney, Native American Rights Fund, 
Boulder, Colorado; and Mr. Michael J. Anderson, Owner, Anderson 
Indian Law, Washington, D.C.
    I want to welcome all of you here and ask Chief Adkins to 
please proceed with your testimony.

STATEMENT OF HON. STEPHEN R. ADKINS, CHIEF, CHICKAHOMINY INDIAN 
                             TRIBE

    Mr. Adkins. Thank you, Chairman Akaka and Ranking Member 
Senator Barrasso, for inviting me here today to speak on this 
very important subject in Indian Country.
    Today I seek to provide a voice for those Tribes seeking 
Federal acknowledgment as sovereign nations, regardless of the 
process they are pursuing. However, in some specific areas, I 
am speaking to those six Tribes named in S. 379, the Indian 
Tribes of Virginia Federal Recognition Act of 2011. And when I 
think of S. 379, it is with some dismay. This bill was heard 
and passed out of Committee on July 28th, 2011, but no 
committee report has been issued since then. I find that 
distressing and I just want to register present with that 
observation.
    Chairman Akaka, during the first decade of the 21st 
century, the Virginia Indian Tribes were honored to represent 
the very essence of democracy and freedom for this Country. We 
represented the Commonwealth of Virginia and we represented the 
United States, traveling extensively, talking about that first 
primitive English settlement, the fact that that was the cradle 
of democracy and the contributions the Native Indians made to 
the success of that first primitive English settlement. Sadly, 
somehow we got lost in the process and the first to greet the 
settlers have yet to be recognized.
    Let me point out a few points regarding the history of 
Virginia Indian Tribes. A government-to-government relationship 
with the colonists and crown began in the early 17th century. A 
final treaty drawn in 1677 deemed us, the signatories, 
sovereign subjects of the crown. However, the sovereign status 
was neither honored nor recognized by the United States.
    Some Virginia Indian Tribes were forcibly relocated from 
ancestral lands to other parts of Virginia. Some of these 
Tribes migrated back to their homeland and miraculously 
purchased land fee simple. In the late 19th century 
anthropologists applauded our efforts and our success in 
maintaining our respective identities and urged us to continue 
those efforts.
    Indians were inducted into the armed forces as Indian 
people in World War I. The Racial Integrity Act of 1924 decreed 
that there were only two races in Virginia, White and Colored. 
So those folks that entered service in World War II had to take 
their chiefs with them to ensure they were registered as 
Indians.
    During the Indian Reorganization Act of 1934, 
representatives from the United States government visited our 
Tribal communities, verified who we were, and yet the State 
continued to say we did not exist. The State paid for teachers 
and supplies for Indian students attending Indian schools, even 
though the state did not officially recognize us.
    In the 1940s, the State began paying tuition and 
transportation costs to send Virginia Indians out of State to 
attend high school. Lots of my folks went to Bacone College in 
Oklahoma. Students continued to attend boarding schools 
throughout the 1950s. These are just some of the things that 
happened to us during our history.
    The Virginia Tribes deserve Federal acknowledgment as 
sovereign nations. We deserve and have vigorously pursued paths 
to achieve same. To achieve recognition, we were told we needed 
to go through the administrative process. We were told all we 
would have to do was present records substantiating our 
existence.
    Well, our records were destroyed during the Civil War. They 
were also destroyed by action of the Commonwealth through the 
Racial Integrity Act of 1924. So we had the State saying we are 
not who we say we are, all this we had to be overcome in order 
to meet the rigors of the administrative process.
    We began the administrative process in the 1990s. Our hopes 
were significantly diminished when the then Assistant Secretary 
for Indian Affairs told us that many of us would not live to 
see Federal acknowledgment through the administrative process. 
And I hate to say this, but several of our chiefs have been 
buried since then. That proved to be a prophecy that came to 
pass.
    The Tribes are not carbon copies of each other across the 
United States. So a standardized mechanism to acknowledge 
Tribes clearly cannot work. The road to recognition is very 
costly. Some Tribes cannot afford the cost of pursuing that 
route.
    Now, let's look at how we fared using the Congressional or 
legislative route. The fact that Congress has authority to 
recognize Tribes remains above dispute. Let's look at the 
Government Accountability Office numbers. As of April 2011, 564 
Tribes had been acknowledged as sovereign Indian nations. Out 
of those 564 Tribes, 530 were acknowledged by Congress.
    The bottom line is that Congress has authorized 92 percent 
of the Tribes that have been accorded recognition from the 
United States of America.
    Out of the box, we made some concessions in our process 
that actually chipped away at our sovereignty. We have had no 
interest in gaming, so we readily agreed to insert language 
into our bill stipulating that we would not engage in gaming.
    Many times our bills have passed out of one body of 
Congress. In the 111th Congress, for instance, our bill passed 
the House but failed to reach the Floor of the Senate. We 
continue to press our case and have been advised that we have a 
very compelling story and should be accorded recognition. But 
it still has not happened.
    In conclusion, let me say that much conversation has 
occurred regarding when Indian Tribes should be recognized by 
the Federal Government. Let me summarize our feelings on this 
subject. Tribes who have been able to maintain their identity 
over hundreds of years, who have faced abuse and insults 
because of their heritage, who have continued to see their 
Tribal lands shrink, who have seen their ranks decimated to the 
point that Native American Indians represent less than 1.4 
percent of the United States population, who have lost more of 
their citizens per capita fighting for our Country in the armed 
services of the United States of America, and these folks who 
resolutely salute Old Glory and display pride and love for 
their Country, the answer to when to do the right thing must 
always be right now.
    Mr. Chairman, the Virginia Indian Tribes urge you to seize 
the opportunity to stand and do the right thing now by ensuring 
the passage of S. 379, thus granting Federal acknowledgment as 
sovereign nations to these historic Virginia Indian Tribes.
    Thank you, Chairman Akaka, for allowing me to address you 
today on this very important topic. And I will say, my written 
testimony goes into detail on these various subjects. Thank you 
for listening to me today.
    [The prepared statement of Mr. Adkins follows:]

   Prepared Statement of Hon. Stephen R. Adkins, Chief, Chickahominy 
                              Indian Tribe
    Thank you Chairman Akaka and other distinguished members of the 
Senate Committee on Indian Affairs for inviting me here today to speak 
at the oversight hearing on ``Federal Recognition: Political and Legal 
Relationship Between Governments''. It is an honor to appear before 
this Committee today to speak to this very important subject which 
looms large all across Indian Country.
    I seek to provide a voice for those tribes seeking federal 
acknowledgement as sovereign nations regardless of the process they are 
pursuing. However in some specific areas, I am speaking on behalf of 
the Eastern Chickahominy, the Monacan, the Nansemond, the Upper 
Mattaponi, the Rappahannock, and my Tribe the Chickahominy, the six 
Tribes named in S 379, The Indian Tribes of Virginia Federal 
Recognition Act of 2011. Hereinafter these six tribes will be referred 
to as the Virginia Indian Tribes.
    Chairman Akaka, the Virginia Indian Tribes were honored to 
represent the very essence of democracy and freedom as we participated 
in events, both in the Commonwealth of Virginia and the United Kingdom, 
commemorating the 400th anniversary of the establishment of the first 
permanent English Settlement in America in May 1607.
    We took pride in representing the Commonwealth of Virginia and the 
United States of America as descendant tribes of those Virginia 
woodland Indians who welcomed the first permanent English settlement to 
what is now called America. A culminating event to the commemoration 
occurred in May 2007 when President George W. Bush shared the podium 
with dignitaries from the United Kingdom, the Governor of Virginia, and 
leadership from Virginia Indian tribes. However, when the hoopla 
subsided and the festivities were over, we remained unrecognized as 
sovereign nations by the United States of America.
    Virginia Indian Tribes lived under the Treaty of 1677, a treaty 
with the English Crown, until the formation of the United States. 
Signatories of this treaty were deemed ``sovereign subjects of the 
crown''. As recently as the first decade of the 21st century this 
treaty was applied to a court case involving Virginia Indians. And 
while we are now recognized by the Commonwealth of Virginia, federal 
recognition remains unfulfilled. While we continue to attempt to 
achieve recognition through the administrative tribal recognition 
process, it is our belief that this process is broken and unavailable 
to us.
    Please allow me to cite a painful example of why the current 
administrative process falls short in embracing the reality Virginia's 
Indigenous people face. In 1912, a man named Walter Ashby Plecker 
became head of the first Bureau of Vital Statistics in Virginia. 
Plecker was a rabid white separatist; he supported and enforced the 
Virginia Racial Integrity Act, which became law in 1924. To give you an 
idea of the motives surrounding this legislation, a companion bill was 
the Sterilization Act, which called for the forced sterilization of 
``feeble-minded'' inmates.
    The Racial Integrity Act classified all persons in the Commonwealth 
of Virginia as either ``white'' or ``colored.'' It enforced the ``one-
drop'' rule, in which any person with even ``one drop'' of African or 
Native American blood was deemed to be ``colored.'' From 1924, official 
records of the Commonwealth of Virginia did not allow Virginia's Native 
American Tribes to list Indian, Native American, or any other tribal 
affiliation as race. According to the Commonwealth of Virginia, we were 
all just ``colored.''
    This act served as the official policy of Virginia for five 
decades, remaining in effect until 1967. The act caused my parents and 
other Virginia Indians to have to travel to Washington D.C. in order to 
be married as Indians. This vile law forced all segments of the 
population to be registered at birth in one of two categories, white or 
colored. Our anthropologist says there is no other state that attacked 
Indian identity as directly as the laws passed during that period of 
time in Virginia. No other ethnic community's heritage was denied in 
this way. Our State, by law, declared there were no Indians in the 
State in 1924, and if you dared to say differently, you went to jail or 
suffered other indignities. This state action distinguishes us from 
many other tribes in this country, tribes that were protected from this 
blatant denial of Indian heritage and identity.
    However, there was one exemption to this rule. Many of the First 
Families of Virginia claimed to be descendants of Pocahontas. The law 
contained a ``Pocahontas exemption,'' allowing the landed white 
families in Virginia to be listed as ``white'' despite the one-drop 
rule, while still claiming to be descendants of Pocahontas.
    Plecker and the Virginia Bureau of Vital Statistics even went so 
far as to retroactively change the vital records of many of our 
ancestors so that only white or colored were listed. As part of the 
Indian Reorganization Act in 1934, United States government officials 
contacted the Commonwealth of Virginia regarding its Indian population. 
The state registrar, also one Mr. Walter A. Plecker, advised there were 
no Indian Tribes in Virginia. Despite Plecker's response, Federal 
Government officials visited Virginia tribes, conducted interviews, and 
photographed people, places and things substantiating our existence. 
But no action was taken, and we remain unrecognized.
    To achieve recognition, we are now told that we should go through 
the administrative process in the Department of the Interior. All we 
have to do, we are told, is present records substantiating our claims 
to have been tribes. But because the Virginia Indian Tribes signed 
treaties with the English in 1677, our treaties aren't recognized by 
the United States of America, which had yet to be formed. Because 
courthouses containing our records were burned during the Civil War, 
our documentation isn't in order. And because Walter Plecker and the 
vile Racial Integrity Act claimed we didn't exist, it appears that the 
administrative process agrees.
    The history of the Virginia Indian Tribes predates 1607, our first 
sustained English contact. In my discussion with the Bureau of 
Acknowledgement and Research (BAR) now the Office of Federal 
Acknowledgement (OFA), I was advised we needed to supply documentation 
of our existence for each decade since 1607. Even though this has been 
relaxed to reach back to 1790, problems still exist from several 
fronts: (1) tribes had no written language; (2) oral history was 
considered inadequate; (3) colonial leadership sought to annihilate 
Native people versus maintaining vital statistics on them.
    Ironies at the state and federal level have supported the fact that 
Virginia Indian Tribes have endured over time. In the 20th century the 
Commonwealth of Virginia supplied transportation and tuition funding 
for Virginia Indian students to attend high school at Bacone Indian 
School in Muskogee, Oklahoma. In addition to Oklahoma, the Commonwealth 
of Virginia provided funding for students to attend high school in 
other States. On the other hand, the Federal Government supplied funds 
to send Virginia Indian Students to Federal Government Indian boarding 
schools located in several different states. The former being 
tantamount to the Commonwealth of Virginia recognizing Virginia Indian 
Tribes as Indian, and the latter, the Federal Government recognizing 
Virginia Indian Tribes as Indian by supplying federal funding for 
boarding school attendance.
    Probably the most telling testimony to the current system is the 
fact that in 1999, the head of the BIA, the Assistant Secretary for 
Indian Affairs, advised a Virginia Indian tribal delegation that many 
of those people assembled on that day would not live long enough to see 
federal acknowledgement for their tribe(s) through the administrative 
process. This proved to be prophetic for several of the tribal chiefs 
and other tribal members who attended that meeting in 1999 have been 
buried since then.
    This testimony would be incomplete if I did not cite a common 
thread that exists among Atlantic Coast Tribes and even some Gulf Coast 
Tribes. The thread I am speaking of is our respective tie to colonial 
governments. The success of these tribes in going through the 
administrative process has been very low. Several factors contribute to 
the low success rate:

        1.  Lack of resources needed by tribes to ``ferret'' out the 
        requisite information to be compliant with a process geared 
        more toward post-1790 tribal histories;

        2.  Perceived low value/regard for tribal oral history;

        3.  Failure of the administrative process to recognize that one 
        size does not necessarily fit all;

        4.  Perceived lack of value/regard for treaties drawn between 
        tribes and colonial governments.

    Other compelling reasons to have this conversation today include:

        1)  Time--In many cases the administrative process has taken in 
        excess of 20 years before a determination is reached. Even 
        legislative recognition often takes several years before a bill 
        reaches the floor of the House or Senate.

        2)  Cost--The road to recognition is very costly ranging from 
        several hundred thousand to several million dollars. These 
        costs include fees for attorneys, lobbyists, anthropologists, 
        et al. Tribes generally are poor and can't afford these fees.

        3)  Application of administrative criteria--

          1.  Criteria appear to be geared to those tribes encountered 
        following formation of the United States without taking into 
        account regional differences in tribal experiences;

          2.  Criteria seem to be interpreted more strictly with time, 
        especially with adoption of IGRA;

          3.  State recognition or state reservations don't seem to be 
        given much weight;

          4.  Many petitioners perceive that racial bias seems more 
        prevalent regarding tribes in the East & South

    The fact that congress has the authority to recognize tribes 
remains above dispute. Let's look at the Government Accountability 
Office (GAO) numbers. As of April 2011, 564 tribes had been 
acknowledged as sovereign Indian Nations. Out of those 564 tribes, 530 
tribes had been acknowledged by Congress; 17 tribes had been 
acknowledged by OFA; 10 tribes had been acknowledged through the 
administrative process pre-1978; 7 tribes had been recognized by the 
administrative process post-1978 but outside of OFA. The bottom line is 
that Congress has recognized 92 percent of tribes who have been 
accorded recognition from the United States government.
    Much conversation has occurred regarding when Indian tribes should 
be newly recognized by the Federal Government. Let me summarize my 
feelings on this subject: Tribes who have been able to maintain their 
identity over hundreds of years, who have faced abuse and insults 
because of their heritage, who have witnessed continued shrinking and 
sometimes complete loss of their tribal lands, who have seen their 
ranks decimated to the point that Native American Indians represent 
less than 1.4 percent of the United States population, who have lost 
more of their citizens per capita fighting for their country in the 
Armed Forces of the United States of America than any other group in 
the Union, and who resolutely salute Old Glory and display pride and 
love for their county, the answer to ``when?'' is a resounding ``NOW''!
    Thank you for allowing me to address you today on this very 
important topic.

    The Chairman. Thank you, Chief Adkins.
    Chairman Brooks, will you please proceed with your 
statement?

STATEMENT OF HON. PAUL BROOKS, CHAIRMAN, LUMBEE TRIBE OF NORTH 
                            CAROLINA

    Mr. Brooks. Chairman Akaka, Tribal leaders and staff, thank 
you for the opportunity to address the Federal acknowledgment 
process from the perspective of my people.
    Other panelists have specific complaints about how the 
process is inefficient and in some ways completely broken. On 
behalf of my people, I am here today to tell you that there is 
no administrative process for the people of the Lumbee Tribe of 
North Carolina.
    Congress passed the Lumbee Act in 1956. This legislation 
acknowledged the Indians of Robeson County and surrounding 
counties, but the following clause was included to prevent 
Federal services to my people: ``Nothing in this Act shall make 
Indians eligible for any services performed by the United 
States because of their status as Indians.'`
    In 1989, the Lumbee petitioned the Bureau of Indian Affairs 
for full Federal recognition. The Secretary of the Interior 
requested a review of the Lumbee Act of 1956. From the Office 
of the Solicitor, in light of the Lumbee petition, the 
Solicitor indicated that the acknowledgment regulation, 25 CFR 
Part 83, do not apply to groups which are the subject of 
Congressional legislation terminating or forbidding the Federal 
relationship.
    Based on the language in the Lumbee Act, the Solicitor 
opined that the Lumbee Act terminated or forbade the Lumbee 
from relationships with the Federal Government. The Solicitor 
recommended to the Secretary that the Department had no 
authority to act on the extensive petition submitted by the 
Lumbee.
    To support his opinion, the Solicitor concluded that the 
Department would be exposed to substantial risk of litigation 
if it provided services or acknowledgment and acknowledged the 
government-to-government relationship with the Lumbee Indians.
    The Solicitor refused to acknowledge a well-established, 
and I want to repeat that, the Solicitor refused to acknowledge 
a well-established government-to-government relationship 
between the Lumbee and the United States. In 1887, the North 
Carolina General Assembly passed a bill to provide education 
assistance for the Lumbee people by financing the construction 
of an Indian Normal School. That Indian Normal School today is 
the University of North Carolina at Pembroke, and it was born 
in that Act that North Carolina did.
    In 1900, Congressman Bellamy reported to the United States 
House Committee on Indian Affairs on the origin, history, and 
needs of the Indians of Robeson County. In 1910, the United 
States Government completed a special census of Indian 
population of Robeson and adjoining counties as part of the 
Decennial Census Survey. In 1913, the United States Congress 
held a hearing on the status and concerns of the Indians of 
Robeson County. In 1914, the United States Senate Resolution 
410 directed the Secretary of the Interior to investigate the 
Indians of Robeson County and adjoining counties of North 
Carolina. In 1915, Indian Agent O.M. McPherson concluded that 
the Lumbees are of Cheraw descent.
    In 1923, the Superintendent of the Cherokee Agency 
recommended the State's 1884 Indian rolls, listen to that, be 
revised and disputed Indians be granted access to training at 
Haskell University due to education disparities caused by the 
lack of funding in Robeson County. In 1933, Jon Swanton, a 
Smithsonian Institute anthropologist, studied the Tribe and 
declared the Lumbee to be of Cheraw Indian origin and other 
closely-related Siouan-speaking Tribes. These are just a few 
examples of the government-to-government relationship between 
the Lumbee Tribe of North Carolina and the United States.
    For more than 100 years, my people have petitioned, 
applied, and appealed for recognition of our sovereignty. My 
people have served in every major conflict in which our United 
States military has engaged including, but not limited to, the 
Revolutionary War, the Civil War, World War I, and World War 
II. And we are still dying today because of that.
    I respectfully offer today that the various means of 
Federal recognition have failed the Lumbee Tribe of North 
Carolina. The Constitution of these United States makes this 
Congress responsible for the well-being of indigenous people of 
the United States. There is no delineation or classification of 
Tribes in the United States Constitution. The United States 
Congress has a responsibility to my people to deal with them as 
they do with other Tribes across the Country, without regard to 
recognition status.
    Never before has the government accorded the Tribe of 
Lumbees that are not eligible for the process to go through a 
process that everybody admits is broken. The Solicitor has also 
said that we are not eligible for the Federal acknowledgment 
process, so Congress should do what it has done for every other 
Tribe that has already been mentioned like that, and pass full 
recognition legislation.
    Some might say that the recognition process has been 
delegated to the Department of the Interior. Respectfully, I 
suggest to you that the delegation of a responsibility by the 
United States Congress does not relieve Congress of the 
responsibility to uphold the Constitution. For over 100 years, 
my people have followed the processes of this government. We 
worked with the various Federal agencies as they studied us. We 
have testified numerous times before Congress. We have 
petitioned the Bureau of Indian Affairs. We have had 
legislation introduced almost every Congress since 1988.
    I implore you to make way for the recognition of the Lumbee 
Tribe of North Carolina. Our elders are dying waiting for the 
benefits, and our children struggle to become educated while 
waiting for benefits that should be available to all Tribes 
under Federal statute.
    I thank you for the opportunity to address the Committee. I 
look forward to the day when my people, the Lumbee Tribe, 
receive the same benefits accorded Indian people who have been 
recognized by these United States. Thank you very much.
    [The prepared statement of Mr. Brooks follows:]

Prepared Statement of Hon. Paul Brooks, Chairman, Lumbee Tribe of North 
                                Carolina
    Chairman Akaka, Committee Members, Tribal Leaders and Staff:
    Thank you for the opportunity to address the Federal Acknowledgment 
process from the perspective of my people. Other panelists have 
specific complaints about how the process is inefficient and in some 
respects completely broken. On behalf of my people, I am here today to 
tell you that there is no administrative process for the people of the 
Lumbee Tribe of North Carolina.
    Congress passed the Lumbee Act in 1956. This legislation 
acknowledged the Indians of Robeson County and surrounding Counties, 
but the following clause was included to prevent federal services to my 
people: ``Nothing in this Act shall make Indians eligible for any 
services performed by the United States because of their status as 
Indians, . . .'' In 1989, the Lumbee petitioned the Bureau of Indian 
Affairs for full federal recognition. The Secretary of the Interior 
requested a review of the Lumbee Act of 1956 from the Office of the 
Solicitor in light of the Lumbee petition. The Solicitor indicated that 
the acknowledgment regulations (25 CFR Part 83) do not apply to groups 
which are the subject of Congressional legislation terminating or 
forbidding the Federal relationship. Based on the language in the 
Lumbee Act, the Solicitor opined that the Lumbee Act terminated or 
forbade the Lumbee from a relationship with the Federal Government. The 
Solicitor recommended to the Secretary that the Department had no 
authority to act on the extensive petition submitted by the Lumbee. To 
support his opinion, the Solicitor concluded that the Department would 
be exposed to substantial risk of litigation if it provided services or 
acknowledged a government-to-government relationship with the Lumbee 
Indians.
    The Solicitor refused to acknowledge a well-established government-
to-government relationship between the Lumbee and the United States. In 
1887, the North Carolina General Assembly passed a bill to provide 
education assistance for the Lumbee people by financing the 
construction of an Indian Normal School and the present day University 
of North Carolina at Pembroke was born. In 1900, Congressman Bellamy 
reported to the United States House Committee on Indian Affairs on the 
origin, history and needs of the Indians of Robeson County. In 1910, 
the United States Government completed a special census of Indian 
population of Robeson and adjoining counties as part of the decennial 
Census survey. In 1913, the United States Congress held a hearing on 
the status and concerns of the Indians of Robeson County. In 1914, 
United States Senate Resolution 410 directed the Secretary of the 
Interior to investigate the Indians of Robeson and adjoining Counties 
of North Carolina. In 1915, Indian Agent O.M. McPherson concluded that 
the Lumbee are of Cheraw descent. In 1923, the Superintendent of the 
Cherokee Agency recommended the State's 1884 Indian rolls be revised 
and undisputed Indians be granted access to training at Haskell 
University due to education disparities caused by lack of funding in 
Robeson County. In 1933, Jon Swanton, a Smithsonian Institute 
anthropologist, studied the tribe and declared the Lumbee to be of 
Cheraw Indian origin and other closely related Siouan speaking tribes. 
These are just a few examples of the government-to-government 
relationship between the Lumbee Tribe of North Carolina and the United 
States.
    For more than 100 years, my people have petitioned, applied and 
appealed for recognition of our sovereignty. My people have served in 
every major conflict in which our United States military has engaged 
including, but not limited to, the Revolutionary War, the Civil War, 
World War I, and World War II.
    I respectfully offer today that the various means of federal 
recognition have failed the Lumbee Tribe of North Carolina. The 
Constitution of these United States makes this Congress responsible for 
the well-being of indigenous peoples of the United States. There is no 
delineation or classification of tribes in the United States 
Constitution. The United States Congress has a responsibility to my 
people to deal with them as they do with other tribes across this 
country without regard to recognition status. Never before has the 
government required a tribe like Lumbee that is not eligible for the 
process to go through a process that everybody admits is broken. The 
Solicitor's office has said that we are not eligible for the federal 
acknowledgment process so Congress should do what it has done for every 
other tribe like that and pass full federal recognition legislation. 
Some might say that the recognition process has been delegated to the 
Department of Interior. Respectfully, I suggest to you that delegation 
of a responsibility by the United States Congress does not relieve 
Congress of the responsibility to uphold the Constitution.
    For over 100 years, my people have followed the processes of this 
Government. We worked with the various federal agents as they studied 
us, we have testified numerous times before Congress, we have 
petitioned the Bureau of Indian Affairs, and we have had legislation 
introduced almost every Congress since 1988. I implore you to make a 
way for the recognition of the Lumbee Tribe of North Carolina. Our 
elders are dying waiting for health benefits and our children struggle 
to become educated while waiting for benefits available to other tribes 
by federal statutes.
    Mr. Chairman, I thank you for the opportunity to address this 
Committee, and I look forward to the day when my people, the Lumbee 
Tribe, receive the same benefits afforded Indian people who have been 
recognized by these United States.

    The Chairman. Thank you for your statement, Chairman 
Brooks.
    Mr. Norwood, will you please proceed with your statement?

  STATEMENT OF JOHN NORWOOD, CO-CHAIR, TASK FORCE ON FEDERAL 
     ACKNOWLEDGMENT, NATIONAL CONGRESS OF AMERICAN INDIANS

    Mr. Norwood. I would like to thank you, Senator Akaka, 
members of the Committee and staff for the invitation to 
testify at this hearing. I am appreciative of the manner in 
which you, sir, have served as a champion not only for the 
Hawaiian people, but also for the indigenous people here in the 
Continental United States.
    I would like to acknowledge the fact that two of the chiefs 
of the Confederation of which I am part, the Confederated 
Nanticoke-Lenape Tribes of the Delaware Bay are here. Chief 
Gould and Chief Coker, and I will have trouble at home if I 
don't acknowledge my lovely wife, Tanya, also.
    The Congress obviously has jurisdiction over the 
interaction between the Federal Government and the American 
Indian Tribes. However, as codified in the federally-Recognized 
Indian Tribe List Act of 1994, not only Congress, but also the 
Bureau of Indian Affairs and even a decision of the Federal 
court can bring Federal acknowledgment. But for roughly the 
past 35 years, recognition has been either through Congress or 
primarily through the administrative process.
    However, the process, the administrative process that was 
meant to be an objective method to correct the relationship 
between our Country and the historically verifiable American 
Indian nations, without Federal recognition, has broken down. 
That has been obvious in all the studies and the hearings that 
have come before this Committee, and even in the statement of 
the BIA earlier, in this very hearing.
    In reviewing petitions for Federal recognition, the manner 
in which the criteria have been applied has become increasingly 
unreasonable, overwhelmingly expensive and unjustifiably 
unpredictable. So much so than an estimated 72 percent of 
currently recognized Tribes could not successfully navigate the 
process as the criteria are applied today. The process that was 
meant to aid legitimate Tribes has become a burdensome obstacle 
to their recognition. Tribes now enter this process with fewer 
rights than defendants in criminal proceedings. Criminal court 
defendants are at least presumed innocent until proven guilty. 
And that guilt must be proven beyond a reasonable doubt. But 
American Indian Tribes must now prove their existence beyond a 
shadow of any doubt.
    Successful applications that were once only a couple of 
hundred pages of material now require tens of thousands of 
pages of evidence, costing upwards of millions of dollars and 
taking up to 35 years of delays to make final determinations. 
Then after pouring such resources into an intergenerational 
effort, many of those determinations are still unreasonable 
denials.
    Adding insult to injury, and demonstrating the urgency of 
our concern, there is a new marginalization of non-federally 
recognized historically documented Tribes through Federal 
regulations that have begun to exclusively define Indian as 
members of federally-recognized Tribes only. This policy is 
becoming pervasive and influencing even non-governmental 
charitable organizations. It is an increasing problem for many 
American Indians who are now treated as though they are not 
Indian at all. And it is a denial of indigenous identity 
through administrative reclassification. It is a form of Tribal 
termination.
    One of the many examples is there are citizens of non-
Federal historically documented Tribes who attended Federal 
Indian boarding schools and colleges from the late 1800s 
straight through to 2001, which they are now prohibited from 
attending. It is a travesty that proud, non-federally 
recognized graduates of federally-funded American Indian 
colleges cannot return for additional study or have their 
children or grandchildren attend their own alma mater.
    Additionally, and astoundingly, even after the Executive 
Branch affirmed its support, the United Nations declaration on 
the rights of indigenous people, a recent statement from the 
Department of Justice regarding the application of that 
declaration suggested that it only applied to federally-
recognized Indians. The obvious implication being that citizens 
of non-federally recognized Tribes suddenly, for some reason, 
are no longer considered indigenous.
    Increasingly, the words ``indigenous'' and ``American 
Indian'' are being redefined as ``federally-recognized,'' even 
while the administrative process for recognition is known to be 
hostile, unreasonable, unfair, racially biased, and demeaning 
to all American Indians. This increasing denial of identity 
equates to a process of administrative genocide in which non-
federally recognized Tribal citizens are being systematically 
wiped from the political landscape.
    As I stated earlier, I am Nanticoke-Lenape, of the people 
of ``first contact''. My people were and are cited in historic 
records since the days of Captain John Smith and the Jamestown 
Colony. And like many of the Tribes on the east coast, we were 
also studied by arms of the Federal Government. Our children 
also went to Federal Indian schools. Yet we were peaceful and 
were not enumerated by the Department of War and moved onto 
Federal reservations. And I remain a citizen of a Tribe that is 
ignored by the Federal Government in many of its laws.
    Federal acknowledgment is a correction of an error in the 
relationship between the Federal Government and historic 
Tribes. It improves the ability of the Tribe to assert its own 
rights, preserve and protect its culture, defend its identity, 
promote its heritage, and provide for its Tribal citizens. 
However, Federal recognition does not bestow sovereignty, it 
merely acknowledges a Tribe's inherent sovereignty.
    Furthermore, while the trust responsibility is acknowledged 
by Federal recognition, case law has shown that it exists even 
without such recognition. The lack of acknowledgment for 
historically documented Tribes is an injustice that needs swift 
correction. Worthy Tribes should not be forced to wait any 
longer for justice. Studies and discussion and hearings should 
now give way to swift action. And the mere tweaking of the 
administrative process has proven not to be the answer. It is a 
fact, and should be assumed that our learned leaders are 
capable of taking swift action and making positive decisions.
    Distinguishing and recognizing historically documented 
Tribes is a task that is not beyond the capability of Congress 
and the courts. It is not rocket science, it is not quantum 
physics. Congress can take action and has done so in the past. 
The United States Congress and the courts, as a matter of 
justice, should assume responsibility for correcting the 
injustice done to historic, non-federally recognized Tribes.
    I have six quick suggestions for the Committee. First, 
Congress and the courts should no longer solely rely on the 
Office of Federal Acknowledgment to process applications. 
Instead, Congress and the courts should act in accordance with 
the expectation of the federally-Recognized Indian Tribe List 
Act of 1994, utilizing their authority and discretion to 
immediately acknowledge worthy Tribes through legislative acts 
and court decisions and to provide methods for Tribes to access 
all means of acknowledgment under the Act.
    Access to such relief should be simplified for Tribes. 
Action by Congress on acknowledgment should not be an 
insurmountable task fought with intrigue and only successful 
through expensive, herculean lobbying efforts. Also, a Tribe 
should be able to request a judgment from a Federal court 
without having to be a defendant, and the courts should act 
regardless of any pending application before the BIA, which has 
recently been used as a reason for the Federal courts to defer 
to the Bureau.
    Congress should also ensure that listing in government 
reports, reports of agencies used as arms of the government or 
receiving of government services should be viewed as prior 
recognition. Tribes cited in records and studies between the 
1880s and 1950s, or which were served through Federal Indian 
schools, should only have to demonstrate continuous community 
from the period of government citation or service. And, Tribes 
which prove to do so should be affirmed by Congress as having 
already been recognized.
    Number three, as a matter of justice, legislative, and 
regulatory measures should immediately be taken to ensure that 
the criteria for acknowledgment be applied as it was prior to 
1981. Congress should immediately act to rectify this injustice 
and resolve or replace the onerous Federal acknowledgment 
process, including possibly removing the process from the 
Bureau of Indian Affairs. And if not, replace the Office of 
Federal Acknowledgment management and staff at the Bureau of 
Indian Affairs to ensure a fresh look at the evidence and the 
issues.
    Number four, regional considerations should be a part of 
any review for acknowledgment. The history of the area which 
may impact a Tribe's ability to provide certain types of 
information or influence how such information is reviewed 
should have weight in the final determination. Regional 
histories need to be considered when evaluating Tribes' Federal 
acknowledgment. And Congress should commission a study of the 
regional realities that have impacted Tribal histories, 
especially among the coastal Tribes of the colonial era.
    Number five, being weak in a single criterion should not be 
reason enough for rejection, especially if there is 
overwhelming evidence in meeting other criteria of the process.
    The Chairman. Mr. Norwood, will you please summarize?
    Mr. Norwood. Yes, I will, sir. Interested third parties 
should not be able to derail the Federal acknowledgment of 
deserving Tribes.
    I ask Congress to act swiftly, decisively, immediately. 
Thank you, sir.
    [The prepared statement of Mr. Norwood follows:]

  Prepared Statement of John Norwood, Co-Chair, Task Force on Federal 
         Acknowledgment, National Congress of American Indians
Introduction
    Kwankomeluhemo! Nteluwensi Kelekpethakomakw. Ni, hnakay, Wenetko ok 
Lenape, aweniki Scheyichbi ok Lenapei Poutaxat. [I greet you all. My 
name is Smiling-Thunderbear. I am Nanticoke and Lenape, the people of 
the water's edge and the Lenape round water (New Jersey and the 
Delaware Bay)].
    I am Pastor John Norwood, a councilman of the Nanticoke Lenni-
Lenape Tribal Nation, which is one of the three historically and 
genealogically interrelated continuing communities of Nanticoke and 
Lenape people remaining in the area of the Delaware Bay. My tribe is 
united with the Lenape Indian Tribe of Delaware and the Nanticoke 
Indian Tribe in the ``Confederation of Sovereign Nanticoke-Lenape 
Tribes.'' I also serve as the co-chairman of the Task Force on Federal 
Acknowledgment of the National Congress of American Indians (NCAI), 
which is the nation's oldest and largest national organization of 
American Indian and Alaska Native tribal governments. The Task Force 
was established to address the interests of all tribes, both federally 
recognized and non-federally recognized, on any recommended changes to 
policies, procedures, or strategic plans in the federal recognition 
process.
    I thank Senator Akaka, the Committee, and staff for the invitation 
to testify at this hearing. I am truly appreciative for the manner in 
which Senator Akaka has been a champion for not only Native Hawaiians 
but also for the critical issues confronting non-federally recognized 
American Indian Tribes.
Background on the Federal Acknowledgment of American Indian Tribes
    Federal recognition is the acknowledgement of an American Indian 
Tribe by the Federal Government of the United States. It affirms a 
federal trust responsibility for a ``government-to-government'' 
relationship between the United States and the tribal government and 
establishes tribal eligibility for certain federal American Indian 
programs. Federal recognition is the correction of an error in the 
relationship between the United States and the tribal nation receiving 
the acknowledgement it was always due. Federal recognition does not 
bestow sovereignty, but acknowledges a tribe's inherent sovereignty. 
Federal Indian Policy holds that American Indian Tribes have a 
sovereignty that predates the United States and is not bestowed by any 
federal action.

         Neither the passage of time nor the apparent assimilation of 
        native peoples can be interpreted as diminishing or abandoning 
        a tribe's status as a self-governing entity. . . . Perhaps the 
        most basic principle of all Indian law, supported by a host of 
        decisions, is that those powers lawfully vested in an Indian 
        nation are not, in general, delegated powers granted by express 
        acts of Congress, but rather ``inherent powers of a limited 
        sovereignty which has never been extinguished.'' . . . The 
        tribes began their relationship with the Federal Government 
        with the sovereign powers of independent nations. (Newton 2005, 
        206)

    Furthermore, while the trust responsibility is formally 
acknowledged by federal recognition, it exists even without such 
recognition. This fact was included in a 1977 congressional report 
citing the Pasamaquoddy v. Morton case:

         Pasamaquoddy v. Morton presented an important decision 
        regarding the executive branch use of the distinction 
        ``recognized'' and ``non-recognized''. The Department 
        stipulated for the purpose of the case that the Passamaquoddy 
        were an Indian tribe, but argued that it was not required as a 
        trustee to prosecute the Passamaqoddy claim against the State 
        of Maine, since the tribe was ``unrecognized''. The Court 
        rejected the [Department of Interior's] position finding that 
        that the United States has a trust obligation to the tribe. The 
        case makes it clear that the executive branch cannot 
        arbitrarily exclude Indian tribes from its trust relationship. 
        (American Indian Policy Review Commission, 478)

    While the action of the Federal Government does not make a tribe or 
bestow sovereignty, federal recognition extends access for inherently 
sovereign historic tribes and their citizens to certain rights, 
protections, benefits, and privileges reserved for federally recognized 
tribes.
    An Indian Tribe is a political community whose origins pre-date the 
founding of the United States. When the United States opens government-
to-government relations with a Tribe, that Tribe is said to be 
``recognized'' or ``acknowledged.'' An ``unrecognized'' or ``non-
federally recognized'' tribe is one with which the United States does 
not formally conduct government-to-government relations. Many non-
federally recognized tribes are historically well documented and have 
been cited in government reports for over a century. Some non-federally 
recognized Tribes are acknowledged by the States. State recognition, 
however, does not entitle the Tribe to the full breadth of critical 
federal protections, services or benefits that flow from a formally 
acknowledged government-to-government relationship with the United 
States.
    The Congress of the United States has primary jurisdiction over the 
interaction between the Federal Government and American Indian Tribes. 
However, as codified in the ``Federally Recognized Indian Tribe List 
Act of 1994,'' Public Law 103-454 of the 103rd Congress, the typical 
ways that American Indian Tribes become federally recognized are: (1) 
Through Congressional legislation; (2) Through the Bureau of Indian 
Affairs administrative process, conducted by the ``Office of Federal 
Acknowledgement;'' and, (3) By the ruling of a Federal Court. For 
roughly the past 35 years, federal recognition has usually either been 
through congressional action or through the administrative process.
    The history of recognition is varied. Tribes that established 
treaties with the United States during the first 150 years of its 
history, were considered ``recognized.'' The process for some federally 
recognized tribes was simplified due to their enumeration on federal 
rolls after forced relocation onto reservations.

         The earliest means by which the United States ``recognized'' a 
        particular tribe was, of course, the making of a treaty with 
        that tribe. This has been the usual method of establishing the 
        ``government to government'' relationship which recognition 
        really entails. Many tribes, however, never entered into a 
        treaty with the United States. These tribes were too peaceful 
        to present a military threat, too small or isolated to be 
        noticed, or simply possessed nothing that the United States and 
        its citizens desired to have. Other groups simply refused to 
        conclude a treaty with the United States. (Anderson and 
        Kickingbird 1978, 1)

    In 1901, the United States Supreme Court determined that a 
legitimate tribe: (1) is made up of members who are of common historic 
American Indian descent; (2) is united in affirming some form of 
leadership or government; (3) has historically inhabited a particular, 
though sometimes ill-defined, territory. Within the federal court 
system, the characteristics of independence of action, continuity of 
existence, a common leadership, and concert of action have been 
asserted as criteria for identifying whether a group of American 
Indians are a tribe/nation/band under federal common law.
    The 1934 Indian Reorganization Act created a listing of tribes 
considered to be ``under federal jurisdiction,'' which eventually 
became known as ``federally recognized tribes.'' This list was 
incomplete. Many historic tribes were left off of the list and, while 
there have been some subsequent corrections, many who should have been 
on the list still remain unrecognized.
    In the latter 1970s, the Bureau of Indian Affairs administrative 
process was established to assist non-federally recognized American 
Indian Nations in petitioning for federal recognition. Part 83 of the 
Code of Federal Regulations denominated ``Procedures for Establishing 
that an American Indian Group Exists as an Indian Tribe'' provides an 
administrative process requiring that a petitioner meet seven criteria: 
(1) A statement of facts establishing that it has been identified as an 
Indian entity on a substantially continuous basis since 1900; (2) 
Evidence that a predominate portion of the group is a distinct 
community and has existed as a community from historical times to the 
present; (3) Evidence that it has maintained political authority or 
influence over its members as an autonomous entity from historical 
times until the present; (4) A copy of its governing document including 
membership criteria or, if it does not have a formal governing 
document, a statement describing its membership criteria and governing 
procedures; (5) An official membership list, all available former 
lists, and evidence that its current members descend from a historic 
tribe or tribes that combined into a single autonomous political 
entity; (6) Evidence that it consists mainly of people who are not 
members of a federally recognized tribe; and, (7) A statement that it 
is not the subject of congressional legislation that has terminated or 
forbidden the federal trust relationship.
From Opportunity to Obstacle
    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, when reviewing petitions for federal recognition, the manner 
in which the seven criteria of the administrative process have been 
applied by the Office of Federal Acknowledgement has become 
increasingly unreasonable, overwhelmingly expensive, and unjustifiably 
unpredictable . . . so much so it is estimated that 72 percent of 
currently federally recognized tribes could not successfully navigate 
the FAP as the criteria are applied today. The GAO has reported, along 
with other independent studies and congressional hearings, that the 
current methodology of the administrative process has become a 
cumbersome, expensive, and time consuming barrier to the recognition of 
deserving tribes. The process meant to aid legitimate tribes has become 
a burdensome obstacle to their recognition. Successful applications 
once were only a couple of hundred pages of material. Now, tens of 
thousands of pages of evidence are required, costing upwards of 
millions of dollars and and taking up to thirty-five years of delays in 
making final acknowledgment determinations. After pouring such 
resources into an intergenerational effort, many worthy tribes are 
still unreasonably denied. Two of the most recent approvals of new 
recognition only occurred after the intervention of the federal courts. 
Confidence in the Federal Acknowledgment Process has eroded to the 
point of non-existence.
    Tribes now enter the FAP with fewer rights than defendants in 
criminal proceedings. Criminal court defendants are at least presumed 
innocent until proven guilty. But, American Indian Tribes must prove 
their existence beyond any shadow of doubt. One such example is the 
experience of the Shinnocock Nation, which spent an estimated two 
million dollars to provide evidence required by the Office of Federal 
Acknowledgment (OFA) that the people of their community with the same 
surnames and in the same location, were the same people from one 
generation to the next generation. After this expense and effort they 
were then told by OFA that it should not have been necessary to do so. 
Another tribe was required to produce phone records to demonstrate the 
communication between tribal members. Such applications of the criteria 
are beyond what was originally in view when the FAP was initiated, and 
to require it of tribes today is discriminatory.
    The NCAI Policy on Federal Recognition of Indian Tribes (Resolution 
# PHX-08-055) cites the inequities of the Federal Acknowledgment 
Process (FAP), claiming that it has ``severely deteriorated since its 
beginning, with unreasonable decades-long delays in considering 
applications, irrational documentation requirements that defy 
historical and cultural realities, and [there are] legitimate questions 
about the fairness and integrity of the process'' and that the FAP 
``has strayed from its original intentions, and has become a barrier to 
federal recognition, rather than a fair process for facilitating 
recognition of tribes who meet the criteria'' and affirms that the NCAI 
``strongly supports federal recognition of all Indian tribes that have 
maintained tribal relations from historical times, their right to 
timely and fair consideration of their applications under the FAP 
process, and their right to seek alternative means for recognition of 
their status as Indian tribes.''
    Historic coastal area tribes of the colonial era (including the 
eastern, western, and southern coastlines) remaining in or near their 
traditional homelands are most affected by the inequities and 
deficiencies of the Federal Acknowledgment Process (FAP), which no 
longer reflects the original intent of the acknowledgment process as a 
vehicle for the correction of the relationship between the Federal 
Government and non-federally recognized historic tribes. Among the many 
tribes considered non-federally recognized are those which had colonial 
era treaties, reservations, identified Indian towns, had been 
identified in studies done by arms of the Federal Government, had 
received services from the Federal Government, and had reason to have 
been considered under federal jurisdiction at the time of the 1934 
Indian Reorganization Act, but were not included in the Act due to 
apparent regional or racial biases of the era. These tribes tended to 
have been peaceful after the formation of the Federal Government, were 
not enumerated by the Department of War or placed on federal 
reservations. They became the ``lost'' and ``overlooked'' in Federal 
Indian Policy. Today, many of these tribes continue to languish in the 
political and legal limbo of being non-federally recognized. often due 
to the same biases that had resulted in them not being able to utilize 
the Indian Reorganization Act.

         The reasons that are usually presented to withhold recognition 
        from tribes are (1) that they are racially tainted with the 
        blood of African tribes-men or (2) greed, for newly recognized 
        tribes will share in the appropriations for services given to 
        the Bureau of Indian Affairs. The names of justice, mercy, 
        sanity, common sense, fiscal responsibility, and rationality 
        can be presented just as easily on the side of those advocating 
        recognition. (Anderson and Kickingbird 1978, 17)

The Modern Era of Denied Identity and De-facto Termination
    There is a new marginalization of non-federally recognized 
historically documented tribes through federal regulations that have 
begun to exclusively define ``Indian'' as a member of a federally 
recognized tribe. This policy is becoming pervasive and is influencing 
even nongovernmental charitable organizations. Many scholarships 
designated for American Indians are now restricted to those who are 
citizens of federally recognized tribes. This is an increasing problem 
for many American Indians who are now treated as though they are not 
American Indian at all. It is the denial of indigenous identity through 
administrative reclassification. It is a form of tribal termination.
    There are citizens of ``non-federal'' historically documentable 
tribes who attended federal Indian boarding schools and colleges, from 
the late 1800s until as late as 2001, which they are now prohibited 
from attending. During the time of the initial involvement of these 
tribes at some of the federal Indian schools, a minimum of \1/4\ blood 
quantum was required; this was eventually changed to require membership 
in a federally recognized tribe receiving Bureau of Indian Education 
educational benefits, thus eliminating the attendance of those non-
federal tribal citizens, which the BIA had long considered Indians and 
who had sent their family members away from home to attend federal 
boarding schools and colleges. (H.E.L.P. Haskell). There is the case of 
a Haskell graduate who wanted to return for additional study, but was 
denied because in the years since her graduation, the policy at her 
alma mater was changed from requiring \1/4\ blood quantum to membership 
in a federally recognized tribe. It is a travesty that proud 
nonfederally recognized graduates of Haskell and other federally funded 
American Indian colleges cannot return for additional study or send 
their children or grandchildren to their alma mater.
    Another example of redefining ``American Indian'' to mean a 
``citizen of a federally recognized tribe'' is in the Department of 
Justice's review of the regulations regarding the possession of Eagle 
feathers. In her November 30, 2011, letter to Deputy Assistant Attorney 
General Ethan Shenkman of the Environmental & Natural Resources 
Division and Tracy Toulou, Director, Office of Tribal Justice at the 
Department of Justice (DOJ), NCAI Executive Director Jacqueline Johnson 
Pata summed up the critical concern of NCAI in regard to the impact of 
narrowing the definition of ``Indian'' to exclude non-federally 
recognized indigenous people and issued a critique of the FAP:

         NCAI believes that the DOJ should adopt a policy, consistent 
        with the Morton Policy, which addresses tribal use of eagle 
        feathers and other bird feathers and parts only if that policy 
        is created and implemented in a manner that permits all 
        Indigenous peoples in the United States to exercise their 
        religious freedom and maintain their cultural practices. 
        Barring that, NCAI fears that this policy could be more harmful 
        than what currently stands . . . 

          . . . What DOJ is proposing is a significant narrowing of the 
        scope of applicability, which alone makes the proposed policy 
        much more restrictive than the Morton Policy and conflicts with 
        legal and legislative precedent that supports a definition of 
        ``Indian'' that is more expansive than federally recognized 
        tribes, especially where issues of cultural protection and 
        religious freedom are involved . . . 

          . . . DOJ's current proposal to limit any new policy to 
        members of federally recognized tribes seems to be based on the 
        assumption that the U.S. Government's process of federal 
        acknowledgement is working as it should, when it is, in fact, a 
        broken system that needs fixing. NCAI has several standing 
        resolutions on the issue of federal recognition and has 
        provided congressional testimony on the federal acknowledgement 
        process and related issues numerous times. If there is one 
        thing that these resolutions and testimony demonstrate, it is 
        that the federal recognition process has severely deteriorated 
        since its inception. The current system is fraught with 
        unreasonable, decades-long delays in considering applications 
        and irrational documentation requirements that defy historical 
        and cultural realities. These problems raise legitimate 
        questions about the fairness and integrity of the federal 
        recognition process. If the DOJ moves forward with its policy 
        as currently proposed, it would be making prosecutorial 
        judgments about questions of religious freedom based on a 
        wholly unreliable system of federal recognition for tribes . . 
        . 

    Another concern that the NCAI Executive Director cites is the 
conflict between DOJ's proposal and the United Nations Declaration on 
the Rights of Indigenous Peoples (UN DRIP):

         Finally, the position that DOJ has taken on the applicability 
        of its new policy to solely federally recognized tribal members 
        is directly at odds with the United Nations Declaration on the 
        Rights of Indigenous Peoples (the Declaration), which President 
        Obama endorsed on December 16, 2011. Article 12 of the 
        Declaration states that: ``Indigenous peoples have the right to 
        manifest, practi[c]e, develop and teach their spiritual and 
        religious traditions, customs and ceremonies . . . [as well as] 
        the right to the use and control of their ceremonial objects . 
        . .'' The Declaration applies to all Indigenous peoples within 
        the United States; it is not limited by the bounds of the U.S. 
        federal recognition process. NCAI believes that the 
        formalization of this DOJ policy presents a unique opportunity 
        for the Obama Administration to reaffirm its commitment to 
        implement the Declaration by ensuring that the policy protects 
        all Indigenous peoples' rights to possess eagle--and other 
        bird--feathers and parts for cultural and religious use, not 
        just the rights of members of federally recognized tribes.
    Astoundingly, DOJ's response regarding the applicability of the UN 
DRIP, circulated at the NCAI 2012 Mid-Year Conference in Lincoln 
Nebraska on June 18th, stated that:

          . . . the ``United States' existing recognition of, and 
        relationship with, federally recognized tribes'' is the ``basis 
        for the special legal and political relationship . . . pursuant 
        to which the United States supports, protects, and promotes 
        tribal governmental authority over a broad range of internal 
        and territorial affairs, including . . . culture and 
        religion.''

    Increasingly, ``indigenous'' and ``American Indian'' are being 
redefined as ``federally recognized'' based upon a history and process 
that is known to be hostile, unreasonable, unfair, racially biased, and 
demeaning to non-federally recognized historically documented tribes. 
It has become the position of the Executive Branch to also exclude non-
federally recognized tribes from formal government consultation even 
over matters that directly impact them. This was such an issue that 
NCAI Resolution #PSP-09-008 ``Resolution of the National Congress of 
American Indians on President Barack Obama's First Annual Meeting with 
Tribal Leaders: Reaffirmation of the Nation-to-Nation Relationship'' 
calls on the United States to ``Extend consultation and the Nation to 
Nation relationship to include state recognized tribes as supported by 
federal statutes'' and also calls on the United States to ``Recognize 
that our Indian tribes are the original Native American nations endowed 
with inherent natural rights to self-government, self-determination and 
territorial integrity.''
    This increasing denial of identity equates to a process of 
administrative genocide, in which nonfederally recognized tribal 
citizens are being systematically wiped from the political landscape. 
It is unconscionable that in the thirty five years since the American 
Indian Policy Review Commission Report of 1977, little has changed . . 
. 

         The results of ``non-recognition'' upon Indian communities and 
        individuals have been devastating, and highly similar to the 
        results of termination. The continued erosion of tribal lands 
        with a complete loss thereof; the deterioration of, cohesive, 
        effective tribal governments and social organizations; and the 
        elimination of special federal services through the continued 
        denial of such services which Indian communities in general 
        appear to need desperately. Further, the Indians are uniformly 
        perplexed by the current usage of ``federal recognition'' and 
        cannot understand why the Federal Government has continually 
        ignored their existence as Indians. Characteristically, Indians 
        have reviewed their lack of recognition as Indians by the 
        Federal Government in our disbelief and complete dismay and 
        feel classification as non-federally recognized is both 
        degrading and wholly unjustified. (American Indian Policy 
        Review Commission 1977, 463)

A Call for Justice and the Application of Common Sense
    As stated earlier, I am Nanticoke-Lenape, of the people of ``first 
contact.'' My people were placed on colonial era reservations, had 
colonial era treaties, are cited in the historic record since the days 
of Captain John Smith and the Jamestown Colony. Since latter 1800's, 
agencies acting as ``arms of the Federal Government'' listed and 
studied us and academics published scholarly works about us. My 
relatives attended federal Indian boarding schools. Our specific 
families have been listed in numerous government reports. Yet, I remain 
a citizen of a non-federally recognized tribe. increasingly 
marginalized in a political and legal climate that is hostile to the 
continuance of my tribe and the confederation of which it is a part.
    Federal acknowledgment is a correction of an error in the 
relationship between the Federal Government and a historic tribe, 
improving the ability of the tribal government to assert its rights, 
protect and preserve its culture, defend its identity, promote its 
heritage, and provide for its tribal citizens. The lack of such 
acknowledgment for historically documented tribes is an injustice in 
need of swift correction. The relationship between American Indian 
Tribes and the Federal Government is under the jurisdiction of 
Congress. The FAP is broken and worthy tribes are languishing without 
federal status, creating increasing undue hardship for the indigenous 
communities across the country. We should not be forced to wait any 
longer for justice. Studies, discussions, and hearings should now give 
way to action, and the mere ``tweaking'' of the administrative process 
has proven to not be the answer.
    It should not be presumed that distinguishing and recognizing 
historically documented tribes is a task beyond the capability of 
Congress or the Courts. The manner in which the administrative process 
is currently being applied has made the task overly complicated for 
both deserving tribes and for the government. Summed up, the criteria 
need only demonstrate that a tribe applying for federal acknowledgment 
is ``a continuing community of interrelated descendants of a historic 
American Indian Tribe or tribes which has maintained tribal identity in 
some manner that can be documented from at least the 19th century or 
earlier.'' It is not ``rocket science'' or ``quantum physics.'' 
Congress can take action, and has in the past. According to a 2003 
Congressional Research Service Report from the Library of Congress, 
from 1973 to 2003, thirty-two (32) tribes received federal status by 
congressional action. Twenty-five (25) of those were regarding federal 
recognition with the remaining seven (7) being some other form of 
status change. Eighteen (18) of the twenty-five received a restoration 
of their recognition and the remaining seven (7) of the twenty-five 
which received federal recognition were tribes that never had any 
previous federal acknowledgement. Tribes that received recognition by 
congressional legislation between 1980 to 2003 were: Houlton Band of 
Maliseet Indians (1980); Kickapoo Traditional Tribe of Texas (1983); 
Mashantucket Pequot Tribe (1983); Aroostook Band of Micmac Indians of 
Maine (1991); Pokagon Band of Potawatomi Indians of Michigan (1994). 
Additionally, two tribes' federal recognition was reaffirmed by federal 
legislation, the Little Traverse Bay Bands of Odawa Indians of Michigan 
(1994) and the Little River Band of Ottawa Indians of Michigan (1994).
    The United States Congress and the United States courts, as a 
matter of justice, should assume responsibility for correcting the 
injustice done to historic non-federally recognized tribes. Congress 
and the Courts should no longer solely rely on the Office of Federal 
Acknowledgment to process applications. Instead Congress and the Courts 
should act in accordance with the expectations of the Federally 
Recognized Indian Tribe List Act of 1994, utilizing their authority and 
discretion to immediately acknowledge worthy tribes through legislative 
acts and court decisions and to provide methods for tribes to access 
all means to acknowledgment under the Federally Recognized Indian Tribe 
List Act of 1994. Access to such relief should be simplified for 
tribes. A tribe should be able to request a judgment from a federal 
court without having to be a defendant and the courts should act 
regardless of any pending application before the BIA . . . which has 
been recently used as reason for a federal court to defer to the FAP 
even though such inaction results in a breech of justice for most 
tribes. Also, action by Congress on acknowledgment should not be an 
insurmountable task fraught with political intrigue and only successful 
through expensive herculean lobbying efforts.
    Congress should ensure that listing in government reports, reports 
of agencies used as arms of the government, or receiving of government 
services should be viewed as prior recognition so that a tribe must 
only show continuance from that period of historic federal 
identification or service, and that, as a matter of justice, tribes 
historically identified, but not included, in the Indian Reorganization 
Act of 1934 (IRA) should be immediately reviewed for acknowledgment due 
to the impact of regional and racial bias in the application of the 
IRA. Tribes cited in government records and studies between the 1880s 
and 1950s, or which were served through federal Indian schools, should 
only have to demonstrate continuous community from the period of the 
government citation or service. Those tribes which qualify under this 
criteria should receive immediate affirmation of recognition by 
Congressional legislation.
    As a matter of justice, legislative and regulatory measures should 
immediately be taken by the United State Congress and the Executive 
Branch to ensure that the criteria for acknowledgment be applied as it 
was intended and that guidelines used to apply the criteria for the 
current review of applications for acknowledgment, and the burden of 
proof, be commensurate with what was utilized to acknowledge tribes 
prior to 1981. Congress can take immediate action to rectify this 
injustice and resolve or replace the onerous Federal Acknowledgment 
Process (FAP) including possibly removing the FAP from the Bureau of 
Indian Affairs, and if not, replacing the Office of Federal 
Acknowledgment management and staff at the Bureau of Indian Affairs to 
ensure a fresh look at the evidence and issues.
    Regional considerations should be part of any review for 
acknowledgment. The history of the area, which may impact a tribe's 
ability to provide certain types of information or should influence how 
such information is reviewed, should have weight. Regional histories 
must be considered when evaluating a tribe for federal acknowledgement 
and, as a matter of justice, the Congress should commission a study of 
the regional realities that have impacted tribal histories, especially 
among coastal area tribes of the colonial era, which affect the manner 
in which tribes from a given region can meet the federal acknowledgment 
criteria and that the study be done in cooperation with such tribes to 
establish regional historical assumptions to be considered in 
evaluating applications for acknowledgment.
    Being weak in a single criteria should not be reason enough for 
rejection, especially if there is overwhelming evidence meeting other 
criteria. Objectively reviewing documentation of the tribe's historic 
and continuing identity should not create the unreasonable evidentiary 
burden and bureaucratic backlog currently found in the FAP.
    ''Interested third parties,'' should not be able to derail the 
federal acknowledgment of a deserving tribe. Currently, the comments 
and political influence of third parties have delayed and denied 
justice for many historic tribes. This must be prevented.
Conclusion
    The manner that Congress has abandoned historic tribes to an 
administrative process that is hostile to their very existence should 
weigh heavily on the national conscience. A cast system has been 
created and perpetuated in Indian Country by the Federal Government. 
Our past, our present, and our future is held hostage by the political 
and legal disregard of the Federal Government. My tribal confederation 
cannot protect the graves of our ancestors, we fight to protect and 
defend our culture and heritage, we struggle to access support for our 
elders and children's future.
    Congress must act immediately and decisively, in the name of 
justice. Historically documented tribes identified in federal reports, 
that received federal services, or whose citizens attended federal 
boarding schools should be acknowledged by Congressional action. A 
simplified, fair, regionally sensitive, and objective process for 
acknowledgment should also be established under congressional direction 
with the guidance of tribal leaders and tribally endorsed historians 
and ethnologists representing the regions where non-federally 
recognized tribes are primarily clustered in the coastal regions of the 
east, south and west. The ability of tribes to petition the federal 
courts regarding federal acknowledgment should be provided.
    The current degrading atmosphere of increasing denial of American 
Indian tribal identity and status for non-federally recognized tribes 
must be eradicated.
References
    American Indian Policy Review Commission Final Report. Submitted to 
Congress May 17, 1977. U.S. Government Printing Office, Washington, DC 
1977.
    Anderson, Terry and Kirke Kickingbird. 1978. An Historical 
Perspective on the Issue of Federal Recognition and Non-Recognition. 
Washington, DC: Institute for the Development of Indian Law.
    H.E.L.P. Haskell. Haskell Endangered Legacy Project. http://
www.HelpHaskell.com (accessed October 24, 2011)
    Newton, Nell Jessup. Editor-in-Chief. 2005. Cohen's Handbook Of 
Federal Indian Law, 2005 Edition. Newark, NJ and San Francisco, CA: 
LexisNexis Matthew Bender.

    The Chairman. Thank you.
    Mr. Gottschalk, please proceed with your testimony.

   STATEMENT OF K. JEROME GOTTSCHALK, STAFF ATTORNEY, NATIVE 
                      AMERICAN RIGHTS FUND

    Mr. Gottschalk. Thank you, Chairman Akaka.
    I am an attorney with the Native American Rights Fund. I 
have been involved with several recognition petitions over the 
years. I currently represent the Little Shell Tribe of Chippewa 
Indians in this process. I thank the Committee for the 
opportunity to offer some suggestions for improvement of that 
process.
    I am going to skip over a lot of the preliminaries, which I 
think we are all in agreement about, that it is too costly, et 
cetera. Except I think one thing worth noting is, as Senator 
Tester said, that Little Shell Tribe has been in the process 
for all or parts of five different decades.
    With that said, I would like in my oral testimony to make 
four specific suggestions for improving the process. First, 
Criterion A should be eliminated. That criterion requires 
recognition by outsiders of an Indian entity on a regular basis 
since 1900. As a practical matter, it requires sufficient 
interaction between outsiders and the Tribal community to 
produce a document identifying the Tribal community every 10 
years.
    The criterion may say little or nothing about whether a 
Tribe exists, but only whether outsiders recognized and 
recorded the fact that they were looking at an Indian entity 
and not just at individual Indians. In the case of Little 
Shell, the final determination against recognition recognizes 
that there were many references from 1900 to 1935 to landless 
Indians, garbage dump Indians, half-breeds and other derogatory 
terms, but found that there were not references to Indian 
entities, and therefore, the criterion was not met. On that 
ground alone, the Tribe could be denied Federal recognition.
    Little Shell ancestors avoided contact with the dominant 
society because that contact subjected them to open and blatant 
discrimination. They existed on the margins of society and by 
its nature, this lifestyle does not produce a paper trail 
required by Criterion A. The denial of Little Shell on this 
basis was a failure of the process, not a failure of Little 
Shell. This criterion is illegal, arbitrary, capricious and 
must be eliminated.
    Second, Criterion B, community and Criterion C, political 
influence, must be greatly modified. At present they require 
proof of community and political influence from historic times 
to the present. The BIA requires proof of relationships. In the 
case of community, relationships among the Tribal members, and 
in the case of political influence, relationships between the 
Tribal members and their political leaders. Self-identification 
of leaders and oral traditions are not sufficient for a Tribe 
to carry its burden of proof. There must be documentary 
evidence; or alternatively, statistical evidence of such things 
as marriage rights, from which the BIA is willing to presume 
the existence of interaction.
    The process requires too much paper over too long a period 
of time. It is unreasonable, for example, to expect a buffalo-
hunting Tribe like Little Shell to have maintained minutes or 
organizational charts from historical times.
    In 1934, the year of passage of the Indian Reorganization 
Act, when Congress and the Executive actively addressed issues 
of Tribal existence, is a much more reasonable time period and 
is consistent with Federal policy. The Little Shell Tribe's 
records since that time, for example, is quite full. And the 
Tribe would have been recognized in 1934, but for the lack of 
Federal funds to purchase Tribal lands.
    Third, certain activity under the regulations violates due 
process and transparency, a word that Mr. Newland used before. 
In the case of Little Shell, interviews of 71 people occurred 
at the end of the process and the Tribe was not given a chance 
to review and comment on those interviews prior to the issuance 
of the final determination. The Tribe had to do a FOIA request 
and pay nearly $5,000 to get the documents for the appeal to 
the IBIA. It puts Tribes in a much different position to force 
them to get a decision overturned than to allow them to address 
issues before a final determination is made.
    Fourth, under OFA's interpretation the regulations provide 
a somewhat streamlined process if a Tribe can show that its 
existence was previously established and that it previously had 
a government-to-government relationship with the U.S. Requiring 
proof of a previous government-to-government relationship is 
not necessary to the issue of Tribal existence and should not 
be required for the streamlined process to apply.
    These changes would improve the process, but too late for 
Tribes like Little Shell. Recognition of Indian Tribes has 
always been a prerogative of Congress and the Tribe urges the 
Committee to act favorably on S. 546, which extends Federal 
recognition to the Little Shell Tribe, and file the Committee 
report so that the bill can move forward on the Floor.
    Thank you.
    [The prepared statement of Mr. Gottschalk follows:]

  Prepared Statement of K. Jerome Gottschalk, Staff Attorney, Native 
                          American Rights Fund
    Chairman Akaka, Vice Chairman Barrasso, Senator Tester, and 
honorable members of this Committee on Indian Affairs, on behalf of the 
Little Shell Tribe of Chippewa Indians of Montana, I thank you for the 
opportunity to testify before this Committee today on the important 
subject of Federal Recognition: Political and Legal Relationship 
between Governments. I would like to take this opportunity to provide 
some perspective on the long, expensive, and frustrating process 
experienced by the Little Shell Tribe in attempting to comply with the 
shifting administrative requirements for federal acknowledgment and to 
urge Congress to exercise its traditional role in Indian affairs and 
provide legislative recognition of the Tribe. I am an attorney at the 
Native American Rights Fund and we have assisted the Tribe in its 
efforts to achieve recognition for more than twenty years, expending 
more than one million dollars for consultant research , and well over a 
million dollars in attorney time. In addition to extensive 
administrative efforts, the Tribe has been seeking legislative 
recognition for several years.
    The Little Shell Tribe first sent a letter to the Bureau of Indian 
Affairs petitioning for federal acknowledgment in 1978. After years of 
work and mountains of submissions, the Tribe was encouraged by a July 
2000, Preliminary Finding in favor of recognition. The PF invited 
comment ``. . . on these various matters, including the consistency of 
these proposed findings with the existing regulations.'' 65 Fed. Reg. 
45394, 45395 (July 21, 2000). The Tribe had every reason to expect a 
final determination in favor of recognition, but continued working to 
ensure that it could respond to any negative evidence which might be 
presented. There were only two comments received during the comment 
period, neither one of which had any bearing on the final decision.
    Thus, the PF was in favor of recognition and there was no new 
evidence against recognition. And yet, inexplicably, the decision was 
against recognition. This is despite the fact that on the question of 
descendancy from an historic tribe, the Office of Acknowledgment agreed 
that new evidence clearly established that the tribe met this criteria. 
Is it any wonder that the Tribe is frustrated? The FD has not become 
effective yet because of an appeal filed with the Interior Board of 
Indian Appeals which was filed February 1, 2010. That body may take 
years to rule. Its scope of review is limited and to my knowledge no 
tribe has ever improved its position on appeal. The best that has ever 
been done is to have a favorable decision affirmed.
    While I insist that with the proper application of the regulations 
in light of the Little Shell Tribe's specific history, administrative 
recognition is warranted, nevertheless, the administrative process 
clearly has not served the Little Shell Tribe and is not designed for 
Tribes such as Little Shell. Without proper consideration of the 
evidence in the context of the historic circumstances of the Tribe, 
which the regulations purportedly require, but for some reason OFA 
chose not to do, the Tribe is held to an extraordinarily difficult 
standard of evidence. In some cases, as with Criterion a) which 
requires that outsiders identify petitioners not just as Indian 
individuals, but as an Indian entity, the criterion itself is 
inappropriate and almost surely illegal. Essentially, this criterion 
requires interaction between outsiders and the tribal community 
sufficient to produce a document identifying the tribal community every 
ten years. The FD recognizes that there were many references from 1900 
to 1935 to landless Indians, breeds and other uncomplimentary names,but 
it says that there were not references to Indian entities and that 
therefore the criterion was not met. Historically, the Little Shell was 
a migratory band, following the buffalo herds between the United States 
and Canada. By the early 1880s, most of the herds had disappeared and 
Little Shell ancestors had settled in out of the way, rural places in 
Montana. Even then, Little Shell ancestors avoided contact with the 
dominant society because that contact subjected them to open and 
blatant discrimination, including federal and state efforts to deport 
tribal members to Canada. Thus, Little Shell survived as a migratory 
people off the official radar screen. By its nature, this life style 
does not produce the paper trail required by criterion a). Nor, if the 
substantive requirements of the regulations are met, should lack of 
identification by outsiders render a tribe a non-tribe.
    As to criteria b (community) and c (political influence), the BIA 
requires proof of relationships--in the case of community, 
relationships among the tribal members, and in the case of political 
influence, relationships between the tribal members and their political 
leaders. Again, self-identification of leaders and oral tradition are 
not sufficient for a tribe to carry its burden of proof. There must be 
documentary evidence, or alternatively statistics (e.g., on marriage 
rates) from which the BIA is willing to presume the existence of 
interaction. Obviously, such documents are not likely to exist for a 
tribal community that survived historically in the traditional way and 
in modern times by avoiding dominant society. Combine this with the 
economic, social and political dislocation suffered by the Little 
Shell, as the BIA itself found, it becomes clear that Little Shell 
presents a unique circumstance in which a paper-driven process is 
simply inappropriate. As a result, failure by Little Shell on these 
criteria in the final determination does not mean that it does not 
exist as a tribe; it only means that the administrative process is not 
well-suited to judge the unique history and circumstances of Little 
Shell. As the Assistant Secretary noted in the Proposed Finding on 
Little Shell, the administrative process must be applied in a flexible 
manner, giving different weight to various kinds of evidence, to 
accommodate the unusual history of Little Shell. 65 Fed. Reg. No. 141, 
at 45395 (July 21, 2000) (``. . . the evidence as a whole indicates 
that the Little Shell petitioner is a tribe.''). Ultimately, though, 
the BIA decided to reverse its flexible approach and to apply the 
criteria in a mechanistic fashion not suitable to the complex historic 
situation of the Tribe.
    Clearly, this is a failure of the administrative process as applied 
to Little Shell, not a failure on the part of Little Shell to exist as 
an Indian tribe. The appropriateness of legislation under these 
circumstances was noted even by the professional staff at the BIA, the 
same personnel who ultimately recommended that Little Shell be declined 
for federal acknowledgment. Writing in 2000, the chief of the Office of 
Federal Acknowledgment effectively admitted the unsuitability of the 
process for Little Shell. He noted the departure of the proposed Little 
Shell finding from past precedent and suggested that special 
legislation should be considered: ``Another alternative would be to 
recommend legislation to acknowledge this petitioner. This 
recommendation would be based on a finding that because of the unique 
and complicated nature of its history, this petitioner is outside the 
scope envisioned by the regulations, but nonetheless merits tribal 
status.''
    Significantly, the United States continues to hold funds in trust, 
invested by the Secretary of the Interior, for the benefit of eligible 
members of the Little Shell Tribe of Chippewa Indians of Montana. Act 
of Dec. 31, 1982, Pub. L. 97-403, 96 STAT. 2023. All seven federally 
recognized Tribes in Montana support recognition of Little Shell as 
does its sister tribe in North Dakota--the Turtle Mountain Tribe.
    The proposed legislation to recognize the Little Shell Tribe, S. 
546, would extend full recognition to the Tribe and provide a four 
county area in which land could be taken into trust. The counties in 
which land would be taken into trust for the Tribe support federal 
recognition. The recognition of Indian Tribes has always been a 
prerogative of Congress, with an overwhelming majority of the 566 
recognized Tribes having been recognized by some form of Congressional 
action. It is long past time for the Little Shell Tribe to be 
recognized by Congress as a Tribe with whom the Federal Government will 
carry on a government to government relationship. For all of these 
reasons, S. 546 should be enacted by Congress. The Tribe appreciates 
the Committee's continued attention to this issue and we urge you act 
favorably and file the Committee report so that the bill can move 
forward on the floor.

    The Chairman. Thank you very much, Mr. Gottschalk.
    Mr. Anderson, will you please proceed with your statement?

  STATEMENT OF MICHAEL J. ANDERSON, OWNER, ANDERSON INDIAN LAW

    Mr. Anderson. Mr. Chairman, aloha. Greetings and thank you 
for this hearing.
    I wanted to focus on a few things in my written testimony 
dealing with different pathways to Federal recognition, both 
Congressional, administrative, and judicial. But based on 
Senator Webb's testimony and the exchange with the Vice Chair 
Barrasso, I wanted to focus on the Congressional prerogative to 
recognize Tribes, and why I think it is absolutely essential 
that Congress, this session, exercise that authority.
    Congress can say that this is the primary responsibility of 
the BIA. If you examine the histories of various Tribes, like 
the ones that were just discussed today and others, you will 
find that Congress has had a direct role in Tribes not being 
recognized. I will give you an example. In 1851, Federal 
commissioners went to California to negotiate treaties with 
Indian Tribes. They actually had a successful negotiation. They 
brought the treaties back to the United States.
    And then the Senate, based on the recommendations of the 
California delegation at that time, decided that they didn't 
want to have hearings, they didn't want these implemented. So 
those treaties were sealed and hidden from public view for 50 
years. They were not discovered as signed treaties until the 
early 1900s, when a Senate clerk discovered them.
    So while the Tribes back then should have had homelands, 
including the Muwekma Tribe, which is not recognized today, 
they lost all the opportunities, 50 years of recognition like 
any other recognized Tribe.
    How can Congress now say that we have no responsibility, 
when this body, this United States Senate, was directly 
culpable for those Tribes not being recognized? Or at least 
having a hearing? And at many times at the request of the 
President, those Tribes that had treaties were recognized.
    That is but one example. In California, shortly before 
World War I, the Congress appropriated and authorized Indian 
agents to go find lands for Indians in California as Tribes, 
for home lands. But then they didn't appropriate the money for 
it. So those Tribes had no chance to get a homeland.
    How can Congress now say, well, it is the responsibility of 
the BIA now to solve that problem, to recognize and rectify 
that historical tragedy, really, and that these homelands 
weren't discovered?
    You heard from the Lumbee. Congress had a role there with 
them as well. They terminated this Tribe and said that there 
wasn't authority for them to get services. How can they now 
say, let's go to the BIA to remedy that problem, when Congress 
put Lumbee in the situation? Little Shell and Virginia have 
also faced the same issues. Virginia with the State government 
in their case, basically eliminating any possibility that they 
would have the records to show that they were recognized. How 
can it be fair to ask the Virginia Tribes to now go to the BIA 
for that justice?
    So there is a direct role based on the history and based on 
the direct role of the Senate in contributing to this problem 
to fix today. And what has happened since 2000 as a whole in 
this body, nothing. It has been a frozen process here on the 
Senate side and the House side. Not this Committee, this 
Committee has been active. This Committee has marked out 
legislation. The House Resources Committee has done so.
    But the Senate and the House together as a whole has not 
done so. Having represented Tribes in this process, when there 
is a threat of filibuster raised by Senators because they 
believe the primacy should be at the BIA, then the ability to 
get a Floor vote to overcome the 60 votes needed to get some 
Floor time really renders these politically powerless Tribes in 
an impossible situation.
    So one recommendation I would have is that maybe 
collectively, having heard the stories of Lumbee, Little Shell, 
the Virginia Tribes and others that perhaps maybe at least one 
afternoon, one day could be set aside this session for an up 
and down vote. I am very confident both on the Senate and the 
House side that in an up and down vote, these Tribes would 
prevail. Justice would be served, the deference to the 
Committees of jurisdiction yours and Mr. Young's on the House 
side who have all recommended that these Tribes go forward I 
think would be honored. There would be more than bipartisan 
support for that to happen.
    So that is something this Congress could do now based on 
their historical culpability, but also with your constitutional 
authority to do so.
    Now, in the remaining minute, I just wanted to talk about 
the Administration and their performance over the last four 
years. Without the favorable decisions of the Shinnecock Tribe 
and the Tejon Decision, I think they would get a big fat F. 
Because they have had no progress in terms of regulatory 
development or standards or decision-making. We could have the 
same hearing four years from now that we are having today that 
we had four years ago and four years before. So there is much 
work to be done on their end.
    I would just conclude in terms of one favorable thing the 
Department did that they could apply to the Federal 
recognition. In the Carcieri analysis and the standards they 
have used there, they have actually been very, very 
progressive. I was actually delighted and thrilled when I read 
their Cowlitz decision. As you know, you have had them as a 
witness before here, the Department found that they were under 
Federal jurisdiction by looking at things like children 
attending Indian schools, attorney-approved contracts, all the 
things that showed the interaction.
    But yet, a couple months later with the Juaneno decision, 
it is almost like a complete reversal. All of those good, solid 
areas of evidence were not used in the recognition area. So 
that is why I would say, if they were getting a C, that would 
be great. But it is probably even worse than that. That is 
something the Department could do today to harmonize what they 
have done in the Carcieri area with the Federal acknowledgment 
area. That is also spelled out in my testimony.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Anderson follows:]

 Prepared Statement of Michael J. Anderson, Owner, Anderson Indian Law
    Chairman Akaka, Vice Chairman Barrasso, and honorable members of 
the Senate Committee on Indian Affairs, good afternoon and thank you 
for the opportunity to testify on the federal recognition process. My 
name is Michael Anderson, and I am the owner of Anderson Indian Law and 
a member of the Muscogee (Creek) Nation. I have practiced law for 
twenty-eight years, and served for the past ten years as outside legal 
counsel to more than two dozen American Indian tribal governments. 
Before that, I served for eight years in the Clinton Administration at 
the United States Department of the Interior as Associate Solicitor for 
Indian Affairs and as Deputy Assistant Secretary for Indian Affairs.
I. Summary
    My testimony will discuss the three routes to federal recognition 
of Indian tribes: legislative, administrative, and judicial. Congress, 
in the Federal List Act, has recognized that tribes can be recognized 
through legislation, administrative procedures, and by court decisions. 
\1\ Each of these methods must continue to be utilized. I will also 
discuss the inconsistent approach in recent Department of Interior 
policy with respect to its progressive interpretation of the evidence 
for determining whether a tribe meets the standard for ``under federal 
jurisdiction'' in land into trust matters versus its regressive 
interpretation of whether a tribe meets recognition criteria.
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    \1\ FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1994, PL 103-454, 
November 2, 1994, 108 Stat 4791.
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A. Legislative

   Congress recognizes tribes based on its authority under the 
        United States Constitution.

   The United States can and has enacted legislation to 
        recognize tribes.

   Congressional recognition is difficult for tribes because it 
        is a political process, and, in particular, on the Senate side 
        subject to potential filibuster roadblocks. Indeed, without the 
        filibuster problem, perhaps a half dozen tribes or more could 
        be recognized by Congress this session.

   The last Tribe to be recognized by Congress was over 10 
        years ago in 2000, the Shawnee Tribe of Oklahoma (Loyal 
        Shawnee).

B. Administrative

   The Department of Interior recognizes tribes through the 
        Federal Acknowledgment Process in the federal regulations at 25 
        C.F.R. Part 83.

   This process is lengthy, inconsistent, and expensive for 
        tribes.

   Tribes can also organize under the Indian Reorganization 
        Act's half-blood provision.

   A limited number of tribes that were recognized and 
        mistakenly omitted from the list of federally recognized tribes 
        also have been reaffirmed through administrative error 
        correction. This occurs when tribes whose government-to-
        government relationship was never severed, lapsed, or 
        administratively terminated are administratively reaffirmed and 
        placed on the list of recognized tribes.

C. Judicial

   The U.S. Supreme Court developed common law standards for 
        federal recognition in the 1901 case Montoya v. U.S. \2\

    \2\ See Montoya v. United States, 180 U.S. 261, 36 Ct.Cl. 577, 21 
S.Ct. 358, 45 L.Ed. 521 (1901).
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   For example, the Shinnecock Nation was recognized by a 
        federal court using the Montoya standards, although that 
        decision was appealed.

   While courts have been reluctant to step in to matters of 
        federal recognition, they have the authority to do so.

   For example, after the federal government failed to live up 
        to its obligations under the California Rancheria Act, a group 
        of California tribes were judicially restored in the Tillie 
        Hardwick and Scotts Valley cases, among others.

D. Administrative Policy

   The Department of Interior lacks a consistent approach to 
        federal recognition.

   The Department took a progressive view of tribal history and 
        federal interaction with the Tribe in the Cowlitz Record of 
        Decision (ROD), in contrast to a narrow view of tribal history 
        in the Final Determination Against Acknowledgment of the 
        Juaneno Band.

   The Department should follow the policies and approach 
        outlined in the Cowlitz ROD and apply them to recognition 
        cases.

II. Testimony
    Congress has recognized that ``Indian tribes presently may be 
recognized by Act of Congress; by the administrative procedures set 
forth in part 83 of the Code of Federal Regulations denominated 
``Procedures for Establishing that an American Indian Group Exists as 
an Indian Tribe;'' or by a decision of a United States court.'' \3\ In 
addition, tribes can organize under the half-blood provision of the 
Indian Reorganization Act. Tribes that were mistakenly omitted from the 
list of Indian Entities Recognized and Eligible to Receive Services 
from the United States Bureau of Indian Affairs can also be reaffirmed 
as federally recognized tribes. All of these methods are valid ways to 
recognize or reaffirm tribes.
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    \3\ FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1994, PL 103-454, 
November 2, 1994, 108 Stat 4791.
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A. Congressional Recognition
    Congress has the authority to recognize government-to-government 
relationships with Indian tribes under the U.S. Constitution, primarily 
based on the treaty clause and the Indian commerce clause. In a 
foundational case for Indian law, Worcester v. Georgia, the U.S. 
Supreme Court states ``our existing constitution.confers on congress 
the powers of war and peace; of making treaties, and of regulating 
commerce with foreign nations, and among the several states, and with 
the Indian tribes. These powers comprehend all that is required for the 
regulation of our intercourse with Indians.'' \4\ Congress historically 
recognized tribes treaties and through legislation. Only Congress has 
the power to terminate the government-to-government relationship with a 
tribe. The last tribe to be recognized through congressional 
legislation was the Shawnee Tribe of Oklahoma in 2000 (Loyal Shawnee). 
\5\ Regrettably, the United States Senate filibuster process has 
derailed the potential recognition of tribes in this session of 
Congress. Unfortunately, some Senators believe only the Department of 
Interior, and not Congress, should acknowledge tribes.
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    \4\ Worcester v. Georgia, 31 U.S. 515, 559 (1832) (emphasis in 
original).
    \5\ P.L. 106-568 (Dec. 27, 2000).
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B. Administrative Recognition
    The executive branch has historically and continues to be heavily 
involved in federal recognition. Some tribes were recognized through 
executive orders. \6\ In addition, the President negotiated treaties, 
subject to ratification by the Senate. \7\
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    \6\ California Valley Miwok Tribe v. United States, 515 F. 3d 1262, 
1263 (D.C. Cir. 2008).
    \7\ Felix S. Cohen, Cohen's Handbook of Federal Indian Law 2005 
edition.
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    Authority for federal recognition was also implicitly delegated by 
Congress to the executive branch. This authority flows from the 
President to the Secretary of the Interior to the Bureau of Indian 
Affairs. The Department of Interior issued regulations, found at 25 
C.F.R. Part 83, for the Federal Acknowledgment Process (FAP) in 1978 
and revised them in 1994. While the procedural process is clearly 
stated, the implementation of the acknowledgment process is widely 
recognized as broken. The process is extremely lengthy and burdensome 
to the petitioners. Tribes have to wait years and even decades for 
decisions on their petitions. The process leaves the opportunity for 
inconsistent application of the criteria while also suffering from the 
problem of applying a one-size-fits-all standard to tribes with widely 
varying histories and circumstances. While a new federal commission on 
recognition could be desirable, little congressional support for such a 
program exists. Given the likelihood that the current Office of Federal 
Acknowledgment will continue, the best opportunity for qualified tribes 
to achieve recognition is through fair application of the criteria.
    The Indian Reorganization Act also allows tribes to organize under 
what is known as the ``half-blood provision.'' ``Any Indian tribe shall 
have the right to organize for its common welfare, and may adopt an 
appropriate constitution and bylaws, and any amendments thereto.'' \8\ 
This shall become effective when ratified by the Tribe and approved by 
the Secretary. ``The term ``Indian'' as used in this Act shall include 
all persons of Indian descent who are members of any recognized Indian 
tribe now under Federal jurisdiction, and all persons who are 
descendants of such members who were, on June 1, 1934, residing within 
the present boundaries of any Indian reservation, and shall further 
include all other persons of one-half or more Indian blood.'' \9\
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    \8\ 25 U.S.C.A.  476
    \9\ 25 U.S.C.A.  479
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    Another way a small set of tribes has been acknowledged is by 
administrative error correction by the Department of Interior. This is 
for tribes whose government-to-government relationship was never 
severed, but through administrative error the tribes did not appear on 
the list of Indian Entities Recognized and Eligible to Receive Services 
from the United States Bureau of Indian Affairs, periodically published 
in the Federal Register. \10\ These tribes were never administratively 
terminated and their government-to-government relationship had not 
lapsed. Rather than a new recognition, this is a reaffirmation of the 
government-to-government relationship. Thus, a process similar to that 
under 25 CFR Part 83 is not required. The statuses of the Lower Lake 
Rancheria Koi Nation, the Ione Band of Miwok Indians, the King Salmon 
Tribe, the Shoonaq' Tribe of Kodiak, and most recently the Tejon Indian 
Tribe were appropriately corrected this way.
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    \10\ First published at 44 Fed. Reg. 7,235 (Feb. 6, 1979).
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    In a unique situation involving Alaska Native Tribes, on October 
21, 1993, the Department issued its list of tribes in the United States 
eligible for services from the Department. The list named the Alaska 
villages recognized under the Alaska Native Claims Settlement Act as 
tribes, and specifically stated that they have ``all the immunities and 
privileges available to other federally acknowledged Indian tribes by 
virtue of their government-to-government relationship with the United 
States as well as the responsibilities, powers, limitations and 
obligations of such tribes.'' \11\ The over 220 tribes acknowledged in 
that notice did not achieve recognition through the Office of Federal 
Acknowledgment, which would have taken decades, but rather through the 
Department's interpretation of congressional statutes, policies, and 
directives, which collectively affirm Alaska Native government 
sovereignty.
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    \11\ 58 FR 54364-01 (Oct. 21, 1993).
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    In another case, the Muwekma Tribe of California also sought to be 
reaffirmed to federal recognition for many years. The Verona Band (that 
the Muwekma Tribe directly descends from) was federally recognized and 
was not legally terminated, which the Department of Interior 
acknowledged. The Muwekma Tribe first informed the Department of 
Interior that it would petition for federal acknowledgment in 1989. The 
Tribe submitted a formal petition for acknowledgment in 1995, with 
thousands of pages of supplemental materials. The petition was 
evaluated under the modified federal acknowledgment regulations at 25 
CFR  83.8. The Department, notwithstanding a solid record of Muwekma's 
history as a tribe, found that Muwekma ``failed to provide sufficient 
evidence to the Department that it `has been identified as an American 
Indian entity on a substantially continuous basis since 1927, when the 
Verona band was last recognized by the Federal Government.'' \12\
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    \12\ Muwekma Ohlone Tribe v. Salazar, No. 03-1231, at 5 n.3 (D.D.C. 
Sept. 28, 2011).
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    Muwekma requested that the Department reaffirm its status through 
administrative error correction, as it had done with Lower Lake 
Rancheria Koi Nation and the Ione Band of Mission Indians. The 
Department refused to do so, and Muwekma sued the Department. As a 
result of that claim, the Court directed the Department to provide an 
explanation for why the Part 83 procedures were waived for Lower Lake 
and Ione but not for Muwekma. If the Tribes were similarly situated, 
they should have been granted the same waiver. Courts are granted 
limited review of agency decisions, so the Court could only direct the 
Department to justify the difference in treatment, rather than 
reviewing Muwekma's evidence submitted to the Department itself and 
making its own determination. The Department pointed to a pattern of 
federal dealings with Ione and Lower Lake, which the Department did not 
believe it similarly had with Muwekma or Verona band after 1927. The 
Court found the Department's explanation as to why Muwekma was treated 
differently sufficient. The important distinction, in the view of the 
Department, was that the federal government interacted with Lower Lake 
and Ione as tribes, and Muwekma's evidence only showed interaction with 
Indian individuals. Although Muwekma presented solid and verifiable 
evidence, the Department interpreted the evidence only as relevant to 
individuals rather than the tribe. The Court did, however, confirm the 
Department's authority to waive regulations under 25 CFR  1.2, and 
spoke positively about the reaffirmation process.
C. Judicial Recognition
    The courts have also been involved in federal recognition in 
different ways. In Worcester v. Georgia, the U.S. Supreme Court 
affirmed the Cherokee Nation's status as a federally recognized tribe, 
based on treaties and Acts of Congress, in the context of federal 
authority over Indian affairs as opposed to state authority: ``The 
Cherokee nation, then, is a distinct community occupying its own 
territory, with boundaries accurately described, in which the laws of 
Georgia can have no force, and which the citizens of Georgia have no 
right to enter, but with the assent of the Cherokees themselves, or in 
conformity with treaties, and with the acts of congress. The whole 
intercourse between the United States and this nation, is, by our 
constitution and laws, vested in the government of the United States.'' 
\13\
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    \13\ Worcester v. Georgia, 31 U.S. 515, 561 (1832)
---------------------------------------------------------------------------
    There are also common law standards for recognition of Indian 
tribes. In Montoya \14\ and Golden Hill, \15\ the Supreme Court and 
Second Circuit, respectively, considered whether to recognize certain 
Indians as Tribes without waiting for recognition by the United States. 
\16\ The U.S. Supreme Court defined an Indian Tribe in Montoya as ``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.'' \17\ The Shinnecock Nation was a 
tribe recognized by a federal court using the Montoya standards: ``The 
cases described above, beginning with Montoya and continuing to the 
present, establish a federal common law standard for determining tribal 
existence that the Shinnecock Indian Nation plainly satisfies.'' \18\ 
Although the Court found that the Shinnecock Nation met the common law 
standards for federal recognition, the Nation later became engaged in 
an administrative recognition process under the Department of the 
Interior. The Department made a final determination on the Tribe's 
petition in 2010. \19\
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    \14\ See Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 
577, 21 S.Ct. 358, 359, 45 L.Ed. 521 (1901).
    \15\ Golden Hill Paugusett Tribe of Indians v. Weicker, 39 F.3d 51 
(2d Cir. 1994).
    \16\ New York v. Shinnecock Indian Nation, No. 03-CV-3243 (D. N.Y. 
Nov. 7 2005).
    \17\ Montoya, 180 U.S. 261, 266 (1901).
    \18\ New York v. Shinnecock Indian Nation, No. 03-CV-3243 (D. N.Y. 
Nov. 7 2005).
    \19\ 75 Fed. Reg. 34760 (June 18, 2010).
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    A group of California tribes were also restored judicially in 
Tillie Hardwick. \20\ Forty-one tribes were terminated by the 
California Rancheria Act in 1958. \21\ The Act required that a 
distribution plan be made for each tribe and other actions be taken, 
including the construction of water delivery systems.. Upon compliance 
with these requirements, the tribes were to be terminated. In 1979, 
distributees from thirty-four of the tribes sued the United States for 
violation of the Rancheria Act for failing to satisfy the obligation of 
the Act and to inform the distributees that they would no longer have 
access to federal programs and protections. \22\ The parties entered 
into a Stipulation for Entry of Judgment in 1983, restoring federal 
recognition to seventeen of the tribes. A similar court approved 
settlement, in Scotts Valley Band of Pomo v. U.S., restored other 
tribes in 1992. \23\ Since then, other tribes in California terminated 
by the Rancheria Act have also been restored by judicial stipulation.
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    \20\ Tillie Hardwick, et al. v. United States of America, et al., 
No. C-79-1710 (N.D.Cal.).
    \21\  Pub.L. 85-671 (72 Stat. 619)
    \22\ Tillie Hardwick, et al. v. United States of America, et al., 
No. C-79-1710 (N.D.Cal.).
    \23\ Scotts Valley v. United States (Final Judgment), No. C-86-
3660-VRW (N.D. Cal. April 17, 1992).
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D. Administrative Policy
    The Department of Interior historically and currently lacks a 
consistent approach to matters of federal recognition and how evidence 
showing recognition or federal jurisdiction should be viewed. The 
Department has employed progressive standards in the Record of Decision 
(``Cowlitz ROD'') for a trust acquisition and reservation proclamation 
for the Cowlitz Indian Tribe \24\ and regressive standards in the Final 
Determination Against Acknowledgment of the Juaneno Band of Mission 
Indians (``Juaneno Determination''). \25\ These decisions show an 
inconsistent approach to how the government interprets federal/tribal 
interactions. In the Cowlitz ROD the Department of Interior dealt with 
the question of whether the Tribe was under federal jurisdiction, and 
in the Juaneno Determination, the Department evaluated whether the 
Juaneno Band met the standards for recognition in 25 C.F.R. Part 83, 
however, a comparison of the two is useful to show the Department's 
varying approach to similar evidence.
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    \24\ United States Department of Interior, Record of Decision Trust 
Acquisition of, and Reservation Proclamation for the 151.87-acre 
Cowlitz Parcel in Clark County, Washington, for the Cowlitz Indian 
Tribe (Dec. 2010) (``Cowlitz ROD'').
    \25\ Larry Echo Hawk, Assistant Secretary--Indian Affairs, Final 
Determination Against Acknowledgment of the Juaneno Band of Mission 
Indians, Acjachemen Nation (Petitioner #84A) (March 15, 2011) 
(``Juaneno Final Determination'').
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    In Cowlitz, the Department evaluated the question of ``under 
federal jurisdiction'' in the context of the Indian Reorganization Act 
with the goal of taking land into trust. The Department interpreted the 
evidence needed for course of dealings and superintendence in a very 
broad fashion. Support for federal superintendence and sovereign status 
was found in treaty negotiations (even for unratified treaties) census 
records, BIA expenditures for tribe and individual Indians, placement 
of Indian children in BIA schools, hiring of attorneys to protect land 
rights of individual members of a tribe, supervision of allotment 
sales, funeral expenses for individual members, protection of water 
rights and other trust assets. \26\ A federal attorney contract, 
according to the opinion, demonstrates the Tribe did not lose 
jurisdictional status at that point. The Cowlitz were federally 
acknowledged on February 14, 2000, and their acknowledgement was 
reaffirmed in 2002. So in the ROD, the Secretary assessed whether the 
Tribe was under federal jurisdiction in 1934 to determine if the IRA 
would apply. The attorney contracts were viewed as robust evidence of 
federal jurisdiction in the Cowlitz ROD.
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    \26\ See Cowlitz ROD.
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    In Juaneno, the Department evaluated whether there were instances 
of third party acknowledgement of the tribe under 25 C.F.R.  83.7 for 
the purposes of federal recognition. Juaneno, while claiming it also 
had attorney contracts, did not have a copy of the actual attorney 
contracts. The Tribe claimed a letter from the Commissioner could be 
construed as an approval of attorney contracts but that letter was not 
produced either. Notably, the Office of Federal Acknowledgment (OFA) 
did not produce this document either, even though this is a government 
record. OFA then dismissed this claim as self-identification. Although 
the Final Determination notes that the evidence of attorney contracts 
was not evaluated because the actual documents were not produced, it is 
further noted that ``such correspondence merely repeats self-
identifications and is not considered identifications under this 
criteria.'' \27\ In stark contrast, the Cowlitz ROD states ``This 
action to approve the Cowlitz Tribe's contract in 1932 supports a 
finding that it was considered a tribe subject to the statutory 
requirement for Department supervision of its attorney contracts, and 
thus `under federal jurisdiction.''' This is supported by a 1948 
Solicitor's Opinion construing the 1946 Claims Act as allowing only 
claims if ``political recognition had been accorded to the particular 
Indian groups asserting them.'' \28\
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    \27\ Juaneno Final Determination at 21.
    \28\ U.S. Dept. of the Interior, Sol. Op. No. M-35029 (Mar. 17, 
1948).
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    In the Cowlitz ROD, the Department used BIA activities for both the 
tribe and for individual Indians to find ``under federal jurisdiction'' 
activity. Importantly, the Department also said the federal government 
must find probative/affirmative evidence that a tribe was terminated 
before it can conclude the tribe was not under federal jurisdiction. 
This correctly shifts the burden to the Department to find such 
evidence of termination rather than placing the burden on the tribe.
    This confusion in the Department's approach leaves the Department 
open to challenges of its decisionmaking, which is detrimental both to 
the Department and the Tribe. For example, the Confederated Tribes of 
the Grand Ronde Community of Oregon sued the Department for its 
decision to take land into trust for the Cowlitz Tribe. Grand Ronde's 
motion for summary judgment attacks the Secretary of the Department of 
the Interior on his explanation that the term ``recognized'' has been 
used in various senses. \29\ The Department has a variety of tools to 
recognize, reaffirm, or show that a tribe was under federal 
jurisdiction. The approach developed in the Cowlitz ROD show an 
approach to characterizing government-to-government relationships that 
better meets the evolving standards of federal/tribal interaction. This 
approach should be consistent for all tribes, including those seeking 
recognition.
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    \29\ The Confederated Tribes of the Grand Ronde Community of Oregon 
v. Ken Salazar, No. 11-cv-00284, Plaintiff's Motion for Summary 
Judgment (June 20, 2012).

    The Chairman. Thank you very much, Mr. Anderson.
    Chief Adkins, in your testimony, you listed several factors 
that contribute to the low success rate of Tribes going through 
the administrative process. If those factors are addressed, 
will there still be the need for Congressional recognition in 
certain cases?
    Mr. Adkins. Mr. Chairman, I believe yes, that there would 
be need for Congressional action in certain cases. I wish I 
could say I didn't think so. I have pointed out things that 
obviously need to be addressed. But in certain cases, it would 
still need action of Congress, and you have demonstrated that 
you can do that for certain Tribes.
    The Chairman. Thank you.
    Chairman Brooks, due to the 1956 Lumbee Act, the Tribe is 
ineligible to petition through the administrative process. 
Therefore, is Congressional recognition the only means for the 
Lumbee to obtain Federal recognition?
    Mr. Brooks. Mr. Chairman, as long as the Solicitor's 
opinion is stated as it is stated, and the way it has been 
implemented, the only way we are ever going to be federally-
recognized is for this Congress to say, look, let's do it.
    The Chairman. Yes, and as you mentioned about the long 
history of not being recognized. Thank you for that response.
    Mr. Norwood, since 1977, there have been approximately 30 
bills introduced in Congress to alter the Federal recognition 
process. Does the Task Force support any of the proposals 
already put forth? Or is there a need for new proposals?
    Mr. Norwood. I think the answer is inherent in the 
question, sir. Because there have been so many proposals and so 
many hearings, I think we need a whole new process. And it 
needs to be done by Congress.
    The Chairman. Thank you.
    Mr. Gottschalk, having worked with numerous Tribes seeking 
Federal recognition over the past decades, please describe the 
evolution of the administrative process for Federal 
recognition.
    Mr. Gottschalk. Chairman Akaka, even though I have quite a 
bit of experience in the process, I am not sure I am totally 
qualified for that. But let me give it a try.
    One of the first cases that I was involved in was the San 
Juan Southern Paiute Recognition in the 1980s. I believe the 
entire process took approximately six years for that Tribe. 
Now, I was involved with the Shinnecock process, which took 
over 30. As we have said, Little Shell has taken all or parts 
of five different decades. So I think there has been a 
tightening of a reading of the regulations, lack of 
flexibility.
    I hate to pick on Mr. Newland too much, but when he was 
explaining why the perfect world of 25 months doesn't work 
under the regulations, he spoke of the thousands of pages of 
documents. I wrote this down, he said, when you have to rigidly 
apply mandatory criteria to all of these pages, it takes time. 
I think one of the problems is precisely that. It is not 
supposed to be rigid application. It is supposed to be 
according to the regulations themselves, a flexible application 
which takes into account the culture, history, and situation of 
each Tribe involved.
    I think perhaps that is what has evolved, is a turning away 
from that flexibility, which seemed to be there in the 1980s 
with the San Juan Southern Paiute Tribe, and which I am not 
seeing now.
    The Chairman. Thank you so much. It is good to draw from 
your experience in this respect.
    Mr. Anderson, in your testimony you mentioned the 
Department's varying approach to similar evidence and 
recognition cases. What mechanisms can be put in place to 
ensure that all recognition cases are considered on equal and 
consistent basis? For instance, can a regional approach help?
    Mr. Anderson. I think direction from the top, from the 
Secretary's office, for the Secretary to make these consistent, 
it could work. My example in my testimony showed that while 
there have been favorable standards used in this Cowlitz 
decision, where things like attendance at BIA schools was seen 
as valid evidence of Tribal citizenship, it has not been used 
in the recognition case.
    So there has been a disconnect at the Interior Department 
between the team, which I think has been really first rate, 
working on the Cowlitz land into trust cases, and I think 
because the Solicitor herself has been involved in that, versus 
what has gone on at the staff level where unfortunately, the 
acknowledgment area is kind of the stepchild of Indian law and 
policy at Interior. It is not something that a lot of people 
focus on, have a lot of attention to. As a result, sometimes 
precedents and policies are formed there at the staff level 
that really don't reflect what I think is a greater policy.
    So directives, and then as you mentioned, regional 
standards, like the approval of attorney contracts, that is 
good evidence. If that was enunciated in a policy, I think you 
could go to a chart of all these Tribes, that if they can meet 
this threshold of these standards, at least we would know there 
is real potential that at least should be looked at as a 
priority matter.
    The Chairman. Thank you very much.
    Chief Adkins and Chairman Brooks, in your testimonies, you 
both summarized the many hardships faced throughout the history 
of your people and State, that the time for Congress to act is 
now. Please describe the impact of delaying action on your 
recognition legislation.
    Mr. Adkins. Mr. Chairman, I would like to say that access 
to education, that is of primary importance to us. If you look 
at statistics, they will show that only 3 percent of Natives 
who enroll in college graduate from college. Only 50 percent of 
Native students complete high school. Education is of paramount 
importance. And with Federal acknowledgment, we would have 
access to at least a grant process from which we are excluded 
today to gain funding for education.
    Number two, the bones of my ancestors, a lot of those 
folks, a lot of those remains are in the Smithsonian. I am 
precluded from bringing my ancestors home for burial because as 
a non-federally recognized Tribe, I do not have access to their 
remains. I want to bring my people home.
    And number three, it was stated in 1999, when we approached 
the Bureau of Indian Affairs, we were told by the Assistant 
Secretary of the Department of the Interior that many of us 
would die before we gained recognition through the 
administrative process. I want to do this for the chiefs who 
have passed away since then. I want to do that for the elders 
who clung tenaciously to the hope that the Congress of the 
United States of America, or that its arm, the Department of 
the Interior, would do the right thing by its people, by those 
people who fought, who died and bled initially to protect their 
own homeland, but then who helped the invaders establish a 
foothold in this place we call the United States, who now have 
the authority and the power to dictate our futures.
    So I would like for the legacy of my forebears to include, 
to be reflected in the action this Congress might take to 
accord Federal acknowledgment to these Tribes who have worked 
so desperately hard, who have been true patriots to this 
Country. I want that legacy to arise and endure.
    The Chairman. Thank you very much, Chief Adkins.
    Chairman Brooks?
    Mr. Brooks. Mr. Chairman, when we consider, or when I 
consider the cost of just cancer itself, and I just went 
through that with my wife, and you are looking at $150,000-
plus, and then when I look at the cost of diabetes, and I look 
at the cost of heart attacks, and I look at the cost of 
strokes, our graveyards are filling up. Because we don't have 
the proper care that needs to be out there for our elders. And 
I am seeing that every day. It is not just something that I 
realize is going to happen. It is happening now.
    And the only way that I know we are going to be able to get 
out of this kind of thing is for Congress to say, look, let's 
go ahead and do the right thing. Let's go ahead and do the 
thing that will help us solve some of these problems that we 
have. Especially in the educational aspect of it. When you look 
at the cost of education today, just in my Tribe, there are 
thousands of kids today not able to go to college because of 
the cost of it.
    So I implore, I implore you today, let's act quickly if we 
can. Thank you very much.
    The Chairman. Thank you, Chairman.
    Mr. Norwood, Mr. Gottschalk, and Mr. Anderson, the idea of 
an independent commission on Tribal recognition has been around 
for several years. In your opinion, is this a viable solution 
to the problems with the current administrative process? Mr. 
Norwood?
    Mr. Norwood. I believe that it is, sir. I think that it 
would have to incorporate regional considerations, that there 
are different histories in different areas of the Country, 
different concerns. I think that the people that sit on the 
committee should be referred to or Congress should be guided to 
them by the Tribes who are going to be impacted by those 
decisions, and that they are familiar with the regional 
histories.
    But I think that that is an alternative and a way that 
Congress can take action and establish justice for these 
Tribes.
    The Chairman. Thank you.
    Mr. Gottschalk?
    Mr. Gottschalk. Mr. Chairman, with your indulgence, I was 
remiss in my previous answer about the move from flexibility to 
rigidity in the process to not point out, of course, that the 
perfect example is Little Shell itself, which received a 
favorable preliminary determination because of the Assistant 
Secretary's flexible application of the criteria. And then the 
subsequent rigid application that resulted in a negative final 
determination. I just wanted to make that point.
    As to your present question, it is a fact that in the IBIA 
appeals process, we have asked for the appointment of outside 
independent experts. It seems to me that each Tribe, when they 
go through this recognition process, you hire someone that 
spends years studying the particular situation of a given 
Tribe. I think it is extraordinarily difficult to expect that a 
small group of people appear, can just jump in and become that 
familiar with a given Tribe. The way that could happen, if you 
could seek out independent experts that had expertise, as Mr. 
Norwood said, in the Tribes of a given area.
    So I think that is something that certainly should be 
considered.
    The Chairman. Thank you. Mr. Anderson?
    Mr. Anderson. Yes, Mr. Chairman, I think a commission is a 
good idea whose time will probably never come. The reluctance 
of Congress to form new commissions, the lead time to hire 
staff probably renders it a real good idea that won't be 
implemented. But that doesn't mean that the Department, within 
its own system, can't do something similar to that in terms of 
independence or outside panels. And frankly, just a more fair, 
and as Mr. Gottschalk said, flexible application of the 
standards themselves today I think would expedite these 
processes.
    The Chairman. Mr. Anderson, under the Clinton 
Administration, several Tribes received recognition both 
legislatively and Congressionally. Can you please discuss the 
approach taken by the Assistant Secretary regarding Tribal 
recognition during that time?
    Mr. Anderson. Yes, I would be pleased to. Of course, at 
that time Assistant Secretary Kevin Gover was the Assistant 
Secretary, and prior to that, Ada Deer. I think with, 
particularly with Secretary Deer, initially we had the issue of 
the Alaska Native recognition. There was some thought that 
these Tribes, the 224 Tribes should all go through the 
recognition process through OFA.
    Well, one can imagine how many decades and years that would 
take. Or should there be an innovative approach in seeing, as a 
group, could they be recognized based on Congressional statutes 
that are mentioned in the Alaska Native Settlement Claims Act. 
And that is what happened. So they didn't go through the BAR 
process at all, they were recognized in the Assistant 
Secretary's power.
    So that was an innovation. I think it kind of opened 
people's eyes to thinking that, gee, we don't always have to go 
through the OFA, but let's look at other ways. Then when Mr. 
Gover was the Assistant Secretary, he thought, could we do 
things outside BAR in terms of where a Tribe is currently 
recognized, but through a mistake of the United States 
Government we have overlooked that recognition. And he found an 
innovative approach to recognize some Tribes in that manner.
    So I think it is trying to get outside the box that 
particularly those in OFA have wanted to put Tribes in, that 
there is an exclusive, only one way to be recognized, that is 
through their office. It is broadening that to Congressional, 
judicial, and other means, like the error correction. I think 
that was the difference in thinking.
    Until recently, that didn't occur during the Bush 
Administration. At the very end of Mr. Echo Hawk's tenure, with 
Tejon, he finally used that authority which is available. The 
Bureau in the past used to take the position in litigation that 
if one Tribe uses that, then all of them will want to. Well, of 
course, and maybe they should where they are qualified to use 
that error. But I think it was just an innovative approach that 
we hopefully maybe, with some of the testimony you have heard 
today from the Administration, that they would try to now 
follow.
    The Chairman. Thank you very much. I want to tell you that 
your responses, your statements, too, have been very valuable 
to the Committee. What we try to do, of course, is understand 
what happened and to hear leaders like you and experts as well 
tell us some of your experiences. It will certainly help us in 
what we try to do, and we need to do this working together and 
do it as quickly as we can.
    We cannot accept the fact that oh, it takes long, so we 
just have to be patient. Well, we want to see what we can do in 
reforming that and try to help the indigenous people as quickly 
as we can here.
    As a nation, we must always remember our history and the 
circumstances from which our great democracy was born. 
Fulfilling the Federal trust responsibility to America's first 
peoples or indigenous Nations isn't simply a matter of 
goodwill. It was in the beginning and it has been in our 
Constitution, it is a matter of justice, of promises kept and 
of remembering the debt owed to those whose sacrifices have 
helped to make this great Nation possible. All of you have 
mentioned that.
    So it is important that as we contemplate policies that 
fulfill that responsibility, we strive to achieve what we call 
parity among Native Nations. The United States must ensure that 
we are meeting our trust responsibility to each Native Nation 
in all three areas, addressing barriers to self-sufficiency, 
protecting the collective rights of Native Nations and engaging 
in a government-to-government relationship. Congress sets the 
standard and direction of Indian policies, maintains oversight 
in the implementation, and must exercise its authority to 
correct situations. That is what we are attempting to do when 
implementation does not achieve the goals of this great Nation.
    And without question, it will take a concerted effort of 
Tribal leaders, the Administration, and the Congress to fix the 
recognition process. And that is the whole attempt here.
    So I look forward to continuing to work with all of you on 
this endeavor. I also want to, I notice that we have had good 
attendance today, including some very young people who are 
seated here in the front row. I want to thank the young people 
in the front row for staying here and listening to what has 
gone on. I hope you will be receiving the benefits of our 
discussion today as we move along here.
    So again, thank you so much for your wisdom and your 
knowledge and we need to reach out to get all of this and try 
to do it as right as we can for our indigenous people.
    So again, mahalo, thank you, and thank you so much for 
being here and helping us with your valuable statements and 
responses.
    Mr. Adkins. Mr. Chair, I would like to offer one little 
story. It won't take but a second. One of the local 
universities close to our ancestral land had exhumed, through 
archeological digs, many of the Indian remains of the 
Chickahominy people. We have met with the university and we are 
making provisions to bring those remains home.
    But two crania were sent to a forensic sculptor, who 
created likenesses from those. She is a noted forensic 
sculptor. And I got to meet, face to face, the images of my 
forebears who had lived in the middle of the 14th century. And 
there are stories like that across Indian Country that ought to 
just resonate with this administrative process. We are who we 
say we are. And our community linkages, a lot of us went 
underground to survive. By design, we didn't want to be noticed 
by the ruling folks, because we knew what would happen. We 
would lose a lot of property that we had. So we went 
underground.
    In retrospect, that probably hurt us. But in going 
underground, we strengthened our individual ties Tribe to 
Tribe. So that did cause us to get even stronger.
    So there are factors that I think I wanted you to be aware 
of and that the administrative process ought to be able to look 
at to render an informed decision regarding those Tribes who 
are in that process. So thank you for letting me make that 
statement.
    The Chairman. Thank you so much. Therefore, I am going to 
extend that opportunity to each one of you here at the table. 
If you have any further comments to make before we adjourn. 
Chairman Brooks?
    Mr. Brooks. I just want to thank you, and I appreciate the 
fact that your heart is where it is, that we can be together in 
one unity as we sit around this table. From what I have heard 
today, we are one people. Thank you.
    The Chairman. Mr. Norwood?
    Mr. Norwood. I just want to thank you, sir, for allowing us 
to give testimony and also want to pledge my efforts to the 
task of making the correction and pray for our collective 
people, that one day both of us will perhaps be dancing 
together and celebrating Federal acknowledgment.
    The Chairman. Thank you very much. Mr. Gottschalk?
    Mr. Gottschalk. Thank you, Chairman Akaka. I would just 
like to say that the Little Shell Tribe is a Tribe that has 
given the administrative process more than a fair chance, and 
it did not work, and it is not because of Little Shell Tribe. I 
would urge the Committee to report out S. 546 favorably so it 
can be moved on the Floor. Thank you.
    The Chairman. Thank you.
    Mr. Anderson?
    Mr. Anderson. Mr. Chairman, as a Native Hawaiian, I 
appreciate your understanding of the American Indian issues and 
know that across the Country, American Indians support the 
Native Hawaiians as well. It has been a great partnership.
    The Chairman. Thank you very much.
    Again, mahalo, thank you to all. This hearing is adjourned.
    [Whereupon, at 4:37 p.m., the Committee was adjourned.]





                            A P P E N D I X

                Prepared Statement of the Knugank Tribe


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




                                 ______
                                 
 Prepared Statement of Hon. Framon Weaver, Chief, MOWA Band of Choctaw 
                                Indians
    Thank you Mr. Chairman:
    It is clear that our tribe the MOWA Band of Choctaw Indians are the 
literal poster child for the structural failures evident in the federal 
recognition process. As the only tribe in the nation to have exhausted 
all three remedies made available for the granting of federal status 
(OFA, federal lawsuit, Congressional Bills), we are well aware of the 
inherent bias, political corruption, and highly financed campaigns 
waged against legitimate, historic ``non-federal'' tribes. We are the 
second longest petitioning tribe in the nation. Only the Lumbee in 
North Carolina have petitioned longer. Our initial attempts at federal 
recognition began in the early 1900s with our mass community attempt to 
be admitted to the Miller Roll. With numerous appeals through BAR/OFA, 
twelve Congressional bills, and a federal lawsuit thrown out on a 
statute of limitations argument, we clearly understand that the current 
process is only open to those who ally themselves with gaming backers 
who can invest tens of millions of dollars in their petitions. We have 
chosen throughout our long, arduous journey in the process not to ally 
ourselves with numerous gaming suitors. Some may call this ignorant to 
the realities of the process. We choose to call it what it is; 
integrity. The need to align with gaming backers compromises every 
aspect of the process and makes it completely illegitimate.
    The only avenue for defining the federal to federal relationship is 
via the United States Congress. OFA has no place in this process and 
the integrity of the leadership in this organization is not something 
that can be fixed. Lawsuits have no place in this process. Like the OFA 
process, they are economically prohibitive for most petitioning tribes. 
Congress must make determinations based on facts and facts only. No 
political influence. No backdoor letters from federal tribes attempting 
to defend gaming zones from perceived competition. Congress must act.
    There exist numerous keys that define legitimate tribal 
communities, but due to extreme time constraints for presenters, we 
will discuss only a small number here.
    1. Tribes who have attended Indian boarding schools and can clearly 
document this attendance should be placed on the federal register in 
immediacy. Attendance at Indian boarding schools is a clear indicator 
of continuous acknowledgement from governmental, political, and social 
sources. Boarding schools such as Haskell, Bacone, Carlisle, Hampton, 
Cherokee, Choctaw Central, Chilocco, and others, educated members of 
historic, ``non-federal'' tribes for many generations. These schools 
were exclusive to Indians and there exists historic ``non-federal'' 
tribes who have had numerous members of their tribes attending such 
institutions at times when most required blood quantum of \1/4\ or more 
Indian ancestry for attendance as a basic requirement. For copies of 
yearbook photos, campus newspaper articles, grade reports, contemporary 
interviews, etc. of these attendees and their tribes, please go to 
www.helphaskell.com
    2. Tribes who live on long standing, historic colonial and/or state 
recognized Indian reservations should be placed on the federal register 
in immediacy. As Ojibwa academic and scholar David Treuer remarks in 
his book Rez Life, published in 2012 by Atlantic Monthly Press, ``Some 
Indians don't have reservations, but all reservations have Indians . . 
.'' The idea that Indians who have lived on their Indian reservations 
for generations, are suddenly to be considered as ``non-Indians'' is 
fundamentally absurd. The maintenance of tribal lands from the historic 
period to contemporary times is a simple, clear, and irrefutable 
identifier of Indian existence. The majority of the oldest Indian 
reservations in the United States are inhabited by historic ``non-
federal'' tribes.
    3. Language is irrefutable proof of tribal existence. If a tribal 
community has maintained their tribal language into the contemporary 
period and can document such, there is simply no need to go through any 
other form of recognition criteria. There does not exist a singular 
community of ``non-Indians'' in this country who speak an Indian 
language. This is a social impossibility. This requires no further 
explanation.
    4. Unique regional history is highly important in determinations. 
There is no way to objectively determine the granting of federal 
recognition via one set of proposed regulations. The current seven 
criteria being used by OFA have never been used in any consistent form 
to this stage anyway, and so they are simply proof positive of the 
disaster of complete inconsistency and attempting to fit circular 
objects into square pegs.
    5. Racial bias towards tribal communities in the East and South in 
particular must be abolished completely. Two examples are cited here:
    In 1978 Terry Anderson and Kirke Kickingbird were hired by NCAI to 
research this issue of federal recognition and present a paper on their 
findings to the National Conference on Federal Recognition which was 
being held in Nashville, Tennessee. Their paper, ``An Historical 
Perspective on the Issue of Federal Recognition and Non-recognition'' 
closed with the following statement,
    ``The reasons that are usually presented to withhold recognition 
from tribes are (1) that they are racially tainted with the blood of 
African tribes-men or (2) greed, for newly recognized tribes will share 
in the appropriations for services given to the Bureau of Indian 
Affairs. The names of justice, mercy, sanity, common sense, fiscal 
responsibility, and rationality can be presented just as easily on the 
side of those advocating recognition.''
    Thirty-four years later there has been no change in these two 
factors being used as reasons to deny/work against federal recognition 
of petitioning tribes.
    Professor Don Rankin from Samford University in Birmingham, Alabama 
has recounted by letter a disturbing incident occurring during a June 
1995 Genealogy Seminar conducted by Sharon Scholars Brown at Samford 
University. His letter states,
    ``Someone brought up the MOWA Choctaw and their attempt at federal 
recognition. At this stage, several people had gathered around as we 
were talking. Ms. Brown responded in an even professional tone of voice 
that she felt that they would not be successful. When asked why, she 
responded that they had black ancestors and in her opinion were not 
Indian. Mr. Lee Flemming, who was at the time the Tribal Registrar for 
the Western Band of Cherokees and one of the lecturers, agreed with 
her. I was shocked at their statements.''
    6. Genealogical ``evidence'' being used as the primary factor for 
recognition process review is absolute nonsense and must be dismissed 
as a primary factor in federal recognition decisions. Tribal 
communities are based on social realities including generational 
intermarriage, land tenure or relationships to land, identification as 
unique functioning communities, cultural communality, separate 
schooling, and other related factors. Census records, especially in 
Eastern and Southern states, are consistently inefficient as 
determiners of racial identity due to inherent bias from registrars in 
the past who viewed identity in a black and white racial binary. Indian 
identification on governmental records was expressly prohibited in many 
states.
    7. Tribes who began petitioning prior to the gaming era should not 
have any gaming tribes being able to comment on their petition in any 
form. They should be barred from any testimonials or comment periods. 
USET (United South and Eastern Tribes), which has opposed tribes 
petitioning Congress as opposed to going through the OFA process, is 
composed of a majority of tribes who they themselves were recognized by 
the U.S. Congress. These petitioning tribes should never be viewed 
through the lense of ``wanting to gain federal recognition for the 
purposes of gaming'' as their petitions predate the advent of gaming.
    8. The Congress needs to appoint an independent board of 
approximately ten to twenty individuals with an evenly distributed mix 
of predominantly federal and historic ``non-federal'' tribal members 
with expertise in various academic and research areas. These 
individuals must have shown clear records of unbiased research 
methodology, a strong knowledge of issues concerning Indian identity, 
history, and both social and political realities. Each member must 
independently review the petitions and make recommendations which 
result in a final group decision reached via consensus. Timeframes are 
not to exceed two years.
    9. After a brief overview of petitioning tribes, the ones who meet 
one or more the following criteria should be moved to the ``front of 
the line'' for consideration. All tribes who were formerly denied 
recognition, but can show an association with any of these nine 
criteria should be re-evaluated.
    There exist nine initial keys to federal recognition review that 
would expedite the process in an efficient and fair manner as per 
government regulations and burden of proof regarding separate status as 
Indian people. While we do not personally feel that these are the sole 
defining aspects of tribal identity, they are strong indicators which 
the Bureau of Indian Affairs and U.S. Congress cannot refute or 
downplay. The listing of them is not meant to create any division or 
place tribes above or below one another. It is meant to show the 
cohesive similarities between historic tribal communities, while giving 
reviewers peace of mind that they can proceed with more in-depth 
reviews of highly likely tribal communities. Unfortunately, it has 
become clear that our historic ``non-federal'' tribal communities must 
show our commonalities in opposition to newly created groups claiming 
Indian status and predominantly racially white descendant federally 
recognized tribes who have become along with regional gaming tribes, 
the primary groups lobbying against petitioning tribes.
    NINE KEYS:

         1.Indian boarding school attendance (automatic recognition)
         2.Reservations/mission lands (automatic recognition)
         3.Language retention (automatic recognition)
         4.BIA/OIA funded school in community during any era (automatic 
        recognition)
         5.Pre-1970 state recognition
         6.Prohibition from area white and black schools
         7.Substantial intermarriage with federal tribes and other 
        historic ``non-federal'' tribes
         8.Long standing petitions for recognition which occurred at 
        the beginning of the new process in 1978 and prior to this time 
        period.
         9.Have received ten or more letters of support for federal 
        recognition from other federal tribes and national Indian 
        organizations such as NCAI. A maximum of three letters towards 
        the minimum ten letter total may have been received from 
        professionals in the fields of anthropology, linguistics, 
        ethnology, or genealogy.

    The MOWA Band of Choctaw Indians meet criteria 1,2,3,4,6,7,8, and 9 
(though we also feel that we meet criteria #5 as well, but received 
renewed state recognition in 1979) of the ``nine keys'', yet we have 
been denied federal recognition to this day. Former Assistant Secretary 
of Indian Affairs Kevin Gover (Pawnee Nation of Oklahoma), who denied 
our petition at the recommendation of Lee Fleming, clearly illustrates 
in his 2004 testimony that we and others were wronged in the process 
and should be reconsidered. ``Testimony of Kevin Gover before the 
Committee on Indian Affairs, United States Senate, concerning S. 297, 
April 21, 2004,'' http://www.senate.gov/scia/2004hrgs/042104hrg/
gover.pdf.
    Each time MOWA Choctaw came up for consideration the rules were 
changed by BAR/OFA. The genealogical expedited review was created as 
OFA knew our tribe would easily pass the other 6 criteria and so OFA 
would not be embarrassed, they said that genealogy ``failure'' (i.e. 
your people were listed as mulatto, etc. on records; while OFA 
conveniently dodged numerous federal documents such as military records 
which listed us as Indian) would make it so the other 6 criteria didn't 
need to be considered. Language tapes and Indian boarding school 
records were said to have been ``received out of time'' and not able to 
be considered in the final determination. Our federal lawsuit was said 
to have been filed beyond the statute of limitations by a conservative, 
white, Republican judge who was quickly ushered into position to hear 
the case, replacing a Democratic, minority judge.
    An overview of previous case law shows that our tribe is the only 
``non-federal'' tribe to be viewed as a federal tribe for the purposes 
of ICWA. Overview of Indian Child Welfare Act 68 FR 68180 (shows MOWA 
Choctaw are considered as a federal tribe).
    Our twelve Congressional Bills, including 1994's Auburn Restoration 
Act, which passed both the House and Senate before we were stricken 
from the Bill, have been another level of continued futility in our 
quest for federal recognition.
    The number of support letters our tribe has received over the years 
from the likes of the National Congress of American Indians, noted 
Indian academic scholars such as Vine Deloria, Jr., federal tribes, 
anthropologists, etc. fills many binders.
    Our tribe has a complete research library dedicated specifically to 
the federal recognition process and issues related to lobbyists, 
gaming, identity policing, historical revisionism, etc. which have 
severely impacted our historic ``non-federal'' tribes. This library is 
available to all areas of government, as well as tribal leadership and 
academic inquiry in order to provide access to the history of the 
process. We have reviews of numerous federal petitions, as well as 
large numbers of books and articles published on these specific areas. 
There is also large sections of government correspondence and compact 
histories of historic ``non-federal'' tribes.
    We are just one case example in an every growing narrative of 
legitimate tribal communities denied. We have no intention of resting 
until justice is served.
    Chiyakokeli (I thank you),
                                 ______
                                 
            Prepared Statement of the Qutekcak Native Tribe
    The Qutekcak Native Tribe (QNT) appreciates this opportunity to 
submit written testimony to be included in the record for the Senate 
Committee on Indian Affairs' July 12, 2012 Oversight Hearing on Federal 
Recognition. QNT is a community of Alaska Natives in Seward, Alaska 
that has been active since 1886 and has had a formalized tribal 
government since 1972.
    Like other tribes in Alaska, we serve our 298 members by providing 
health care and other community services, promoting economic self-
sufficiency, and carrying out federal programs under the Indian Self-
Determination Act. We also sponsor a renowned dance and drum program 
through which our Elders pass on our cultural values and practices to 
our youth. We have also established the Alaska Native Archive jointly 
with the Seward Municipal Library. Unfortunately, however, we carry out 
the responsibilities of a tribe without enjoying any of the benefits of 
federal recognition.
    Tribes in Alaska have been recognized in a number of ways: pursuant 
to the statutory criteria set forth in the Alaska Amendment to the 
Indian Reorganization Act (the Alaska IRA), by being named in the 
Alaska Native Claims Settlement Act (ANCSA), through specific 
recognition by Congress, and through administrative confirmation by the 
Assistant Secretary for Indian Affairs. Not one of the 229 federal 
recognized tribes in Alaska has been recognized pursuant to the Part 83 
regulatory process.
    The members of Qutekcak share a common association and location 
that has lasted over a hundred years. Despite our eligibility for 
recognition and our efforts over several decades, as a result of 
historical circumstances and administrative errors and delays, QNT has 
not been afforded the federal recognized tribal status we deserve.
    In 1971, the Alaska Native Claims Settlement Act (ANCSA) 
established Native Alaskan corporations for the purpose of 
administering land claims settlement funds. Many of those ANCSA-created 
entities have since been granted the benefits of recognized tribal 
status. One provision of the ANCSA enabled groups of Native people in 
primarily non-Native cities and towns to form urban corporations. 
Although Seward Natives expected to benefit from that provision, when 
ANCSA was finalized only four such urban corporations were created: 
Juneau, Kodiak, Sitka, and Kenai. Similarly-situated communities, 
including our Native community in Seward, were unfairly left out. QNT 
was also left off of the list of Federally Recognized Tribal Entities 
in Alaska when it was published in 1993, with no explanation.
    Since 1993, QNT has expended significant time, energy, and 
resources seeking to have the federal government correct its error of 
not including QNT within ANCSA or on the 1993 and subsequent BIA lists 
of recognized tribes. In 1993, we submitted a petition to the Bureau of 
Indian Affairs (BIA) to adopt a tribal constitution under the Alaska 
IRA. The Alaska IRA provides statutory authority for the Department of 
the Interior (the Department) to organize Alaska Native tribes that 
have not otherwise been extended federal recognition. Under Section 1 
of the Alaska IRA, Congress provided:

         That groups of Indians in Alaska not recognized prior to May 
        1, 1936, as bands or tribes, but having a common bond of 
        occupation, or association, or residence within a well-defined 
        neighborhood, community, or rural district, may organize to 
        adopt constitutions and bylaws and to receive charters of 
        incorporation and Federal loans under sections 470, 476, and 
        477 of this title.

        25 U.S.C.A.  473a, May 1, 1936, c. 254,  1, 49 Stat. 1250.

    After submission of three formal requests to organize under the 
Alaska IRA and years of meetings, letters and legal briefings to 
address questions from the Department as to the scope of agency 
authority under the Alaska IRA , QNT was encouraged in January, 2012, 
when then Assistant Secretary for Indian Affairs Larry Echo Hawk 
responded to inquiries from Senator Lisa Murkowski with a letter 
reaffirming that ``a group that can establish its existence in 1936 
with 'a common bond of occupation, or association, or residence within 
a well-defined neighborhood, community, or rural district' could seek 
to be organized under the Alaska Amendment to the IRA.'' Assistant 
Secretary Echo Hawk's letter stated that the Part 83 process was 
available to Alaska Native tribes as an alternative means to obtain 
federal recognition, if the Alaska IRA criteria do not apply to the 
group. (We attach a copy of the Assistant Secretary's January 31, 2012, 
letter for the hearing record). *
---------------------------------------------------------------------------
    * A copy of the letter is printed on pg. 49 of this hearing.
---------------------------------------------------------------------------
    Mr. Echo Hawk's letter affirmed the Department's long-espoused the 
view that meeting the eligibility criteria to organize under the Alaska 
IRA would provide a basis for recognition, and that Alaska tribes need 
not petition for consideration under the 25 CFR Part 83 process unless 
the group does not meet the Alaska IRA criteria. When the Federal 
Acknowledgment Procedures issued in 1978, the Department expressly 
stated that those regulations would not apply to Alaska IRA-eligible 
groups: ``The [Part 83] regulations . . . are not intended to apply to 
groups, villages, or associations which are eligible to organize under 
the Alaska Amendment of the Indian Reorganization Act (25 U.S.C. 473a) 
or which did not exist prior to 1936.'' 43 Fed. Reg. 39361 (1978). In 
the 1988 Federal Register Notice announcing the Native Communities 
within Alaska that were recognized and eligible to receive services 
from the BIA, the Department stated that:

         ``applying the criteria presently contained in Part 83 to 
        Alaska may be unduly burdensome for the many small Alaska 
        organizations. Alaska, with small pockets of Natives living in 
        isolated locations scattered throughout the state, may not have 
        extensive documentation on its history during the 1800's and 
        early 1900s much less earlier periods commonly researched for 
        groups in the lower-48 . . . insistence on [producing such 
        documentation] for those Alaska groups might penalize them 
        simply for being located in an area that was, until recently, 
        extremely isolated.''

        53 Fed. Reg. at 52833 (1988).

    Mr. Echo Hawk's letter provides fresh confirmation of the 
established Department interpretation that Section 1 of the Alaska IRA 
has not been repealed and remains valid law. In 1993, the Solicitor of 
the Department of the Interior explained that while Section 19 of the 
ANCSA revoked Section 2 of the Alaska IRA authorizing the creation of 
reservations in Alaska, ``ANCSA did not revoke the village IRA 
constitutions . . . [n]or did it repeal the authority in Section 1 of 
the Alaska amendment of the IRA for the Natives to reorganize and adopt 
constitutions.'' Governmental Jurisdiction of Alaska Villages Over Land 
and Nonmembers, Op. Sol., M-36975 at 39 (Jan. 11, 1993).
    The Federally Recognized Tribes List Act (``List Act''), enacted in 
1994, also did not affect the Alaska IRA. The List Act requires the 
Secretary to annually publish a ``list of all Indian tribes eligible 
for the special programs and services provided by the United States to 
Indians because of their status as Indians.'' It does not specifically 
mention the Alaska IRA, nor is the Alaska IRA mentioned in the List 
Act's legislative history. Overall, the legislative history evidences 
no intent for the List Act to limit the Secretary's authority to 
recognize tribes. In fact, the List Act's legislative history states 
that the Act is not intended to change the status of Alaska Native 
tribes, but requires that the ``Secretary continue the current policy 
of including Alaska Native entities on the list of Federally recognized 
Indian tribes which are eligible to receive services.'' See H.R. Rep. 
No. 103-781 (1994).
    In light of the statutory authority and recognition criteria set 
forth in the Alaska IRA and the Department's stated policy, QNT hopes 
its documented tribal history and request to organize under an IRA 
constitution will finally correct the government's past errors of 
omission in not listing QNT as a federally recognized tribe. When we 
first submitted an Alaska IRA petition in 1993, the BIA's technical 
assistance letters raised no concerns about QNT's eligibility under the 
statute. BIA correspondence, however, was sent to the wrong address and 
we did not receive file copies for several years. In light of a three 
year time lapse, the BIA advised that we should submit a new request. 
Unfortunately, when we resubmitted our petition, the BIA sent our 
documents to the Branch of Acknowledgment and Research even though our 
petition was submitted under the Alaska IRA and not 25 C.F.R. Part 83. 
We wrote to BIA objecting to its mishandling of our IRA petition by 
placing it with the BAR/OFA, but our small Tribe had limited resources 
to mount a renewed effort to pursue recognition. It was not until 2008 
that we had sufficient resources to submit a third petition. At that 
time, we resubmitted a fully revised Alaska IRA petition, complete with 
an ethnohistorical report.
    While Mr. Echo Hawk's January 2012 letter offers some encouragement 
that the Department will act upon QNT's request to organize under the 
IRA, we are concerned that the departure of the Assistant Secretary may 
stall our progress and add to the already extensive delays we have 
endured. The continuing delay adversely impacts our ability as a tribe 
to provide for the needs of our members, and maintaining the ongoing 
process is a constant and heavy strain on our limited resources.
    Federal recognition would enable our Tribe to expand our services 
to our members and would enable us to utilize the other federal 
programs open only to federally recognized tribes. We have support for 
our recognition effort from the City of Seward; tribes and Native 
organizations in the Chugach region, including Chugach Alaska 
Corporation; Chugachmiut, and the Alaska Federation of Natives. 
Congress provided the Department with statutory authority to act on our 
petition to organize as a tribe, but the Agency has not done so.
    In his January letter, Assistant Secretary Echo Hawk observed that 
Congress passed the Alaska IRA in order to account for ``Alaska's 
unique circumstances.'' The Part 83 process does not account for these 
unique circumstances, as the Department has acknowledged in the past. 
Accordingly, the Department should exercise its clearly delegated 
authority under the Alaska IRA for the organization of groups of Alaska 
Natives not previously recognized, but ``having a common bond of 
occupation, or association, or residence within a well-defined 
neighborhood, community, or rural district. The Qutekcak Native Tribe 
is simply seeking to be treated the same as other similarly situated 
tribes in Alaska. Thirty years is too long to wait.
    We appreciate the opportunity to share our testimony with the 
Committee. We ask the Committee acting in its oversight capacity and 
through its Chairman to encourage the Department to review and act upon 
QNT's request to organize under the Alaska IRA consistent with 
statutory authority and Department precedent.

                                  
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