[Senate Hearing 113-219]
[From the U.S. Government Publishing Office]






                                                        S. Hrg. 113-219

  S. 1074, THE THOMASINA E. JORDAN INDIAN TRIBES OF VIRGINIA FEDERAL 
             RECOGNITION ACT OF 2013; S. 1132, THE LUMBEE 
RECOGNITION ACT; AND S. 161, THE LITTLE SHELL TRIBE OF CHIPPEWA INDIANS 

                        RESTORATION ACT OF 2013

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 30, 2013

                               __________

         Printed for the use of the Committee on Indian Affairs




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                      COMMITTEE ON INDIAN AFFAIRS

                 MARIA CANTWELL, Washington, Chairwoman
                 JOHN BARRASSO, Wyoming, Vice Chairman
TIM JOHNSON, South Dakota            JOHN McCAIN, Arizona
JON TESTER, Montana                  LISA MURKOWSKI, Alaska
TOM UDALL, New Mexico                JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota                MIKE CRAPO, Idaho
MARK BEGICH, Alaska                  DEB FISCHER, Nebraska
BRIAN SCHATZ, Hawaii
HEIDI HEITKAMP, North Dakota
        Mary J. Pavel, Majority Staff Director and Chief Counsel
     David A. Mullon Jr., Minority Staff Director and Chief Counsel
















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on October 30, 2013.................................     1
Statement of Senator Barrasso....................................    16
Statement of Senator Burr........................................    17
Statement of Senator Cantwell....................................     1
    Prepared statement...........................................     1
Statement of Senator Hagan.......................................     7
    Prepared statement...........................................     8
Statement of Senator Kaine.......................................     3
    Prepared statement...........................................     5
Statement of Senator Tester......................................    10

                               Witnesses

Adkins, Hon. Stephen R., Chief, Chickahominy Indian Tribe........    22
    Prepared statement...........................................    24
Brooks, Hon. Paul, Chairman, Lumbee Tribe........................    26
    Prepared statement...........................................    28
Gray, Hon. Gerald, Chairman, Little Shell Tribe of Chippewa 
  Indians........................................................    30
    Prepared statement...........................................    31
Washburn, Hon. Kevin, Assistant Secretary--Indian Affairs, U.S. 
  Department of the Interior.....................................    11
    Prepared statement...........................................    12

                                Appendix

Fox, Hon. Tim, Attorney General, State of Montana, prepared 
  statement......................................................    47
Hicks, Hon. Michell, Principal Chief, Eastern Band of Cherokee 
  Indians, prepared statement....................................    50
Hudson, Hon. Richard, U.S. Representative from North Carolina, 
  prepared statement.............................................    46
McIntyre, Hon. Mike, U.S. Representative from North Carolina, 
  prepared statement.............................................    45
Response to written questions submitted to Hon. Kevin Washburn 
  by:
    Hon. Lisa Murkowski..........................................    50
    Hon. Jon Tester..............................................    51
Warner, Hon. Mark R., U.S. Senator from Virginia, prepared 
  statement......................................................    48

 
  S. 1074, THE THOMASINA E. JORDAN INDIAN TRIBES OF VIRGINIA FEDERAL 
 RECOGNITION ACT OF 2013; S. 1132, THE LUMBEE RECOGNITION ACT; AND S. 
161, THE LITTLE SHELL TRIBE OF CHIPPEWA INDIANS RESTORATION ACT OF 2013

                              ----------                              


                      WEDNESDAY, OCTOBER 30, 2013


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:45 p.m. in room 
628, Dirksen Senate Office Building, Hon. Maria Cantwell, 
Chairman of the Committee, presiding.

           OPENING STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    The Chairwoman. We will now turn to our legislative 
hearing, which today is to discuss the Federal recognition 
legislation of three different jurisdictions that are here 
today, the Lumbee Recognition Act, S. 1132, S. 161, the Little 
Shell Tribe Indian Restoration Act of 2013, and the Thomasina 
E. Jordan Indian Tribes of Virginia Federal Recognition Act of 
2013, S. 1074.
    I know that several of our colleagues wanted to join us 
today to discuss these various legislative proposals. We have 
with us our colleague from Virginia, Senator Tim Kaine. If you 
would like to start off with your discussion or comments about 
S. 1074, it is a pleasure to have you before the Committee.
    And I should just note that I think, Senator Kaine, every 
time I see him, brings up how important this legislation is. So 
thank you for being here today.
    [The prepared statement of Senator Cantwell follows:]

Prepared Statement of Hon. Maria Cantwell, U.S. Senator from Washington
    Legislative Hearing on S. 1074, the Thomasina E. Jordan Indian 
Tribes of Virginia Federal Recognition Act of 2013; S. 1132, the Lumbee 
Recognition Act, and S. 161, the Little Shell Tribe of Chippewa Indians 
Restoration Act of 2013
    This afternoon the Committee is holding a legislative hearing on 
bills that would extend legislative federal recognition to tribes in 
Virginia, North Carolina, and Montana.
    The first bill is S. 1074, the Thomasina E. Jordan Indian Tribes of 
Virginia Federal Recognition Act. This bill would extend federal 
recognition to six tribes located in Virginia. Those tribes are:

   the Chickahominy [Chick-Ah-HA-Mah-Knee) Indian Tribe,
   the Eastern Chickahominy [Chick-Ah-HA-Mah-Knee],
   the Upper Mattaponi [Mat-ah-PAH-NIGH],
   the Rappahannock [Rap-Ah-HAN-Auck],
   the Monacan [MAH-Nah-Kin], and
   the Nansemond [NAN-See-Mond].

    The second bill is S. 1131, the Lumbee Recognition Act. This bill 
would extend federal recognition to the Lumbee Tribe located in North 
Carolina.
    And the third bill we will hear about today is S. 161, the Little 
Shell Tribe of Chippewa [CHIP-Eh-Wah] Indians Restoration Act of 2013. 
This bill would provide federal recognition to the Little Shell Band of 
Montana.
    Normally, Congress prefers to defer to the expertise and process 
that exists at the Department of the Interior for decisions on federal 
recognition. However, there can be unique circumstances that preclude 
tribes from participating in that process. The three bills before us 
today represent examples of those unique circumstances.
    In the case of the Virginia tribes, two historical circumstances 
have created gaps in records for Indian people and tribes. First, 
during the Civil War period many records of identification for Indians 
and other citizens were destroyed or burned. Second, in 1924, the State 
of Virginia passed the Racial Integrity Act.
    That Act prohibited any official documents from identifying 
Virginia residents as ``Indian.'' That law remained in place until 1967 
and resulted in a four-decade gap of records for Indian people in 
Virginia.
    In North Carolina, the Lumbee tribe is the subject of prior 
legislation in 1956. Although that legislation was not a true 
reflection of tribal recognition legislation, the Department's hands 
are tied and the tribe is prohibited from going through the 
administrative recognition process. So, the only way for the Lumbee to 
receive recognition is now through Congress.
    The Little Shell recognition bill is one that is very familiar to 
this Committee. Senator Tester has been a tireless advocate for the 
Little Shell Band and has introduced recognition legislation each 
session of Congress since becoming a Senator.
    In the case of the Little Shell Band, the administrative process 
just didn't work. The Little Shell Band has been seeking administrative 
recognition since 1978, the same year the federal acknowledgment 
regulations became final.
    During that 35-year period, the tribe received an initial positive 
proposed decision on recognition, only to have that decision reversed a 
decade later to a finding of non-recognition. The Little Shell decision 
is somewhat of an anomaly in how the administrative recognition process 
is supposed to work.
    Even the Department has recognized this, and in September, they 
agreed to reconsider the Little Shell decision. Although that decision 
is pending, it is important for the Committee to examine not only the 
legislation before us, but to hear from the Band on their experience so 
we can make sure the process works for the Little Shell and all tribes.
    Before I move on to hear other Committee member statements, I would 
like to add on to Senator Barrasso's remarks on the departure of David 
Mullon from the Committee.
    David has been a critical presence on the Committee for over a 
decade. My staff and I have always appreciated the bipartisan approach 
and commitment that David brings to his work on behalf of Indian 
Country. The entire Committee will miss David's knowledge and expertise 
and we all wish him well as he leaves the Committee to continue his 
advocacy for the rights of tribes and Indians throughout the Country.
    I am now pleased to recognize Senator Kaine, the sponsor of S. 
1074, the Virginia recognition bill, and Senators Burr and Hagan, the 
sponsors of S. 1132, the Lumbee Recognition bill. Senator Kaine has 
been a long-time supporter of the recognition of the Virginia tribes.
    And Senators Burr and Hagan have lent their continuous, bi-partisan 
support to the Lumbee recognition bill. I am pleased that the Committee 
will have the opportunity to hear from all of you today.
    Again, I want to thank today's witnesses for their testimony. Your 
testimony is helpful in determining how the Committee can move forward 
on these bills. These bills are clearly very important to the affected 
tribes. Your testimony highlights the struggle that these and many 
other tribes have in trying to establish their government-to-government 
relationship with the United States.
    I appreciate the work of the Department in conducting a review of 
the federal recognition regulations and I look forward to a continued 
dialogue as the Administration proceeds with that process.

                 STATEMENT OF HON. TIM KAINE, 
                   U.S. SENATOR FROM VIRGINIA

    Senator Kaine. Thank you, Madam Chair, and members of the 
Committee. I very much appreciate the opportunity to be here to 
talk about this important recognition of Virginia tribes. I 
want to acknowledge work that has been done on this issue for 
many years by Congressman Jim Moran. There are also 
representatives from Senator Warner's office here who have 
worked hard on the bill as well.
    I will begin by apologizing in advance. I don't think I 
have ever said this before. I cannot put into words how 
strongly this means to me. So I am going to do my best, but I 
am not going to be able to describe in words how strongly I 
feel about this issue. So just take what I say and magnify it 
by 10 or 100, please.
    In 1607, the English began the English settlement of this 
continent in Jamestown. Earlier efforts by the English to 
establish settlements had failed, and in North Carolina there 
had been a Spanish effort to settle Virginia near Williamsburg 
that had failed. But the Jamestown settlement thrived and 
became the start of English-speaking civilization in this 
continent.
    Why did they thrive where earlier efforts failed? Well, you 
can't sugar-coat the story and make it all peace and harmony. 
It is clear that Jamestown succeeded where earlier efforts had 
failed because the Virginia Indian tribes saved the English 
settlers at many points along those earlier decades of their 
history.
    Some of the best known stories of the European interaction 
with Indians were stories of these Virginia tribes. Pocahontas 
saving John Smith's life at a point when, if he had been 
killed, he was the only competent one among the settlers who 
knew how to help them out. Pocahontas marrying John Rolfe and 
moving to England for a time. Pocahontas dying in England and 
her grave is still cared for by the English government in a 
church in Graves, England.
    The stories of these Virginia tribe are told in a permanent 
exhibit at the National Museum of the American Indian just a 
few blocks from here. So this is a well known story that we 
tell to our children they understand. But while America has 
recognized over 500 Indian tribes, these Virginia tribes have 
never been recognized by the United States, even though they 
have lived in distinct communities and maintained their 
identity for hundreds of years, even to this day.
    The bill seeks to rectify this injustice by recognizing 
these tribes, six tribes that were situated in Eastern Virginia 
in 1607 and before. The tribes are the Chickahominy, 
Chickahominy Eastern Division, Upper Mattaponi, Rappahannock, 
Monacan and Nansemond. Recognition for these tribes was first 
sought in 1999, and it is overwhelmingly supported by 
Virginians, by bipartisan Virginia elected officials, by all 
nine living governors. You will hear from Chief Steve Adkins of 
the Chickahominy Tribe in a later panel, and many other 
representatives are here.
    Let me address the question of why these tribes have never 
been recognized. Because this is a very, very troubling and 
really tragic story. The story of the tribes is a story of 
triumph and overcoming, but the story of the lack of 
recognition is a tragic one.
    These tribes have explored recognition via the BIA process. 
But they were told in the late 1990s that because of their 
peculiar circumstances, there would be no chance of recognition 
within the lifetimes of any of the tribal leaders who have 
worked so hard and so long to gain this appropriate 
recognition. There are two problems.
    The first problem is this. The tribes made peace with their 
neighbors too soon. They made peace with their neighbors too 
soon. The tribes entered into the treaty at Middle Plantation 
in 1677 with the English 100 years before there was a United 
States of America. Federal recognition often relies on or 
starts on or includes in a significant factor a treaty made 
between a tribe and the United States. But since the Virginia 
tribes made peace with the English, they are treated as a 
sovereign, respected people by the English government, welcomed 
with the red carpet treatment every time they go to England, 
but they have never been recognized by their home country, even 
though members of these tribes have fought proudly under the 
American flag as American troops in every war from the 
Revolutionary War through the most recent wars in Iraq and 
Afghanistan. That is the first reason they have never been 
recognized.
    And the second is if anything, even more tragic. The tribes 
have had difficulty because of the destruction of their 
records, their ancestral records. These Virginia tribes are 
largely located in six counties in Eastern Virginia. Five of 
the six county courthouses that held their birth, death and 
marriage records were destroyed during the Civil War. And more 
cruelly, their remaining records after the Civil War were 
systematically altered as part of an official Virginia State 
policy from 1924 to 1967.
    In the 1920s, under the grips of a horrific, now-eugenics 
movement, Virginia passed a statute called the Racial Integrity 
Act. The Racial Integrity Act compelled that anyone who could 
not demonstrate that they were Caucasian would be simply 
labeled ``colored'` for purposes of all other State law and 
records. There would be no distinction between an African 
American, somebody who had emigrated from another nation or a 
native Virginian. The director of the State Department of Vital 
Statistics, an individual by the name of Walter Plecker, who 
sadly stayed in his job way too long, undertook a massive 
effort over the course of three decades to reclassify Virginia 
Indians as colored, and altered or destroyed records for nearly 
40 years. And this is all documented history about the 
destruction of these records.
    This shameful history in Virginia has stood as a barrier to 
recognition of these tribes through the normal administrative 
process. Virginia, under governors prior to me, began to make 
this right with State recognition of all these tribes in the 
1980s. And Virginia governors have unified to now request the 
recognition of these tribes who number approximately 3,000 to 
5,000 people in these six tribes. And all who might potentially 
qualify for membership would be less than 10,000.
    Let me just conclude and say this. I see I have gone a bit 
over my time. There is a beautiful tradition in Virginia, the 
day before Thanksgiving every year, that dates back to the 
1670s. These tribes come to the governor's mansion in Richmond, 
and they present a tribute to the governor to recognize this 
bond between the Commonwealth and the tribes. And they bring 
gifts. Usually they come with families and we have a 
celebration and ham, biscuits and coffee and visit. Family 
members look forward to it and Virginia governors look forward 
to it. Then we go out and do a ceremony, it is called a tribute 
ceremony, in the front lawn of the Virginia governor's mansion 
in Richmond. We have done it every year since 1677, these 
tribes paying tribute to the governor of Virginia in a way to 
honor this friendship.
    It is time that we pay these tribes a tribute. Four hundred 
and six years after the first interaction between the English 
and these tribes, 336 years after these tribes pledged to live 
forever in peace with their Virginia neighbors, it is time the 
government of the United States finally recognizes them. I 
strongly urge your support for S. 1074.
    And Madam Chair, with your permission, I have a son 
graduating from the Marine Infantry program at Quantico this 
afternoon, and I am going to depart. But you are going to hear 
in a much more even powerful way from Chief Adkins on the third 
panel. I would just ask your favorable consideration of this 
legislation.
    Thank you.
    [The prepared statement of Senator Kaine follows:]

    Prepared Statement of Hon. Tim Kaine, U.S. Senator from Virginia
    Chairwoman Cantwell and Ranking Member Barrasso. Thank you for 
inviting me to be here. I will be submitting a statement for the record 
and giving brief remarks here today.
    I appreciate the Committee's willingness to have this hearing 
today. I am here to talk about my bill the ``Thomasina E. Jordan Indian 
Tribes of Virginia Federal Recognition Act of 2013'' (S. 1074). This 
bill would grant federal recognition to six Indian Tribes from the 
Commonwealth of Virginia.
    First, I would like to thank my good friend, Chief Stephen Adkins 
of the Chickahominy Indian Tribe, Assistant Chief Wayne Adkins and Bill 
Leighty for being here today and representing the six Virginia Indian 
Tribes' tireless efforts in seeking federal recognition. For the six 
tribes in my state, the rigid nature of the administrative recognition 
process has been a source of delay and frustration and has left a 
lingering sense of unfairness.
    I want to recognize other Virginians in attendance today: Monacan 
Chief Sharon Bryant; Upper Mattaponi Chief Kenneth Adams; Chickahominy 
First Assistant Chief Wayne Adkins; Chickahominy--Eastern Division 
Assistant Chief Gerald Stewart; Monacan Assistant Chief Dean Branham; 
Chickahominy Tribal Council Member Martha Adkins; Chickahominy--Eastern 
Division Tribal Council Member Norman Hogge; Upper Mattaponi Tribal 
Council Member Eunice Adams; Chickahominy Tribal Member Steve Adkins, 
Jr.; Chickahominy Tribal Member Elwyn Smith; Virginia Council of 
Churches Executive Director Reverend Jonathan Barton; Samaria Baptist 
Church Pastor Jay Hurley.
    I would be remiss if I didn't recognize Congressman Jim Moran, 
whose dedication and commitment to this legislation and the six 
Virginia Tribes has been unrelenting.
    This is not a new issue for this Committee. Support for these six 
Virginia tribes has been voiced many times 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.
    These six Indian tribes 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. Importantly, seven former Virginia governors 
(including myself) and Virginia's current governor have expressed 
support for this legislation.
    This legislation is critically important, because it is a major 
step toward reconciling an historic wrong for Virginia and the Nation. 
While the Virginia Tribes have received official recognition from the 
Commonwealth of Virginia, acknowledgement and officially-recognized 
status from the Federal Government has been considerably more difficult 
due to their systematic mistreatment over the past century. Legislation 
was first introduced in support of these six Tribes in 1999.
    The identities of the tribal members of Virginia's Indian Tribes 
were stripped away by Virginia's Racial Integrity Act, a state law in 
effect from 1924 to 1967. Racial identifications of those without white 
ancestry were changed to ``colored'' on birth certificates during that 
period. In addition, five of the six courthouses that held the vast 
majority of the Virginia Indian Tribal records needed to document their 
history to the degree required by the Bureau of Indian Affairs Office 
of Federal Acknowledgement were destroyed in the Civil War.
    Furthermore, Virginia Indians and England signed the Treaty of 
Middle Plantation in 1677. This predated the creation of the United 
States of America by just short of 100 years. This Treaty was never 
recognized by the founding fathers of the United States. Therefore, the 
Tribes were not granted federal recognition while tribes signing 
treaties with the U.S. have been recognized.
    I understand that there is reluctance from some members in Congress 
to grant Native American tribes federal recognition through 
legislation. And these members would prefer that these Tribes go 
through the BIA administrative process instead.
    However, we have heard testimony from the BIA in the past, from 
various tribes and officials, time and time again that the 
administrative process has proven to be an arduous one due to lack of 
clear guidelines, cost, lack of resources which have contributed to the 
current backlog that has resulted in waits as long as 20 years for 
federal recognition. This has been well documented by repeated GAO 
studies.
    We have heard from the BIA in the past on how they will resolve 
these issues, but to date--little has been done to fix the recognition 
process.
    Most importantly, 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.
    I am proud of Virginia's recognized Indian Tribes and their 
contributions to our Commonwealth. It has been six years after the 
400th anniversary of the first permanent English settlement at 
Jamestown, it is especially tragic that these tribes still have not 
received equal status with the 566 other Federally Recognized Tribes in 
the United States. The Virginia Tribes are a part of us. We go to 
school together, work together, and serve our Commonwealth and nation 
together every day. These contributions should be acknowledged, and 
this federal recognition for Virginia's native peoples is long overdue.
    Congress has the power to recognize Native American Tribes. And it 
has exercised this power in the past. I believe that the Tribes' 
situation and Virginia's harsh history clearly distinguishes them as 
excellent candidates for Congressional action. Virginians consider this 
a matter of fundamental justice.
    It is my hope that this Committee will move quickly to approve S. 
1074 and the full Senate and House will act upon my legislation, to 
finally give these six Virginia Indian Tribes the federal recognition 
that is long overdue.

    The Chairwoman. Thank you, Senator Kaine, and thank you for 
your testimony. And thank you for your passion about this. As 
we can see from our agenda items today, and I should just say 
that the Chair forgot to make opening statements about our 
panel, and with consultation with our Vice Chairman I think we 
have just decided to submit for the record.
    But I will just summate them to say this, that Congress can 
play a role when there has been a confusion or conflict about a 
process moving forward, and certainly we appreciate your 
passion to bring this issue to our attention. So thank you for 
being here today.
    We will now turn to our colleague from North Carolina, 
Senator Hagan. Thank you for being here today. We look forward 
to your comments about S. 1132, which by the way, for our 
colleagues, has I believe passed out of this Committee before, 
I think passed out of the House before. But again, never all in 
consecutive timing. But we certainly appreciate your bringing, 
S. 1132, the Lumbee Recognition Act. Thank you for being here.

                STATEMENT OF HON. KAY R. HAGAN, 
                U.S. SENATOR FROM NORTH CAROLINA

    Senator Hagan. Thank you, Madam Chairman, and Vice Chairman 
Barrasso and the entire Committee. Thank you very much for 
allowing me to participate today.
    This is a very important bill for the Lumbee Indian Tribe 
in North Carolina. I want to thank the Lumbee Tribal Chairman 
Paul Brooks for being here, and the rest of the Lumbee 
representatives who have traveled from North Carolina to join 
us.
    I also want to ask that my full statement be submitted to 
the record.
    The Chairwoman. Without objection.
    Senator Hagan. I am pleased that the Committee is holding 
this important hearing, and I want to take the opportunity to 
discuss an issue that is just as important to me as Senator 
Kaine is about his tribes. The Lumbee Indians are among the 
earliest North Carolinians. They descended from the coastal 
tribes of North Carolina. They have lived along the Lumbee 
River since before our Nation was founded.
    During that time, the Lumbee have maintained a distinct 
community in what is now Robeson County, with more than 40,000 
current members in and around the county seat of Lumberton. 
Because this tribe lacked a formal treaty relationship with the 
new United States, the tribe has worked for over 120 years to 
win this recognition that they deserve. And as Madam Chairman 
said, this has passed in different houses, but we have never 
been able to get it to a conference.
    The State of North Carolina officially recognized the tribe 
in 1885. And despite generations of uninterrupted self-
governing, the Lumbee still have not received full recognition 
by the Federal Government.
    In 1956, the Lumbee Act expressly precluded the tribe from 
pursing Federal acknowledgment through the Bureau of Indian 
Affairs administrative process. Thus, while the Lumbee were 
identified in Federal legislation as a tribe back in 1956, 
existing law strictly limits the group's ability to access 
vital services otherwise available to a federally-designated 
tribe.
    As the Senate Indian Affairs Committee has noted, Congress 
placed only one other Indian tribe in a similar position. In 
1965, the Tewa Indians of Texas won recognition in Congress, 
but were prohibited from pursuing BIA and other Federal 
services. That was in 1965. Congress recognized the problem and 
in 1987, passed legislation granting full recognition to the 
Tewa Tribe. This has left the Lumbee as the only tribe in 
America that is recognized by the Federal Government while also 
being forbidden to access critical programs that are available 
to every other tribe in the Country.
    This current Administration has also recognized this basic 
inequity. At a past House hearing on the bill, George Skibine, 
who served as Deputy Assistant Secretary for Policy and 
Economic Development for Indian Affairs at the time testified, 
``There are rare circumstances when Congress should intervene 
and recognize a tribal group. The case of the Lumbee Indians is 
one such rare case.'`
    So the Lumbee Recognition Act, which I have introduced with 
my colleague, Senator Burr, would rectify this longstanding 
inequity and provide the Lumbee with the full recognition that 
they so clearly deserve. Beyond simple fairness, the issue of 
Lumbee recognition is critically important to Robeson County, 
the communities, and they have been one of the hardest hit 
communities by this recent economic downturn.
    The Harvard School of Public Health has found that 
residents of Robeson County have a lower average life 
expectancy due to persistent poverty and limited access to 
affordable health care. This bill will enable the Lumbee to 
combat these trends through access to critical programs within 
the Indian Health Service and economic development programs 
through the Bureau of Indian Affairs.
    Some in Congress have argued that the cost of providing BIA 
and Indian Health Services to the Lumbee will be too high and 
that the Lumbee recognition will draw down funds that are 
currently going to other tribes. I understand those concerns, 
but I want to be clear: the Lumbee do not want recognition on 
the backs of other tribes. This bill simply ensures that the 
Lumbee are eligible for the same services as their peers. 
Funding for these services will be subject to future 
appropriations and the Lumbee will not dilute support for 
tribes that currently receive Federal resources.
    Federal recognition is about more than Federal resources 
and creating economic development opportunities for their 
community. It is about tribal identity and fairness. And it is 
essential that we ensure that current and future generations of 
Lumbee are no longer treated as a second class tribe.
    Madam Chair, I urge the Committee to work on this bill, to 
approve this important legislation without delay. Thank you, 
Madam Chairman.
    [The prepared statement of Senator Hagan follows:]

   Prepared Statement of Hon. Kay R. Hagan, U.S. Senator from North 
                                Carolina
    Good Afternoon. I'd like to thank Chairwoman Cantwell, Vice 
Chairman, and the entire Committee for allowing me to participate in 
today's hearing. Additionally, I'd like to thank Lumbee Tribal Chairman 
Paul Brooks and the rest of the Lumbee representatives who have 
traveled from North Carolina to be here.
    I am very pleased the Committee is holding this important hearing 
and I want to take this opportunity to discuss an issue that is vitally 
important to North Carolina's economy, and to the heritage and cultural 
identity of more than 40,000 Americans.
    The Lumbee Indians are among the earliest North Carolinians. They 
descended from the coastal tribes of North Carolina and have lived 
along the Lumber River since before our nation was founded.
    During that time, the Lumbees have maintained a distinct community 
in what is now Robeson County, North Carolina, with more than 40,000 
current members in and around the county seat of Lumberton.
    Tribe members have worked diligently throughout the generations to 
sustain a strong tribal society.
    Each and every Lumbee can trace his or her ancestry to the Tribe's 
base roll, which is comprised of school and church records and early 
20th-century census data. This common ancestry has bound the tribe for 
generations and established the Lumbee as a longstanding, distinct 
community in southeastern North Carolina.
    Nearly two-thirds of the tribe live within fifteen miles of 
Pembroke, where they start families and businesses, run for tribal 
office, and attend the annual July 4th parade.
    The Lumbee fought alongside the American Colonists during the 
Revolutionary War, and helped shape North Carolina's history.
    But because the tribe lacked a formal treaty relationship with the 
new United States, the tribe has worked for over 120 years to win the 
recognition they deserve.
    As has been noted by the Senate Indian Affairs Committee, ``The 
Lumbees have a longstanding history of functioning like an Indian tribe 
and being recognized as such by State and local authorities. Since 
1885, the Lumbees have maintained an active political relationship with 
the State of North Carolina.''
    The State officially recognized the Tribe in 1885, and established 
a separate school system for Lumbee children.
    With initial enrollment limited to children who could demonstrate 
at least four generations of Lumbee descent, this autonomous school 
system has remained in place for over 100 years.
    And in the late 1800s, the State of North Carolina established the 
Indian Normal School to train Lumbee teachers for the Tribe's school 
system. This school has been in continuous operation since that time 
and has grown into the University of North Carolina at Pembroke.
    Religion and culture have also remained strong in the Lumbee 
community, with more than 130 Lumbee churches in Robeson County.
    Despite generations of uninterrupted self-governing, the Lumbee 
still have not received full recognition by Federal Government.
    Instead, Congress in 1956 enacted the Lumbee Act, which 
simultaneously recognized the tribe, but DENIED tribal members access 
to federal services.
    The Lumbee Recognition Act--which I have introduced with my 
colleague from North Carolina, Senator Burr--would rectify this 
longstanding inequity, and provide the Lumbees with the FULL 
recognition that they so clearly deserve.
    Beyond simple fairness, the issue of Lumbee recognition is 
critically important to the North Carolina economy, and to counties and 
communities that have been hardest hit by the recent economic downturn.
    Because the 1956 Lumbee Act forbid the Lumbee from pursuing the 
federal resources available to every other recognized tribe in the 
country, the Tribe does not have access to critical services through 
the Bureau of Indian Affairs and Indian Health Service.
    The Harvard School of Public Health has found that residents of 
Robeson County have a lower average life expectancy due to persistent 
poverty and limited access to affordable health care.
    Our bill will enable the Lumbee to combat these trends through 
sustained economic development and quality health services.
    It will allow members of the Lumbee tribe to access critical 
programs through Indian Health Services, and will help treat and 
prevent chronic illnesses that negatively affect the quality of life in 
the region.
    With a healthier population, and access to federal programs, the 
Tribe can focus on economic development. Robeson County--and the 
surrounding counties of Scotland, Hoke, Bladen, and Columbia--continue 
to experience unemployment rates that are among the highest in North 
Carolina.
    Economic development programs through the Bureau of Indian Affairs 
will allow the tribe to create jobs where they are needed most, and 
will support a true economic recovery in this distressed region.
    Some in Congress have argued that the cost of providing BIA and 
Indian Health services to the Lumbee will be too high, and that Lumbee 
recognition will draw down funds that are currently going to other 
tribes. I certainly understand these concerns.
    But, I want to be clear--the Lumbee do NOT want recognition on the 
backs of other tribes.
    This bill simply ensures that the Lumbee are ELIGIBLE for the same 
services as their peers. Funding for these services will be subject to 
future appropriations, and the Lumbee will not dilute support for 
tribes that currently receive federal resources.
    Some also argue that the Lumbee do not need Federal recognition 
because they can apply for acknowledgement through the Bureau of Indian 
Affairs administrative process. But let me be clear about this: the 
Lumbee have been prohibited from being considered by this process.
    This is because the Lumbee were unfortunate enough to win partial 
recognition during a time when the BIA was actively working to 
terminate longstanding relationships with tribes and roll back federal 
services for Native Americans across the country.
    The 1956 Lumbee Act expressly precludes the tribe from pursuing 
federal acknowledgment through the Bureau of Indian Affairs 
administrative process. Thus, while the Lumbee were identified in 
federal legislation as a tribe more than 50 years ago, existing law 
strictly limits the group's ability to access vital services otherwise 
available to a federally designated tribe.
    As the Senate Indian Affairs Committee has noted, Congress placed 
only one other Indian tribe in a similar position. In 1965, the Tiwa 
Indians of Texas won recognition in Congress, but were prohibited from 
pursuing BIA and other federal services.
    Congress recognized this problem, and in 1987 passed legislation 
granting full recognition to the tribe. This has left the Lumbee as the 
only tribe in America that is recognized by the Federal Government 
while also being forbidden from accessing critical programs that are 
available to every other tribe in the country.
    The Administration has also recognized this basic inequity. At a 
past House hearing on the bill, George Skibine, who served as Deputy 
Assistant Secretary for Policy and Economic Development for Indian 
Affairs at the time, testified that, ``There are rare circumstances 
when Congress should intervene and recognize a tribal group, and the 
case of the Lumbee Indians is one such rare case.''
    I agree. It is long past time for the Lumbee to receive the full 
federal recognition they deserve.
    Federal recognition is about more than federal resources and 
creating economic development opportunities for this community. It is 
about tribal identity and fairness. And it is essential that we ensure 
that current and future generations of Lumbee are no longer treated as 
a second-class tribe.
    I urge the Committee to work quickly to approve this important 
legislation without delay.

    The Chairwoman. Thank you, Senator Hagan, and thank you for 
being here and testifying on behalf of this legislation. We 
appreciate you and your advocacy.
    Does anybody have any questions for our colleague?
    If not, I know that your colleague, Senator Burr, was on 
the other side of the Capitol and is on his way here. I was 
going to see if in that process, we might turn to S. 161 to see 
if there are any comments from our colleagues on the Little 
Shell bill, and when Senator Burr arrives, we will give him a 
chance to speak on behalf of this legislation as well.
    Senator Hagan. I am sure he will want to.
    The Chairwoman. Thank you.
    Senator Tester, would you like to make a comment about S. 
161? If not, we will move on to other things.

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

    Senator Tester. I would, very briefly. I think Assistant 
Secretary Washburn is next up. But I would just say this, first 
of all, welcome, Chairman Gray. This isn't the first time the 
Little Shell has been in front of this Committee, but this is 
the first time Chairman Gray has been in front of this 
Committee. The Little Shell have been seeking recognition, I 
will just say for generations. It has been over 35 years. They 
have received recognition and they have had that decision 
revoked. It tends to be, we will just call it a Ferris wheel, 
for lack of a better term.
    The Montana legislature, when I was in it, as a matter of 
fact, passed a resolution recognizing the Little Shell. The 
other tribes in the State of Montana recognize Little Shell. 
The only entity that doesn't recognize Little Shell is the 
Federal Government. I have had this conversation with Assistant 
Secretary Washburn before, we need to keep working at this, get 
the process streamlined so things can happen in a positive way.
    With that, thank you, Madam Chair.
    The Chairwoman. Thank you, Senator Tester. Again, thanks 
for this legislation.
    I think what we will do is now turn to Assistant Secretary 
Washburn and have him come before the Committee. As I said, 
when Senator Burr arrives, perhaps after the Secretary has 
answered questions, we will have him be able to make a 
statement as well. So again, thank you for being here. We 
appreciate your time before the Committee and your service.

          STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT 
       SECRETARY--INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Mr. Washburn. Thank you, Madam Chairwoman. It is an honor 
to be here. Vice Chairman and Senator Tester, thank you.
    Let me add my praise for David Mullon today quickly. David 
is one of the best that I've worked with. Senators are very 
busy, so it is very important to have good staff. And David 
Mullon has embraced the spirit of bipartisanship that guides 
this Committee so well, and it has been a real honor to work 
with him. I am fortunate that I am going to continue to be able 
to work with him in his new job, and I wish him Godspeed in 
that job. So thank you for that.
    I am here to talk about the three bills that would extend 
Federal Government-to-government relationship to several tribal 
groups. This is a matter that I have spoken with some of you 
about previously. The Part 83 process, our Federal recognition 
process, has been criticized quite a bit over the years as 
expensive, inefficient, burdensome, intrusive, less than 
transparent and unpredictable. And some of those criticisms 
have come from Senator Tester.
    So when I arrived in this position, Secretary Salazar asked 
me to look at this area. After having met with Senator Tester, 
I knew it was important. So I have been working on it, my staff 
and I, Deputy Assistant Secretary Larry Roberts and I, and 
other staff have worked really hard to develop a process first 
to roll this out, so that everybody gets a chance to comment on 
it, especially tribal groups through tribal consultation. We 
are in that process.
    So we are working to try to make the process more 
transparent, more timely, more efficient and more flexible, 
while maintaining the rigor of the process. We are working, 
again, working hard to do that. I would add that Larry 
Townsend, who is here, has worked closely with the National 
Congress of American Indians to help us with this. We have had 
a lot of support from NCAI for this effort, which is nice, 
which is very impressive, because National Congress of American 
Indians largely serves federally-recognized tribes that are 
already recognized, so they don't have to do this. But they are 
extending a hand to the tribes that haven't reached that point 
yet. So we are grateful for that, it is heartwarming.
    So let me first move quickly to the Lumbee Recognition Act. 
This bill especially I think is appropriate for Congress to act 
upon, because Congress in 1956 already enacted legislation with 
regard to this tribe that we have interpreted, our sister 
department interpreted precludes the Department of Interior 
from doing anything as far as recognizing this tribe. So we 
support the Lumbee Recognition Act, S. 1132, and we have a 
couple of minor concerns that we hope would be addressed, but 
we generally support the bill. So I would say that one of those 
concerns is the bill asks us to verify the membership of the 
Lumbee Tribe, and that is more than 40,000 people and perhaps 
55,000 people. That would be a lengthy process, and a difficult 
process and might take a small army of people to accomplish. So 
that makes us a little bit nervous.
    But again, we think it is a matter of justice that the 
Lumbee Tribe be recognized and be brought into the tent. We 
support that bill.
    Let me move secondly to the Little Shell bill, S. 161. We 
do not oppose this bill. This is currently before me, so I am 
not going to say very much about it. But I will say that it was 
Senator Tester's description of the situation of Little Shell 
that convinced me that it was very, very important that we take 
a look at this whole process. And indeed, we listened to 
Senator Tester and his comments when we put together our own 
discussion draft for how to reform this process.
    One of his complaints about the Little Shell process is 
that he felt they were sandbagged. They had a positive finding 
and it was put out for comments. He didn't see any negative 
comments come in, and yet the finding was reversed. And that 
does cry out for more transparency.
    So one of the things that was in our discussion draft is if 
we put out a positive finding and we get no negative comments, 
then that finding should hold. We haven't accepted that yet, 
that is in the discussion draft. But that is something that we 
put out there for conversation. And we have gotten a heck of a 
lot of comments. Our next stage will be to go to a proposed 
rule and get more comments and more tribal consultation that 
has issues like that in it.
    So we do not oppose S. 161, the Little Shell Tribe of 
Indians Restoration Act of 2013.
    Now, let me turn to S. 1074, Thomasina E. Jordan Indian 
Tribes of Virginia Federal Recognition Act. We are neutral on 
this bill. These groups are all petitioners in our process, a 
process that we are desperately trying to improve. Because we 
haven't seen their applications yet, they haven't been 
finalized, we are not taking a position on the bill. We are 
remaining neutral on whether Congress should go ahead and enact 
this bill, but we stand ready to assist in any way we can and 
we will continue to work on their applications until Congress 
should act.
    So I think that probably is enough for me to say. I am 
happy to answer any questions, or turn it over to other 
witnesses who have arrived.
    [The prepared statement of Mr. Washburn follows:]

Prepared Statement of Hon. Kevin Washburn, Assistant Secretary--Indian 
                Affairs, U.S. Department of the Interior
    Good afternoon Madam Chair Cantwell, Vice-Chairman Barrasso and 
members of the Committee. My name is Kevin Washburn and I am the 
Assistant Secretary for Indian Affairs at the Department of the 
Interior (Department). Thank you for the opportunity to provide the 
Administration's testimony on three legislative bills that would 
federally recognize several groups that are seeking, or have sought, or 
are precluded from seeking federal recognition under the Department's 
regulations at 25 C.F.R. Part 83: S. 1132, the ``Lumbee Recognition 
Act'', S. 1074, the ``Thomasina E. Jordan Indian Tribes of Virginia 
Federal Recognition Act of 2013,'' and S. 161, the ``Little Shell Tribe 
of Chippewa Indians Restoration Act of 2013.''
    The acknowledgment of the continued existence of another sovereign 
is one of the most solemn and important responsibilities of the United 
States. Under the United States Constitution, Congress has the 
authority to recognize a ``distinctly Indian community'' as an Indian 
tribe. Federal acknowledgment enables Indian tribes to participate in 
Federal programs and establishes a government-to-government 
relationship between the United States and the Indian tribe, and 
recognizes certain legal rights under federal law.
    We note that the authority to acknowledge a tribe has been 
delegated to the Secretary of the Interior to act in appropriate cases. 
As the Committee is aware, the process has been subject to criticism 
over the years. Some have criticized the Part 83 Process as expensive, 
inefficient, burdensome, intrusive, less than transparent and 
unpredictable. The Department is aware of these critiques and, as we 
have previously indicated, we are reviewing our existing regulations to 
consider ways to improve the process to address these criticisms. Based 
upon our review, which includes consideration of the views expressed by 
members of Congress, former Department officials, petitioners, subject 
matter experts, tribes and interested parties, we believe improvements 
must address certain guiding principles:

   Transparency--Ensuring that standards are objective and 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.

    This past summer, the Department released a discussion draft on 
potential revisions to the Part 83 regulation. We received numerous 
helpful comments. We are working through comments received and plan to 
proceed with a proposed rule for publication in the Federal Register. 
This will open a second round of consultation and the formal comment 
period to allow for further refining of the regulations prior to 
publication as a final rule. The timing for publication of a final rule 
depends upon the volume and complexity of comments and revisions 
necessary to address those comments, but our hope is to have a final 
rule published in 2014.
    While the Department's process is a rigorous one that we hope to 
further improve, we also recognize that it is sometimes appropriate for 
Congress to engage in recognition of Indian tribes. Thus, we are happy 
to provide our views on the individual bills under consideration.
S. 1132, the ``Lumbee Recognition Act''
    In 1956, Congress designated Indians then ``residing in Robeson and 
adjoining counties of North Carolina'' as the ``Lumbee Indians of North 
Carolina'' in the Act of June 7, 1956 (70 Stat. 254). Congress went on 
to note the following:
    Nothing in this Act shall make such Indians eligible for any 
services performed by the United States for Indians because of their 
status as Indians, and none of the statutes of the United States which 
affect Indians because of their status as Indians shall be applicable 
to the Lumbee Indians.
    In 1989, the Department's Office of the Solicitor advised that the 
1956 Act forbade the federal relationship within the meaning of the 
acknowledgment regulations, and that the Lumbee Indians were therefore 
precluded from consideration for federal acknowledgment under the 
administrative process. Because of the 1956 Act, the Lumbee Indians 
have been deprived of the ability to seek Federal acknowledgment 
through administrative means.
    Given that it is Congress that has specifically addressed the 
Lumbee Indians on a previous occasion and has barred Interior from 
undertaking this review, only Congress can take up the matter of 
federal recognition for the Lumbee Indians. We support S. 1132 with 
amendments as discussed below.
    S. 1132 extends Federal recognition to the ``Lumbee Tribe of North 
Carolina'' and permits any other group of Indians in Robeson and 
adjoining counties whose members are not enrolled in the Lumbee Tribe 
to petition under the Department's acknowledgment regulations. The 
Office of Federal Acknowledgment has received letters of intent to 
petition from six groups that may overlap with each other. In addition, 
we have identified over 80 names of groups that derive from these 
counties and are affected by the 1956 Lumbee Act. Some of these groups 
claim to be the ``Lumbee Tribe''. Therefore, we recommend Congress 
clarify the Lumbee group that would be granted recognition under this 
bill based on the group's current governing document and its current 
membership list. Not doing so could potentially expose the Federal 
Government to unwarranted lawsuits and possibly delay the recognition 
process for the other groups of Indians in Robeson and adjoining 
counties not enrolled in the Lumbee Tribe.
    Under S. 1132, any fee land that the Lumbee seeks to convey to the 
United States to be held in trust shall be considered an ``on-
reservation'' trust acquisition if the land is located within Robeson 
County, North Carolina. The current language in the bill implies that 
the Secretary has the authority to take land into trust; however, the 
bill does not expressly provide that authority. Section 4 of the bill 
should be amended to clarify that Congress intends to delegate 
authority to the Secretary to acquire land in trust for the Lumbee 
Indians.
    In addition, the bill would prohibit the Lumbee Indians from 
conducting gaming activities under any federal law, including the 
Indian Gaming Regulatory Act or its corresponding regulations.
    Under S. 1132, the State of North Carolina has jurisdiction over 
criminal and civil offenses and actions on lands within North Carolina 
owned by or held in trust for the Lumbee Tribe or ``any dependent 
Indian community of the Lumbee Tribe.'' The legislation, however, does 
not address the State's civil regulatory jurisdiction, which includes 
jurisdiction over zoning, and environmental regulations. Additionally, 
the Secretary of the Interior is authorized to accept a transfer of 
jurisdiction over the Lumbee from the State of North Carolina, after 
consulting with the Attorney General of the United States and pursuant 
to an agreement between the Lumbee and the State of North Carolina. 
Such transfer may not take effect until two years after the effective 
date of such agreement.
    We are concerned with the provision requiring the Secretary, within 
two years, to verify the tribal membership and then to develop a 
determination of needs and budget to provide Federal services to the 
Lumbee group's eligible members. Under the provisions of this bill, the 
``Lumbee Tribe,'' which the Department understands includes over 40,000 
members, would be eligible for benefits, privileges and immunities that 
are similar to those possessed by other Federally recognized Indian 
tribes. In our experience verifying a tribal roll is an extremely 
involved and complex undertaking that can take several years to resolve 
with much smaller tribes. While we believe there are approximately over 
40,000 members, we do not currently have access to the Lumbee's 
membership list and thus do not have the appropriate data to estimate 
the time to verify them nor do we know how many Lumbee members may be 
eligible to participate in Federal needs based programs. Moreover, S. 
1132 is silent as to the meaning of verification for inclusion on the 
Lumbee group's membership list roll.
    In addition, section 3 may raise a problem by purporting to require 
the Secretary of the Interior and the Secretary of Health and Human 
Services to submit to the Congress a written statement of a 
determination of needs for the Lumbee Tribe for programs, services and 
benefits to the Lumbee Tribe. The appropriate means for communicating 
to Congress a determination of needs for programs administered by the 
Department of the Interior and the Department of Health and Human 
Services is the President's Budget. Finally, the Department notices 
that some text in S. 1132 may have been inadvertently omitted. In 2009, 
H.R. 31, an almost identical ``Lumbee Recognition Act,'' included 
several passages of ``Whereas,'' language in Sec. 2 (3) after 
``clauses:'' that is not in the current S. 1132.
S. 161, the ``Little Shell Tribe of Chippewa Indians Restoration Act of 
        2013''
    S. 161, the Little Shell Tribe of Chippewa Indians Restoration Act 
of 2013 would acknowledge the Little Shell Tribe of Chippewa Indians of 
Montana. This group, Petitioner #31 in the Department's Federal 
acknowledgment process, submitted its letter of intent to the 
Department in 1978, and completed documenting its petition in 1995. A 
Determination against the federal Acknowledgment of the Little Shell 
Tribe of Chippewa Indians of Montana was issued on October 27, 2009, 
and published in the Federal Register on November 3, 2009, 74 Fed Reg. 
56861. The decision is not final and effective for the Department 
because the Little Shell Tribe filed a request for reconsideration 
before the Interior Board of Indian Appeals (IBIA) on February 1, 2010. 
On June 12, 2013, the IBIA affirmed the Determination against 
acknowledgment and referred issues to the Secretary. On September 16, 
2013, the Secretary referred those issues to the Assistant Secretary as 
possible grounds for reconsideration of the affirmed Determination. The 
current deadline for reconsideration of these matters is 120 days from 
September 16, 2013. The Little Shell petitioner also requested that the 
Department suspend reconsideration of the petitioner pending the 
enactment of revised acknowledgment regulations. These requests are 
under review.
    As we noted above, under the United States Constitution, Congress 
has the authority to recognize American Indian groups as Indian tribes 
with a government-to-government relationship with the United States. 
For this reason, we do not oppose enactment of S. 161.
S. 1074, ``Thomasina E. Jordan Indian Tribes of Virginia Federal 
        Recognition Act of 2013''
    S. 1074 would provide Federal recognition as Indian tribes to six 
Virginia groups: the Chickahominy Indian Tribe, the Chickahominy Indian 
Tribe--Eastern Division, the Upper Mattaponi Tribe, the Rappahannock 
Tribe, Inc., the Monacan Indian Nation, and the Nansemond Indian Tribe, 
all of which are currently petitioners in the Department's Federal 
acknowledgment process.
    Under 25 CFR Part 83, these six groups have submitted letters of 
intent and partial documentation to petition for Federal acknowledgment 
as Indian tribes. Some of these groups are awaiting technical 
assistance reviews under the Department's acknowledgment regulations. 
The purpose of the technical assistance reviews is to provide the 
groups with opportunities to supplement their petitions due to obvious 
deficiencies and significant omissions. To date, none of these 
petitioning groups have submitted completed documented petitions to 
demonstrate their ability to meet all seven mandatory criteria.
    Given that we are awaiting more information and have not concluded 
our own review as to the merits of recognition for these groups, we 
have not developed views on the merits of Congressional recognition in 
this instance.
    This concludes my prepared statement. I will be happy to answer any 
questions the Committee may have.

    The Chairwoman. Thank you, Assistant Secretary Washburn.
    Does the Vice Chairman have any questions? I can start with 
my questions if that is easier.
    I have several questions for you, both about the process, 
but I feel like I want to get some input for the record on 
these current bills. Has the Department ever considered 
undertaking a review of the 1989 Solicitor opinion on the 
Lumbee legislation and barring it from the administrative 
process?
    Mr. Washburn. It has. It hasn't taken any final action on 
that, but it has looked at that opinion a bit over the years. 
And it could be reconsidered. It hasn't been reconsidered yet, 
and that is outside my lane.
    The Chairwoman. Okay. So do you think that is an open 
question?
    Mr. Washburn. Well, Congress acted to create the situation 
that Lumbee is in. So I think it is appropriate for Congress to 
be the one to act to address that situation otherwise, or 
specifically address, specifically ask us to do something 
different. So I don't want to undermine movement in this bill. 
If Congress is inclined to enact this bill, I think that is 
probably the best approach. But we would be happy to look at 
that issue if we need to.
    The Chairwoman. And on the Virginia bill, S. 1074, does the 
Department recognition process allow for any kind of 
consideration of unique historical circumstances?
    Mr. Washburn. It is very much focused on historical 
circumstances. It is quite, well, let me say the people who do 
this work are historians and ethnologists and anthropologists. 
So it is very much a history-driven process.
    The Chairwoman. But has anybody ever looked at that, the 
historical process is usually about the nexus to the land and 
the history of the region and how far it is and where the 
tribal hunting grounds were. In this case the historical 
contexts we are asking people to consider is the notion that by 
action of the State at the time, basically records were 
destroyed. So that is a unique historical circumstance. Does 
the current process allow for that kind of consideration?
    Mr. Washburn. Probably not adequately, to be quite honest. 
So we are looking at those criteria to try to figure out how 
can we make the process more fair. It needs to be a rigorous 
process, because people need to have trust in the outcome. But 
it shouldn't be so rigorous that it is unfair. We need to take 
those kinds of considerations into account whenever we are 
making a decision. So we are looking at the individual 
criteria, many of which do have to do with historical 
circumstances. So that is one of the things we have taken up as 
far as our reform process.
    The Chairwoman. And Secretary Jewell did announce a 
reconsideration for the final determination on the Little 
Shell. How would you describe that process for reconsideration? 
What is the process for that?
    Mr. Washburn. Well, it has been sent back to me. That was 
in mid-September, and I have 120 days to act, to reconsider 
three or four very specific issues that were not subject to the 
Interior Board of Indian Appeals appeal, things that they could 
not consider. However, we have also been asked basically to 
stay this consideration while we reform our process. Because if 
we end up changing our criteria, which we may well do, they 
shouldn't be rejected on old criteria that still remain in 
place. So it strikes me as a fairly reasonable request to ask 
us to hold until we finish the reform process. We have that 
under consideration right now.
    The Chairwoman. Okay. Does the Vice Chairman, Senator 
Barrasso, do you have a question?

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

    Senator Barrasso. Just maybe two, Madam Chairman, if I 
could. The Committee has received testimony over several 
Congresses in the past that have been critical of the 
recognition process, lack of due process, failure to consider 
unique tribal histories are among some of the criticisms that 
we have heard. How do you draft regulations that address due 
process and the unique history of the tribal petitioners? Any 
suggestions on that?
    Mr. Washburn. Well, let me just say this. We used a robust 
process to go at this. So we started, we had a whole bunch of 
people meet together over several weeks, multiple meetings each 
week, and we came up with all kinds of ideas that we could 
find. And then we reviewed them and tried to find the best 
ideas to move forward.
    One of the things, there is a due process issue but there 
is also a timeliness issue. So one of the things we would like 
to do is have expedited positive findings and expedited 
negative findings so that we don't necessarily have to go 
through the third degree if things are leaning a certain way. 
Because these things take so long. So we need to make sure the 
process is fair, but also that we move in a timely way.
    Senator Barrasso. Madam Chair, I see that Senator Burr is 
here, so I am just going to put the rest of my questions into 
writing. Thank you, Madam Chairwoman.
    The Chairwoman. Thank you.
    Senator Tester?
    Senator Tester. You can go to him if you want and then come 
back again, whatever you want.
    Mr. Washburn. I would be delighted to yield for a few 
moments and stick around.
    The Chairwoman. Well, Senator Burr, it is your lucky 
moment. Thank you for being here. The Assistant Secretary is 
willing to yield to you. Thank you for being here in support of 
the Lumbee Recognition Act.

                STATEMENT OF HON. RICHARD BURR, 
                U.S. SENATOR FROM NORTH CAROLINA

    Senator Burr. Thank you, Chairwoman Cantwell, Ranking 
Member Barrasso. Senator Tester, you and I are absent from 
another one right now, so I know you want to get down to it.
    I appreciate the Committee's time and effort regarding the 
Federal recognition of the Lumbee Tribe. I would like to thank 
my colleague, Senator Hagan, Representatives Richard Hudson and 
Mike McIntyre for their passion and their dedication to this 
issue. These individuals have been relentless in their pursuit 
for Federal recognition for the Lumbees, and I appreciate all 
of their hard work.
    It is good to see my Lumbee friend, Paul Brooks, here 
today. I am confident that the Committee will find his 
testimony very informative, if you haven't already had it.
    As many of you know, the Lumbees have been part of North 
Carolina's history for centuries. They have served their 
communities as farmers, doctors, lawyers, small business owners 
and bankers. They have provided their Country with sheriffs and 
clerks of court, served our State as legislators and judges, 
and have protected our Nation by serving in the United States 
armed forces.
    I understand that Congressional recognition is viewed by 
some as unnecessary. But I want to be clear that the Lumbees 
are in a unique situation. In 1956, Congress designated the 
Indians ``residing in Robeson and adjoining counties of North 
Carolina'` as ``Lumbee Indians of North Carolina.'` In the 
Lumbee Act of June 7th, 1956, however, this Act also prevented 
the Lumbees from being eligible for any services performed by 
the Federal Government or any benefits derived by law on behalf 
of other recognized tribes. When the Bureau of Indian Affairs 
established its process for formal recognition, the Lumbees 
were effectively denied from pursuing this option. In 1989, the 
Department of Interior decided that the 1956 Act prevented the 
Lumbee from being considered for Federal recognition under the 
BIA process.
    Therefore, the limited Federal recognition of the Lumbees 
in 1956 has been as much a detriment as a benefit. It is my 
hope that Congress will consider the difficult position the 
Lumbees have been in since 1956 and fulfill its commitment to 
achieve fairness and justice in the recognition process.
    In fact, Congress has taken action to fulfill such a 
commitment previously. In 1987, Congress enacted special 
legislation to recognize the Tewa Tribe of Texas, a tribe that 
was similarly prevented from gaining recognition through the 
BIA process, due to a previous act of Congress. As a result of 
the Tewa's Congressional recognition, the Lumbees find 
themselves as the only tribe in the United States which is 
prevented from gaining recognition through the BIA process. 
Although some members of this Committee may prefer to change 
the BIA recognition criteria to allow Lumbees to avail 
themselves to this process, I believe that option is simply too 
little too late.
    And let me say if I could, Madam Chairman and members, what 
we have put this tribe through is disgraceful. The way this 
issue has been footballed around in Congress, one can't 
apologize to a group of Americans any more than the Lumbees 
deserve an apology. Apologies won't suffice now. Only 
recognition.
    And in North Carolina, our State motto is esse quam videri, 
and translated from Latin, ``to be rather than to seem.'` I 
find no better example of this motto than the plight of the 
Lumbees. They are here today to be a federally-recognized 
tribe, rather than to seem to be one.
    So I appreciate the opportunity, Madam Chairman, I 
appreciate your kindness in letting me work in with a schedule 
that I know we all deal with. Before I leave, I would ask, I 
know there is at the desk the testimony of Congressman Richard 
Hudson. I would ask unanimous consent that it be included in 
the record as well. I thank the Chair and the Committee for 
this time.
    The Chairwoman. Without objection, those statements will be 
entered into our Senate record. Thank you for being here on 
behalf of the Lumbees. I am sure they greatly appreciate it, 
and thank you for your passion.
    I know you and I have spoken about this several times over 
the last couple of years. As I mentioned in the hearing prior 
to your being here, this is action that the Committee has taken 
in the past, and the House has taken, but you are right, it is 
time for us to take it all consecutively and get something 
done.
    So thank you for being here. Unless my colleague has a 
question for you?
    Senator Tester. All my questions will be directed at 
Assistant Secretary Washburn, but now that you have taken care 
of the Lumbees, Senator Burr, you can go take care of the 
veterans.
    [Laughter.]
    The Chairwoman. Thank you. Senator Tester?
    Senator Tester. Thank you, Madam Chair. I really appreciate 
the fact that the Department is looking to make updates. I am 
going to get to that in a minute.
    A former chairman of this Committee, Byron Dorgan, always 
felt that it was important that the Department do their job of 
recognition and felt like if Congress gets into this position 
of doing Federal recognition, it becomes more of a political 
football. And it is much more effective to take the politics 
out and really have the Department look at the facts and the 
criteria that they are based around. That is part of why I am 
glad you are updating the party of three.
    But it does bring up an interesting question. And that 
question is, not to put you on the spot, but you are here on 
the spot, that question is, is the general proposition, are 
there circumstances where it is appropriate for Congress to act 
and take that power away from you in certain circumstances? And 
if so, what are those circumstances?
    Mr. Washburn. Thank you, Senator.
    Honestly, I believe that Congress has sort of an equal 
responsibility here. I know that we have a process and we have 
a process that is loaded up with PhDs and genealogists and 
historians and that sort of thing. It is a very rigorous 
administrative process. I think the Congressional process is 
probably a little different than that. It is more like who is 
for this and who is against it. Those are the kinds of things 
you consider.
    But Congress has the same trust responsibility that we 
have, and in fact, Congress has the ability to define the trust 
responsibility to Indian tribes. So I think that Congress has 
the right to do so and in appropriate situations should do so.
    Senator Tester. Thank you. You released a preliminary 
discussion on Part 83. You have been holding consultations, 
thank you for that.
    At a hearing in 2009, and again in 2011 before this 
Committee, we were informed that a draft had been completed, 
and correct me if I am wrong, we were informed that it had been 
completed yet we didn't see a draft until 2013. Why was there 
such a delay in releasing the draft for discussion?
    Mr. Washburn. I can't tell you that, Senator. Because I 
just don't know. I don't know why that one didn't move forward. 
But I will tell you, we didn't really start with that draft. 
When Larry Roberts and I got to the Department, now I did get 
very clear instructions from Secretary Salazar that, you need 
to look at this. We have been making promises that we haven't 
met, so you need to look at this. But we sort of started from 
scratch and said, what can we do here. And we consulted our 
experts in the Office of Federal Acknowledgment, but we also 
consulted much more widely than that. And again, we are trying 
to have a very open process. We have put a lot of ideas out 
there in the discussion draft, and if we adopt every one of 
them, some people are going to blow a gasket.
    So it is about putting a lot of ideas out there and then 
seeing which ones are most useful. That is where we are right 
now.
    Senator Tester. And those final, most useful ideas would be 
put in the final version of the Part 83.
    Mr. Washburn. That is right, first in the proposed rule, 
and then we will get more comments and do more consultation, 
and then ultimately a final rule, hopefully.
    Senator Tester. So interestingly enough, I serve on the 
Banking Committee, and we just had a conversation with the SEC 
about proposed final rules. I will ask you the same question I 
asked them. When can we expect a final rule on Part 83?
    Mr. Washburn. Our hope is to get through this whole process 
in about 24 months. The government shutdown put us sideways for 
a little while, and we have had people ask for extensions of 
time. The Connecticut Congressional delegation asked for 
additional time to comment on our discussion draft. We gave it 
to them, because that seems to be the reasonable thing to do 
when people ask for more time in good faith. So we have been 
willing to grant more time. We hope to have a proposed rule out 
some time after the first of the year. We got a lot of comments 
on our discussion draft, and we have to carefully go through 
those and make sure, we will see which of the comments make 
sense and which ones we can incorporate.
    Senator Tester. Okay. I think it is true, with any rule, I 
think you need to be deliberate and you need to be thoughtful. 
But you also need to get it done. I should have started this 
whole conversation expressing my appreciation for the work you 
do.
    Mr. Washburn. Thank you.
    Senator Tester. Because I think you do good work. And along 
that good work line, you talked about you deferred it because 
you are redoing part of it. Where is Little Shell at in process 
in your agency? Can you tell me?
    Mr. Washburn. It is on my desk for consideration of sort of 
three additional issues that had not been finally addressed by 
the Interior Board of Indian Appeals. The Interior Board of 
Indian Appeals upheld the negative finding that was reached 
through the long process. And then it went to the Secretary, 
and the Secretary has sent it back to me to ask me to look at 
three additional issues. But again, also with the request that 
we put it on hold, that comes from the Little Shell Tribe, that 
we put this on hold while we figure out how we are going to 
change the criteria.
    And actually, again, there is some sense in that. Because 
if we change the criteria in such a way that they would 
succeed, we ought to wait. So we haven't made a final decision, 
but that may be where this is headed.
    Senator Tester. I am picking up what you are laying down. I 
appreciate it. I ran over, and I appreciate that, Madam Chair. 
I will put the others in written form for you to answer. Thank 
you. Thank you, Secretary Washburn.
    Mr. Washburn. Thank you, Senator.
    The Chairwoman. Secretary Washburn, before you leave, 
hearing my colleagues' concerns, and yes, this whole process is 
a complex one, going back to, well, my former colleague, the 
chairman of the Committee, Chairman Dorgan and the process in 
2009 and his oversight hearings on the regulation process. So 
one could say, yes, this is a long, drawn-out process. When you 
then throw in obviously the case of delaying various 
recognitions based on it, you can see the complexity.
    But I wanted to bring up, I have also heard from several 
tribes, though, about lessening the burden of recognition. Just 
as I was mentioning the historical context, the uniqueness of 
the Virginia case juxtaposed with the historical hunting 
grounds and everything else. In this case, we obviously want a 
smoother, clearer Bureau of Indian Affairs process based on 
evidence and criteria and policy. And at the same time, we 
don't want to weaken what is the burden of recognition as it 
relates to how other tribes have been recognized as well. So I 
don't know if you can comment on some of the concerns that 
people have had in the draft discussions about too much 
weakening of recognition standards.
    Mr. Washburn. Thank you, Madam Chairwoman. I have to say, I 
guess, that weakening, to some people, seems reasonable to 
others. So for example, there is a question of how do you treat 
State-recognized tribes, that is, tribes that have been 
recognized already by the State and/or tribes that have had a 
State-recognized reservation for many years. Those tribes seem, 
they already have substantial recognition if the State, the 
government that they have been working with, is recognizing 
them and they have a reservation. That ought to carry some 
weight in the process. That is one of the things we have looked 
at.
    So that would be a change in the recognition that would 
maybe make it a little less rigorous for those tribes. But 
those are tribes that have substantial legitimacy because they 
have long been recognized. So those are some of the things we 
have been looking at, and many others. And I mentioned the sort 
of automatic final determination. If we have a proposed 
determination that is positive, and we get no negative 
comments, that should become an automatic positive final 
determination, that kind of thing. So we have a bunch of 
different ideas.
    Concerns, anybody, any group that is opposed to someone 
that is petitioning, so some State and local governments, have 
had various concerns. I think in part because they ultimately 
don't like the potential that a group that they are opposing 
could become recognized. So we need to consider those comments 
as well, and we will in good faith.
    We are getting all kinds of comments and they are kind of 
all over the map. And we are carefully going through them right 
now.
    The Chairwoman. I am trying to follow all of that. I guess 
I would ask the question again this way, are you concerned that 
you could go too far, do you understand the point that some 
people think you could go too far the other way?
    Mr. Washburn. Yes, ma'am, I do. We don't intend, again, it 
needs to be a rigorous process. It really needs to be the case 
that on the far side of this, when we have made a decision, 
people have faith in that decision. So it does need to have 
rigor. We do have PhD historians and genealogists and 
anthropologists looking at these things. It is a fairly 
scientific type process. We need to make sure that people know 
that the experts have looked at this with rigor and come up 
with a conclusion.
    So we don't intend to make it a rubber stamp process. We 
think it needs to be rigorous. So we will be attuned to that.
    We have seven criteria, and they tend to be fairly 
rigorous, very rigorous criteria now. We don't intend to make 
them lighter, we intend to make the process more efficient.
    The Chairwoman. Thank you for that. And I want to add my 
comments to Senator Tester's, we certainly appreciate the 
process and your hard work and attention on it. Actually 
today's hearing is not really about the review of your Federal 
recognition review process, it is about these particular bills 
that are, in my opinion, unique for very specific reasons. A 
legislative approach is being considered. But perhaps we will 
have you back at the Committee at some future date to talk 
specifically about your proposals and changes. We very much 
appreciate the attention to this particular area of Indian 
Affairs.
    Again, thank you for being here today and for your 
testimony on these legislative bills.
    Mr. Washburn. Thank you, Madam Chairwoman.
    The Chairwoman. Thank you.
    We will now turn to our third panel and hear from the 
Honorable Stephen Adkins, Chief of the Chickahominy Indian 
Tribe from Charles City, Virginia; the Honorable Paul Brooks, 
Chairman of the Lumbee Tribe of North Carolina; and the 
Honorable Gerald Gray, Chairman of Little Shell Tribe of 
Chippewa Indians of Montana, Black Eagle, Montana. So thank you 
all very much or being here and for your patience today, of us 
going through our executive session and colleagues coming to 
support your legislative proposals. We are very happy to have 
you before the Committee today. Chief Adkins, I think we will 
start with you.

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

    Mr. Adkins. Thank you, Madam Chairwoman Cantwell and 
Ranking Member Barrasso and other distinguished members of this 
Committee, Senator Tester, for inviting me here today to 
provide testimony in support of Senate Bill 1074.
    This bill was introduced by Senators Tim Kaine and Mark 
Warner. The bill would extend Federal recognition to the 
Chickahominy Indian Tribe Eastern Division, the Monacan Indian 
Nation, the Nansemond Indian Tribe, the Rappahannock Indian 
Tribe, Inc., the Upper Mattaponi Indian Tribe and my tribe, the 
Chickahominy Indian Tribe. These six tribes gained State 
recognition in the Commonwealth of Virginia between 1983 and 
1989. And in 1997, we began to look ahead to Federal 
recognition.
    It may surprise members of the Committee that these tribes 
are not currently recognized. After all, our tribes are proud 
descendants of the colonial era tribes whose beneficence was 
the main reason the first permanent English settlement at 
Jamestown survived the rigors of a strange new environment. But 
Madam Chair, while you and most Americans may know the early 
history of our tribes, the fact that we were so prominent in 
early history, and then so callously denied our Indian 
heritage, that is a story that most don't want to remember or 
recognize.
    The relationships between the tribes and the settlers were 
tested over the 17th century and several treaties were drawn. 
The culminating treaty, the Treaty of 1677, also referred to as 
Articles of Peace, the culminating treaty, this treaty would be 
sufficient to allow us recognition as sovereign tribes. But 
because it was signed while Virginia was still a colony and the 
crown still reigned, the government of the United States has 
failed to honor it.
    We were invited to England in commemoration of the 400th 
anniversary of the first permanent English settlement at 
Jamestown as guests of the Queen. Our tribes saw first-hand how 
reverently the crown still holds the Treaty of 1677. It is our 
hope, Madam Chair, that you will embrace the spirit of the 
Articles of Peace and affirm our sovereign relationship with 
the United States of America.
    We are also seeking recognition through an act of Congress 
rather than the BIA, because actions taken by the Commonwealth 
of Virginia during the 20th century annihilated our nations. 
Not through blood as in the 17th century, but through papers, 
as State registrar Walter Aspey Plecker sought to 
systematically erase all history of Virginia Indians. In 1924, 
Virginia enacted the Racial Integrity Act. This law forced all 
segments of the population to be registered at birth as either 
white or colored. Those with a single drop of non-white blood 
were considered to be colored for the purposes of the 
Commonwealth.
    The policies established by Plecker made it illegal to 
designate Indian on a birth certificate or to give an Indian 
child a traditional Indian name. The official practice of the 
Commonwealth of Virginia was to erase the existence of Indians 
through statutes and legislation. This has made the 
administrative process nearly impossible. Anthropologists have 
said there is no other State that attacked Indian identity as 
directly as the laws passed during that period of time in 
Virginia. This law stayed in effect nearly half my life, until 
1967, a date so recent that only one member of this Committee, 
Senator Schatz, was born after its repeal.
    As part of the Indian Reorganization Act in 1934, the 
United States Government officials contacted the Commonwealth 
of Virginia regarding its Indian population. Mr. Plecker 
advised that there were no Indian tribes in Virginia. Despite 
Plecker's response, Federal officials visited Virginia Indian 
tribes and substantiated our existence. But no action was 
taken, and we remained unrecognized.
    We believe the petition process would not understand this 
history and would not be able to see beyond the corrupted 
documentation that legally denied our Indian heritage. Given 
the realities of the Office of Federal Acknowledgment and the 
historical slights suffered by the Virginia Indian tribes for 
the last 400 years, the six tribes referenced in S. 1074 feel 
that our situation clearly distinguishes us as candidates for 
Congressional Federal recognition.
    As chiefs of our respective tribes, we do not want our 
families or our tribes to let the legacy of Walter Plecker 
stand. We are asking Congress to help us make history for the 
Indian people of Virginia, a history that honors our ancestors 
who were there at the beginning of this great Country.
    Madam Chairwoman, passage of this bill would honor the 
treaty our ancestors made with the early colonists and the 
crown. And it would show respect for our heritage and identity 
that has never before been acknowledged.
    Finally, let me say there is never, there is never a wrong 
time to do the right thing. Our people were introduced to 
Christianity by the settlers and despite the abuses of the 
messengers, we heard the message. And we believe in the saving 
grace of Almighty God. We believe that God placed you here, 
Madam Chairwoman, Senator Barrasso, Senator Tester and others, 
placed you here today to do the right thing, to acknowledge 
these six Indian tribes as sovereign nations. Esther 4:14 
states it clearly, and I won't quote that today, but you have 
the power to do the right thing. And yes, you were placed here 
for such a time as this.
    Madam Chairwoman, I appreciate the opportunity to testify 
before you today. I would ask that my written testimony be 
submitted in record today also. Again, thank you and thank the 
Committee.
    [The prepared statement of Mr. Adkins follows:]

   Prepared Statement of Hon. Stephen R. Adkins, Chief, Chickahominy 
                              Indian Tribe
    Thank you Chairwoman Cantwell, ranking member Barrasso, and other 
distinguished members of this Committee for inviting me here today to 
provide testimony in support of S. 1074. The bill, introduced by 
Senators Tim Kaine and Mark Warner and entitled the Thomasina E. Jordan 
Indian Tribes of Virginia Federal Recognition Act of 2013, would extend 
Federal Recognition to the Chickahominy Indian Tribe-Eastern Division, 
the Monacan Indian Nation, the Nansemond Indian Tribe, the Rappahannock 
Indian Tribe, Inc., the Upper Mattaponi Indian Tribe and my Tribe, the 
Chickahominy Indian Tribe.
    It may surprise members of the Committee that these tribes are not 
currently recognized. After all, our tribes are proud descendants of 
pre-colonial era tribes who were the keepers of this land when the 
settlers arrived in 1607. In fact, it was through the beneficence of 
these tribes that the first permanent English Settlement at Jamestown 
survived the rigors of a strange new environment. It was a complicated 
history: tribes were sometimes at peace and trading as friends with the 
settlers, while at other times things were more contentious.
    I could tell you, Madame Chair, the much publicized story of the 
17th Century Virginia Indians, but you, like most Americans, know our 
first contact history. Well-known is the story of Chief Powhatan and 
his daughter Pocahontas, her picture being in the United States Capitol 
building with her English husband John Rolfe. I often say this country 
is here today because of the kindness and hospitality of my forebears 
who helped the English colonists at Jamestown gain a foothold in a new 
and strange environment.
    But while you, and most Americans, may know the early history of 
our tribes, the fact that we were so prominent in early history and 
then so callously denied our Indian heritage is the story that most 
don't want to remember or recognize. I, and those Chiefs here with me, 
stand on the shoulders of tribes like the Papsehegh, a tribe wantonly 
destroyed by Lord Delaware in 1610. We stand on the shoulders of 
leaders like my predecessor, Chief Arthur Lonewolf Adkins, who died in 
2001 and who was among the delegation advised by the Assistant 
Secretary of the Department of the Interior in 1999 that many of the 
delegation would pass away before federal recognition would be achieved 
administratively.
    Madame Chairwoman, the government of the United States of America 
currently offers to us an administrative route to achieve formal 
recognition, which many have encouraged us to seek. Yet this is 
impossible for our tribes to accomplish, owing to actions taken by the 
governments of the United States and of the Commonwealth of Virginia.
    You see, you know the early history of our tribes and our 
relationships with the settlers. You know that relationships between 
the tribes and settlers were tested over the 17th century and several 
treaties were drawn. The culminating treaty signed between the settlers 
and the Virginia Indian Tribes to enable the two peoples to peacefully 
coexist is the Treaty of 1677 (also referred to as the Articles of 
Peace or the Treaty of the Middle Plantation). This treaty detailed the 
rights of sovereign tribal governance, the relationship between the 
Indians and the colonists, and fishing, hunting and trading rights.
    This Treaty would be sufficient to allow us recognition as 
sovereign tribes, if it were recognized by the government of the United 
States. But because the Treaty was signed in 1677, while Virginia was 
still a colony and the Crown still reigned, the government of the 
United States has failed to honor this treaty.
    Madame Chairwoman, I would like to pause for a moment just to 
reiterate that last statement. Our tribes are not recognized as 
legitimate because the treaty was not signed by the United States 
government, a government that would not come into existence for nearly 
one hundred years. Because our ancestors achieved a peaceful settlement 
with the settlers, our recognition as sovereign tribes is denied. We 
were invited to England in Commemoration of the 400th Anniversary of 
the First Permanent English Settlement at Jamestown. We were guests of 
the Queen. Our Tribes saw first-hand how reverently the Crown still 
holds the Treaty of 1677. It is our hope that you will embrace the 
spirit of the Articles of Peace and affirm our sovereign relationship 
with United States of America.
    We are also seeking recognition through an act of Congress rather 
than the BIA because actions taken by the Commonwealth of Virginia 
during the 20th Century annihilated our nations, not through blood, as 
in the 17th century, but through paper. The Commonwealth of Virginia, 
through its agent, Walter Ashby Plecker, sought to systematically erase 
all history of Native Americans.
    In 1924, Virginia's state legislature enacted The Racial Integrity 
Act. This vile law forced all segments of the population to be 
registered at birth in one of two categories: white or colored. 
Enforced byWalter Plecker, a rabid separatist and the director of the 
Virginia Bureau of Vital Statistics, the official policy of the 
Commonwealth eliminated Indian, Mexican, and Asian as a race. Those 
with a single drop of non-white blood were considered to be ``Colored'' 
for the purposes of the Commonwealth.
    Sadly this tells only a part of the story. The policies established 
by Plecker made it illegal to designate Indian on a birth certificate 
or to give an Indian child a traditional Indian name. The law stayed in 
effect until 1967, a date so recent that only one member of this 
committee, Senator Schatz, was born after its repeal. This law made it 
necessary for my parents to travel to Washington D.C. on February 20, 
1935 in order to be married as Indians.
    The official practice of the Commonwealth of Virginia was to erase 
the existence of my people through statutes and legislation. Not only 
is the Treaty of 1677 disregarded, but the destruction of documents 
regarding our existence during the Civil War and other periods of early 
history pales in comparison to the State-sanctioned indignities heaped 
upon my people under the hand of Walter Ashby Plecker. This has made 
the administrative process nearly impossible. Although socially 
unacceptable to kill Indians outright, Virginia Indians became fair 
game to Plecker as he led efforts to eradicate all references to 
Indians in Vital Records (a practice that was supported by the state's 
Establishment when the eugenics movement was endorsed by leading state 
universities). The effect of this period and the racial policies of the 
State meant that Indian people were targeted--it was feared that they 
would dare to try to claim their heritage and seek extra protection 
outside the state or with the Federal Government. Violations put 
doctors and midwives at risk of up to one year in jail. 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 worse. That 
law stayed in effect half of my life.
    We have been asked why many of us do not have traditional Indian 
names. Quite simply, the law said we couldn't, and the law said that we 
weren't Indian. Our parents weighed the risks and decided violating The 
Racial Integrity Act was not worth the risk of going to jail.
    In addition, 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, 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, thereby substantiating our existence. But no action was 
taken, and we remain unrecognized.
    We are seeking recognition through Congress because we believe the 
petition process would not understand this history and would not be 
able to reconcile this State action with our heritage. We feared the 
process would not be able to see beyond the corrupted documentation 
that legally denied our Indian heritage. Many of the elders in our 
community also feared racial backlash if they tried, and for good 
reason.
    Our parents lived through the Plecker years and carried those scars 
to their graves. When I approached my father and his peers regarding 
our need for state recognition they pushed back very strongly. In 
unison they said, ``Let sleeping dogs lie and do not rock the boat''. 
Their fears of reprisal against those Indians who had risked marrying 
in Virginia, and those whose birth records accurately reflected their 
identity, outweighed their desire to openly pursue any form of 
recognition. Those fears were not unfounded because the threat of fines 
or jail time was very real to these Virginia Indians.
    The story I just recounted to you is very painful and I do not like 
to tell that story. Many of my people will not discuss what I have 
shared with you, Chairwoman Cantwell, but I feel you need to understand 
recent history opposite the romanticized, inaccurate accounts of 17th 
century history.
    Let me tell you how we got here today. The six tribes on this bill 
gained State Recognition in the Commonwealth of Virginia between 1983 
and 1989. Subsequent to state recognition, George Allen, as governor, 
learned our story. In 1997, he passed the statute that acknowledged the 
aforementioned discriminatory laws and allowed those with Indian 
heritage to correct their records with costs to be borne by the 
Commonwealth. At that juncture, we began to look ahead to federal 
recognition. In 1999, we were advised by the Assistant Secretary--
Indian Affairs that many of us would not live long enough to see our 
petition go through the administrative process, a prophecy that has 
come true--we have buried three of our chiefs since then.
    Given the realities of the Office of Federal Acknowledgement and 
the historical slights suffered by the Virginia Indian Tribes for the 
last 400 years, the six tribes referenced in S. 1074 feel that our 
situation clearly distinguishes us as candidates for Congressional 
Federal recognition.
    As Chiefs of our respective tribes, we have persevered in this 
process for one reason. We do not want our families or our Tribes to 
let the legacy of Walter Plecker stand. We want the assistance of 
Congress to give the Indian Tribes in Virginia their freedom from a 
history that denied their Indian identity. Without acknowledgment of 
our identity, the harm of racism is the dominant history. We want our 
children, and the next generation, to have their Indian Heritage 
honored and to move past what we and our parents experienced. We want 
our veterans, the descendants of veterans who gave the ultimate 
sacrifice in the defense of this country, our tribal elders who have 
gone before, and those who struggle for recognition today to know their 
efforts have not been in vain. We, the leaders of these six Virginia 
Tribes, are asking Congress to help us make history for the Indian 
people of Virginia, a history that honors our ancestors who were there 
at the beginning of this great country.
    I would like to quote a statement made by Chief Powhatan to John 
Smith, a statement that has almost been forgotten but ironically still 
has relevance today:

         Why should you take by force that which you can have from us 
        by love? Why should you destroy us who have provided you with 
        food? What can you get by war? . . . I therefore exhort you to 
        peaceable councils . . .

    Madame Chairwoman, passage of this bill would give us the peace 
that Chief Powhatan sought, would honor the treaty our ancestors made 
with the early Colonists and the Crown, and would show respect for our 
heritage and identity that has never before been acknowledged.
    Finally, there is never a wrong time to do the right thing. 
Acknowledging these six Indian Tribes as sovereign nations is the right 
thing to do. You have the power to do it. Perhaps you were placed here 
for such a time as this.

    The Chairwoman. Thank you, Chairman Adkins.
    We will now turn to the Honorable Paul Brooks. Thank you 
very much for being here as well, Mr. Chairman.

     STATEMENT OF HON. PAUL BROOKS, CHAIRMAN, LUMBEE TRIBE

    Mr. Brooks. Good afternoon, Chairwoman Cantwell and other 
distinguished members of the Committee. Thank you for the 
opportunity to present a testimony on S. 1132, a bill to 
provide recognition to the Lumbee Tribe of North Carolina.
    I am Paul Brooks, Chairman of the Lumbee Tribe, which has a 
membership of 55,000.
    My statement is based on historical research and first-hand 
knowledge prior to becoming chairman. I have served in 
different leadership roles in the tribe. I serve on the tribe's 
Federal Recognition Committee. The tribe has a long and proud 
history. It has been recognized as an Indian tribe by the State 
of North Carolina since 1885, and at the same time established 
a separate school system for tribal members. The tribe was 
given the exclusive authority to manage its own educational 
affairs.
    In 1887, tribal leaders petitioned the General Assembly to 
establish the Indian Normal School. The members were trained 
there to become teachers in the tribe's schools. That school 
exists today as the University of North Carolina at Pembroke, 
and is part of the State's 16 university systems.
    The tribe has enjoyed a long, strong relationship with the 
State, and that relationship continues today. Present Governor 
Pat McCrory has openly supported the tribe's Federal 
recognition effort. The tribe began its first fight for Federal 
recognition in 1888, when tribal leaders petitioned Congress 
for educational aid. The petition was denied based solely on 
economic consideration. The Department of Interior didn't have 
sufficient funds to assist the tribe.
    Since that time, numerous bills have been introduced to 
recognize the tribe. Repeatedly, Interior has opposed these 
bills. There have been 12 Federal commission reports on the 
history and status of the Lumbee Tribe. Each report identifies 
the Lumbees as an Indian tribe and recommends the Federal 
Government provide services. However, Federal officials did not 
implement any of the recommendations. Services were not denied 
because we were an Indian tribe, but because of insufficient 
funds to provide funding.
    In 1956, Congress passed the Lumbee Act. As with other 
bills, this was one intended to recognize the tribe, just as 
the State had done in 1952 under the name Lumbee. The 
Department opposed the bill and insisted the bill be amended to 
make sure the tribe was not eligible for services. Congress 
amended the bill and the Department requested and enacted the 
law they gave with one hand and took away with the other hand. 
The 1956 Act prohibited services to the tribe. Since the 
passage of this Act, we have been considered second class 
Indians by the Department of Interior and even by some in 
Indian Country.
    In 1987, the tribe submitted a petition to go through the 
fact process. However, because of the termination language in 
the Act, the solicitor's office issued an opinion in 1989 
stating the tribe was ineligible to petition for recognition 
through the administrative process. Therefore, the only remedy 
for the tribe is for Congress to act.
    The Lumbee Tribe is now the only tribe in the Country 
trapped in this legal limbo. Congress should correct this 
situation for the Lumbees by the enactment of S. 1132, just as 
Congress has done in the past. Because Congress placed the 
Lumbee Tribe in this legal limbo by the 1956 Lumbee Act, only 
Congress can restore the tribe to full Federal recognition. As 
a result, Congress must act to resolve the status of the Lumbee 
Tribe. The 100 years of Congressional and administrative 
deliberation on the tribe's history has produced a compelling 
record of the tribe's existence. This record includes the 
explicit statement by Interior in 1934, based on a report by 
anthropologist John Swanton, that the Lumbee descended from the 
Cheraw and other coastal North Carolina tribes. Because of this 
record, there is no need for further study by the Department on 
the tribe's status. The proposed bill restores the Lumbee Tribe 
to full Federal recognition by amending the 1956 Act in keeping 
with the tribe's long history of self-determination and 
establishing the historic territory of the tribe as a service 
area and does not create a reservation.
    Consistent with general policy, respecting internal tribal 
matters, the bill authorizes the Secretary of the Interior to 
review the Lumbee tribal role but only for the purpose of 
determining that members meet the tribal enrollment criteria. 
Finally, the bill reflects the longstanding relationship 
between the tribe and the State of North Carolina by granting 
the State civil and criminal jurisdiction of the Lumbee 
Indians, just as it exists today.
    It is time for Congress to finish what it started in 1956 
and extend full recognition to the Lumbee Tribe. The proposed 
bill would accomplish this. Our people deserve fair treatment, 
and we believe that this bill deserves the support of this 
Committee, and such an honorable committee that I am looking at 
today. Thank you very much.
    [The prepared statement of Mr. Brooks follows:]

     Prepared Statement of Hon. Paul Brooks, Chairman, Lumbee Tribe
    Good afternoon Chairwoman Cantwell, and other distinguished members 
of the Senate Committee on Indian Affairs. First, let me thank you for 
the opportunity to appear before the Committee to present testimony on 
S. 1132, a bill to provide recognition to the Lumbee tribe of North 
Carolina. My name is Paul Brooks and I am the Chairman of the Lumbee 
Tribe, which has a membership of 55,000. The tribe is located in 
southeast North Carolina, and the tribal territory includes the 
counties of Robeson, Scotland, Hoke and Cumberland. We are governed by 
a Constitution adopted by the tribal membership, which consist of three 
branches of government: the executive branch, the legislative branch, 
which includes a 21 member Tribal Council representing fourteen 
districts throughout the tribal territory, and the judicial branch. My 
statement is based on historical research, and first-hand knowledge. 
Prior to becoming Tribal Chairman, I have served in different 
leadership roles within the Lumbee Tribe. I was Chairman of the non-
profit organization, Lumbee Regional Development Association, Inc., the 
entity who once administered federal and state programs for the benefit 
of the tribal membership, and was in charge of the tribe's efforts to 
obtain federal recognition. I served on the on the tribe's Federal 
Recognition Committee, and was a major supporter of the tribe's efforts 
to adopt a tribal constitution. In addition, I served as Chairman of 
the North Carolina Commission of Indian Affairs, an agency created by 
legislation to assist the state's Indian communities in a wide range of 
social, legal, political, economic, and cultural concerns.
    The Lumbee has been recognized as an Indian tribe by the State of 
North Carolina since 1885. Legislation was passed to recognize the 
Lumbee tribe and naming it Croatan, at the same time establishing a 
separate school system for the benefit of tribal members. The law also 
established Indian School Committees made up of tribal members who were 
empowered to determine the eligibility of students to attend, and hire 
their own teachers. Tribal members were given the exclusive authority 
to manage its own educational affairs. The authority of the school 
committees to determine student eligibility was challenged by the local 
school board, and in 1890, the North Carolina Supreme Court reaffirmed 
the Committee's exclusive authority to determine who could attend the 
Indian schools. The schools were improperly funded, and in 1887, tribal 
leaders petitioned the North Carolina General Assembly to establish the 
Croatan Indian Normal School to be used to train tribal members to 
become teachers in the tribe's school system. This petition prompted 
the General Assembly to pass legislation, which created the teaching 
institution, and provided funding for the operation of the school. That 
school continues to exist today as the University of North Carolina at 
Pembroke, and is an integral part of the state's sixteen University 
system.
    The tribe has enjoyed a strong relationship with the State of North 
Carolina, and that relationship continues to exist today. Legislation 
has been passed through the years to protect the tribe's identity, 
acknowledge their status as an Indian tribe, and maintain and preserve 
their culture. They have worked with the tribe in their efforts to 
obtain federal recognition, and that commitment continues.
    The tribe began its fight for federal recognition in 1888, when 
forty-four tribal leaders petitioned Congress for educational aid. This 
petition was signed by most of the same tribal leaders who had 
petitioned the North Carolina Legislature in 1887. The petition 
ultimately was sent to the Department of the Interior for its 
consideration; however, their response was to deny the tribe's request 
for assistance based solely on economic considerations. The Department 
felt they had insufficient funding to take care of the Indian tribes to 
whom they were responsible, and could not assist the tribe. The 
petition resulted in the first federal bill being introduced in the 
U.S. House of Representatives on behalf of the Lumbee tribe. 
Congressman John D. Bellamy introduced the bill in 1900, appeared 
before the House Committee on Indian Affairs to present an overview of 
the tribe, and gave the same presentation to the full House; however, 
the bill did not pass.
    Since 1900, there have been numerous bills introduced in both the 
U.S. House of Representatives and the US Senate; however to no avail. 
Repeatedly, the Department of the Interior has opposed bills by 
Congress to recognize the tribe and our bills failed.
    Our people have also tried to get federal recognition from the 
Department of the Interior. After Congress passed the Indian 
Reorganization Act (IRA) in 1934, the tribe attempted to qualify for 
federal recognition only to be subjected to a ludicrous exercise in 
pseudo-science. The Federal Government sent an anthropologist who took 
physical data on members of the tribe in our attempt to qualify under 
the IRA. Data was taken on their hair, eyes, ears, nose, lips, teeth 
and head, as well as blood type and general body measurements. Tribal 
members felt this was an insult, and there was very little 
participation. Out of the two-hundred applicants, only twenty-two 
Lumbee were certified as one-half or more Indian blood. The Department 
eventually refused to take land into trust for these individuals; the 
tribe could not organize under a constitution and did not become 
recognized under the Indian Reorganization Act. This is only one of 
twelve federally commissioned reports on the history and status of the 
Lumbee tribe. Each report identified the Lumbee as an Indian tribe, and 
recommended that the Federal Government should provide services; 
however, federal officials did not implement any of the recommendations 
provided by those they sent to conduct studies of the Lumbee tribe. In 
every instance, the tribe was denied services not because we were not 
an Indian tribe, but because there was insufficient funding to provide 
services to the Lumbee.
    In 1956, Congress finally passed a bill for the Lumbee. As with 
other bills, this one was intended to recognize the tribe, just as the 
State had recently done, under the name Lumbee. Once again, the 
Department opposed the bill and insisted that, if enacted, the bill 
should be amended to make sure the tribe was not eligible for Indian 
services. Congress amended the bill as the Department requested and 
enacted a law that gave with one hand and took away with the other. The 
1956 Lumbee Act gave us the name we had sought for so long, the giving 
of a name being thought by our people to be official recognition, and 
the 1956 Lumbee Act prohibited the application of federal Indian 
statutes to the tribe. Since the passage of the Act, we have been 
considered second-class Indians: by the Department of the Interior and 
even by some in Indian country.
    In 1987, the tribe submitted a documented petition to the Bureau of 
Indian Affairs in accordance to the Federal Acknowledgment regulations; 
however, because of the termination language in the 1956 Act the 
Solicitor's Office at the Department of the Interior issued an opinion 
in 1989 stating the tribe was ineligible to petition for federal 
recognition through the administrative Federal Acknowledgment Process. 
Therefore, the only remedy for the tribe is for Congress to take 
action.
    There are those who feel the Lumbee Act should be repealed or 
amended to make the tribe eligible for the Acknowledgment Process; 
however, Congress itself reconsidered the status of the only other 
tribe in precisely the same position as the Lumbee Tribe; the Tiwa of 
Texas. In a 1968 statute that was modeled on the 1956 Lumbee Act, 
Congress designated and recognized those Indians as the Tiwa Indian of 
Ysleta, Texas, but included the same termination language as that in 
the Lumbee Act. In 1987, well after the Department of the Interior had 
established its Federal Acknowledgment Process, Congress fixed this 
problem for the Tiwa. It enacted the Ysleta Del Sur Pueblo Restoration 
Act, which restored the federal trust relationship with the Tiwa and 
the federal Indian services for the Tiwas. The Lumbee Tribe is now the 
only tribe in the country trapped in this legal limbo. Congress should 
correct this situation for the Lumbee Tribe by the enactment of S. 
1132, just as Congress has already corrected the situation for the 
Ysleta Del Sur Pueblo.
    Because Congress placed the Lumbee Tribe in this legal limbo by the 
1956 Lumbee Act, only Congress can restore the Lumbee Tribe to full 
federal recognition. The 1989 Solicitor's opinion concluded the 
termination language of the 1956 Lumbee Act makes the tribe ineligible 
for the administrative acknowledgment process. As a result, Congress 
must act to resolve the status of the Lumbee Tribe, and Congress can do 
so with full confidence the tribe meets the criteria for federal 
acknowledgment. The hundred years of congressional and administrative 
deliberation on the Tribe's history has produced a voluminous and 
compelling record of the Tribe's existence. This record includes an 
explicit statement by the Department of the Interior in 1934, based 
upon a report by the eminent anthropologist John Reed Swanton that the 
Lumbee descend from the Cheraw and other coastal North Carolina tribes. 
Because of this record, there is no need for further study by the 
Department of the Interior on the Tribe's status. Congress should treat 
the Lumbee Tribe just as it did the Ysleta Del Sur and enact S. 1132, a 
comprehensive recognition bill.
    The proposed bill restores the Lumbee Tribe to full federal 
recognition by amending the 1956 Lumbee Act. In keeping with the 
Tribe's long history of self-determination, it establishes the historic 
territory of the tribe as a service area and does not create a 
reservation. Consistent with federal policy respecting internal tribal 
matters, the bill authorizes the Secretary of the Interior to review 
the Lumbee tribal roll, but only for the purpose of determining that 
members meet the Tribe's enrollment criteria. Finally, the bill 
reflects the long-standing relationship between the Tribe and the State 
of North Carolina by granting the state civil and criminal jurisdiction 
over Lumbee Indians, just as it exists today.
    It is time for Congress to finish what it started in 1956 and 
extend full recognition to the Lumbee Tribe. The proposed bill would 
accomplish this. Further, it does so in a responsible way in keeping 
with current federal Indian policy. Our people deserve fair treatment, 
and we believe that this bill deserves the support of this Committee.

    The Chairwoman. Thank you, Mr. Chairman, and thank you for 
being here and for your advocacy. I know this has been an 
ongoing issue, so I certainly appreciate your continuing to 
push for this legislation.
    We will hear last from Chairman Gray. Thank you for being 
here.

STATEMENT OF HON. GERALD GRAY, CHAIRMAN, LITTLE SHELL TRIBE OF 
                        CHIPPEWA INDIANS

    Mr. Gray. Thank you, Senator.
    Good afternoon. My name is Gerald Gray and I am the 
chairman of the Little Shell Tribe of Chippewa Indians of 
Montana.
    Chairwoman Cantwell, Vice Chairman Barrasso, thank you for 
holding this important hearing today and providing the Little 
Shell with this opportunity to testify. I also want to extend a 
special thank you to Senator Tester, who has been the Little 
Shell Tribe's great champion for so many years, and who, 
together with our good friend, Senator Baucus, has made this 
possible, S. 1161, the Little Shell Band of Chippewa 
Restoration Act of 2013.
    The Little Shell Tribe began the administrative recognition 
process in 1978, which means that we have been in the 
Department of Interior's administrative Federal acknowledgment 
process for more than 35 years, which has meant lost services, 
emotional scars for generations of Little Shell members. 
Thirteen years ago, we believed we saw the light at the end of 
the tunnel when Assistant Secretary Gover issued a proposed 
finding in favor of restoring Federal recognition to the Little 
Shell Tribe.
    The issuance of Assistant Secretary Gover's proposed 
finding began a public comment period during which the 
Department received no negative comments on the proposed 
recognition of our tribe. The State of Montana, all affected 
local governments and all of Montana's federally-recognized 
tribes support the Little Shell's recognition.
    Even so, in November of 2009, the Department inexplicably 
reversed Assistant Secretary Gover's positive findings and 
denied restoration of the Little Shell Tribe. We appealed the 
negative decision to the Interior Board of Indian Appeals on 
several grounds. The BIA in turn referred several questions to 
the Secretary of Interior as provided by the regulations which 
govern the administrative appeal process.
    On September 16th, 2013, the Secretary exercised her 
discretion in favor of the tribe when she referred five serious 
questions to the Assistant Secretary instructing that ``Based 
on the nature of the five alleged grounds, particularly with 
regard to due process concerns and questions regarding burdens 
of proof, I am exercising my discretion to request that you 
reconsider the Little Shell final determination.'`
    As our appeal was proceeding, Assistant Secretary Kevin 
Washburn announced that the Department would undertake a review 
of Federal regulations which govern the administrative Federal 
acknowledgment process. He issued a decision draft of proposed 
revisions which, if adopted, will make the administrative 
acknowledgment process fairer and lead to more just results.
    The Little Shell Tribe of Chippewa Indians is deeply 
grateful to Assistant Secretary Washburn for this undertaking. 
As this Committee so well knows from its own experience in 
overseeing the Federal acknowledgment process, genuine reform 
of the administrative process is long overdue. I would ask that 
you please refer to my written testimony for detailed examples 
of why we support proposed reforms.
    While we support Assistant Secretary Washburn's efforts to 
reform the recognition process, there is no certainty as to 
when or even if these regulations will be adopted. That is why 
the Little Shell Tribe urges Congress to delay no further in 
exercising its Constitutional authority to restore my tribe's 
recognition through legislation. Even a reformed administrative 
process cannot address the inherent additional issues which all 
newly-recognized tribes must face: the acquisition of homeland, 
the designation of service areas and the navigation of the 
brutal complications caused by the Carcieri decision. The 
Little Shell Tribe Restoration Act of 2013, on the other hand, 
effectively resolves all those issues for my tribe, and by 
doing so, provides certainty, not just for us, but also for our 
non-Indian neighbors.
    We continue to enjoy the full support of other federally-
recognized tribes in Montana, also of Governor Bullock and all 
the local communities near us. And just in fact, two days ago, 
we received a statement of support from Montana Attorney 
General Tim Fox. This is why the full Montana Congressional 
delegation supports our legislation. We ask that the Committee 
also support S. 161, and that in turn, it do whatever it can to 
ensure that the legislation is acted favorably upon by the 
United States Congress.
    Until our recognition is restored, the historical 
wrongdoings committed against my people will continue unabated 
into the 21st century. Again, I am deeply grateful for your 
time today and I am happy to answer any questions.
    [The prepared statement of Mr. Gray follows:]

Prepared Statement of Hon. Gerald Gray, Chairman, Little Shell Tribe of 
                            Chippewa Indians
Introduction
    My name is Gerald Gray, and I am the elected Chairman of the Little 
Shell Tribe of Chippewa Indians. On behalf of the Little Shell Tribe I 
urge Congress to enact The Little Shell Tribe of Indians Restoration 
Act of 2013, S. 161. Further, I ask that this written testimony be 
included in the record of this hearing.
    The Little Shell Tribe of Chippewa Indians of Montana (Tribe) has 
been involved in the federal acknowledgment process since 1978. To put 
that into perspective, the Tribe has been in the process for all or 
parts of five decades. We still do not have a final determination and 
no indication of when a final determination might be rendered. We urge 
Congress to end the Tribe's ordeal by legislatively recognizing the 
Tribe. The Tribe already has suffered too long from the brutalizing 
effects of the Bureau of Indian Affairs' administrative recognition 
process--and forcing it to wait any longer only prolongs the historical 
injustices already endured by a Tribe that has no federally protected 
land base on which it can protect its heritage and culture, and provide 
desperately needed services and housing for its people.
I. Overview of the Procedural History of the Tribe's Participation in 
        BIA's Federal Acknowledgment Process
    On July 14, 2000, twenty-two years after starting the process, 
Kevin Gover, the Assistant Secretary--Indian Affairs (``AS-IA''), 
signed a ``Proposed Finding for Federal Acknowledgment of the Little 
Shell Tribe of Chippewa Indians of Montana.'' 65 Fed. Reg. 45,394 (July 
21, 2000) (``PF'' or ``Proposed Finding''). After summarizing the 
evidence under each of the criteria, the Assistant Secretary concluded 
that ``the petitioner should be acknowledged to exist as an Indian 
tribe.'' \1\ Id. at 45,396 (emphasis added). However, on November 3, 
2009, after an administration change, the Acting Principal Deputy, 
Assistant Secretary--Indian Affairs reversed course and issued a Final 
Determination (FD) against recognition of the Little Shell Tribe of 
Chippewa Indians of Montana (Tribe), thereby reversing the favorable 
proposed finding. 74 Fed. Reg. 56,861. The Acting Principal Deputy 
reversed Assistant Secretary Gover's Proposed Finding despite the fact 
that in the interim no negative comments were received on the PF, and 
despite that fact that the State of Montana, all affected local 
governments, and all Montana Tribes, as well as others, expressly 
supported Little Shell's recognition. \2\
---------------------------------------------------------------------------
    \1\ Relying largely on the summary under the proposed findings, the 
Montana Supreme Court held that the Little Shell Tribe met the criteria 
of Montoya v. United States, 180 U.S. 261 (1901) for common law 
recognition as a Tribe. Koke v. Little Shell Tribe of Chippewa Indians 
of Montana, Inc., 315 Mont. 510, 68 P.3d 814 (2003).
    \2\ Two third party comments were received. One was moot and the 
other comment simply requested explanation of certain matters. George 
T. Skibine, ``Summary under the Criteria and Evidence for Final 
Determination Against the Federal Acknowledgment of the Little Shell 
Tribe of Chippewa Indians of Montana,'' 15-16, (Oct. 27, 2009)(``FD'').
---------------------------------------------------------------------------
    The Tribe appealed to the Interior Board of Indian Appeals (IBIA) 
on several grounds within its jurisdiction, as set forth in 25 C.F.R  
83.11 (d)(9). On June 12, 2013, the IBIA rejected the Tribe's arguments 
based on those grounds. The Tribe also raised arguments outside the 
jurisdiction of the IBIA that were referred to the Secretary of the 
Interior under   83.11 (f)(2) and (g)(2). 25 C.F. R.  83.11 (f) (2) 
which provides that the Secretary has the ``discretion to request that 
the Assistant Secretary reconsider the final determination on [the] 
grounds'' referred by the IBIA. On September 16, 2013, the Secretary of 
the Interior granted the Tribe's request on all grounds and referred 
five serious questions to the Assistant-Secretary, stating: ``Based on 
the nature of the five alleged grounds, particularly with regard to the 
due process concerns and questions regarding burdens of proof, I am 
Exercising my discretion to request that you reconsider the Little 
Shell Final Determination.'' (Exhibit A attached). The five questions 
sent back to the Assistant-Secretary for reconsideration are as 
follows:
    1. Should reconsideration be granted based on the allegation that 
due process required that Petitioner be provided with an opportunity to 
review and comment on the interviews of 71 individuals conducted by 
OFA, and other materials obtained by OFA after Petitioner's last 
filings and prior to the issuance of the Final Determination?
    2. Should reconsideration be granted based on the allegation that 
application of criterion  83.7 (a) is arbitrary, capricious, and 
contrary to law?
    3. Should reconsideration be granted based on the allegation that 
the Final Determination erred in requiring Petitioner to demonstrate 
that the Federal actions relied upon by Petitioner to obtain the 
benefit of section 83.8, were clearly premised on Petitioner's 
ancestors being a tribal political entity with a government-to-
government relationship with the United States, and that the Final 
Determination applied an incorrect burden of proof to the evidence that 
Petitioner provided to show five instances of previous Federal 
acknowledgment?
    4. Should reconsideration be granted based on the allegation that 
the Final Determination imposed upon Petitioner a burden of proof 
greater than that required by  83.6(e)?
    5. Should reconsideration be granted based on the allegation that 
it was arbitrary and capricious, or contrary to law, for the Final 
Determination to reverse the favorable Proposed Finding, when no 
substantial negative comments were received regarding the Proposed 
Finding and Petitioner submitted evidence strengthening its petition?
    As to these questions, the Secretary concluded that ``The 
allegations in these grounds suggest that further review by your office 
would ensure that the Department's final decision in this matter 
benefits from a full analysis and comports with notions of a full and 
fair evaluation of the Little Shell petition.''
    Earlier this year, and prior to the referral of these questions to 
the Secretary, the Assistant Secretary for Indian Affairs made an 
important announcement of ``Consideration of Revisions to Federal 
Acknowledgment Regulations.'' (Copy attached as Exhibit B). Because the 
Little Shell FD is not yet final agency action, the Tribe requested 
that it be provided the same opportunity to suspend further 
consideration of its petition until the revised regulations are 
promulgated. This request was also addressed by the Secretary who 
concluded that, ``In addition to addressing the five matters referred 
by the IBIA, please consider the petitioner's request that the 
Department suspend consideration of the petition pending the enactment 
of revised acknowledgment regulations.''
    During the decades that the Tribe has been subjected to the 
administrative recognition process, it has consistently highlighted its 
concerns about the defects in that process and the profound injustices 
those defects often cause. After years of having its concerns fall on 
deaf ears, the validity of the Tribe's complaints shows signs of 
finally being addressed by the depth and breadth of the proposed 
amended regulations. Nevertheless, these proposed regulations are not 
yet adopted, and the Tribe has no way to know when or even if they will 
be. The United States owes an obligation to the Little Shell Tribe and 
its people, and that obligation already has been too long overdue in 
its fulfillment. Accordingly, the Little Shell Tribe respectfully urges 
the United States Congress to exercise its constitutional power to 
restore federal recognition to our Tribe, and finally to deliver us 
from the misery that for five decades has been our lot with the current 
version of the Bureau of Indian Affair's federal acknowledgment 
process.
II. The Ways in Which the Current Administrative Federal Acknowledgment 
        Process Has Failed the Little Shell Tribe
    For the purpose of demonstrating to Congress that the current 
administrative process is woefully defective, and that to avoid further 
injustice Congress must step in to recognize the Tribe, the Tribe 
provides below additional information related to the five questions 
raised by the Tribe and referred by the Secretary to the Assistant 
Secretary.
1. The Regulations Denied the Tribe Due Process; The Draft Regulations 
        Implicitly Recognize the Need for More Due Process Protection 
        in the Administrative Acknowledgment Process
    Before the Final Determination on the Tribe's petition, an OFA 
staff member made an additional, extensive field trip to visit the 
Tribe, during which 71 individuals were interviewed. FD page 49, fn 38. 
In addition, scores of other documents were obtained and relied upon in 
the FD. Id. There is no provision in the regulations for petitioners to 
review documents under such circumstances and the FD was issued without 
the Tribe having had the chance to review and respond to this evidence. 
\3\ The FD specifically indicates that the OFA relied on ``evidence 
that the Department researchers developed during their verification 
research.'' 74 Fed. Reg. 56,862.
---------------------------------------------------------------------------
    \3\ Indeed, the Tribe was required to file a FOIA request to even 
obtain the materials which should have been provided to it as a matter 
of course. It then had to wait months to get the materials, was denied 
access to some materials, and was required to pay costs of over $5000 
to receive the documents that were provided. The IBIA's pondering over 
what was received and when, is irrelevant since all materials were 
received after the time in which the Tribe could have commented prior 
to the FD. 57 IBIA at 127, n. 21.
---------------------------------------------------------------------------
    There are substantial benefits that flow from federal recognition. 
 83.2 provides that ``Acknowledgment of tribal existence by the 
Department is a prerequisite to the protection, services, and benefits 
of the Federal government available to Indian tribes by virtue of their 
status as tribes. Acknowledgment shall also mean that the tribe is 
entitled to the immunities and privileges available to other federally 
acknowledged Indian tribes by virtue of their government-to-government 
relationship with the United States . . . '' Given the importance of 
the benefits which flow from recognition, tribes have a right to due 
process in the recognition process. Kelly v. Railroad Retirement Board, 
625 F.2d 486, 490 (3d Cir. 1980); Marconi v. Chicago Heights Police 
Pension Board, 836 N.E. 2d 705, 725-26 (Ct. App. Ill. 2005).
    While the Tribe's direct contention that it had a right to see and 
comment on all evidence before a FD issued is not addressed by the 
draft regulations, there are proposed changes which reflect a 
realization that the present regulations do not provide adequate due 
process.  83.10 (n)(2) provides for the opportunity for a hearing on 
the ``reasoning, analyses, and factual bases for the proposed finding, 
comments and responses. The Office of Hearings and Appeals (OHA) or 
Assistant Secretary for Indian Affairs (ASIA), written in the proposed 
regulations as ``[OHA or AS-IA?],'' may require testimony from OFA 
staff involved in preparing the proposed finding. Any such testimony 
shall be subject to cross-examination by the petitioner.'' Exhibit B. 
These suggested revisions are consonant with the Tribe's contentions 
and the Tribe has suggested, in comments on the preliminary discussion 
draft regulations, that the final regulations require that petitioners 
receive all documents on which a FD is based, with an opportunity to 
comment before issuance of the FD.
2. Criterion 83.7 (a) Is Arbitrary, Capricious, and Contrary To Law. 
        The AS-IS Evidently Realizes This As the Draft Regulations 
        Propose Deletion of This Criterion
    25 C.F.R.  83.7 is titled ``Mandatory criteria for Federal 
acknowledgment.'' Failure to meet any criterion results in a negative 
Final Determination. 74 Fed. Reg. 56,861. Criterion (a) requires a 
showing that ``The petitioner has been identified as an American Indian 
entity on a substantially continuous basis since 1900.'' While such a 
showing may constitute evidence that a tribe exists, it cannot be a 
mandatory criterion. The unacceptability of (a) as a mandatory 
criterion is demonstrated by a simple thought experiment. Imagine that 
a tribe definitively satisfies the other six criteria--in other words, 
demonstrates tribal existence in every meaningful sense. Imagine 
further, that they have not been referred to as a tribe, or even as a 
collective by unknowing outsiders ``on a substantially continuous basis 
since 1900''. They would be denied acknowledgment under the 
regulations. That result cannot possibly be the law, as it would 
clearly violate the equal protection clause of the Constitution which 
requires those similarly situated to be treated similarly. City of 
Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). It would 
also violate Congressional legislation requiring that all tribes be 
treated equally. Federally Recognized Indian Tribe List Act of 1994, PL 
103-454 (1994).
    The AS-IA has apparently conceded this issue by proposing, in the 
draft regulations, to delete criterion (a). See Exhibit B,  83.7(a). 
The Secretary has also requested reconsideration of criterion (a).
3. The OFA Applied The Incorrect Standard To The Question of Previous 
        Federal Acknowledgment
    The FD indicates that to show previous federal acknowledgment, and 
so avail itself of the relaxed standards of proof contained in  83.8, 
the Tribe had to show not merely that its existence was previously 
acknowledged, but that it had a previous government-to-government 
relationship with the United States. 74 Fed. Reg. 56,863. The latter 
requirement runs afoul of the regulations and the policy underlying 
those regulations and will be the subject of comment on the preliminary 
discussion draft regulations. The Discussion Draft Regulations propose 
some excellent improvements in streamlining the process if a petitioner 
demonstrates previous federal acknowledgment.
    The draft regulations provide in  83.8 (d) (2) and (3) that if 
previous federal acknowledgment is shown, then community  83.7 (b) and 
political influence  83.7 (c) need only be shown for the present time. 
These are excellent proposals and should be adopted in the final 
regulations. Further changes must be made to clarify what must be shown 
to establish previous federal acknowledgment. The present regulations 
have been interpreted by OFA to require that a petitioner show not only 
that its existence was previously acknowledged, but also that it had a 
previous government-to-government relationship with the United States. 
See, e.g., 74 Fed. Reg. 56,863.
    The Tribe has submitted comments on the discussion draft 
regulations arguing that this needs to be done and is hopeful that its 
views will ultimately prevail on this issue as it has so far on the 
other issues. In this regard, it is significant that this issue relates 
to burden of proof, which was an area given special emphasis, as noted 
previously, in the Secretary's referral to the Assistant Secretary. See 
Exhibit A.
4. The Final Determination Imposed A Higher Burden of Proof Than Should 
        Have Been Required, Had Historical Circumstances Been Properly 
        Taken Into Account. The Discussion Regulations Propose 
        Significant Changes in The Criteria That Must Be Met
    Kevin Gover, the then AS-IA, in issuing a preliminary finding in 
favor of the Tribe, indicated that the historical circumstances, in 
large part caused by U.S. policy, dictated that the proof of criteria 
under the regulations be interpreted in light of those circumstances. 
The FD did not adequately allow for historical circumstances. In 
vindication of the Tribe's position throughout the years, the 
discussion draft regulations propose sweeping changes in the criteria 
themselves in recognition of the complexity of tribal histories cause 
by US policy. Even the proposed changes are inadequate, but are a vast 
improvement and vindicate the Tribe's constant urging that complex 
historical situations must be taken into account.
    The draft regulations propose substantial changes to criterion  
83.7 (b), community, which are in general salutary, but the final 
regulations need to go further. The draft regulations change the 
requirement that a petitioner show that a ``predominant portion'' of 
the petitioning group comprise a distinct community to a showing that 
an unspecified, ``(XX),'' per cent do so, and changes the timeframe for 
such a showing from historic times to from 1934. The proposal to 
eliminate the reference to ``predominant portion'' is a good one, but 
the proposal to insert a percentage is fundamentally flawed. A 
percentage arrived at in the abstract cannot do justice to the 
complexity on the ground. Rather, a determination should be made 
``based on an overall evaluation of the totality of the evidence'' and 
a favorable finding ``should not be precluded because of some gaps in 
the record.'' The determination should be governed by the ``substantial 
evidence'' test, with the evidence viewed in the light most favorable 
to the petitioner, and taking into account historical circumstances and 
any adverse effects of federal actions or policy.
    The present definition of community refers to ``consistent 
interactions and significant social relationships within its 
membership''. The present regulations distort this definition when they 
set forth the types of evidence that can be presented to meet the 
criterion of community, by references to ``significant rates of 
marriage'', ``significant rates of informal social interaction which 
exist broadly among the members of the group'', ``a significant degree 
of shared or cooperative labor . . . '', ``evidence of strong patterns 
of discrimination . . . ''; ``Shared sacred or secular ritual activity 
encompassing most of the group''; cultural patterns shared among a 
significant portion of the group . . . ''. These qualifiers distort the 
meaning of the definition which does not imply any specified portion of 
the community must engage in any specific activity. Rather, it just 
requires consistent interaction and relationships of significance 
``within the membership''. Few recognized tribes today could meet the 
arbitrary standards imposed by the qualifying terms contained in the 
references to the types of evidence listed. It is best to list the 
types of evidence without the qualifiers which seem to introduce 
arbitrary standards at every turn and then to make a determination 
based on the totality of the evidence.
    Likewise the draft regulations propose changes in the ways in which 
community can be definitively shown. The present provisions provide 
that community can be shown by demonstrating 50 per cent in-marriage, 
50 per cent sharing of distinct cultural patterns, or 50 per cent 
concentration in residential areas. The draft regulations delete the 
reference to 50 per cent and instead indicate an unspecified, ``[XX],'' 
per cent.  83.7 (b) (2). If percentages for definitive showings of 
community are ultimately adopted, it should be made clear that these 
percentages do not imply that something close to those percentages is 
needed to establish community absent such a definitive showing.
     83.7 (c) (2) provides that political influence can be shown by 
``demonstrating that group leaders and/or other mechanisms exist or 
existed which:

        (i) Allocate group resources such as land, residence rights and 
        the like on a consistent basis;

        (ii) Settle disputes between members or subgroups by mediation 
        or other means on a regular basis;

        (iii) Exert strong influence on the behavior of individual 
        members, such as the establishment or maintenance of norms and 
        the enforcement of sanctions to direct or control behavior;

        (iv) Organize or influence economic subsistence activities 
        among the members, including shared or cooperative labor.''

    The draft regulations propose a new ``(v) Show a continuous line of 
group leaders and a means of selection or acquiescence by a majority of 
the group's members.'' This is a good revision if the word ``majority'' 
is deleted and with that change should be adopted.
    Proposals for criterion (c), political influence, likewise changes 
the relevant period for which political authority is measured from 
historic times to 1934.  83.7 (c). This is an important step in the 
right direction, but once again adopts an arbitrary criterion. 1934 is 
obviously based on the date of the passage of the Indian Reorganization 
Act (IRA), but that Act contemplated actions related to recognition 
occurring after that date, and that factor should be reflected in the 
final regulations. In addition, the situation on the ground may be 
such, that starting from 1934 does not adequately do justice to the 
Tribe's situation, and in that case the regulations must be flexible 
enough to deal with the history and context of each Tribe. Once again, 
the decision must be made based on the totality of the evidence without 
the present qualifiers attached to the type of evidence, such as 
``significant numbers of members'', ``most of the membership''. If, the 
evidence provides ``substantial evidence'' of political influence, then 
the criterion must be considered met.
5. The Reversal of the Favorable PF Despite A Stronger Record, and No 
        Negative Comments, Is Arbitrary, Capricious, and Contrary To 
        Law. The Draft Regulations Implicitly Agree With That 
        Conclusion
    As noted previously, no negative comments of any consequence were 
received as to the favorable PF, despite years for people to complain. 
In fact, substantial time and money were invested in strengthening the 
petition. To reverse the favorable PF under such circumstances is 
arbitrary, capricious and contrary to law. Cf. Mobile Communications 
Corp. of America v. F.C.C.. 77 F.3d 1399, 1407 (D.C. Cir. 1996).
    The draft regulations implicitly recognize the force of the Tribe's 
argument and would resolve the issue in the Tribe's favor. Exhibit B,  
83.10 (m) provides:
    At the end of the period for comment on a proposed finding, ``[OHA 
or AS-IA?]'' will automatically issue a final determination 
acknowledging petitioner as an Indian tribe if the following are met 
(emphasis supplied):

    (1) The proposed finding is positive, and

    (2) ``[OHA or AS-IA?]'' does not receive timely arguments and 
evidence challenging the proposed finding from the State or local 
government where the petitioner's office is located or from any 
federally recognized Indian tribe within the state.

    As noted, no substantive negative comments were received from 
anyone, and all local and state governments and Indian Tribes in 
Montana support the acknowledgment of the Little Shell Tribe. See 74 
Fed. Reg. 56,862, FD at 15-16, and PF at 9. Under such circumstances, 
as recognized in the draft regulations, an automatic favorable final 
determination would be warranted, not reversal of a proposed favorable 
finding.
Conclusion
    The Little Shell Tribe of Chippewa Indians applauds Assistant 
Secretary Kevin Washburn for finally addressing the serious, long-
identified flaws and failures of the current administrative federal 
acknowledgment process, a process that repeatedly has been criticized 
by the Senate Indian Affairs Committee as broken. The regulations as 
presently written have subjected the Tribe to a continuing, serious 
miscarriage of justice that has stretched now over five decades. The 
arguments the Tribe has made as to the defects in the system are 
largely vindicated in the discussion draft regulations. It is crucial 
that the process of amending the regulations go forward expeditiously 
and be strengthened along the lines the Tribe has argued.
    However, it is not known how long the process of amending the 
regulations will take, what shape the ultimate regulations will have, 
or even whether they will ever be adopted. The Tribe already has waited 
too long for restoration of its recognition. The Tribe must not be 
asked to continue to wait in limbo for several more years while it 
waits to see what happens to the regulations. Again, the Little Shell 
Tribe of Indians respectfully urges Congress to end the Tribe's ordeal 
by extending federal recognition to the Little Shell Tribe through 
enactment of the Little Shell Tribe of Chippewa Indians Restoration Act 
of 2013.


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    The Chairwoman. Thank you very much for your testimony. I 
wonder if you can expand on that, I will just start with you, 
Chairman Gray, given this history of no opposition or next to 
no opposition to the previous submission, what is your 
understanding of why your proposal was under administrative 
review for approval and then after a time period denied?
    Mr. Gray. I want to defer to counsel.
    The Chairwoman. We would have to get him to come up to the 
microphone. If that is something you don't have readily with 
you or can respond to, we can get an answer from you in 
writing. That would be helpful to the Committee, and we would 
appreciate that.
    Mr. Gray. Certainly.
    The Chairwoman. Thank you. Chairman Adkins, if you could 
tell us about, you have made a commitment on part of this 
legislation, S. 1074, that you are foregoing any possible 
rights to gaming under the Indian Gaming Regulatory Act as part 
of this legislation. Is that correct?
    Mr. Adkins. Yes, that is correct.
    The Chairwoman. Why do you believe that compromise is 
necessary?
    Mr. Adkins. First, let me tell you that philosophically, I 
don't support gaming. And perhaps if it were allowed and I 
said, let's bring in a casino, I would be kicked out of my 
church as well as the tribe. But that is another story. The 
Virginia delegation, several members of the Virginia delegation 
strongly oppose gaming and would not support a bill if that 
provision were in there. So we agreed to take it out because 
again, the tribes weren't proponents of gaming. But we couldn't 
have gotten it this far had we kept that provision in it. Even 
if the provision remained, the Chickahominy Tribe would not 
game.
    The Chairwoman. Is that just the Chickahominy or the other 
tribes?
    Mr. Adkins. I think I can speak for those other tribes, 
too, because we all willingly took it out.
    Now, at the end of the day, sovereignty should be 
sovereignty. So that should not have these qualifications. I 
would love a clean bill, but I had no problem giving up gaming, 
except it does chip away at the sovereignty of my tribe and the 
other tribes on this bill. And it did cause us to incur 
disfavor with some of the currently federally-recognized 
tribes.
    But even in the face of that, we were able to get a 
resolution of support from the National Congress of American 
Indians where many tribes had the option to opine on it and 
they do support our efforts toward Federal recognition, while 
they do not support the fact that we gave up the provision for 
gaming.
    The Chairwoman. Okay, and Chairman Brooks, on your issue, 
what will it mean for you to be able to exercise authority and 
jurisdiction over your lands? What would that entail and what 
do you think, how do you resolve issues and conflict with the 
State?
    Mr. Brooks. Repeat that again?
    The Chairwoman. Obviously the bill would give you 
jurisdiction over lands that the United States would take into 
trust on behalf of the tribe. What are your interests in that 
regard and how do you anticipate basically resolving any kind 
of conflicts that would happen with the State of North 
Carolina?
    Mr. Brooks. I'm not sure that we would have a conflict in 
relation to that, because basically what we need, economics, 
education and health. We are not looking at a situation where 
we are going to be reservated by any mean whatsoever. The 
territory that we occupy now is basically four counties, 
Robeson, Hoke, Scotland and Cumberland. And when you think of 
the way we have survived in the last hundreds of years is by 
doing our own things.
    Today I gave you a statement in relation to education. 
Education is one of the main things that we survive with. We 
started with a small group that wanted education to be the 
pronouncement of moving forward. That progressed into the 
University at Pembroke and became one of the 16 campuses for 
the University system of the State.
    So when you look at, I guess the way we work with the State 
and the State works with us, the problems would probably be 
very minimal.
    The Chairwoman. Okay, thank you.
    Senator Tester, do you have questions?
    Senator Tester. I do, Madam Chair, thank you very, very 
much. I think, not to put words in Chairman Gray's mouth, but I 
don't know that I have heard a clear reason for the lack of 
recognition from the Department. That is part of the problem 
and that is part of why we have this bill in front of you.
    As I said in my opening comments, it is my understanding 
that the other federally-recognized tribes in Montana as well 
as the State of Montana support Little Shell's recognition. Is 
that your understanding too?
    Mr. Gray. Yes, it is, Senator. And also a lot of the 
counties in which we live also support us.
    Senator Tester. Can you describe the Little Shell's 
relationship with other tribes in Montana?
    Mr. Gray. We have a really good relationship with all the 
tribes. We sit at the same table, we are afforded the same 
opportunities that they are, and they don't object to any of 
that. And we do sit at the same table.
    Senator Tester. And in fact, Madam Chair, you may remember 
when we had the meeting at the School of Law in Missoula, 
Montana, Chairman Gray was there with the other federally-
recognized tribes.
    Can you describe some of the difficulties you have had as a 
tribe that can be directly associated with the lack of Federal 
recognition?
    Mr. Gray. Oh, yes. We are missing out on the services, like 
all of the federally-recognized tribes are afforded: education, 
health care, school services. We can't offer our veterans 
services just due to the lack of economics. And it also poses a 
problem for us in planning for the future for our people.
    Senator Tester. So the opposite of that was, if you had 
Federal recognition you could gain all those health care 
benefits.
    Mr. Gray. Yes.
    Senator Tester. Thank you for being here, thank you for 
your testimony. I want to thank all of you for your testimony. 
I very much appreciate it. It is kind of like a history lesson 
sitting here today. And it is kind of fun to be able to hear 
what folks have gone through.
    I do have a couple questions for you, Mr. Adkins, that my 
staff didn't prepare for me. So they called this freelancing 
and they get very nervous when I do this. Are there other 
federally-recognized tribes in Virginia?
    Mr. Adkins. No, sir.
    Senator Tester. There are none?
    Mr. Adkins. There are none.
    Senator Tester. So there is no gaming compact with the 
State as far as tribes go?
    Mr. Adkins. No, sir, there are not.
    Senator Tester. Okay, that is interesting.
    Once again, thank you all for your testimony. I appreciate, 
Madam Chair, your having this hearing today. I think it is an 
important one, it is a difficult one, but very, very important. 
Thank you all.
    Mr. Adkins. Madam Chair, I would like to make one 
observation, if I may.
    The Chairwoman. Chairman Adkins, yes, go ahead.
    Mr. Adkins. There is one thing that is very near and dear 
to our heart, in several museums, the Smithsonian, for 
instance, there are the remains of Virginia Indians. In some of 
the colleges in Virginia there are remains of members of my 
tribe. As a matter of fact, we did some testing on some of the 
remains, we sent a couple of the crania to the University of 
Wyoming at Laramie, and the busts were created. When you looked 
at them, it looked like you were looking at modern-day 
Chickahominy Indians.
    But we are precluded by law from receiving those remains. 
The Native American Grave Protection and Repatriation Act 
specifically excludes State-recognized tribes. So we would love 
to bring the remains of our ancestors back to their respective 
communities and repatriate them with honor and dignity.
    The Chairwoman. Thank you. If this legislation would pass, 
then that would be, if S. 1074 passed, that would automatically 
then occur, is that correct?
    Mr. Adkins. Yes, ma'am, that is correct.
    The Chairwoman. Thank you for bringing that distinction and 
meaning to what it would do for that particular aspect of being 
recognized. We appreciate it.
    Again, thank you all for your testimony today. The word 
endurance comes to mind. Not just for a hearing today, but many 
years of endurance on these issues. So we thank you for your 
testimony, and obviously this is the first step in the 
legislative process for this Congress on these issues. But we 
will be proceeding. So thank you all very much. We are 
adjourned.
    [Whereupon, at 4:00 p.m., the Committee was adjourned.]
                            A P P E N D I X

  Prepared Statement of Hon. Mike McIntyre, U.S. Representative from 
                             North Carolina
    Madame Chairman and Members of the Committee, thank you for the 
opportunity to submit testify before you today regarding federal 
recognition for the Lumbee Indians.
    Chairman Cantwell and Ranking Member Barrasso, the members of the 
Lumbee Tribe and I appreciate your support and willingness to listen 
again today as the tribe presents its case for federal recognition.
    A special thanks to my North Carolina colleagues--Senator Burr, 
Senator Hagan, and Congressman Hudson for their work and support of 
this important issue.
    Madame Chairman, over the last six years, the Lumbee Tribe and many 
of its members have faithfully traveled to Capitol Hill. They are now 
attending their seventh hearing in six years to present their strong 
and solid case for federal recognition by the U.S. Congress. And this 
does not take into account the numerous times the Congress has 
discussed this issue prior to this time. The Lumbees have been patient. 
They have been respectful. And, yes they have been persistent.
    But Madame Chairman, the time has come for action. The time has 
come for movement of legislation. The time has come for discrimination 
to end and recognition to begin! The time for Lumbee recognition is 
now!
    During these hearings, the Lumbee Tribe has heard concerns raised 
about them as to whether they are ``true Native Americans,'' and I am 
certain that it will be raised again here today. Chairman Cantwell, 
that question is a dagger in the heart of the good, decent, and 
honorable people who compose the Lumbee Tribe! It represents a weak 
attempt to try and confuse the issue of federal recognition.
    Madame Chairman, the record and the facts are crystal clear--the 
Lumbee Tribe exists as an Indian tribe and has done so over its long 
history. The Department of Interior has, on several occasions, 
concluded that the Lumbees are a distinct Indian community. The various 
names by which the tribe has been known were the result of State law. 
In no case, except for the name Lumbee, were the names chosen by the 
tribe itself. All the other names were imposed upon the tribe or chosen 
for them! Furthermore, the BIA regulations on acknowledgement of Indian 
tribes specifically provide that changes in names are not relevant to 
Indian identity.
    In the late 1500s, when English ships landed on the shores at 
Roanoke Island on the North Carolina coast, the Englishman discovered 
Native Americans. Included among those Native Americans were both the 
Cheraw and Pee Dee Indians, who are direct ancestors of the Lumbee 
Indians. Later, in 1888, the Lumbees made their first effort at gaining 
federal recognition. For at least 500 years, Lumbee Indians have been 
inhabitants of this land, and for over half of the time that our 
country has been in existence, 119 of the 237 years, the Lumbee Indians 
have been seeking the recognition and respect that they deserve. As the 
largest tribe east of the Mississippi and the largest non-recognized 
tribe in America, it is unfathomable that this tribe of 55,000 people 
has never been fully recognized by our government.
    I was born and reared in Robeson County, North Carolina, the 
primary home of the Lumbee people. I go home there virtually every 
weekend, and I have had the high honor of representing for 16 of my 18 
years in Congress approximately 40,000 of the 55,000 Lumbees who live 
in my home county. In fact, there are more Lumbees in Robeson County 
than any other racial or ethnic group. The Lumbee Indians, many of whom 
are in the in the audience today, are my friends, many of whom I have 
known all my life. They are important to the success of everyday life 
in Southeastern North Carolina, and their contributions to our society 
are numerous and endless. From medicine and law to business and 
banking, from the farms and factories to the schools and the churches, 
from government, military, and community service to entertainment and 
athletic accomplishments, the Lumbees have made tremendous 
contributions to our county, state, and nation. In fact, in my home 
county, the former sheriff, the current clerk of court, the register of 
deeds, the school superintendent, several county commissioners and 
school board members, and the representative in the state legislature 
of the area where I live, as well as a number of our local judges are 
all Lumbee Indians.
    Madame Chairman, those contributions have been recognized in the 
U.S. House through twice passing legislation, on a bi-partisan basis, 
that I have introduced to grant the Lumbees federal recognition.
    Lumbee contributions are also being recognized at home by both the 
public and private sector. From City Councils to County Commissioners, 
from the Chamber of Commerce to the Southeastern Regional Medical 
Center--all have endorsed the effort to grant the Lumbees federal 
recognition.
    Madame Chairman, in conclusion, let me urge this Committee, and 
this U.S. Congress, not to delay any more on this issue. Justice 
delayed is justice denied! As you will hear from Chairman Brooks, the 
evidence is clear, cogent, and convincing. It is time to say ``yes''--
yes to dignity and respect; yes to fundamental fairness; yes to 
decency; yes to honor; yes to federal recognition! And as I said 
earlier, it's time for discrimination to end and recognition to begin!
    Thanks again for the opportunity to present this testimony, and I 
look forward to working with you and the Committee for this long over-
due recognition. May God grant that justice finally be done! With your 
help, I am confident that it will!
                                 ______
                                 
  Prepared Statement of Hon. Richard Hudson, U.S. Representative from 
                             North Carolina
    Chairwoman Cantwell, Vice Chairman Barasso, I want to thank you and 
this Committee for holding this important hearing today and for calling 
attention to the multiple recognition bills we have before us in 
Congress.
    I want to applaud the Lumbee Recognition bill which my colleague, 
Senator Burr, has introduced in the Senate and share with you my 
thoughts on, and commitment to full federal recognition for the Lumbee 
tribe of North Carolina. This critical piece of legislation which 
provides recognition to the largest Indian tribe east of the 
Mississippi has a long history of consideration by Congress and is long 
overdue.
    As the sponsor of the companion legislation in the House and the 
U.S. Representative for the bulk of the Lumbee population across the 
state, this is a major priority for my office and for my district.
    Full recognition and services for a tribe that has long been 
recognized as distinctively as Native American, but has consistently 
and unfairly been denied the benefits that come with federal 
recognition is just wrong. This is a matter of basic fairness.
    As you are aware, Congressman Mike McIntyre and I have introduced 
similar bipartisan legislation to halt the discriminatory policy 
against the Lumbee tribe and bring forward equal treatment to more 
50,000 people in my home state.
    Congress recognized the Lumbees in 1956, but that legislation 
unjustly prevented them from receiving federal benefits. This is 
inherently unfair as no other tribe has been subjected to this type of 
discrimination. The Lumbee Recognition Act would provide the Lumbees 
with complete recognition and make the tribe eligible for all federal 
benefits and programs they are entitled to.
    This legislation is critically important if you consider the 
counties with the largest Lumbee populations face unemployment rates 
that are among the highest in North Carolina. With access to economic 
development programs recognized in our bill through the Bureau of 
Indian Affairs, the Tribe could create jobs to accelerate the region's 
slow economic recovery.
    Similar legislation to the Lumbee Recognition Act was introduced in 
the 108th Congress and all subsequent Congresses. In the 110th and 
111th Congresses the bill was passed by the House, and companion Senate 
legislation was introduced. This bipartisan and bicameral legislation 
does not require additional budgeting of new funding since it utilizes 
the existing resources of the Bureau of Indian Affairs.
    Granting the Lumbees federal recognition is necessary to creating 
jobs and revitalizing a region plagued by chronically high unemployment 
and a slow economic recovery.
    As the only federal tribe subjected to the unfair caveat of 
recognition without benefits, the only path forward to resolve this 
injustice is through Congressional action. We introduced this 
bipartisan bill to end this inequitable policy and bring fair treatment 
to the Lumbee so they receive the same benefits that every other 
federal tribe currently enjoys.
    Thanks to the Committee for the opportunity to speak today and for 
your efforts on behalf of my constituents.
                                 ______
                                 
 Prepared Statement of Hon. Tim Fox, Attorney General, State of Montana
    Chairwoman Cantwell, Ranking Member Barrasso and distinguished 
members of the Senate Committee on Indian Affairs, I thank you for the 
opportunity to provide written testimony on this important matter. My 
name is Tim Fox, and I am the Attorney General for the State of 
Montana. I write to express my strong support of Senate Bill 161, the 
Little Shell Tribe of Chippewa Indians Restoration Act of 2013, and to 
urge your approval of this bill.
    The State of Montana has long recognized the Little Shell Tribe of 
Chippewa Indians as a distinct Indian tribe. As Senate Bill 161 finds, 
the Little Shell Tribe is a political successor to the 1863 Pembina 
Treaty, which ceded large amounts of what is now North Dakota to the 
United States. Little Shell members have resided in Montana for over a 
century, and the Little Shell have sought federal recognition since the 
1930s. The State of Montana has actively supported that effort from its 
inception, and has consistently engaged with the Little Shell Tribe on 
a government-to-government basis. In 1949, Arnold H. Olsen, one of my 
predecessors as Montana Attorney General, wrote to the U.S. 
Commissioner for Indian Affairs criticizing the Bureau of Indian 
Affairs' failure to assist the Little Shell Tribe. In both 1949 and 
1955, the Montana Legislature enacted ``Joint Memorials'' requesting 
the federal government to recognize the Little Shell Tribe and to 
provide them with the much-needed assistance that federal recognition 
brings. Since that time, the State of Montana has consistently voiced 
its strong support for the Little Shell Tribe's efforts to achieve the 
federal recognition it deserves.
    This past July, I wrote to Department of the Interior Secretary 
Sally Jewell to ask her to accord the Little Shell Tribe's recognition 
petition all due consideration. (A copy of that letter is included with 
this written testimony as Attachment A.) That recognition petition has 
been pending before the Department of the Interior since 1978. It is 
unconscionable that the Little Shell Tribe, a distinct and long-
standing political community, has been in limbo in regard to its 
relationship with the United States for so long. Senate Bill 161 is 
essential to correcting this injustice and to allowing the Little Shell 
Tribe to proudly take its rightful place among the Indian tribes 
formally recognized by the United States government. I urge your strong 
support of this vital and long overdue act.
    Thank you very much for your time and consideration. My office 
stands ready to provide whatever further assistance it can in securing 
federal recognition for the Little Shell Tribe. 


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                                 ______
                                 
 Prepared Statement of Hon. Mark R. Warner, U.S. Senator from Virginia
    I am a strong advocate of federal recognition for the Virginia 
Chickahominy, Eastern Chickahominy, Monacan, Nansemond, Rappahannock 
and Upper Mattaponi tribes. I have been supportive of federal 
recognition of these Indian tribes since my time as Governor of the 
Commonwealth of Virginia.
    During my time in the Senate, I have been proud to co-sponsor 
various legislation seeking recognition for these Virginia tribes, 
including S. 1074, The Thomasina E. Jordan Indian Tribes of Virginia 
Federal Recognition Act of 2013. I appreciate the Committee convening 
this legislative hearing and hope you will move quickly to pass S. 1074 
and bring this bill to the full Senate for consideration.
    This bill is not new to the Committee. The issue has been 
thoroughly discussed, hearings held and a tremendous amount of 
information has been compiled over the years. This bill would provide 
recognition by the United States of America to the Chickahominy Tribe, 
the Chickahominy Eastern Division Tribe, the Monacan Nation, the 
Nansemond Tribe, the Rappahannock Tribe and the Upper Mattaponi Tribe. 
These tribal names may not be as well known to the people of the United 
States as they are to us in Virginia, but their story is universally 
known to Americans.
    As has been noted in research and in the testimony before this 
committee, these tribes have the oldest Treaty in the United States; 
The Treaty of Middle Plantation, signed originally in 1646, amended in 
1658 and again ratified in 1677. I know of this history well, because 
as part of that treaty, the Tribes go to Richmond once a year to 
present to the Governor of Virginia a ``tribute'' in lieu of taxes upon 
their land. I had the honor of receiving the tribes and their families 
on four occasions as Governor of Virginia. The Tribes have honored 
their part of the Treaty well. They have also waited patiently for 
federal recognition. Ironically, the fact that these Tribes ended their 
hostilities with the early colonists so early in the history of what is 
now the United States creates one of the barriers that prevented them 
from being recognized before now.
    I realize that some of my colleagues have apprehensions about 
pursuing legislative recognition when an administrative route was 
established by Congress in 1978. However, because of Virginia's unique 
history, this is simply not an option for these Virginia tribes.
    While the Tribes of Virginia maintained close knit communities over 
the years, adopted strict and consistent governance mechanisms and also 
have maintained their tribal rolls well, there remains a significant 
gap in the documented history of the tribes as defined by the Office of 
Federal Recognition (OFA).
    The reason for this documentation gap rests with two aspects of 
Virginia's history that resulted in the destruction of nearly all of 
the type of documentation that the OFA requires for the completion of 
the administration recognition process. The burning of Virginia's 
courthouses during the civil war resulted in the destruction of much of 
the historical record of births, deaths, marriages and other essential 
documentation. Lost were virtually all records between 1740 and mid 
1860s. In addition, the Racial Integrity Act of 1924 which was passed 
by the Virginia General Assembly and implemented with passion by Walter 
Plecker, the Commonwealth's Register of Public Records. Mr. Plecker, 
took the implementation well beyond what also occurred in other 
southern states, not only refusing to recognize any race other than 
black or white, but he penalized local elected officials that did issue 
birth, death and marriage certificates with ``Indian American'' 
designations. In addition, Mr. Plecker removed, altered and reinserted 
these documents in the central registry in Richmond, essentially 
eliminating this designation in Virginia records.
    Statutory processes, like the Office of Federal Acknowledgment's 
(OFA) Federal Acknowledgement Process (FAP), should be seen as the 
primary, most efficient and responsive route to recognition available. 
Unfortunately, this is not so. The system is broken and the numbers 
prove this point. While I am supportive of the recently proposed 
revisions to the FAP, the potential for these changes in no way 
diminishes the need for this legislation. The delays the Virginia 
Tribes have already experienced in achieving well deserved recognition 
should not be compounded by amending the process and requiring them to 
start over administratively. The Chickahominy, Eastern Chickahominy, 
Monacan, Nansemond, Rappahannock and Upper Mattaponi tribes of Virginia 
should not have to spend any additional time in an attempt to gain the 
federal recognition they deserved to receive many years ago.
    The Virginia Indian Tribes have waited long enough for official 
recognition. Their record in Virginia is clear. I urge you to pass S. 
1074 out of Committee and I look forward to working with my colleagues 
towards the successful passage of this bill.
    Thank you.
                                 ______
                                 
Prepared Statement of Hon. Michell Hicks, Principal Chief, Eastern Band 
                          of Cherokee Indians


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



                                 ______
                                 
   Response to Written Questions Submitted by Hon. Lisa Murkowski to 
                          Hon. Kevin Washburn
    As the Committee considers several bills involving the legislative 
recognition of specific Indian tribes, I would like to follow-up on an 
ongoing dialogue between my office and the office of the Assistant 
Secretary of Indian Affairs regarding the Alaska-specific standard for 
tribal recognition set forth in the Alaska Amendment to the Indian 
Reorganization Act (Alaska IRA). Assistant Secretary Echo Hawk 
confirmed by letter to me dated January 31, 2012, that, under the 
Alaska IRA, Congress provided the Assistant Secretary authority to 
recognize groups of Alaska Natives as tribes, provided they can show 
they meet the standard of sharing a ``common bond of occupation, or 
association, or residence within a well-defined neighborhood, community 
or rural district.''
    In more recent correspondence, you have indicated that your office 
is actively reviewing the requests of the Knugank Tribe (Dillingham) 
and the Qutekcak Native Tribe (Seward) to have their federal tribal 
status affirmed under the applicable Alaska IRA standards and/or 
pursuant to agency precedent, so that the Agency would treat them 
consistently with the 229 similarly-situated Alaska Native tribes.
    The tribes involved and the regional Alaska Native organizations 
supporting them have invested significant resources to clarify their 
status. Indeed, your office, the BIA Alaska Region and the Office of 
Solicitor have been engaged in this matter over the past few years. 
These tribes urgently need a final resolution.

    Question. Can you please indicate what steps still remain in order 
for you to issue a final decision?
    Answer. As you note in your question, both applications are 
currently under active review by our office. Federal recognition 
decisions are some of the most important decisions issued by the 
Department, and these applications in particular have significant legal 
implications for the State of Alaska. We are therefore reviewing these 
requests with the utmost care and deliberation.
    Specifically, we are in the process of assessing the extensive 
factual and historical background of the Alaska Native groups 
requesting federal recognition. The Office of the Solicitor will also 
undertake an independent analysis on the legal framework underlying 
these requests. Prior to any final determination, the Assistant 
Secretary-Indian Affairs will carefully consider and evaluate these 
findings. We expect to continue to work with the Knugank Tribe and the 
Qutekcak Native Tribe with the goal of issuing final decisions on these 
applications this year.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Jon Tester to 
                          Hon. Kevin Washburn
    I understand that the Secretary of the Interior has asked you to 
consider Little Shell's request that the Department suspend its 
consideration of the Tribe's petition for federal acknowledgement 
pending the promulgation of the revised acknowledgement regulations.

    Question 1. Will the revised acknowledgment regulations impact 
Little Shell's petition? If so, how?
    Answer. The Department recently sent a letter to Little Shell 
accepting their request that we suspend consideration of the 
Secretary's referral until revisions to the Part 83 regulations are 
finalized. However, I do not know what the final regulations will 
entail. The Department did release a Redline Discussion Draft, which 
was intended to begin the discussion on how the Part 83 regulations 
might be revised. We received nearly 300 comments from various parties 
on the Discussion Draft, but I want to reiterate that that Draft was 
not a Proposed Rule. The Discussion Draft, and the ensuing comments, 
have been instrumental in getting us to the point where we are now--
which is preparing to release a Proposed Rule and begin the next phase 
toward revising the Part 83 regulations.
    It is also very important that the Department not make any 
assumption on the content of the Final Rule. We must place our trust in 
the comprehensive consultation process and the notice and comment 
period for the Proposed Rule. In doing so, the Department is confident 
that the Final Rule will reflect many different views and concerns 
which is natural in the process of constructive agency rulemaking.

    Question 2. Did the Little Shell petition for federal 
acknowledgement receive any negative comments to your knowledge?
    Answer. In addition to over 10,000 pages of comments by the Little 
Shell on the proposed finding, the Department received comments from 
two third parties during the comment period. These two comments could 
be characterized as negative.

    Question 3. If a tribe goes through the Part 83 process and gets a 
positive proposed finding and no negative comments, is there any reason 
why that tribe shouldn't be recognized immediately by Congress?
    Answer. Congressional recognition is, of course, a separate process 
than the Part 83 process. As I know you are aware, Congress can act to 
recognize and Indian tribe wholly outside the Part 83 process. In 
general, we have no objection to Congress exercising its own authority 
to make recognition decisions.
    The Part 83 process provides for a comment period on both positive 
and negative proposed findings. It provides also for further evaluation 
by the Department based on a more complete record for the final 
determination and provides for requests for reconsideration before the 
IBIA. In three cases, following IBIA review, positive final 
determinations were not sustained (Chinook, Pequot, Schaghticoke).

                                  
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