[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
__________
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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
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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.
---------------------------------------------------------------------------
\1\ FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1994, PL 103-454,
November 2, 1994, 108 Stat 4791.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\8\ 25 U.S.C.A. 476
\9\ 25 U.S.C.A. 479
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\10\ First published at 44 Fed. Reg. 7,235 (Feb. 6, 1979).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\11\ 58 FR 54364-01 (Oct. 21, 1993).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\12\ Muwekma Ohlone Tribe v. Salazar, No. 03-1231, at 5 n.3 (D.D.C.
Sept. 28, 2011).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\26\ See Cowlitz ROD.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\27\ Juaneno Final Determination at 21.
\28\ U.S. Dept. of the Interior, Sol. Op. No. M-35029 (Mar. 17,
1948).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
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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.