[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
THE OBAMA ADMINISTRATION'S PART 83 REVISIONS AND HOW THEY MAY ALLOW
THE INTERIOR DEPARTMENT TO CREATE TRIBES, NOT RECOGNIZE THEM
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON INDIAN, INSULAR AND
ALASKA NATIVE AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, April 22, 2015
__________
Serial No. 114-4
__________
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______
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Louie Gohmert, TX Madeleine Z. Bordallo, GU
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
John Fleming, LA CNMI
Tom McClintock, CA Niki Tsongas, MA
Glenn Thompson, PA Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY Jared Huffman, CA
Dan Benishek, MI Raul Ruiz, CA
Jeff Duncan, SC Alan S. Lowenthal, CA
Paul A. Gosar, AZ Matt Cartwright, PA
Raul R. Labrador, ID Donald S. Beyer, Jr., VA
Doug LaMalfa, CA Norma J. Torres, CA
Bradley Byrne, AL Debbie Dingell, MI
Jeff Denham, CA Ruben Gallego, AZ
Paul Cook, CA Lois Capps, CA
Bruce Westerman, AR Jared Polis, CO
Garret Graves, LA Vacancy
Dan Newhouse, WA
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Jason Knox, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
Sarah Parker, Democratic Deputy Chief Counsel
------
SUBCOMMITTEE ON INDIAN, INSULAR AND ALASKA NATIVE AFFAIRS
DON YOUNG, AK, Chairman
RAUL RUIZ, CA, Ranking Democratic Member
Dan Benishek, MI Madeleine Z. Bordallo, GU
Paul A. Gosar, AZ Gregorio Kilili Camacho Sablan,
Doug LaMalfa, CA CNMI
Jeff Denham, CA Pedro R. Pierluisi, PR
Paul Cook, CA Norma J. Torres, CA
Aumua Amata Coleman Radewagen, AS Raul M. Grijalva, AZ, ex officio
Rob Bishop, UT, ex officio
------
CONTENTS
----------
Page
Hearing held on Wednesday, April 22, 2015........................ 1
Statement of Members:
Ruiz, Hon. Raul, a Representative in Congress from the State
of California.............................................. 3
Prepared statement of.................................... 5
Young, Hon. Don, a Representative in Congress from the State
of Alaska.................................................. 2
Prepared statement of.................................... 3
Statement of Witnesses:
Blumenthal, Hon. Richard, a United States Senator from the
State of Connecticut....................................... 6
Cladoosby, Brian, President, National Congress of American
Indians, Embassy of Tribal Nations, Washington, DC......... 21
Prepared statement of.................................... 23
Gobin, Glen, Vice Chairman and Business Committee Chair,
Tulalip Tribes, Tulalip, Washington........................ 36
Prepared statement of.................................... 38
Martin, Robert, Morongo Band of Mission Indians, Banning,
California................................................. 33
Prepared statement of.................................... 34
Mitchell, Donald C., Attorney at Law, Anchorage, Alaska...... 40
Prepared statement of.................................... 41
Sharp, Fawn, President, Quinault Indian Nation, Taholah,
Washington................................................. 13
Prepared statement of.................................... 15
Washburn, Kevin K., Assistant Secretary, Indian Affairs, U.S.
Department of the Interior, Washington, DC................. 9
Prepared statement of.................................... 10
Additional Materials Submitted for the Record:
Courtney, Hon. Joe, a Representative in Congress from the
State of Connecticut, Prepared statement of................ 68
Jepsen, George, Attorney General, State of Connecticut, May
4, 2015 Letter to Chairman Young........................... 69
List of documents submitted for the record retained in the
Committee's official files................................. 71
RPA--Regional Plan Association, April 21, 2015 Letter to
Congressman Hakeem Jeffries................................ 70
Thompson, Hon. Mike, a Representative in Congress from the
State of California, Prepared statement of................. 69
OVERSIGHT HEARING ON THE OBAMA ADMINISTRATION'S PART 83 REVISIONS AND
HOW THEY MAY ALLOW THE INTERIOR DEPARTMENT TO CREATE TRIBES, NOT
RECOGNIZE THEM
----------
Wednesday, April 22, 2015
U.S. House of Representatives
Subcommittee on Indian, Insular and Alaska Native Affairs
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 4:47 p.m., in
room 1324, Longworth House Office Building, Hon. Don Young
[Chairman of the Subcommittee] presiding.
Present: Representatives Young, Benishek, Gosar, LaMalfa,
Cook, Radewagen, Bishop; Ruiz, and Torres.
Also present: Representatives Courtney and Esty.
Mr. Young. The committee will come to order. I do
apologize, ladies and gentlemen, for the delays. I have no
control over the voting. If I could talk the Speaker to give me
that control, we would have a pretty good-run system. But that
is not going to happen.
[Laughter.]
Mr. Young. They don't particularly like my opinions about
time. We are averaging about 28 minutes per vote now. It is
supposed to be 15 and 2. And no one quite understands that.
But again, everybody is here, and I thank you for your
patience. I will have an opening statement, and when the
Ranking Member gets here, I will--therefore, I ask unanimous
consent that all Members with opening statements be made part
of the hearing record, if they are submitted to the committee
by 5:00 p.m. today.
Before we begin, I would like unanimous consent to allow
our colleagues from Connecticut, Congresswoman Elizabeth Esty
and Congressman Joe Courtney, to participate in our hearings
today.
[No response.]
Mr. Young. Hearing no objection, so ordered. Today the
subcommittee will examine--welcome, Doctor.
Dr. Ruiz. Thank you.
Mr. Young. Congratulations, by the way.
Dr. Ruiz. Thank you.
Mr. Young. I have not had a chance to do that. Of course, a
picture. He has a new baby girl.
Dr. Ruiz. Two.
Mr. Young. Two? Whoa.
Dr. Ruiz. Girls.
Mr. Young. Doggone it. Never mind, I won't say anything.
STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF ALASKA
Mr. Young. The subcommittee will examine proposed revisions
to a rule that will relax and eliminate key criteria by which
the Department determines whether a group is an Indian tribe
within the meanings of Federal law. The Department's rule is
contained as Part 83 of Title 25 of the Code of Federal
Regulations. Accordingly, this is sometimes called the ``Part
83 Process,'' or the ``Federal Acknowledgment Process.''
Federal recognition is not an act of symbolism. It carries
with it a number of unique benefits, rights, and immunities for
Indian tribes, including sovereign immunity in state and
Federal courts, and a right to conduct gaming. The federalist
system in the United States is affected because state
jurisdiction is divested when land is acquired in trust for a
newly recognized tribe.
The impact of recognition affects Congress. When a new
tribe is recognized, Congress must exercise increased
appropriations to ensure that our trust responsibilities toward
existing tribes, as required by law, are not diminished by the
hundreds of tribes currently recognized.
Finally, recognition affects other tribes. This is
especially true for treaty tribes whose solemn treaty rights
were negotiated with the United States and may be diminished by
the recognition of splinter groups.
For these reasons, the highest standards for extending
recognition to a single new tribe must be applied, or the
integrity and the statute of every recognized tribe will be
undermined and diminished. Unfortunately, the proposed rule to
Part 83 does not uphold high standards. I think, personally, it
guts them. The proposal is fundamentally flawed, if
implemented, the rule will lead to the executive branch
creation of tribes, not the acknowledgment of tribes as
authorized by Congress.
As the Assistant Secretary highlights in his prepared
statement, ``I have been among those calling for reforms in the
recognition process.'' But contrary to what the Assistant
Secretary will testify, I call for reforming the procedures,
not relaxing or eliminating the criteria for extending
recognition.
Moreover, I have cautioned the Department to review the
source of its authority to maintain the Part 83 process. There
is some dispute over the source of the Secretary's authority to
recognize tribes. One thing is clear: Congress has not
established the criteria in the Department's rule.
In a March 26 letter signed by me, Chairman Bishop, and
three Democratic colleagues, we advised Secretary Jewell that
Part 83 procedures ``are not based on standards or guidelines
established by Congress, whose power to regulate Indian affairs
under Article 1, Section 8 of the Constitution have been
characterized by the Supreme Court as plenary and exclusive.''
The letter further asks the Secretary to refrain from issuing
final regulation until this committee has conducted necessary
oversight and engaged with the Department's officials to
evaluate how to best address the controversial issues
associated with recognizing new tribes.
In spite of this respectful request, Mr. Kevin Washburn,
the Department forwarded the rule 2 days ago to the Office of
Management and Budget for a final review. It, frankly, appears
that this is a snub to this committee's oversight function, and
it is a snub to me, personally, and I do not take that lightly.
[The prepared statement of Mr. Young follows:]
Prepared Statement of the Hon. Don Young, Chairman, Subcommittee on
Indian, Insular, and Alaska Native Affairs
The subcommittee will examine proposed revisions to a rule that
will relax--and eliminate--key criteria by which the Department
determines whether a group is an Indian tribe within the meaning of
Federal law. The Department's rule is contained in Part 83 of Title 25
of the Code of Federal Regulations. Accordingly, it is sometimes called
the ``Part 83 process'' or the ``Federal Acknowledgment Process.''
Federal recognition is not an act of symbolism. It carries with it
a number of unique benefits, rights, and immunities for Indian tribes,
including sovereign immunity in state and Federal courts, and the right
to conduct gaming. The federalist system of the United States is
affected because state jurisdiction is divested when land is acquired
in trust for a newly recognized tribe.
The impact of recognition affects Congress. When a new tribe is
recognized, Congress must increase appropriations to ensure that our
trust responsibilities toward existing tribes, as required by law, are
not diminished for the hundreds of tribes currently recognized.
Finally, recognition affects other tribes. This is especially true
for treaty tribes whose solemn treaty rights negotiated with the United
States may be diminished by the recognition of splinter groups.
For these reasons, the highest standards for extending recognition
to a single new tribe must be applied or the integrity and stature of
every recognized tribe will be undermined and diminished.
Unfortunately, the proposed rule to Part 83 does not uphold high
standards. It guts them. The proposal is fundamentally flawed. If
implemented, the rule will lead to the executive branch creation of
tribes, not the acknowledgment of tribes as authorized by Congress.
As the Assistant Secretary highlights in his prepared statement, I
have been among those calling for reforms in the recognition process.
But contrary to what the Assistant Secretary will testify, I called for
reforming the procedures, not for relaxing and eliminating the criteria
for extending recognition.
Moreover, I have cautioned the Department to review the source of
its authority to maintain the Part 83 process. There is some dispute
over the source of the Secretary's authority to recognize tribes. One
thing is clear: Congress has not established the criteria in the
Department's rule.
In a March 26th letter signed by me, Chairman Bishop and three
Democratic colleagues, we advised Secretary Jewell that the Part 83
procedures--quote--``are not based on standards or guidelines
established by Congress, whose power to regulate Indian affairs under
Article I, Section 8 of the Constitution has been characterized by the
Supreme Court as `plenary' and `exclusive'.''
The letter further asks the Secretary to refrain from issuing final
regulations until this committee has conducted necessary oversight and
engaged with the Department's officials to evaluate how to best address
the controversial issues associated with recognizing new tribes.
In spite of this respectful request, the Department forwarded the
rule 2 days ago to the Office of Management and Budget for a final
review. This appears to be a snub of this committee's oversight
function, and it is a snub that cannot be taken lightly.
I now recognize the Ranking Member for any statement he may have.
______
Mr. Young. I now recognize the Ranking Member for any
statement he may have.
STATEMENT OF THE HON. RAUL RUIZ, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Dr. Ruiz. Thank you, Mr. Chairman. First, I want to thank
Senator Blumenthal for joining us to offer his views. I also
want to give a special thanks to Chairman Robert Martin from
the Morongo Band of Mission Indians from the great state of
California and the great District 36 for coming here to
testify. And I would like to thank all of the other tribal
leaders who have come from far and wide to address this topic.
Federal recognition is extremely important and valuable to
a tribe's economic and social condition. Recognition entitles
tribes to distinctive benefits, including eligibility to
participate in many Federal programs, receipt of services from
Federal agencies, and sovereign governmental status regarding
local jurisdiction and taxation. Most notably, however, Federal
recognition enables tribes to petition the Secretary of the
Interior to take land into trust for their benefit.
Today we will be discussing the issue where the Federal
acknowledgment process is set forth in Part 83 of Title 25 of
the Code of Federal Regulations, better known as just ``Part
83,'' and the changes proposed by the Department of the
Interior.
Almost from the date of its inception, the Federal
acknowledgment process has been plagued with problems. It has
been criticized as being too slow, too expensive, inefficient,
burdensome, intrusive, less than transparent, and
unpredictable. There are many instances of tribes waiting
decades to get a determination from the Department of the
Interior. This process requires petitioners to dedicate
thousands of hours at great expense to provide evidence to
satisfy the mandatory criteria. Producing evidence can be an
extremely difficult process for a group of people who,
sometimes for hundreds of years, have had their sites,
artifacts, and documents amassed, and often destroyed by
various researchers, collectors, museum developers, et cetera.
At a House hearing in 1994, Bud Shepard, the primary author
of the original acknowledgment regulations stated, ``I suppose
that I would be redundant in saying that the regulations do not
work. I think that they have never worked. Even during my
tenure in office we realized that there were problems with the
regulations.''
The House of Representatives has held at least 10 hearings
on the Federal acknowledgment process, or legislation to modify
the process. And that is what brings us here today. The
Administration has finally acted and put forth its proposed
changes to the Federal acknowledgment process. This proposal
has sparked a fierce debate in Indian Country, both for and
against, and has brought to the forefront the issues of tribal
sovereignty, history, and identification.
The process must be made more transparent, less cumbersome,
and more predictable. But, in doing so, we must not lower the
bar on the standards for Federal recognition. As the
Administration moves forward with promulgating a final rule,
they must not lose sight of the integrity of the process. Our
trust responsibility requires that we, as a Nation, do our due
diligence when making these determinations. We may not all
agree on the specifics, or even on the portions of the proposed
rule before us today, but we all agree that it is a flawed
system that needs to be addressed, and that this process needs
to be fixed so that we can honor our commitments to our native
people.
I look forward to the testimony that will be provided today
and to a spirited discussion. So, thank you very much, Mr.
Chairman, and I yield back my time.
[The prepared statement of Dr. Ruiz follows:]
Prepared Statement of the Hon. Raul Ruiz, Ranking Member, Subcommittee
on Indian, Insular, and Alaska Native Affairs
Thank you Mr. Chairman. First, I want to thank Senator Blumenthal
(D-CT) for joining us to offer his views. I also want to give a special
thanks to Chairman Robert Martin from the Morongo Band of Mission
Indians from the great state of California, and the great 36th
Congressional District, for coming here to testify. And I would like to
thank all of the other tribal leaders who have come from far and wide
to address this topic.
Federal recognition is extremely important and valuable to a
tribe's economic and social condition. Recognition entitles tribes to
distinctive benefits, including eligibility to participate in many
Federal programs, receipt of services from Federal agencies, and
sovereign governmental status regarding local jurisdiction and
taxation. Most notably, however, Federal recognition enables tribes to
petition the Secretary of the Interior to take land into trust for
their benefit.
Today we will be discussing the issues with the Federal
acknowledgment process set forth in Part 83 of Title 25 of the Code of
Federal Regulations--better known as just ``Part 83''--and the changes
proposed by the Department of the Interior.
Almost from the date of its inception, the Federal acknowledgment
process has been plagued with problems. It has been criticized as being
too slow, too expensive, inefficient, burdensome, intrusive, less than
transparent and unpredictable. There are many instances of tribes
waiting decades to get a determination from the Department of the
Interior.
This process requires petitioners to dedicate thousands of hours at
great expense to provide evidence to satisfy the mandatory criteria.
Producing evidence can be an extremely difficult process for a group of
people who, sometimes for hundreds of years, have had their sites,
artifacts, and documents amassed, and often destroyed, by various
researchers, collectors and museum developers.
At a House hearing in 1994, Bud Shepard, the primary author of the
original acknowledgment regulations, stated, ``I suppose that I would
be redundant in saying that the regulations do not work. I think that
they have never worked. Even during my tenure in office, we realized
that there were problems with the regulations.''
The House of Representatives has held at least 10 hearings on the
Federal acknowledgment process or legislation to modify the process.
And that is what brings us here today. The Administration has finally
acted and put forth it's proposed changes to the Federal
acknowledgement process.
This proposal has sparked a fierce debate in Indian Country, both
for and against, and has brought to the forefront the issues of tribal
sovereignty, history and identification.
The process must be made more transparent, less cumbersome, and
more predictable, but, in doing so, we must not lower the bar on the
standards for Federal recognition. As the Administration moves forward
with promulgating a final rule, they must not lose sight of the
integrity of the process. Our trust responsibility requires that we as
a Nation do our due diligence when making these determinations.
We may not all agree on the specifics, or even on portions of the
proposed rule before us today, but we all agree that it is a flawed
system that needs to be addressed, and that this process needs to be
fixed so that we can honor our commitments to our Native People.
I look forward to the testimony that will be provided today and to
a spirited discussion.
Thank you Mr. Chairman, and I yield back.
______
Mr. Young. I thank the gentleman. It is an honor to
introduce a Senator that walked across the aisle to the House
side.
[Laughter.]
Mr. Young. Miracles never cease, but Blumenthal--thank you,
Senator, for being here. And you are up. And you can take as
long as you want, because you are a Senator, and I know how you
all get.
[Laughter.]
Mr. Young. I might tap a little after 10 minutes. But,
please, Senator, go ahead.
STATEMENT OF THE HON. RICHARD BLUMENTHAL, A UNITED STATES
SENATOR FROM THE STATE OF CONNECTICUT
Senator Blumenthal. Thanks, Mr. Chairman. As difficult as
the walk was, I am honored to be here today, as I am always
honored to come across the aisle to this body, where the people
are so ably represented. And especially to be here with two of
the best Members of this House, if I may say so, my colleagues,
Representatives Courtney and Esty, who have taken a very strong
interest, as reflected by their presence here today, in the
subject that brings us together. And I want to thank you, Mr.
Chairman, and Ranking Member Ruiz for the courtesy and the
opportunity to be with you today as you exercise this really
critically oversight function in the best tradition of the U.S.
Congress.
And I would almost say that the remarks that you have made,
Mr. Chairman, summarize very cogently a number of the points
that I wish to make today. But I want to thank a number of the
leaders of the Native American tribal communities who are with
us today. I want to thank some of the representatives of my own
state who are here. And I also want to thank Kevin Washburn, a
very distinguished member of the executive branch, the
Assistant Secretary in the Department of the Interior Bureau of
Indian Affairs, and also a leader in the Chickasaw Tribal
Nation.
And we are here at a critical turning point, as you
remarked, Mr. Chairman. The proposed rules have been submitted
to the OIRA, as it is called. It has a time limit for
considering these proposed rules. In the meantime, there is
continued uncertainty and doubt about what the rules will be.
Clearly, the proposed rules that were issued on May 29, 2014--
you have referred to them--were unacceptable. Not just
unacceptable as a matter of policy, but actually illegal, as
contrary to law.
And I have taken a strong interest in these rules over,
literally, two decades. As Attorney General of my state of
Connecticut, I appeared before congressional bodies, I went to
court, I participated in tribal recognition proceedings before
agencies of the Department of the Interior. So I have a very
strong familiarity and background in this area. And I think
that where we can all agree is that the process is broken. The
process needs reform. It has been, as Ranking Member Ruiz
stated, expensive, inefficient, burdensome, intrusive, non-
transparent, inconsistent, and unpredictable. Those are the
words that Secretary Washburn uses to describe the present
process.
Mr. Young. Stop for a minute. Whoever has those phones on,
you know how I feel about that. Shut them off, or get out of
the room, one or the other. It is against the House rules, it
is impolite, and it is rude.
Senator, you may proceed.
Senator Blumenthal. Thank you, Mr. Chairman. So, the
agreement really is, I think, perhaps including everyone in
this room, at least myself and, I think, the people who have
spoken so far--and I am quoting Secretary Washburn, that we
``need to expedite the process, and to upgrade the fairness,
consistency, and transparency,'' which means changing the
process, not the rules.
The proposed rules, and the changes they would make, in
effect, not only lower the bar, they eviscerate and desecrate
the bar, dilute them to the point of being virtually
meaningless. And just as examples, for the first time ever,
previously denied petitions could be reopened. The starting
date for proving continuous tribal existence would be changed
from 1789 to 1934, which, even the Department of the Interior
and Congress have rejected as a proposal in the past.
The requirement for external identification as a tribe
would be effectively wiped out. State reservations could be
used as a proxy, or a substitute for proving tribal existence,
even though this approach has been consistently rejected by the
Interior board of appeals and the courts in Connecticut cases
where we have litigated it. Petitioners could rely on multiple
20-year gaps in evidence. The burden of proof would be relaxed
and interested parties would be virtually wiped out of the
process, despite the key role that they may have played in
previous determinations.
This proposed rule is a disservice to everyone involved in
the process. My hope is that there have been substantial
revisions in it, as the revised draft has been submitted now to
OIRA and the Office of Management and Budget. And I hope that
the changes in that proposed rule are sweeping, significant,
and far-reaching, so as to preserve the rules that exist now.
I just want to finish on this note, Mr. Chairman, and I
appreciate your courtesy in giving me a little bit more time.
You know, the simple fact is that if these rules are not
significantly changed, we are going to see years of litigation,
which will further delay recognition proceedings, add
additional uncertainty and doubt to the results and, in fact,
undermine the sense of trustworthy and legitimate process that
tribal groups deserve, states need, and Members of Congress
have an obligation to provide.
And one of the changes in the rule, in fact, eliminates a
part of the process that currently expedites decisions, because
the rule as originally proposed would delay final decisions on
tribal recognition by eliminating the administrative appeal
process, and forcing parties to go directly to court. We need
to be careful as to what we do to the process, as well as what
we may do to the rules. I think that we are potentially on the
verge of a disaster, if these rules have not been significantly
changed.
But my hope, based on what I have heard, is that the
Department of the Interior has listened, has heeded what it has
heard in the 3,000 comments submitted by September 30, the
deadline for the comments to be given to the Department of the
Interior, that the rule of law will be upheld. And I think that
is the critical point here. Congress has set the rule of law.
It set criteria. And those criteria need to be respected, in
part because of our respect for the importance of tribal
recognition and the elements of sovereignty that it grants.
I have great respect for the sovereignty of our Native
American tribes. And that is why I want the rule of law to be
upheld as it applies to this process, so that we do not, in
effect, eviscerate the credibility and the trustworthiness of
recognition, which those groups already recognized have been
given, and that they deserve. The credibility, trustworthiness,
and legitimacy of this process can be preserved if these
Department of the Interior proposals are sweepingly and
significantly changed before they are issued out of OIRA.
Thank you, Mr. Chairman. I would be happy to answer any
questions, but I know you have other testimony, and I really do
appreciate this opportunity to testify, and to share with you
views that I think are reflective of our entire delegation. We
work very closely together, including my colleague in the
United States Senate, Senator Chris Murphy, and two of my
colleagues who are here today.
[No official prepared statement was submitted by Senator
Blumenthal.]
Mr. Young. Thank you, Senator. I appreciate your testimony.
I would request one thing from you--I don't have a question of
you. Being that you are experienced in this arena, and with the
Attorney General and your participation, I hope you take the
time to communicate your concerns if this rule comes out the
way you don't like it, so we can look at that, and maybe we can
figure out a way to rectify some of the mistakes the Department
may make.
I don't know, I haven't seen the rule, so I have no
knowledge of what is going on, the proposed new one. So, just
do that, keep that in mind. We are on the House side, and we
will be addressing this issue through this committee, one way
or the other. We may be happy, I don't know.
Senator Blumenthal. I would be happy to share our views
with you, Mr. Chairman. I can tell you I will be one of the
first in line at the courthouse door if I believe that these
rules are inconsistent with the statutes. I will be supporting
action to strike them down. And I am sure there will be
litigation resulting from it, so we won't be shy about
expressing our views and the lack of transparency. None of us
know what these proposals are that have been submitted to OIRA.
Mr. Young. Thank you.
Senator Blumenthal. And I think that is troubling.
Dr. Ruiz. I just want to say thank you, Senator Blumenthal,
and we look forward to working with you and having further
discussions about the importance of getting this right.
Mr. Young. With that, you are excused.
Senator Blumenthal. Thank you.
Mr. Young. And welcome, Mr. Chairman. I am glad to see you
here. Would you like to sit in the chair? Are you OK?
[Laughter.]
Mr. Bishop. But I am sitting in a chair.
Mr. Young. Oh, that is true. But it is not as comfortable
as this one. OK, thank you, sir.
Senator, thank you.
Senator Blumenthal. Thank you very much, Mr. Chairman, and
Mr. Chairman.
Mr. Young. Now we have the panel coming forth, Kevin
Washburn, Assistant Secretary, Indian Affairs, Department of
the Interior; Brian Cladoosby, President, National Congress of
American Indians, Embassy of Tribal Nations; Chairman Robert
Martin, Morongo Band of Mission Indians, Banning, California--
that is in your district?
Dr. Ruiz. Yes.
Mr. Young. Oh, OK. I should have let you introduce him, I
am sorry.
Mr. Glen Gobin, Vice Chairman and Business Committee Chair,
Tulalip Tribes, Tulalip, Washington; The Honorable Fawn Sharp,
President of the Quinault Indian Nation, Taholah, Washington;
and Mr. Don Mitchell, Attorney at Law, Anchorage, Alaska.
And I remind all of you, you have 5 minutes. And I may
extend it to some degree.
I would suggest one thing to the members of the committee,
if possible. Mr. Mitchell has written a very, I would say,
telling memo on this. And if he will issue that to you, if it
is not in the testimony, read it, because his testimony is too
long. That is what I am saying this for. So we have to figure
that out.
But, anyway, Kevin, you are up, Mr. Secretary.
STATEMENT OF KEVIN K. WASHBURN, ASSISTANT SECRETARY, INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Mr. Washburn. Chairman, thank you so much, Ranking Member.
And I would also be willing to offer my chair to Chairman
Bishop, too, although I don't know if it would be as
comfortable.
[Laughter.]
Mr. Washburn. Chairman, this is very important work. We
have a trust responsibility to Indian tribes. And if there is a
legitimate tribe out there who we have not recognized, then
that is an injustice. And that is why we do this work, because
we have a trust responsibility to tribes.
It is very difficult work. We have a diligent staff of
experts, historians, and ethnologists, anthropologists and
genealogists, that is, who use careful procedure, and they use
peer review. These are people who, if they weren't doing this
work, they would be teaching at universities or doing research
at the Library of Congress or something like that. It is very
hard work, and sometimes very rewarding, although sometimes
they deliver bad news.
In fact, in the history of this process, 34 groups have
been denied recognition, and only 17 have been recognized.
During the time of this group's work, the Office of Federal
Acknowledgment, Congress itself has recognized far more tribes
than the Department has through this process.
We talked about some of the adjectives to apply to the
process, that it is too slow, that it is too expensive,
inefficient, burdensome, and so on. And we have heard that many
times before. In part, that is a reflection of the rigor of the
process. It is a very rigorous process, and it should be a
rigorous process, because legitimacy and integrity is
exceedingly important here. We don't want anybody to get
through the process that is not a legitimate tribe, because,
you know, the trust responsibility is at stake.
And our goal with this process is to maintain that
integrity and that rigor, but also address these other issues
that Senator Blumenthal has raised in the past, and, Chairman,
you have raised in the past, and so many others have raised in
the past. And this is definitely evidence that no good deed
goes unpunished, because we have been yelled at for 20 years
about how this process is broken, and we have taken a real
effort to try to fix it.
We have used a process that is--well, we have used more
process than we have in virtually any other rulemaking we have
ever done, including 11 meetings with tribes and with the
public around the country over the course of two different
drafts.
In our first draft, our discussion draft that we put out
just to start the discussion, we put a lot of ideas in there.
And, frankly, we have backed off of some of those ideas. Our
proposed rule was more conservative than what we originally put
out in the discussion draft. And no one here has seen it, so,
you know, I am the only one who has. But our final rule will be
yet again more conservative than what we put out in the
proposed rule, because we have been listening. We have gotten
lots of comments, and we have been listening to those comments,
and we are reacting accordingly.
We do believe that we have found a way to improve
transparency, timeliness, and efficiency. In some respects,
that will produce quicker rejections, quicker disapprovals of
these groups, and that will be a good thing, too, because those
people can get on with their lives. But it is important to us
to maintain the legitimacy and the rigor of the process at all
costs. And we do intend to do that. And we have heard loud and
clear the concerns about changing the criteria, and we are
endeavoring to make sure that we listen to the comments that we
have heard.
I think I can probably stop there and yield back a minute-
and-a-half for the other witnesses. Thank you.
[The prepared statement of Mr. Washburn follows:]
Prepared Statement of Kevin K. Washburn, Assistant Secretary--Indian
Affairs, U.S. Department of the Interior
``I think we can all agree that reforms to expedite the process and
to upgrade fairness, consistency, and transparency are warranted.''
Congressman Don Young (R-AK), H. Hrg. No. 110-47 (10/03/07).
Good afternoon Chairman Young, Ranking Member Ruiz, and members of
the subcommittee. My name is Kevin Washburn, and I am a member of the
Chickasaw Nation of Oklahoma, and currently serve as the Assistant
Secretary--Indian Affairs at the Department of the Interior
(Department). Thank you for the opportunity to provide an overview of
the Department's efforts to improve the Department's Federal
acknowledgment process. We are endeavoring to provide reforms to
accomplish the goals that Chairman Young has identified in the
Department's Federal acknowledgement process.
As the committee is well aware, Congress possesses the plenary
power and authority to grant (or terminate) the Federal recognition of
Indian tribes. The work of Congress in this area is legitimate and
important. Notwithstanding the plenary power of Congress in tribal
recognition, the Department also plays a role in this area. Because the
Department must provide programs and services to eligible Indian tribes
in implementing its responsibilities under Federal law, the Department
must routinely decide whether to acknowledge a group as an Indian
tribe. As a practical matter, Congress and the executive branch have
proceeded on simultaneous tracks to consider acknowledgement of Indian
tribes.
When the Department, rather than Congress, acts to acknowledge a
petitioning group as an Indian tribe, it is imperative that the
Department's work is trustworthy and that the ensuing decisions are
perceived by the public as legitimate. The Department's administrative
process for acknowledging a petitioner as an Indian tribe is set forth
at Part 83 of Title 25 of the Code of Federal Regulations (Part 83
Process), ``Procedures for Establishing that an American Indian Group
Exists as an Indian Tribe.'' These regulations, first promulgated in
1978, provide a formal and rigorous process for establishing that an
Indian group exists as an Indian tribe.
Since 1978, the Department has recognized 17 tribes and denied 34
groups through the Part 83 Process. The Indian tribes most recently
recognized by Congress are the Federated Indians of Graton Rancheria
and the Shawnee Tribe, both in 2000. The Indian tribes acknowledged
most recently through the Part 83 Process are the Mashpee Wampanoag
Tribe in 2007 and the Shinnecock Indian Nation in 2010.
Over the course of resolving more than 50 petitions for Federal
acknowledgment, the Part 83 Process has been controversial and
frequently criticized. The good work and leadership of previous
subcommittees and predecessor Natural Resources Committees produced a
voluminous record of both perceived shortcomings of the Part 83 Process
and potential solutions. In Congressional hearings, members of this
chamber have repeatedly explained for the past two decades that the
process is broken and in need of reform. These concerns have been
identified on both sides of the aisle and in both chambers of Congress.
Well over 15 years ago, Chairman Don Young described the process as
``slow, cumbersome, and enormously expensive[.]'' \1\ Congressman Tom
Cole has made similar statements, explaining that the process is
controversial, complex, bureaucratic, and ``has not worked well.'' \2\
Congressman Eni Faleomavaega said that the process ``needs reform'' and
described it as ``cumbersome.'' \3\ Congressman Dale Kildee also said
that the ``process is broken'' and also expressed concern about the
time it takes for decisions.\4\
---------------------------------------------------------------------------
\1\ Cong. Rec. H9459 (10/05/98).
\2\ H. Hrg. No. 110-47 (10/03/07).
\3\ H. Hrg. No. 110-47 (10/03/07).
\4\ H. Hrg. No. 110-47 (10/03/07).
---------------------------------------------------------------------------
Similar assertions have come from members of the other chamber,
including, for example: Senate Indian Affairs Chairman John Barrasso
(urging progress in fixing the acknowledgement system),\5\ Senate
Indian Affairs Ranking Member Jon Tester (``the process is
broken''),\6\ Senate Indian Affairs former Ranking Member Lisa
Murkowski (``the process is one that just does not work''),\7\ then
Senate Indian Affairs Chairman Byron Dorgan (``it is quite clear the
process for acknowledgment is broken.''),\8\ Senator Tom Udall
(discussing ``the pitfalls and the long and complicated and even
unclear process of Federal acknowledgement''),\9\ and Senator Bill
Nelson (describing ``a process that needs to be repaired and that needs
to be improved'').\10\ The work of House and Senate leaders on
legislation and oversight hearings over the years has been enormously
helpful in charting a path forward.
---------------------------------------------------------------------------
\5\ S. Hrg. 112-684 (7/12/12).
\6\ S. Hrg. 111-470 (11/4/09).
\7\ S. Hrg. 111-470 (11/4/09).
\8\ S. Hrg. 110-686 (9/25/08).
\9\ S. Hrg. 111-470 (11/4/09).
\10\ S. Hrg. 111-470 (11/4/09).
---------------------------------------------------------------------------
To summarize all of the many comments we have heard over the years
from Members of Congress, the process is slow, expensive, inefficient,
burdensome, intrusive, non-transparent, inconsistent, and
unpredictable.
Of course, we have heard similar concerns expressed by the National
Congress of American Indians, which has wide representation across
Indian country, as well as numerous individual Indian tribes,
petitioning groups, states and local governments, and other members of
the public. Because of these criticisms, the Department believed that
it was sensible to develop a reform initiative. The Department has
taken the criticisms to heart as it has considered steps toward reform.
I began working on this issue almost as soon as I undertook my
position as Assistant Secretary. In March of 2013, I shared with this
committee the progress the Department had made to identify guiding
principles of improvement: transparency, timeliness, efficiency, and
flexibility. We also shared our path forward--issuance of a discussion
draft of potential changes in the spring of 2013, consultation and
public input on the discussion draft, preparation of a proposed rule,
followed by another round of consultation and public input on the
proposed rule.
Our efforts to obtain tribal and public input have been more robust
than our process for any other rulemaking in the last 6 years. We have
held 22 meetings (11 tribal consultations and 11 public meetings) and 4
nationwide teleconferences. Over the past 2 years, we have received
thousands of comments on this regulatory initiative, including comments
from states and local governments, federally recognized Indian tribes,
inter-tribal organizations, non-federally recognized tribes, and
members of the public. While this extensive public process has required
us to move more slowly than we would have liked (and thus prevented us
from issuing a final rule in 2014 as I had optimistically forecast),
our goal is to issue a final rule this year.
background of the current federal acknowledgment process
The day-to-day work of implementing the Part 83 Process regulations
is performed by the Office of Federal Acknowledgment (OFA), which is
located within the Office of the Assistant Secretary--Indian Affairs.
OFA makes acknowledgment recommendations to the Assistant Secretary.
OFA is currently staffed with a Director and a professional staff
consisting of four anthropologists, four genealogists, four historians,
and an administrative assistant. Generally, a team composed of one
professional from each of these three disciplines is constructed to
review each petition. It is difficult, detail-oriented work performed
by experts.
The Part 83 Process regulations set forth seven mandatory criteria
that a petitioner must satisfy. The Department considers a criterion
satisfied if the available evidence establishes a reasonable likelihood
of the validity of the facts relating to that criterion. Conclusive
proof of the facts relating to a criterion is not required and the
Department does not apply a ``preponderance of the evidence'' standard
to each criterion.
Although these criteria have remained largely unchanged since 1978,
the Department in 1994 changed the criterion of external identification
as an American Indian entity to require that it be demonstrated since
1900 rather than first sustained contact to avoid problems with
historical records in earlier periods while retaining the requirement
for substantially continuous identification as an American Indian
entity. The Department also added a section relating to previous
Federal acknowledgment for those petitioners that had evidence such as
treaty relations with the United States or treatment by the Federal
Government as having collective rights in tribal lands or funds.
principles guiding improvements in the federal acknowledgment process
Following years of criticism described, in part, above, the
Department began an intensive internal review of the Part 83 Process
regulations at the beginning of the Obama administration in 2009,
including obtaining input from the Office of the Assistant Secretary--
Indian Affairs, OFA, and the Office of the Solicitor. From our review,
it is clear that much of the time and expense of the Part 83 Process
flows directly from an ever-increasing documentary burden and the lack
of clarity of the process. We accepted the criticism in good faith and
sought ways to address the criticism. By 2012, the Department developed
consensus that improvements to Part 83 Process must address certain
guiding principles:
Transparency--ensuring that standards are objective,
consistent 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
results from expended 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.
Once the Department identified the principles for reform, we
created an internal workgroup to develop options to improve the Part 83
Process under these guiding principles. As a result of extensive
meetings of this core workgroup, the Department released a discussion
draft on June 21, 2013, and announced public meetings and tribal
consultation sessions. Throughout July and August 2013, the Department
hosted tribal consultation sessions for representatives of federally
recognized Indian tribes and separate public hearing sessions for
interested individuals or entities at five locations across the
country.
During these sessions, serious efforts were undertaken to capture
meaningful comments on our discussion draft and other suggestions for
reform. A professional court reporter transcribed each session. The
Department made the transcripts available on its Web site and posted
each written comment it received also on its Web site. At the request
of states, Indian tribes, and others, the original comment deadline of
August 16, 2013, was extended to September 30, 2013, to allow
additional time to provide input. Tribal and public engagement at this
stage of the reform initiative was incredibly robust. Commenters
submitted more than 200 unique written comment submissions but, in
total, more than 4,000 commenters provided input through form letters
and signed petitions.
When the comment period on the discussion draft closed, the
Department's internal workgroup began reviewing each written and oral
comment on the discussion draft. During this review process, which also
involved regular team meetings, it began to formulate a draft proposed
rule. Prior to publication, the draft proposed rule was reviewed by OMB
and Federal agencies.
On May 29, 2014, the Department published the proposed rule in the
Federal Register. The publication also announced that the Department
would be hosting additional tribal consultation sessions and public
meetings at six locations across the country in July 2014. In response
to requests for extension, the Department extended the original comment
deadline of August 1, 2014, to September 30, 2014. In response to
requests for additional meetings at additional locations, the
Department announced the addition of two more tribal consultation
sessions and two more public hearings to be held by teleconference in
August and early September of 2014. The Department again made
transcripts of all sessions available on its Web site and made all
written comments available on www.regulations.gov. Tribal and public
engagement was again robust. Commenters provided more than 300 unique
comment submissions on the proposed rule, and more than 3,000
commenters provided input through signatures on form letters or
petitions.
Since September 30, 2014, when the comment period on the proposed
rule closed, the Department's internal workgroup has been reviewing the
comments and drafting a final rule. The internal workgroup has included
representatives of the Office of the Assistant Secretary--Indian
Affairs, OFA, the Office of the Solicitor, the Office of Hearings and
Appeals, and the U.S. Department of Justice. The comments provided have
been extraordinarily helpful to the Department as it moves forward
drafting a final rule. Just as the proposed rule was the product of
extensive comments on the discussion draft, we anticipate that the
final rule will reflect additional changes following comments on the
proposed rule. As I previously testified, the work of this committee
and the Senate Committee on Indian Affairs in previous Congresses has
been extraordinarily helpful to inform our thinking as we move forward
with a final rule.
conclusion
I would like to thank you for the opportunity to provide my
statement on the process of updating the Federal acknowledgment
regulations. I will be happy to answer any questions the subcommittee
may have.
______
Mr. Young. Thank you, Kevin. I appreciate that. Your words
sound good, and I hope we are able to look at this later on and
say everything is hunky-dory. But that is why we are having the
oversight.
Ms. Fawn Sharp, I understand you have another very
important engagement down at the Hawk and Dove, and----
[Laughter.]
Mr. Young. Can I join you?
Ms. Sharp. Absolutely.
Mr. Young. I am going to recognize you, and not disrespect
the other panel, but because you do have a previous engagement,
I will let you go next.
Ms. Sharp. Yes, I appreciate that. Thank you very much.
STATEMENT OF FAWN SHARP, PRESIDENT, QUINAULT INDIAN NATION,
TAHOLAH, WASHINGTON
Ms. Sharp. Chairman Young, Ranking Member Ruiz, and members
of the subcommittee, my name is Fawn Sharp, President of the
Quinault Indian Nation, and I truly appreciate and am honored
for this opportunity to testify.
I am not here today to oppose or challenge the right of any
group to seek a political relationship with the United States.
Instead, I am here to defend the sovereignty of the Quinault
Nation, and our exclusive authority to govern our lands,
territories, and people.
For more than a century, the Quinault Nation has been under
attack from descendants of the Chinook peoples. We have had all
branches of government--we have been faced with these various
attacks in the court, in the Congress, and through the
administrative process. The solemn promises that we have with
the United States are detailed in the Treaty of Olympia. That
treaty provides an extensive number of issues for which the
United States recognizes our exclusive authority over our
people and territory.
We are forced to spend considerable time and resources at
great expense to defend against these repeated assaults on our
tribal sovereignty. The Federal courts and the Administration
have consistently found that the Quinault Nation has the
exclusive authority to govern our reservation, and to regulate
the exercise of treaty rights under the Treaty of Olympia.
The BIA's proposed revisions to the Federal acknowledgment
process hold the potential to reopen these settled decisions,
which will force us, once again, to re-litigate and defend our
treaty and sovereignty rights. For the past 47 years, the BIA
has used the Federal acknowledgment process to restore or
reaffirm a government relationship with tribes through an
administrative process.
The stated purpose is to streamline the process, to
increase transparency, efficiency, and consistency. However,
several of the proposed revisions undercut these goals by
reopening petitions that had been finalized after decades of
litigation, and by fundamentally changing the mandatory
criteria for acknowledgment that could adversely affect
existing tribes, such as Quinault.
Today I will focus on two provisions: the provision
authorizing re-petitions for groups previously denied
acknowledgment; and the provision that presumes the community
and political authority criteria on--showing that the U.S. held
lands for ancestors of the petitioner at any point.
First, the Quinault Nation strongly opposes the proposal
that would allow previously denied groups the opportunity to
re-petition. This provision would only serve to lengthen and
undermine the Federal acknowledgment process, prevent
interested parties from voicing concerns, and it will reopen
final decisions that have been relied upon by existing tribes.
Department officials have stated that the purpose for
reforming the regulations was not to hit the reset button.
However, this provision does exactly that. It permits groups to
hit the reset button, while ignoring the vested interests of
existing tribes.
Considerations of efficiency and finality, and the
fundamental legal principle of res judicata support maintaining
the existing prohibition against re-application by groups
previously denied.
Second, the Quinault Nation opposes the revision to permit
a showing that the U.S. held land for the petitioner as
conclusive evidence to meet the distinct community and
political authority criteria. In 2002, the Interior Department
rejected similar factors as meeting the mandatory criteria in
the petition submitted by the Chinook descendants. The
Department based its reconsidered final determination on more
than a century of court decisions, and the findings of
historical and legal experts.
The BIA's proposed revisions hold great potential to
overturn these decisions, and force the Quinault Nation to once
again re-litigate these attacks on our sovereignty. As a
result, we strongly oppose adding the factor that the United
States has held land for the petitioners as dispositive
evidence.
In closing, I want to make it clear that the Quinault
Nation has a great deal of respect for the Chinook Indian
people. However, the issues we raise today relate to the
longstanding and unique obligations that the United States owes
to the Quinault Nation. Our Nation's inherent interests emanate
from that relationship, and are outlined in the treaty with the
United States. We have invested nearly a century in defending
our treaty rights and sovereignty from legal, administrative,
and legislative challenges. Under no circumstances should the
Administration authorize a process that would force us to re-
litigate these past settled decisions. The Quinault Nation
simply cannot support the revisions, as they hold the potential
to reopen our treaty and sovereign rights.
In addition, the revisions fail to uphold and establish the
safeguards to protect the Federal Government's treaty and trust
obligation to the Quinault Nation.
In sum, the proposed revisions, while well-intended, are
flawed and misguided.
I again want to thank the subcommittee for this opportunity
to testify, and I am prepared to answer any questions that you
may have. Thank you.
[The prepared statement of Ms. Sharp follows:]
Prepared Statement of Fawn R. Sharp, President, Quinault Indian Nation
Chairman Young, Ranking Member Ruiz, and members of the
subcommittee, I am Fawn R. Sharp, President of the Quinault Business
Committee, the elected governing body of the Quinault Indian Nation
(``Quinault'' or ``Nation''). On behalf of the Nation, I thank you for
the opportunity to testify about the Bureau of Indian Affairs'
(``BIA'') proposed revisions to 25 C.F.R. Part 83, the Federal
Acknowledgment Process (``FAP'').
background/history of the quinault indian nation
Located in the northwest corner of the United States, the Quinault
Nation was one of the last Native nations in the United States to be
contacted by the European nations. Less than 1 year before the
foundation of the United States, the first recorded contact between the
Quinaults and non-Indians occurred on July 13, 1775, when the Spanish
vessel Sonora anchored several miles from the mouth of the Quinault
River. Not long after first contact, our Nation was sadly subjected to
the same greed for our homelands and natural resources that tribes
across the continent faced.
Upon its formation, the United States acknowledged the existing
inherent sovereign authority of Indian tribes over their lands. The
Federal Government entered into hundreds of treaties with Native
nations to secure peace and trade agreements, to foster alliances, and
to build a land base for the newly formed United States. Through these
treaties, tribes ceded hundreds of millions of acres of our homelands.
In return, the United States promised to provide for the education,
health, public safety, and general welfare of Indian people. For the
Quinault and other tribes, the United States also promised to preserve
our rights to fish and hunt our aboriginal homelands and accustomed
areas.
The solemn promises that the United States made to the Quinault
Nation were detailed in the Treaty of Olympia, signed on July 1, 1855
and on January 25, 1856 (11 Stat. 971). The Treaty acknowledged
Quinault's status as a sovereign Nation with inherent rights to govern
our lands, our resources, and our people. This includes access to our
usual and accustomed lands and waters and the right to co-manage the
natural resources outside of our Reservation borders. The United States
has unique legal treaty and trust responsibilities to keep these
promises to the Quinault Indian Nation.
The inherent self-governing authority of all Indian tribes is
recognized in the U.S. Constitution. The Commerce Clause provides that
``Congress shall have power to . . . regulate commerce with foreign
nations, and among the several states, and with the Indian tribes.''
Tribal citizens are referred to in the Apportionment Clause (``Indians
not taxed'') and excluded from enumeration for congressional
representation. The 14th Amendment repeats the original reference to
``Indians not taxed.'' These provisions acknowledge that Native
Americans were citizens of and subject to the authority of their tribal
governments and not citizens of the United States. Finally, the
Constitution acknowledges that Indian treaties and the promises made
therein are the supreme law of the land. By its very text, the
Constitution establishes the framework for the Federal government-to-
government relationship with Indian tribes.
Over the past two centuries, the Federal Government has
consistently violated these solemn obligations. In the late 1800s the
Federal policy of forced Assimilation authorized the taking of Indian
children from their homes. Many of our ancestors were sent to boarding
schools where they were forbidden from speaking their language or
practicing their religion. The officially sanctioned philosophy was to
``kill the Indian, save the man.'' The concurrent policy of Allotment
sought to destroy tribal governing structures, sold off treaty-
protected Native homelands, and devastated our economies.
Under the authority of the Allotment policy and subsequent related
laws, the Federal Government destroyed thousands of acres of Quinault
Cedar forests making our homelands virtually unrecoverable. The
aftermath of these policies continues to plague the Quinault Nation to
this day.
the federal acknowledgment process
Like the power to recognize foreign governments, the United States
has the authority to determine which groups will be recognized as
Indian tribes for governmental and political purposes. The Federal
Government can establish this relationship in one of three ways:
through the Federal courts, through an Act of Congress, and through the
Federal acknowledgment process (``FAP''), 25 C.F.R. Part 83 (Prior to
1871, treaties were often used to establish these political
relationships).
The BIA promulgated the FAP in 1978 to establish standards for
tribes not otherwise acknowledged that respect the great significance
of a decision by the United States to enter into a political
relationship with an Indian tribe. The stated purpose of the FAP ``is
to establish a departmental procedure and policy for acknowledging that
certain American Indian groups exist as tribes, [which affords] the
protection, services, and benefits of the Federal Government.. . .
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 as well as the responsibilities, powers,
limitations and obligations of such tribes.. . .'' 25 C.F.R. Part 83.2.
The current FAP ``is intended to apply to groups that can establish a
substantially continuous tribal existence and which have functioned as
autonomous entities throughout history until the present.'' 25 C.F.R.
83.3.
The importance of these regulations and the process cannot be
overstated. The Federal administrative process to reaffirm or restore
the political relationship between a tribe and the United States
impacts not only the newly acknowledged tribe but can also impact
existing federally recognized tribes. The newly acknowledged tribe will
have sovereign authority to establish a land base, exercise civil and
criminal jurisdiction over those lands, and will have a formal
government-to-government relationship with the United States.
Conversely, that same decision may have impacts on existing tribal
governments, their rights, and their unique relationship with the
United States. Of great importance to the Quinault Nation, the
Department's decisions may have the potential to adversely impact our
treaty rights and the ability to govern actions on our Reservation.
the proposed revisions to the fap: 79 federal register 30766-81 (may
29, 2014)
The stated purpose of BIA's FAP revisions is to streamline the
process to increase transparency, consistency, and efficiency. Quinault
supports these goals. While some of the proposed revisions foster these
goals, several of the proposed revisions undercut these goals by re-
opening petitions that have been finalized after decades of debate and
by fundamentally changing the mandatory criteria for Federal
acknowledgment that could adversely impact existing tribal governments.
The following comments and concerns with the proposed revisions to
the FAP are best considered against the long held positions of the
Quinault Indian Nation in response to attacks on our treaty rights and
the authority to govern the Quinault Reservation that have been
repeatedly lodged by descendants of the Chinook.
Individuals claiming Chinook descendancy have made claims in the
U.S. Courts and before Congress while attacking the Quinault Nation's
status as the federally recognized governing entity of the Quinault
Indian Reservation. In 1988, Chinook and Cowlitz testified before
Congress against the return of North Boundary lands to the Quinault
Nation. The two groups claimed that the Federal Government has
improperly recognized the Quinault Nation as the tribal government over
the Reservation and that eight tribes, including the Chinook have equal
rights to share in the governance of the Reservation. In 1989, Chinook
and other tribal groups filed suit in the U.S. District Court
requesting that the Secretary of Interior be required to organize a new
tribal organization to govern the Quinault Indian Reservation. The
groups claimed to have equal rights with the Quinault Nation to govern
the Quinault Indian Reservation.
The Quinault Nation has consistently maintained that Chinook
descendants do not satisfy Federal standards for recognition of the
Chinooks as an independent tribe. The Interior Department concluded
that the Chinook descendants have not existed as a separate social and
political community before 1990. Over a hundred years of legal disputes
have consistently found that the Chinook descendants have lacked a
separate identity. Instead, in 1906, the Court of Claims found that the
Chinook had long ago ceased to exist as a tribe. In 1928, the U.S.
District Court, in the Halbert case found that there was no Chinook
tribal organization. Even as the Federal Government provided for
allotments on the Quinault Indian Reservation, those were based on
Chinook descent, and not as a member of an existing Chinook tribal
body. The BIA's experts recommended against Chinook recognition based
on the extensive records.
The Quinault Nation has been forced to expend considerable
resources to defend itself against such repeated assaults on its
sovereignty. These are just a couple of examples of the ongoing issues
that demonstrate the historic disputes the Chinooks have with the
Quinault Indian Nation. The Quinault Nation spent nearly a century
defending our treaty and self-governing rights against these attacks.
Federal courts and administrative decisions have repeatedly upheld the
exercise of Quinault treaty rights against claims of the Chinook. These
decisions have found that only the Quinault Indian Nation has authority
to govern the Quinault Reservation and to regulate the exercise of
treaty rights reserved to the Quinault under the Treaty of Olympia.
The BIA's proposed revisions to the FAP regulations hold the
potential to re-open these settled decisions and could force the
Quinault Nation to re-litigate and again defend our solemn treaty
rights and inherent sovereign authority to govern our homelands.
Previously Denied Applicants May Re-Petition
Proposed rule Sec. 83.4(b) authorizes a group previously denied
acknowledgment under Part 83 to re-petition for Federal acknowledgment
under the revised rules once finalized. A petitioner may re-petition
only if ``[a]ny third parties that participated as a party in an
administrative reconsideration or Federal Court appeal concerning the
petitioner has consented in writing to the re-petitioning.'' In
addition, requests to be allowed to re-petition are to be reviewed by
the Department's Office of Hearings and Appeals, and decided on the
basis of preponderance of evidence that changes in the regulations
would produce a different result or there was a misapplication of the
``reasonable likelihood'' standard of proof.
The proposal to authorize re-petitioning is unsound for a number of
reasons. It will only serve to lengthen and undermine the Federal
acknowledgment process, prevent interested parties from voicing
concerns with applications to re-petition under the revised rules, and
will re-open final decisions that have been relied upon by such
interested parties.
For example, despite the fact that previously denied petitions may
have had multiple opposing parties, the language in proposed
Sec. 83.4(b) indicates that only one prior opposing third party would
be required to consent, even if the others objected.
The Department has repeatedly stated that the purposes of the
proposed revisions are to increase efficiency, clarity, and
transparency while maintaining the same requirements as the present
regulations. However, Sec. 83.4(b) clearly anticipates that the changes
in the regulations will result in the acknowledgment of previously
rejected petitioners. (See Proposed 83(b)(I)(ii)(A): ``The petitioner
proves, by a preponderance of the evidence, that a change from the
previous version of the regulations to the current version of the
regulations warrants reconsideration of the final determination.''). As
discussed in detail below, the proposed rule makes major changes to the
acknowledgment process and criteria that would result in the
acknowledgment of groups that do not meet the existing criteria for
acknowledgment.
The Clinton administration considered and rejected a similar
proposal to authorize groups to re-petition under the 1994 revisions to
the FAP. That administration reasoned, ``there should be an eventual
end to the present administrative process. Those petitioners who were
denied went through several stages of review with multiple
opportunities to develop and submit evidence. Allowing such groups to
return to the process with new evidence would burden the process for
the numerous remaining petitioners. The changes in the regulations are
not so fundamental that they can be expected to result in different
outcomes for cases previously denied.'' Federal Register Doc. No: 94-
3934 (page unknown) (Feb. 25, 1994) (http://www.gpo.gov/fdsys/pkg/FR-
1994-02-25/html/94-3934.htm).
With regard to the current proposed revisions, Department officials
have stated publicly that the purpose for reforming the regulations
``was not to hit the reset button'' for tribes that have already gone
through the process. The Department has acknowledged that when third
parties invest time and resources into a process they develop equity in
the outcome. As a result, those outcomes cannot be ignored. However, as
noted above, under the proposed re-petitioning provision as written,
opposition from third parties to a re-petition can be circumvented by
gaining consent from another third party.
Finally, Department officials have also publicly acknowledged that
constitutional questions remain with regard to the third-party consent
provisions included in the re-petitioning process. If the third party
veto is found unconstitutional, it could result in striking the consent
provisions while permitting previously denied petitioners to re-
petition under the relaxed revised rules.
The Quinault Indian Nation strongly opposes the proposed changes to
Part 83 that would allow previously denied groups the opportunity to
re-petition under the revised FAP rules. As noted above, the Quinault
Nation has defended our treaty rights and rights to govern our
Reservation against attacks from descendants of the Chinook for
decades. Quinault invested significant time and resources to
successfully defend these rights. Considerations of efficiency and
finality and the fundamental legal principle of res judicata support
maintaining the existing prohibition against reapplication by groups
previously denied. The Nation urges the Department to retain the
current policy prohibiting groups from re-petitioning and eliminating
the provisions related to re-petitioning from any final rule.
Revised Standards for ``Community'' and ``Political Authority''
The proposed rule would substantially revise standards for
determining whether a petitioning group meets the mandatory criteria
for ``community'' and ``political authority''. The proposed revisions
also permit additional forms of evidence to meet criteria (b) and (c),
which make the demonstration of these criteria no stronger than that of
a social club that holds elections by its membership. Together, these
proposed revisions would fundamentally change these criteria to the
point that it could adversely impact existing tribal governments and
the Department's treaty and trust obligations to all of Indian Country.
The ``mandatory criteria'' under the current FAP regulations
require a petitioner to show: (b) that a ``predominant portion of the
petitioning group comprises a distinct community and has existed as a
community from historical times until the present''; and (c) that it
has ``maintained political influence or authority over its members as
an autonomous entity from historical times until the present.'' 25
C.F.R. Part 83.7(b), (c).
The current rule defines community to mean ``any group of people
which can demonstrate that consistent interactions and significant
social relationships exist within its membership and that its members
are differentiated from and identified as distinct from nonmembers.
Community must be understood in the context of the history, geography,
culture and social organization of the group.'' Part 83.1. It also
defines the term ``historical'' to mean ``dating from first sustained
contact with non-Indians.'' Id.
The proposed rule would replace the ``historical times''
requirements of both (b) and (c), and establish ``1934'' as the new
starting date for proving that a group meets the community and
political authority criteria.
In the rulemaking for the only previous revisions to the 1978 FAP,
the Clinton administration rejected a proposal to change the starting
point for meeting the ``distinct community'' criterion from
``historical times to the present'' to ``1934''.
``The purpose of the acknowledgment process is to acknowledge
that a government-to-government relationship exists between the
United States and tribes which have existed since first contact
with non-Indians.
Acknowledgment as a historic tribe requires a demonstration of
continuous tribal existence. A demonstration of tribal
existence only since 1934 would provide no basis to assume
continuous existence before that time. Further, the studies of
unrecognized groups made by the Government in the 1930s were
often quite limited and inaccurate.
Groups known now to have existed as tribes then, were portrayed
as not maintaining communities or political leadership, or had
their Indian ancestry questioned. Thus, as a practical matter,
1934 would not be a useful starting point.''
Federal Register Doc. No: 94-3934 (page unknown) (Feb. 25, 1994)
(http://www.gpo.gov/fdsys/pkg/FR-1994-02-25/html/94-3934.htm).
Of vital importance to the Quinault Nation, the proposed revised
standards for recognition have the potential to undermine the Nation's
Treaty rights affirmed in U.S. v. Washington, 641 F.2d 1368, 1374 (9th
Cir. 1981) (``Washington II'', a successor case to the historic Boldt
decision). The Ninth Circuit in U.S. v. Washington, rejected the
argument that ``because their ancestors belonged to treaty tribes, the
appellants benefited from a presumption of continuing existence.'' The
court further defined as a single, necessary and sufficient condition
for the exercise of treaty rights, that tribes must have functioned
since treaty times as ``continuous separate and distinct Indian
cultural or political communities.'' Washington II, 641 F.2d at 1374.
The simple demonstration of ancestry is not sufficient for the
exercise of treaty rights, and it should not be sufficient to meet the
mandatory criteria for Federal recognition.
Acknowledging groups that have failed to continuously maintain a
community or exercise political control over its membership as
federally recognized Indian tribes, devalues and undermine the status
of all Indian tribes as sovereign political entities with significant
governmental authority. These proposed changes hold the potential to
redefine tribes as racial, rather than political entities.
Holding Lands ``at any point in time from 1934 to the present''
A major proposed revision to the mandatory criteria is listed in
proposed Parts 83.11(b)(3)(ii) and (c)(3)(ii). If adopted, these
proposals would conclusively determine that a showing that ``the United
States has held land for the petitioner or collective ancestors at any
point in time from 1934 to the present'' is evidence to meet the
``distinct community'' and ``political authority'' criteria. See
Proposed Parts Sec. 83.11(b)(3)(ii) and (c)(3)(ii).
Proposed Parts Sec. 83.11(b)(3)(ii) and (c)(3)(ii) fail to
adequately explain how ``held land for the petitioner or collective
ancestors at any point in time from 1934 to the present'' equates to a
petitioner showing that it existed as a distinct community that has
maintained political influence or authority without substantial
interruption. These proposed revisions fail to include any
qualifications for the term ``held land'' or a description of the basis
for acquiring and holding such land, and thus are far too broad.
Without more, this provision does not require the petitioner to show
evidence of tribal existence or even implied Federal recognition. Where
land was clearly purchased based on tribal existence and recognized
status, this would equate with previous Federal recognition, and should
be included as evidence for that point in time, but not as evidence for
continued tribal existence after that point in time. The fact that the
United States ``held land'' for a group of individuals does not mean
that coordinated activities are occurring on the land or that there is
a distinct government established to maintain the land. In addition,
the fact that the United States held land for a petitioner in 1934 does
not mean that the petitioner maintained existence as a community or
exercised political authority over the group after that date. As a
result, this section could apply to some petitioners that are made up
of descendants of tribes for which a reservation was established (and
continues to exist), but where these descendants had long since ceased
to be affiliated with the tribe on the reservation or to form a
community outside of it.
For example, in the Northwest and elsewhere, reservations were
established or enlarged by treaties and executive orders for historic
tribes. Many members of those historic tribes integrated into the
reservation communities of tribes that are currently recognized by the
United States, while others did not. Proposed Sec. 83.11(b)(3)(ii) and
(c)(3)(ii) would provide that petitioners demonstrate both community
and political influence and authority without any additional evidence,
if the United States has held land in trust for the petitioner or the
petitioner's collective ancestors at any time between 1934 and the
present.
Similar factors were specifically rejected as meeting criteria (b)
and (c) in the petition submitted by the Chinook Indian Nation/Chinook
Tribe (``CIN/CT'') pursuant to Part 83.
In the case of the Quinault Nation, the United States opened our
Reservation for allotment through several Acts of Congress. ``The 1911
Quinault Allotment Act authorized allotments for ``members'' of certain
`tribes' affiliated with the Quinault and Quileute tribes `in' an 1855/
56 treaty. The Department granted allotments to individual Chinooks
without requiring membership in a Chinook tribe, and contended at the
time that a Chinook tribe no longer existed.'' See Reconsidered Final
Determination Against Federal Acknowledgment of the CIN/CT, at 16 (July
5, 2002). In denying the CIN/CT application for acknowledgment, the
Secretary found that reference to the Chinook and ``other tribes'' as
eligible for allotments was, by itself, insufficient to substantiate
that the Chinook then comprised an existing tribe acknowledged by
Congress as a distinct tribe still in existence.
In 1912, Congress heard from the Chinook descendants through their
attorney. The topic was U.S. payments for cessions described in an 1851
treaty negotiated with the then existing Chinook people. Congress never
ratified the treaty, and when it considered payments to Chinook people,
Congress considered payments only being made to descendants of a tribe
that no longer existed.
In 1925, Congress enacted another piece of claims legislation that
authorized several ``Tribes or Bands of Indians,'' including the
``Chinook,'' to bring claims ``as parties plaintiff' against the United
States. Act of February 12, 1925. In 1934, the Court of Claims then
found claims filed by the Chinook descendants pursuant to this Act to
be without merit.
Finally, Federal courts in the 1931 Halbert v. United States
litigation found that the Chinook did not constitute an Indian tribe.
At the District Court level in the Halbert case, the United States
argued that the Chinook descendants were without tribal affiliation or
tribal relations, and implied that they were ``descendants who have
separated from tribal life.'' The District Court, accepting the factual
premise of the government's argument, concluded that the Chinook tribe
had ``no tribal organization.'' While not directly addressing the
issue, the U.S. Supreme Court essentially upheld the District Court's
ruling that the Chinook held no ``. . . tribal organization [but
instead] are `remnants of bands and tribes.' ''
These court rulings and legislative interpretations weighed heavily
in the Interior Department's denial of recognition of the Chinook
descendants. The Secretary found that the Chinook failed to satisfy the
mandatory criteria under the FAP to meet the ``distinct community'' and
``political authority''. See Department of the Interior, Reconsidered
Final Determination Against Federal Acknowledgment of the Chinook
Indian Tribe/Chinook Nation (CIT/CN) (July 5, 2002) (online at http://
www.bia.gov/cs/groups/xofa/documents/text/idc-001489.pdf). The
Department, in the Reconsidered Final Determination, also properly
relied on and deferred to the expertise of the Bureau of Acknowledgment
and Recognition's 1997 Proposed Findings in reaching these conclusions.
Despite adverse decisions, the Chinook people have consistently
maintained that they should be federally recognized, are eligible to
exercise Quinault treaty hunting and fishing rights, and possess the
rights to govern actions and activity on the Quinault Indian
Reservation. The BIA's proposed FAP revisions hold great potential to
overturn these decisions and force the Quinault Nation to re-litigate
these attacks on our sovereignty. As a result, we strongly oppose the
proposed revisions to change the starting date to prove ``community''
and ``political authority'' to ``1934'', and we strongly oppose adding
the factor that ``the United States has held land for the petitioner or
collective ancestors at any point in time from 1934 to the present'' as
dispositive evidence of meeting the ``distinct community'' and
``political authority'' criteria.
conclusion
The Quinault Indian Nation does not oppose or challenge the right
of any group to seek a political relationship with the Federal
Government. However, we must oppose Federal actions that hold the
potential to jeopardize the Quinault Indian Nation's treaty rights or
inherent rights to govern our homelands. The BIA's proposed FAP
revisions, if made final in their current form, will re-open settled
decisions, force us to re-litigate and defend our treaty and sovereign
rights. In addition, the proposed revisions fail to uphold or establish
safeguards to protect the Federal Government's treaty and trust
obligations to existing federally recognized tribes.
The Quinault Nation has a great deal of respect for the Chinook
Indian people. The issues that we raise today relate to the fundamental
principle that the United States has a unique relationship with all
Indian tribes, which includes each tribe's unique position deeply
rooted in historic and cultural values. The Quinault Nation has a
longstanding and unique relationship with the United States. Our
Nation's inherent rights emanate from that relationship, which are
outlined in our Treaty with the United States.
The Quinault Nation has invested nearly a century in defending our
treaty rights and sovereignty from legal, administrative, and
legislative challenges. Under no circumstances should the
Administration dredge up the past and force us to re-litigate these
past settled decisions.
The Quinault Indian Nation cannot support the proposed revisions to
the FAP as they hold the potential to threaten the Quinault treaty
rights reserved under the Treaty of Olympia. In sum, the proposed
revisions to the BIA Federal Acknowledgment Process--while well
intended--are flawed.
I again thank the subcommittee for this opportunity to testify
today and urge you to work with the Administration to ensure that if
the revised FAP regulations are made final that they address the
concerns discussed in this statement.
______
Mr. Young. Fawn, I just make one suggestion. You are going
to be late.
Ms. Sharp. Yes.
Mr. Young. And we would--if we have questions, with the
committee's indulgence, we will submit those to you, and we
expect an answer back.
Ms. Sharp. Yes. I will commit to answer those. Thank you.
Mr. Young. Thank you. And you are excused. Oh, I love
that--I am an old school teacher. ``You are excused,'' you
know?
All right. Mr. Cladoosby, Brian, National Congress of
American Indians, Embassy of the Tribal Nations.
STATEMENT OF BRIAN CLADOOSBY, PRESIDENT, NATIONAL CONGRESS OF
AMERICAN INDIANS, EMBASSY OF TRIBAL NATIONS, WASHINGTON, DC
Mr. Cladoosby. Chairman Young, Ranking Member Ruiz----
Mr. Young. Make sure your microphone is on.
Mr. Cladoosby. Yes. Get closer?
Mr. Young. Yes.
Mr. Cladoosby. Chairman Young, Ranking Member Ruiz, members
of this committee, on behalf of the National Congress of
American Indians, thank you for the opportunity to discuss this
central issue in the relationship between tribes and the
Federal Government. My name is Brian Cladoosby. My traditional
name is Spee-pots. I am President of the National Congress of
American Indians. I have served as a leader in Indian Country
for 30 years, including 18 years as the chairman of my tribe.
NCAI has always had a balanced position on Federal
recognition. Indian tribes are protective of their status as
sovereigns, and there have never been enough Federal resources
to meet the trust responsibilities to those tribes who are
currently recognized.
NCAI certainly does not support the creation of new Indian
tribes, and does not believe the proposed rule would allow for
this. But NCAI does support an effective and efficient
administrative system to recognize existing tribes.
But the leadership of NCAI has always known that Indian
tribes exist who have never been recognized by the Federal
Government and should be. That is the purpose of Interior's
acknowledgment process, originally created in 1978. This
process has deteriorated over the decades since the regulations
were adopted. It fails even the simplest metric: time.
The most recent Federal acknowledgment decisions have been
pending for sometimes more than 35 years, and such delays are
the norm. NCAI strongly supports the revisions to the Federal
acknowledgment regulations, because they address a basic need
for efficiency to quickly issue denials to applications that
lack merit, and to focus on legitimate applications.
In recent years, significant concerns have also been raised
when actions during the acknowledgment process created the
appearance that political forces influenced the decisions. NCAI
and its members are committed to a fair and equitable process
that results in a timely determination. The proposed rule
creates an avenue for appeal to an administrative law judge
that should help in addressing concerns about politicization.
While the proposed rule will improve the process, the
fundamental standards remain the same. The acknowledgment
process is intended to recognize those tribes that have existed
since historic times as living, political, and cultural groups,
and to deny recognitions to groups that have not. The NCAI
membership has supported the proposed changes through NCAI
resolution, TUL-13-002, supporting the Bureau of Indian Affairs
proposed reform of the Federal recognition process, which I
have attached to my testimony.
When tribal applications for Federal acknowledgment
increased during the 1970s, NCAI called a special convention of
its members to discuss Federal acknowledgment. It was a
controversial issue, just like it is today. But the tribal
leaders worked through it, and came up with a united position.
Our members expressed their support for the establishment of
Federal standards and an accountable decisionmaking process.
They believed that a tribe should demonstrate a continuous
history of tribal relations in order to receive Federal
acknowledgment. The principles articulated at that convention
developed into the current Federal acknowledgment process that
is codified at 25 CFR Part 83.
At the NCAI conference in 1978, the BIA's Director of
Bureau of Acknowledgment and Recognition, Bud Shepard, said to
the tribal leadership--and I am quoting--``We envision that we
will have somewhere around 150 applicants, and depending on the
staff that is assigned to the project, we estimate about 4
years to do the bulk of the work.'' Today it is 37 years later,
and the BIA has resolved only 51 applications--34 have been
denied and only 17 granted. The most recent decisions have been
on applications that were pending for more than 35 years. This
is a broken system, and the process needs to work much more
efficiently.
NCAI supports procedural amendments to fix these problems,
and supports the maintenance of very high standards for Federal
acknowledgment. We are grateful that you have devoted the time
to consider this pressing issue, and we thank you for your
diligent efforts on behalf of Indian Country on this and so
many other issues.
Thank you very much, Mr. Chairman. And if you have any
questions, I would be more than happy to answer.
[The prepared statement of Mr. Cladoosby follows:]
Prepared Statement of Brian Cladoosby, President, National Congress of
American Indians
On behalf of the National Congress of American Indians, thank you
for the opportunity to discuss this central issue in the relationship
between tribes and the Federal Government. My name is Brian Cladoosby
and I am President of the National Congress of American Indians. I have
served as a leader in Indian Country for 30 years, including 15 years
as Chairman of my tribe.
NCAI has always had a balanced position on Federal recognition.
Indian tribes are protective of their status as sovereigns, and there
have never been enough Federal resources to meet the trust
responsibilities to those tribes who are currently recognized. NCAI
certainly does not support the creation of new Indian tribes, and does
not believe that the proposed rule would allow for this.
But the leadership of NCAI has always known that Indian tribes
exist who have never been recognized by the Federal Government and
should be. That is the purpose of Interior's acknowledgement process
originally created in 1978. This process has deteriorated over the
decades since the regulations were adopted. It fails even the simplest
metric: time. As the committee is aware, the most recent Federal
acknowledgment decisions have been pending for 35 years. Such delays
are the norm. NCAI strongly supports the revisions to the Federal
acknowledgment regulations because they address a basic need for
efficiency, to quickly issue denials to applications that lack merit
and to focus on legitimate applications.
In recent years significant concerns have also been raised when
actions during the acknowledgment process created the appearance that
political forces influenced the decisions. NCAI and its members are
committed to a fair and equitable process that results in a timely
determination. The proposed rule creates an avenue for appeal to an
Administrative Law Judge that should help in addressing concerns about
fairness.
While the proposed rule will improve the process, the fundamental
standards remain the same. The acknowledgement process is intended to
recognize those tribes that have existed since historic times as living
political and cultural groups, and to deny recognition to groups that
have not. The NCAI membership has supported the proposed changes
through NCAI Resolution TUL-13-002, Supporting the Bureau of Indian
Affairs Proposed Reform of the Federal Recognition Process, which I
have attached to my testimony.
historical background on federal recognition of indian tribes
The first Federal-tribal relations were created through treaties
under the U.S. Constitution. Many tribes, however, never entered a
treaty with the United States. These tribes were either too peaceful to
be considered a military threat, too small or isolated to be noticed,
or possessed nothing that the United States desired. Other tribes
simply refused to enter into a treaty with the United States. By 1871
treaty-making was replaced by the making of agreements, and the making
of agreements ceased in practice by 1913. These methods of establishing
recognition were thus closed to many tribes. The Commissioner of Indian
Affairs foresaw trouble when he wrote in 1872:
This action of Congress . . . presents questions of
considerable interest and much difficulty, viz: What is to
become of the rights of the Indians to the soil over portions
of territory which had not been covered by treaties at the time
Congress put an end to the treaty system? What substitute is to
be provided for that system, with all its absurdities and
abuses: How are Indians, never yet treated with, but having in
every way as good and complete rights to portions of our
territory as had the Cherokees, Creek, Choctaw and Chickasaws,
for instance, to the soil of Georgia, Alabama and Mississippi,
to establish their rights? \1\
---------------------------------------------------------------------------
\1\ Annual Report of the Commissioner of Indian Affairs, 1872,
quoted in the Final Report of the American Indian Policy Review
Commission, p. 466.
The process of Federal recognition was altered by the passage of
the Indian Reorganization Act in 1934. For almost 50 years after the
Indian Reorganization Act (IRA), the Bureau of Indian Affairs (BIA)
employed an informal acknowledgement process based on the ratification
of tribal constitutions. A tribe would submit an IRA constitution to
the Secretary of the Interior. If the Secretary approved the
constitution, that approval constituted Federal acknowledgement of the
tribe. For years, the Secretary based the decision on criteria listed
in Felix S. Cohen's Handbook of Federal Indian Law. However, the
factors listed in the Handbook were not considered exhaustive. By the
1970s, the Interior Solicitor indicated he did not think the Handbook
factors were adequate, and he was concerned that the ``Department ha[d]
no established procedures for making the recognition determination.''
---------------------------------------------------------------------------
\2\
\2\ Letter from Interior Solicitor Kent Frizzell (Feb. 26, 1975).
---------------------------------------------------------------------------
ncai and federal acknowledgement
As tribal applications increased during the 1970s, NCAI called a
special convention of its members to discuss Federal acknowledgement.
It was a controversial issue, but the tribal leaders worked through it
and came up with a united position. Our members expressed their support
for the establishment of Federal standards and an accountable
decisionmaking process. They believed that a tribe should demonstrate a
continuous history of tribal relations in order to receive Federal
acknowledgement. The principles articulated at that convention
developed into the current Federal acknowledgement process that is
codified at 25 C.F.R. Part 83.\3\
---------------------------------------------------------------------------
\3\ For an in depth discussion, see ``An Historical Perspective on
the Issue of Federal Recognition and Non-Recognition,'' Institute for
the Development of Indian Law, Prepared for the National Congress of
American Indians in conjunction with the NCAI Conference on Federal
Recognition, March 28-30, 1978.
At the NCAI conference in 1978, the BIA indicated it would work
quickly to resolve applications for Federal acknowledgment. ``We
envision that we will have somewhere around 150 applicants and
depending on the staff that's assigned to the project, we estimate
about 4 years to do the bulk of the work . . .'' \4\
---------------------------------------------------------------------------
\4\ Quote from the Director of the Bureau of Acknowledgement and
Recognition, Bud Shepard, in the transcript for the NCAI Conference on
Federal Recognition, March 28, 1978.
Today it is 37 years later and the BIA has resolved only 51
applications. Thirty-four have been denied and only 17 granted. The
most recent decisions have been on applications that were pending for
---------------------------------------------------------------------------
more than 35 years.
The documentation required also adds to the delay and raises
questions about the acknowledgement process. The number and scope of
the documentation requirements place an untenable burden on tribes
attempting to engage in good faith with the Secretary. These requests
defy the historical and cultural realities of tribal existence over the
last centuries. They appear to change with each passing year.
Most troublingly, there are significant questions about the
fairness and integrity of the process. In recent years, significant
concerns have been raised among our members and the public at large
when actions during the acknowledgment process created the appearance
that political forces shaped the nature of the process and influenced
the outcome of acknowledgement decisions.
The profound importance of Federal acknowledgement makes the
problems throughout the acknowledgment process all the more pressing.
We urge you to support a fair and equitable acknowledgment process that
ensures prompt action based on impartial criteria.
NCAI's position on Federal acknowledgement remains unchanged since
its formative convention on the issue over 30 years ago. NCAI and its
members are committed to high standards for Federal acknowledgement,
but also a fair and equitable process free of political considerations
that results in a timely determination on each application for Federal
acknowledgement.
We continue to believe the central question in Federal
acknowledgement is whether the tribe has maintained tribal relations
from historic times. All inquiries in the process should be targeted to
answering this narrow question. The inquiry should not be so broad that
the acknowledgement process functionally closes the door on deserving
tribes by requiring an impossibly large amount of evidence of disparate
activities over vast stretches of time. The process should include
consideration of the historical and cultural realities informing each
tribe's relationship with the Federal Government.
NCAI urges the committee to support reforming the process to ensure
timely, transparent, and fair consideration of each application.
reconsideration and third party veto
The proposed regulation will allow those applicants who were
previously denied to resubmit their applications under the revised
rules. Because the standards in the rule are unchanged and only the
procedures are improved, NCAI supports this change. Those tribes who
were denied because of undue political influence should have another
chance.
Notwithstanding the proposed change, the Department would also
allow states and local governments to decide whether tribal nations can
re-petition for recognition, and by doing so, the Department has given
states and others a veto over Federal decisionmaking. For example, the
Eastern Pequot Tribal Nation would need to obtain the consent of the
state of Connecticut and each of 29 towns simply to be allowed to re-
petition for recognition under the proposed regulations. Delegating
such authority to states and others is an abdication of the
Department's trust responsibility for tribal nations and creates a
dangerous precedent which empowers third parties to interfere in the
exercise of the Department's trust responsibility. NCAI opposes the
third party veto pursuant to NCAI Resolution ATL-14-012.
conclusion
The current Federal acknowledgement process is broken. Despite the
best intentions of those that created the process and those that
currently administer it, the process simply does not work. It subjects
tribes to unconscionably long delays and unreasonable documentary
requests. It establishes a seemingly objective list of criteria but
provides no guarantees of objectivity or fairness in their application.
These problems cause incalculable harm. The length of the process
leaves tribes suspended in limbo, unable to guarantee services to their
members or to prove to state and local governments that the Federal
Government recognizes the tribe's sovereignty. The lack of transparency
casts doubt on the Federal Government's willingness to faithfully
perform its trust responsibilities. And the increasing demands on
tribes in the process inflict hundreds of hundreds of thousands of
dollars of unnecessary costs every year.
NCAI supports the procedural amendments to fix these problems, and
supports the maintenance of very high standards for Federal
acknowledgment. We are grateful that you have devoted the time to
consider this pressing issue, and we thank you for your diligent
efforts on behalf of Indian country on this and so many other issues.
Attachments:
NCAI Resolutions TUL-13-002, ATL-14-012, PHX-08-055
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Young. Thank you, Brian.
Robert Martin, Morongo Band of Indians, my good friend's
tribe, I think. Just remember that when election comes up, OK?
[Laughter.]
Mr. Young. I am campaigning for you.
STATEMENT OF ROBERT MARTIN, MORONGO BAND OF MISSION INDIANS,
BANNING, CALIFORNIA
Mr. Martin. Mr. Chairman, Dr. Ruiz, and members of the
subcommittee, thank you for providing the Morongo Tribe this
opportunity to testify before you today.
The issue we are discussing is fundamental to all of Indian
Country: the standard by which the United States determines
which groups of native peoples should be treated as sovereign
governments. After having reviewed the proposed revisions to
the Federal acknowledgment regulations, we fear that the
proposed changes threaten the fabric that currently binds all
tribal nations. In short, the proposed revisions would
dramatically weaken the Federal acknowledgment process and, in
doing so, undermine the significance of tribal sovereignty. As
such, we ask that the Department of the Interior withdraw the
proposed rule in its entirety.
In our view, one of the most egregious changes in the
proposed rule would only require petitioners to demonstrate
tribal existence since 1934. This is nonsensical. Tribal
governments possess inherent sovereignty, not because Congress
granted it, but because we existed as independent sovereigns
before the United States adopted its own Constitution. The
Supreme Court has recognized that one aspect of our inherent
sovereignty, sovereign immunity, is co-extensive with that of
the United States.
That is why presently the Federal acknowledgment
regulations require a demonstration of tribal existence from
the founding of the United States in 1789, or first sustained
contact if later than 1789. We are concerned that by weakening
this standard the Department is redefining what it means to be
a sovereign tribal government in this country.
We strongly believe that the source of our sovereignty
comes from the fact that our government existed long before the
Constitution and our first contact with settlers in the area.
We simply can't understand the rationale behind this change,
and we urge the Department to maintain its existing standard.
Our second major concern is the watering down of the
requirement for external identification. Under the existing
rules, petitioners must provide evidence of identification by
external sources since 1900. This helps the government
differentiate historic tribes from groups who only recently
asserted tribal heritage. The proposed revisions would replace
the strong standard with a lesser requirement that a petitioner
provide only a brief narrative with supporting documentation.
We can't understand why a legitimate petitioner couldn't
produce external documentation of its existence. Consequently,
we believe it is critical that the existing criteria for
external identification by outside observers such as scholars,
media, and state and local governments be preserved.
Third, we are greatly concerned that the Department's
proposal allows groups to use evidence with substantial
interruption. The proposal goes on to explain that this means
the Department would allow evidentiary gaps of 20 years or
more. This is a far cry from the current, more rigorous
standard that requires a substantially continuous existence,
and we do not believe the Department adequately justifies the
need to weaken the current rules.
The fourth and final issue we are concerned about is that
the Department's proposal would allow previously denied
petitioners an opportunity to re-petition. This would mean
that, in addition to the 68 California groups whose petitions
are pending before the Department of the Interior, the 6
California petitioners that have already been denied
acknowledgment will have an opportunity to go through the
process again under much less stringent standards.
We hope this committee will encourage the Department to
rethink the proposal, to revisit these applications, because
doing so would create two classes of tribes: one that can meet
the current exacting standards, and those who can't. As this
committee knows, creating two classes of tribal governments is
a recipe for disaster in Indian Country.
It is worth noting that many of the petitioners in our
state appear to be from California's densest urban areas. We
don't believe that this is a coincidence. We fear that lower
recognition standards could lead to an influx of reservation-
shopping proposals. For your reference, with my written
testimony I included a map illustrating our locations of the 68
petition groups in California. As you will see, there are
currently four groups petitioning for Federal recognition in
the urban areas of our home Riverside County alone.
Please know that we appreciate how difficult it is to
expedite the acknowledgment process while preserving the
rigorous standards needed to ensure that tribes can continue to
enjoy benefits of sovereignty. A strong process is the only way
Indian Country can fully distinguish the difference between
being a tribe with inherent governmental rights and powers and
being a group of individuals that is nothing more than what the
Supreme Court calls private voluntary organizations. The
legitimacy of the Federal acknowledgment process, no matter how
cumbersome, must be protected.
Thank you for your consideration of our concerns.
[The prepared statement of Mr. Martin follows:]
Prepared Statement of Robert Martin, Chairman, Morongo Band of Mission
Indians
Mr. Chairman, Doctor Ruiz and members of the subcommittee, thank
you for providing the Morongo Tribe with this opportunity to testify
before you today. As you know, the Morongo Tribe is located in
Riverside County, California, about 20 miles west of Palm Springs.
The issue we are discussing is fundamental to all of Indian
Country--the standard by which the United States determines which
groups of native peoples should be treated as sovereign governments.
Establishing a standard that is too restrictive potentially denies
legitimate groups the unique rights provided to a sovereign government.
Conversely, setting the bar too low undermines the political
relationship between federally acknowledged tribes and the United
States.
After having reviewed the proposed revisions to the Federal
acknowledgment regulations, the Morongo Tribe believes the Department
is setting the bar far too low. We fear that the proposed changes
threaten the fabric which currently binds all tribal nations and we ask
that the Department of Interior withdraw the proposed rule in its
entirety.
The Morongo Tribe does not take this issue lightly. In fact, along
with a number of tribes throughout the United States, we asked some of
the most well respected scholars within the field of tribal
acknowledgement to help us understand the technical aspects of the
proposed rule.
The assessments by these experts confirmed our own concerns and
conclusions that the proposed revisions would fundamentally change both
the criteria and procedures used to review petitions for Federal
acknowledgement. And in short, the proposed revisions would
dramatically weaken the Federal acknowledgement process and in doing
so, undermine the significance of tribal sovereignty.
In our view, one of the most egregious changes in the Proposed Rule
is that the proposal would only require petitioners to demonstrate
tribal existence since 1934. This is nonsensical.
Tribal governments possess inherent sovereignty, not because
Congress granted it, but because we existed as independent sovereigns
before the United States adopted its own Constitution. The Supreme
Court has recognized that one aspect of our inherent sovereignty,
sovereign immunity, is coextensive with that of the United States. That
is why presently, the Federal acknowledgement regulations require a
demonstration of tribal existence from the founding of the United
States in 1789, or first sustained contact, if later than 1789.
The Morongo Tribe is concerned that by weakening this standard, the
Department is redefining what it means to be a sovereign tribal
government in this country. We strongly believe that the source of our
sovereignty comes from the fact that our government existed long before
the Constitution and our first contact with settlers in the area. We
simply cannot understand the rationale behind this change, and we urge
the Department to maintain its existing standard.
Our second major concern is the watering down of the requirements
for external identification.
Under the existing rules, petitioners must provide evidence of
identification by external sources since 1900. This helps the
government differentiate historic tribes from groups who only recently
assert tribal heritage.
The proposed revisions would replace this strong standard with a
lesser requirement that a petitioner provide only a brief narrative
with supporting documentation. We cannot understand why a legitimate
petitioner could not produce external documentation of its existence.
Consequently, we believe it is critical that the existing criterion for
external identification by outside observers such as scholars, media,
and state and local governments be preserved.
Third, we are greatly concerned that the Department's proposal
allows groups to use evidence with ``substantial interruption.'' The
proposal goes on to explain that this means the Department would allow
evidentiary gaps of 20 years or more. This is a far cry from the
current, more rigorous standard that requires a ``substantially
continuous existence'' and we do not believe the Department adequately
justifies the need to weaken the current rules.
The fourth and final issue we are concerned about is that the
Department's proposal would allow previously denied petitioners an
opportunity to re-petition.
This would mean that in addition to the 68 California groups whose
petitions are pending before the DOI, the 6 California petitioners that
have already been denied acknowledgment will have an opportunity to go
through the process again under much less stringent standards. We hope
this committee will encourage the Department to rethink the proposal to
revisit these applications, because doing so would create two classes
of tribes--ones that can meet the current exacting standards and those
who cannot. As this committee knows, creating two classes of tribal
governments is a recipe for disaster in Indian Country.
It is worth noting that many of the petitioners in our state appear
to be from California's densest urban areas. The Morongo Tribe does not
believe this is a coincidence; we fear the lower recognition standards
could lead to an influx of reservation shopping proposals. For your
reference, with my written testimony I included a map illustrating the
locations of the 68 petitioning groups in California. As you will see,
there are currently four groups petitioning for Federal recognition in
the urban areas of our home Riverside County, alone.
Please know that the Morongo Tribe appreciates how difficult it is
to expedite the acknowledgement process while preserving the rigorous
standards needed to ensure that tribes can continue to enjoy the
benefits of sovereignty. A strong process is the only way Indian
Country can fully distinguish the difference between being a tribe with
inherent governmental rights and powers, and being a group of
individuals that is nothing more than what the Supreme Court calls
``private, voluntary organizations.'' (United States v. Mazurie, 419
U.S. 544 (1975). The legitimacy of the Federal acknowledgement process,
no matter how cumbersome, must be protected.
Thank you for your consideration of our concerns.
Attachment: Map
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Young. Thank you, Mr. Martin.
Glen Gobin.
STATEMENT OF GLEN GOBIN, VICE CHAIRMAN AND BUSINESS COMMITTEE
CHAIR, TULALIP TRIBES, TULALIP, WASHINGTON
Mr. Gobin. Good afternoon, Chairman Young, Ranking Member
Ruiz, and committee members. My name is Glen Gobin, Vice-
Chairman of the Tulalip Tribes. I would like to thank you for
the opportunity to testify on the proposed rule that revises
the Federal acknowledgment process.
The Tulalip Tribes are the successors in interest to the
Snohomish, Snoqualmie, Skykomish, and a number of other
dependent allied bands who have occupied Puget Sound Region in
Washington State since time immemorial. And we are signatory to
the 1855 treaty at Point Elliot. Under the terms of that
treaty, these tribes moved to the Tulalip Indian Reservation.
In 1934 these same tribes, under the Indian Reorganization Act,
chose to use the name Tulalip Tribes, as used today.
Tulalip Tribes is very concerned with the proposed rule
change. In Washington State, there are 29 federally recognized
tribes, 7 of which obtained Federal recognition under the
acknowledgment process. Other groups were denied because they
failed to demonstrate having maintained some resemblance of
community structure and political authority since historical
times, and were merely fractions of Indian descendants whose
ancestors willingly chose to remain off reservation, where they
assimilated into the larger society. Some of these groups claim
to be who the Tulalip Tribes are today, or other tribes in the
region. We can only conclude that the process has and is
working, albeit lengthy.
When a group receives new Federal recognition as a
sovereign Indian tribe, there can be significant practical
impacts to existing tribes. There are competing cultural
resource claims, where a new group claims authority over an
existing tribe's cultural resources. There are off-reservation
aboriginal areas and natural resources that may become subject
to competing claims. And there are additional impacts on
already underfunded trust obligations. The real potential for
conflict grows when a group seeks Federal recognition that is
not recognized by other tribes and does not meet the basic
minimum standard for recognition as a sovereign nation.
I would like to address two points that we make in our
written testimony. These are lowing the standard to obtain
recognition, and allowing previously denied petitioners the
ability to re-petition.
First, lowering the standard by changing the starting point
to 1934 as a basis of evaluation creates a presumption of
continuous community and political existence since before that
time. And such a presumption is nowhere to be seen in fact or
law. This requirement is purposeful, and clearly distinguishes
between more recently formed groups and those petitioners who
have maintained some resemblance of community structure and
political authority long before 1934. The Department's primary
explanation for this change is to reduce the administrative
burden upon the Department, as well as the petitioner. The
process for Federal acknowledgment should not be an easy
process. And the consideration of administrative burdens is
inappropriate, and should play no part for determining or
establishing recognition.
The proposed rule would allow groups who have previously
been denied acknowledgment another opportunity, under certain
circumstances, to re-petition under this new, lower standard.
When they have already had full and fair consideration, it did
not meet the standards. We are not opposed to legitimate
petitioners receiving recognition under the current standards,
but lowering the standards devalues and undermines the existing
sovereign Indian tribes who have maintained existence in the
face of past Federal assimilation and termination policies.
The proposed rule goes well beyond what we feel were the
intended and contemplated revisions. We ask the Department to
reconsider the proposed rule, not lower the standards. Rather,
move forward with procedural revisions that will address time
frames, transparency, and consistency in decisionmaking
processes.
Again, I thank the committee for the opportunity to share
some concerns from Tulalip Tribes.
[The prepared statement of Mr. Gobin follows:]
Prepared Statement of Glen G. Gobin, Vice Chairman, Tulalip Tribes
Good afternoon Chairman Young, Ranking Member Ruiz and committee
members, my name is Glen Gobin, Vice-Chairman of the Tulalip Tribes. I
would like to thank you for the opportunity to testify on the
Department of Interior's proposed rule that changes the Federal
acknowledgment process.
introduction
The Tulalip Tribes are the successors in interest to the Snohomish,
Snoqualmie, Skykomish, and a number of allied bands, who have occupied
the Puget Sound region in Washington State since time immemorial, and
were signatory to the 1855 Treaty of Point Elliot. Under the terms of
the treaty, these tribes moved to the Tulalip Indian Reservation and in
1934 under the Indian Reorganization Act, chose to use the name the
``Tulalip Tribes'' which is named for a bay on the Reservation.
The Tulalip Tribes is very concerned with the proposed revision to
25 CFR Part 83 which extend well beyond an intention to streamline the
process. Instead, the proposed rule lowers the standard of proof by
which groups can establish recognition as a sovereign Indian tribe.
Indeed, the revisions to the acknowledgment process would have a direct
effect of watering down the acknowledgment determination itself,
undermining the existing sovereign Indian tribes who have been in
existence since time immemorial and who have maintained a tribal
existence in the face of past Federal assimilation and termination
policies.
In Washington State there are 29 federally recognized tribes, seven
of which obtained Federal recognition under the Part 83 process. Other
groups have petitioned but were denied because they could not
demonstrate a continuous distinct community and political existence
since historical times until the present. Some of these groups claim to
be tribes who make up the Tulalip Tribes, or other tribes in the
region. We can only conclude that the acknowledgment process has, and
is working, albeit through a rigorous review process.
Moreover, when a group receives new Federal recognition as a
sovereign Indian tribe, there can be significant practical impacts for
existing tribes. There may be competing cultural resource claims where
a new group claims authority over an existing tribe's cultural
resources. There are off reservation aboriginal areas and natural
resources that may become subject to competing claims. And, there are
additional impacts on already underfunded trust obligations. This real
potential for conflict grows when a tribe seeks Federal recognition
that is not recognized by other tribes and does not meet basic minimum
standards for recognition as a sovereign tribe.
For these reasons, the Tulalip Tribes opposes the proposed rule and
has provided detailed comments to the Department of Interior on two
occasions. We offer the following comments below to address a few of
the more substantial revisions to Part 83.
1. Tulalip Opposes the Proposed Revision because it Lowers the Existing
Standard for Establishing Recognition
The proposed rule allows a petitioning group to establish tribal
existence by merely giving a ``brief narrative'' with minimal
evidentiary support stating its existence as a tribe during the
``historical period,'' defined as 1900 or earlier. This weakens the
acknowledgment process by allowing acknowledgment of racial groups
formed in recent history with no demonstration of continuous existence
or identity throughout history as a sovereign Indian government, and
based only on self-proclaimed identification with scant evidentiary
support. The sovereign rights of American Indian tribes that are
recognized through the acknowledgment process must be based on credible
evidence demonstrating continuous existence as a sovereign Indian
nation throughout history, not only in recent times.
Deleting 83.7(a), that requires that a petitioner demonstrate that
it has been identified as an Indian entity since 1900, is unnecessary
because if a petitioner can meet the existing criteria in
Sec. Sec. 83.7(b) and 83.7(c), it should be able to meet Sec. 83.7(a).
Furthermore, the year 1934 provides no basis to assume continuous
community and political existence before that time and effectively
creates a presumption of existence. Such a presumption is nowhere to be
seen in fact or law. An individual's native ancestry and some
resemblance of tribal existence starting in 1934 until present do not
and should not entitle a group to a government-to-government
relationship with the United States.
The proposed rule also contravenes settled case law. For example,
in U.S. v. Washington, a petitioner unsuccessfully argued, ``because
their ancestors belonged to treaty tribe, they benefited from a
presumption of continuing existence.'' The Federal court rejected this
argument and found that a tribe must have functioned since treaty times
as a ``continuous separate and distinct Indian cultural or political
communities'' (641 F.2d 1374 (9th Circuit 1981)), concluding that a
simple demonstration of ancestry is not sufficient; however, the
proposed rule ignores this, and potentially allows Federal
acknowledgment based on ancestry and some form of organization starting
in 1934, this lower standard should not entitle a group to a sovereign
government-to-government relationship with the United States.
The Department of Interior's primary explanation for this change is
to reduce the administrative burden upon the Department as well as the
petitioner. The process for Federal acknowledgement should not be an
easy process, and the rationale of lowering administrative burdens is
inappropriate to support a less than comprehensive process for
determining and establishing Federal recognition as an Indian tribe.
2. Tulalip Opposes the Proposes Revision that Allow Groups to
Repetition for Recognition
The proposed revision allows groups who have previously been denied
acknowledgment, after full and fair consideration, another opportunity
under certain circumstances to re-petition. The Department maintains
that the proposed revisions do not lower the criteria for recognition;
however, if the standard for recognition and review is not lower, then
there is no purpose in allowing these groups who have already been
through the acknowledgement process to re-petition. Again, criticisms
of the acknowledgement process in the Congressional Record focus on the
lack of timeliness, efficiency, and transparency, not the standards
applied or the outcome of the acknowledgment decisions, yet the
proposed rule will allow groups to reapply who have previously been
determined not to be a tribe by the administration or the Federal
courts.
Furthermore, because the proposed revisions to Sec. 83.7(b) is
vaguely worded, the Bureau has admittedly failed to fully understand
the effects of its allowance for re-petitioning under the new
regulations. In particular, Sec. 83.4(b)(1)(ii)(A) merely requires a
re-petitioning group to show that a change in the regulations
``warrants reconsideration of the final determination,'' without
providing any guidance as to how this standard should be applied or
what kinds of changes are deserving of reconsideration. The Bureau
itself admits that it has not done any analysis as to how these new
regulations would affect past acknowledgment decisions, so the effect
of this provision allowing for re-petitioning under the new regulations
has not been fully understood.\1\ Essentially, the Bureau proposes to
open the door to an unknown number of petitioners for reconsideration
based on a vague and poorly understood standard.
---------------------------------------------------------------------------
\1\ Statement of Larry Roberts, Transcript of July 15, 2014 Tribal
Consultation meeting, pg. 46.
---------------------------------------------------------------------------
conclusion
We are not opposed to legitimate petitioners receiving recognition
under the current standards, but lowering the standards devalues and
undermines the status of all Indian tribes, as sovereign political
entities. The Tulalip Tribes does not support the majority of the
Department's proposed revisions and we ask the Department to reconsider
the proposed rule. Instead of lowering the standards for Federal
recognition, we urge the government to limit revisions to correct
procedural deficiencies that address time frames, transparency, and
consistency in decisionmaking processes. The integrity of the Federal
acknowledgment process should be upheld and maintained because with the
exception of procedural deficiencies, the current substantive standards
for Federal acknowledgement as a sovereign Indian tribe are fair and
appropriate.
Mr. Young. Thank you, Glen.
Mr. Mitchell, Don.
STATEMENT OF DONALD C. MITCHELL, ATTORNEY AT LAW, ANCHORAGE,
ALASKA
Mr. Mitchell. Thank you, Mr. Chairman. As the Chairman may
recall, since he was on the dais that afternoon, I first
testified in front of this committee in 1977. And that was so
long ago that, at the time, I had an almost full head of brown
hair, and the Chairman had not a speck of gray in his beard.
That is how long ago it was.
Over the years that have morphed into decades since, I have
testified in front of the committee on numerous occasions about
numerous subjects. And, most recently, in 2009 and 2011, the
committee invited me to appear to discuss the Carcieri v.
Salazar U.S. Supreme Court decision, in which the court found
that the BIA had been flagrantly ignoring the intent of
Congress as expressed in the text of Section 19 of the Indian
Reorganization Act of 1934.
I appreciate the opportunity to come back with another
invitation to talk about the proposed regulations that
Assistant Secretary Washburn has published in the Federal
Register. But, unlike Senator Blumenthal and the other
witnesses who have expressed to you serious policy concerns
about the content of those regulations, I have a more
fundamental concern. And my concern is that the entire BIA
recognition process has been invalid and unlawful since it was
invented in 1978.
I understand that that is a serious statement. Unlike
Assistant Secretary Washburn, I have never been the dean of a
law school. But, like Assistant Secretary Washburn, I attended
one. And like every law student, I have had classes in
constitutional law and in administrative law. And there are
three basic black-letter rules that I would hope that the
Assistant Secretary would agree are uncontroverted in those
legal areas.
The first is that the legislative authority of the United
States of America is vested by the Constitution exclusively in
the Congress, not in the executive branch. Exclusively in the
Congress.
The second principle is that Congress can delegate its
legislative authority to an executive branch agency, but it
must do so in a statute. That statute must clearly communicate
the delegation of authority.
And then, the third principle is that statute must contain
standards that guide the Federal executive's exercise of the
authority that has been conveyed by Congress.
In my written testimony I pointed out that none of the
statutes that the BIA relies on today and relied on in 1978, if
you read those statutes, they do not convey authority to do any
of what the BIA has done.
In 1975--there is a letter attached to my testimony from
the head of the BIA branch of tribal regulations saying that
the solicitor had advised Secretary of the Interior, Rogers
Morton, that the BIA had no such authority.
And this situation is not different from Carcieri. In
Carcieri, the BIA did not like a policy decision that Congress
had made in Section 19 of the Indian Reorganization Act. So,
rather than coming to you and having that Act amended, they
just decided to ignore the law. In this particular situation,
the Department, in 1978, decided that it wanted to start
inventing new Indian tribes, but it didn't have the authority
from Congress to do that, so it just pretended that it did.
And, as I talked about in my written testimony, Representative
Teno Roncalio, at an oversight hearing just like this one in
1978, said to the equivalent of Assistant Secretary Washburn,
``What is the authority? '' And the answer was that, well,
there are these two statutes that Congress passed back in the
1840s--the 1840s--that give us this authority to invent new
tribes.
So, Mr. Chairman, in closing, the purposeful violation by
an executive branch agency of the constitutional doctrine of
separation of powers is a serious matter. And it is serious
enough that, whether or not you want to take what I have just
given to you as the gospel or not, it is serious enough that
you should make an independent investigation to come to your
own conclusion as to what I have just told you is legally true.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Mitchell follows:]
Prepared Statement of Donald Craig Mitchell, Attorney at Law,
Anchorage, Alaska
Mr. Chairman, members of the subcommittee, my name is Donald Craig
Mitchell. I am an attorney in Anchorage, Alaska, who has been involved
with Native American legal and policy issues from 1974 to the present
day in Alaska, on Capitol Hill, inside the U.S. Department of the
Interior, and in the Federal courts.
From 1977 to 1993 I served, first as Washington, DC counsel, and
then as general counsel for the Alaska Federation of Natives, the
statewide organization Alaska Natives organized in 1967 to urge
Congress to settle Alaska Native land claims by enacting the Alaska
Native Claims Settlement Act (ANCSA). From 1984 to 1986 I was counsel
to the Governor of Alaska's Task Force on Federal-State-Tribal
Relations. In 1997 I was retained by Alaska Senator Ted Stevens to
represent the Senator before the U.S. Supreme Court during the petition
stage in Alaska v. Native Village of Venetie Tribal Government, one of
the most important Indian law cases involving Alaska that the Court has
considered. And from 2000 to 2009 I was a legal advisor to the
president of the Alaska Senate and speaker of the Alaska House of
Representatives regarding Alaska Native and Native American issues,
including the application of the Indian Gaming Regulatory Act in
Alaska.
I also have written a two-volume history of the Federal
Government's involvement with Alaska's Indian, Eskimo, and Aleut
peoples from the Alaska purchase in 1867 to the enactment of ANCSA,
Sold American: The Story of Alaska Natives and Their Land, 1867-1959,
and Take My Land Take My Life: The Story of Congress's Historic
Settlement of Alaska Native Land Claims, 1960-1971. In 2006 the Alaska
Historical Society named Sold American and Take My Land two of the most
important books that have been written about Alaska. And most recently,
I have finished writing a book on the history of Indian gaming, which
contains a chapter devoted to the tribal recognition issue.
I first testified before the Committee on Interior and Insular
Affairs (as the Committee on Natural Resources then was known) in 1977.
Over the years since I have testified before this subcommittee and the
full committee approximately a dozen times, most recently in 2009, and
then again in 2011, when I was invited to discuss Carcieri v. Salazar,
the 2009 decision of the U.S. Supreme Court in which the Court
construed the intent of the 73d Congress embodied in section 19 of the
Indian Reorganization Act of 1934.
I appreciate having been invited again to discuss tribal
recognition generally, as well as the proposed amendments to 25 C.F.R.
83.1 et seq. that Assistant Secretary of the Interior for Indian
Affairs Kevin Washburn published in the Federal Register on May 29,
2014.
With respect to those subjects I would like to make five points.
1. Since 1977 When the American Indian Policy Review Commission
Recommended That Congress ``Recognize All Indian Tribes as Eligible for
the Benefits and Protections of General Indian Legislation and Policy''
Congress Has Not Addressed the Question of Whether, as a Matter of
National Policy, Congress Should Create New ``Federally Recognized
Tribes,'' and, If It Should, What Standards Congress Should Employ to
Decide Whether to Do So in a Particular Case.
The U.S. Supreme Court repeatedly has instructed that the Indian
Commerce Clause in the U.S. Constitution grants Congress--not the
President, and certainly not the Assistant Secretary of the Interior
for Indian Affairs--``plenary and exclusive power over Indian
affairs.'' (emphasis added). And throughout the 19th century Congress
exercised its Indian Commerce Clause power to achieve a facinorous
objective: the clearing of the public domain of the Native Americans
who occupied it.
On the recommendation of President Andrew Jackson, in 1830 Congress
authorized the President to persuade Native Americans who occupied land
east of the Mississippi River to agree to ``voluntarily'' relocate to
land west of the river. Then beginning around 1850 Congress' policy was
to persuade Native Americans who occupied land west of the Mississippi
River to agree--again ``voluntarily''--to be sequestered on
reservations that were withdrawn from the public domain for their
occupation. And when the members of a particular ethnological tribe
refused to agree to be sequestered, they were compelled by force of
arms to settle on the reservation to which they had been assigned.
According to historian Robert Utley: ``Virtually every major war of the
two decades after Appomattox was fought to force Indians on to newly
created reservations or to make them go back to reservations from which
they had fled.''
By 1890 the public domain had been cleared and the objective of
Congress' Indian policy became the assimilation of the Native Americans
on reservations who had served the clearing (and Native Americans in
California and other locations who had not been sequestered on
reservations) into the economy and society of the Nation in which the
reservations were located. To that end, in 1887 Congress enacted the
General Allotment Act, which authorized the President to subdivide land
within a reservation into allotments whose restricted titles were
conveyed to heads of families, single persons both over and under 18
years of age, and orphan children. And in 1934 the 73d Congress enacted
the Indian Reorganization Act (IRA).
In 2011 when he testified before this subcommittee on behalf of the
Department of the Interior in support of H.R. 1234, a bill whose
enactment would have reversed the Carcieri v. Salazar decision,
Principal Deputy Assistant Secretary of the Interior for Indian Affairs
Donald ``Del'' Laverdure represented to the subcommittee that the 73d
Congress enacted the IRA ``to halt the Federal policy of Allotment and
Assimilation '' (emphasis added).
However, that statement is historically incorrect.
The Senate and House Committees on Indian Affairs whose members
wrote the statutory text that the 73d Congress enacted as the IRA
published the transcripts of their hearings and mark-up sessions. Those
transcripts indicate that, to the man and single woman, the members of
both committees were committed to assimilation as the objective of
Congress' Indian policy and that they agreed ``to halt the Federal
policy of Allotment'' because they were convinced by Commissioner of
Indian Affairs John Collier that the allotment of reservations had
failed to advance the achievement of the assimilation objective.
To cite two of many examples:
First, section 13(b) of Title I of the original bill Commissioner
Collier sent to the 73d Congress defined the term ``Indian'' as all
``persons of one fourth or more Indian blood.'' When, after they
rejected the Commissioner's bill, the members of the Senate Committee
on Indian Affairs wrote their own bill, Montana Senator Burton Wheeler,
the chairman of the committee, amended the ``Indian'' definition to
increase the blood quantum requirement to ``one-half or more Indian
blood'' because, as Chairman Wheeler explained to the other members,
``What we are trying to do is to get rid of the Indian problem rather
than add to it.'' Senator Wheeler's amendment was, and today remains,
codified in section 19 of the IRA.
Second, after the 73d Congress enacted the IRA, when Senator
Wheeler and other members of the Senate Committee on Indian Affairs
realized that Commissioner Collier and the Bureau of Indian Affairs
(BIA) bureaucracy were implementing the statute in a manner that
contravened the achievement of Congress' assimilationist policy, they
spent the next 12 years attempting (unsuccessfully) to repeal their own
bill because, as the members of the committee explained in 1944,
after 10 years of operation under the so-called Wheeler-Howard
Act, we do not find a single instance in which Indians, under
and through that act, have attained a greater degree of self-
determination . . . The Indian Bureau has directly controlled
the tribal government of every Indian tribe for the past 10
years . . . It has purchased into Federal trust status with
tribal and Federal funds, large parcels of expensive lands,
which it attempts to manage for the Indian groups and, through
such enterprises, to control their whole economy.
S. Rep. No. 78-1031, at 7 (1944).
In 1946 the Senate Committee on Indian Affairs held its final
hearing on a bill whose enactment would have repealed the IRA. Six
years later, in 1953 the 83d Congress, without a single dissenting
vote, passed House Concurrent Resolution No. 108--the so-called
``termination resolution''--which reaffirmed that it was ``the policy
of Congress, as rapidly as possible, to make the Indians within the
territorial limits of the United States subject to the same laws and
entitled to the same privileges and responsibilities as are applicable
to other citizens of the United States, to end their status as wards of
the United States, and to grant them all of the rights and prerogatives
pertaining to American citizenship.''
The history of Congress' consistent Indian policy set out above is
relevant to this subcommittee's consideration of the tribal recognition
issue in the present day because it is evidence that into the 1970s
Congress had no interest in creating new ``federally recognized
tribes'' by enacting statutes that would confer that legal status on
new groups composed of individuals of varying degrees of Native
American descent who did not reside within the boundaries of an
existing reservation.
However, in 1972 that situation changed.
In 1994 when he appeared before this subcommittee to discuss the
tribal recognition issue, Senator John McCain observed that, to that
date, Congress' creation of new ``federally recognized tribes'' had
involved ``little or no application of objective standards or
criteria'' and had relied ``almost exclusively on the political
strength of the congressional delegation of the state in which the
Indian tribe happens to be located.''
That, beginning in 1968, was the situation in Arizona.
The San Carlos Apache Tribe is a federally recognized tribe whose
members live on the San Carlos Apache Reservation in southeastern
Arizona. In 1889 several families whose members were members of the San
Carlos Apache Tribe left the San Carlos Apache Reservation and
established an encampment on the East Verde River 6 miles north of
Payson, a ranching and mining town west of the reservation. By 1968, 64
individuals who were descendants of members of the families that left
the San Carlos Apache Reservation in 1889 were living near Payson
squatting on land in the Tonto National Forest.
To provide those individuals a location at which to build a
permanent community, in 1968 Representative Sam Steiger, whose
congressional district included Payson, introduced a bill whose
enactment by Congress would authorize the ``Payson Band of Yavapai-
Apache Indians'' to select 85 acres of land in the forest as a site for
a village. The bill also ``recognized'' the Band ``as a tribe of
Indians within the purview of the [IRA].''
In 1971 when the House Committee on Interior and Insular Affairs
reported Representative Steiger's bill, before it did so the committee
rewrote the bill to remove the Band's ``recognition'' as a federally
recognized tribe because the Department of the Interior had informed
the committee that ``we do not now recognize this group and believe
that we should not now recognize them. If this group wishes to avail
itself of Indian services, they need only to remove themselves to the
San Carlos Indian Reservation, which they have refused to do for a
number of reasons.'' See H.R. Rep. No. 92-635 (1971).
In the end, because they apparently wanted to ensure that the
members of the Payson Band could receive services from the BIA and the
Indian Health Service without having to move to the San Carlos Apache
Reservation, the members of the Conference Committee who wrote the
version of Representative Steiger's bill that Congress enacted into law
(and whose membership, in addition to Representative Steiger, included
Arizona Senator Paul Fannin) designated the members of the Band--which
later was renamed the Tonto Apache Tribe--as a federally recognized
tribe. See Pub. L. No. 92-470 (1972).
Over the succeeding 40-plus years Congress has enacted other
statutes that have designated groups composed of individuals of
purported Native American descent as ``federally recognized tribes.''
See e.g., Mashantucket Pequot Indian Claims Settlement Act, Pub. L. No.
98-134 (1983); Auburn Indian Restoration Act, Title II, Pub. L. No.
103-434 (1994); Paskenta Band Restoration Act, Title III, Pub. L. No.
103-454 (1994); Graton Rancheria Restoration Act, Title XIV, Pub. L.
No. 106-568 (2000).
In most, if not all, of those cases, Congress enacted those
statutes without recorded votes and only because, as Senator McCain
noted, ``the congressional delegation of the state in which the Indian
tribe happens to be located'' had decided they wanted Congress to
create their particular ``federally recognized tribe.''
To cite what is perhaps the best known example: In 1983 President
Ronald Reagan vetoed the Mashantucket Pequot Indian Claims Settlement
Act. The President did so because the Department of the Interior
objected to Congress designating the group of individuals who called
themselves the Mashantucket Pequot Tribe as a ``federally recognized
tribe,'' among other reasons because, as William Coldiron, the
Solicitor of the Department of the Interior, explained to this
committee: ``We don't even know that they are Indians.''
Nevertheless, in the end, President Reagan relented because
Connecticut Senators Lowell Weicker and Christopher Dodd and all six
members of Connecticut's congressional delegation wanted the
Mashantucket Pequot Indian Claims Settlement Act enacted into law.
In a similar regard, it merits mention that on March 18 the members
of the Senate Committee on Indian Affairs voted to report S. 465,
which, if passed by the 114th Congress and signed into law by President
Obama, will create six new ``federally recognized tribes'' in Virginia.
The members did so over the opposition of Senator John Barrasso, the
chairman of the committee. But S. 465 was reported because Virginia
Senators Tim Kaine and Mark Warner, who had introduced S. 465, wanted
the bill reported.
In summary, since 1972 Congress has created new ``federally
recognized tribes'' by enacting statutes ad hoc and, as Senator McCain
noted, with ``little or no application of objective standards or
criteria'' and based ``almost exclusively on the political strength of
the congressional delegation of the state in which the Indian tribe
happens to be located.''
Because, as discussed below, Congress' creation of new ``federally
recognized tribes'' has significant policy and budgetary consequences,
the subcommittee should consider holding hearings to obtain information
about issues like sovereign immunity and other policy consequences and
about the budgetary consequences. And after obtaining that information
the subcommittee should develop a coherent, objective, and
comprehensive policy pursuant to which the subcommittee will evaluate
bills whose enactments would create new ``federally recognized
tribes.''
2. Congress Has Not Delegated the Secretary of the Interior Authority
to Create New ``Federally Recognized Tribes'' in Congress' Stead. As a
Consequence, the Regulations the Secretary Promulgated in 1978, and
Amended in 1994, in Which he Gave Himself That Authority Were and Are
Ultra Vires.
In 1975 Congress created an 11-member American Indian Policy Review
Commission (AIPRC) that South Dakota Senator James Abourezk and
Washington Representative Lloyd Meeds, who at the time was the chairman
of this subcommittee, co-chaired, and on which the present chairman of
this subcommittee served. The resolution that created it directed the
AIPRC to ``conduct a comprehensive review of the historical and legal
developments underlying the Indians' unique relationship with the
Federal Government in order to determine the nature and scope of
necessary revision in the formulation of policies and programs for the
benefit of Indians.''
After conducting its review, in 1977 the AIPRC submitted a report
to Congress. In chapter 11 the report lamented that ``There are more
than 400 tribes within the Nation's boundaries and the Bureau of Indian
Affairs services only 289. In excess of 100,000 Indians, members of
`unrecognized' tribes, are excluded from the protection and privileges
of the Federal-Indian relationship.'' To remedy that situation, the
report recommended that Congress adopt ``a statement of policy
affirming its intention to recognize all Indian tribes as eligible for
the benefits and protections of general Indian legislation and Indian
policy,'' and that Congress ``by legislation create a special office .
. . independent from the present Bureau of Indian Affairs, entrusted
with the responsibility of affirming tribes' relationships with the
Federal Government and empowered to direct Federal-Indian programs to
these tribal communities.'' (emphasis added).
Those recommendations were consistent with the Indian Commerce
Clause, which grants Congress--and not the executive branch--``plenary
and exclusive power over Indian affairs.'' They also were consistent
with the attached 1975 letter in which the chief of the BIA Branch of
Tribal Relations states: ``[F]ormer Secretary [of the Interior Rogers]
Morton and Solicitor Kent Frizzell were not sufficiently convinced that
the Secretary of the Interior does in fact have legal authority to
extend recognition to Indian tribes absent clear Congressional
action.''
To implement the recommendations in the AIPRC report regarding the
creation of new ``federally recognized tribes'', in 1977 Senator
Abourezk introduced S. 2375. The bill established a ``special
investigative office'' inside the Department of the Interior to
``review all petitions for acknowledgment of tribal existence presently
pending before the Bureau of Indian Affairs.'' The bill also delegated
the Secretary of the Interior authority to ``designate [a petitioning]
group as a federally acknowledged Indian tribe.''
In 1978 Representative Charles Rose introduced S. 2375 in the House
as H.R. 11630 and H.R. 13773.
A year earlier and a month after the AIPRC issued its report, on
June 16, 1977 the BIA published a proposed rule that contained
regulations whose promulgation as a final rule would delegate the
Commissioner of Indian Affairs authority to ``determine that an Indian
group is a federally recognized tribe.'' See 42 Federal Register 30,647
(1977). On June 1, 1978 the BIA published a revised version of its
proposed rule that contained regulations whose promulgation as a final
rule would delegate the Assistant Secretary of the Interior for Indian
Affairs that authority. See 43 Federal Register 23,743 (1978).
Two months after the BIA's publication of its revised proposed
rule, on August 10, 1978 the Subcommittee on Indian Affairs and Public
Lands of the House Committee on Interior and Insular Affairs held a
hearing on H.R. 13773.
One of the witnesses was Deputy Assistant Secretary of the Interior
for Indian Affairs Rick Lavis who informed the subcommittee that the
Department of the Interior opposed H.R. 13733 because ``We believe the
existing structure in the Bureau of Indian Affairs is competent and
capable of carrying this [i.e., the task of tribal recognition] out.''
When Representative Teno Roncalio, the chairman of the subcommittee,
asked, ``You feel that you can make recognition for the tribes without
statutory requirement of Congress? '', Secretary Lavis answered: ``We
are operating on the assumption that the statutory authority already
exists.''
When Chairman Roncalio then asked for a ``quick citation'' of that
statutory authority, Secretary Lavis deferred to Scott Keep, an
Assistant Solicitor, who responded: ``Mr. Chairman, it is from a
general interpretation of the various laws including the Passamoquoddy
case \1\ and also the Indian Reorganization Act and the way that has
been implemented.'' Mr. Keep also informed the Chairman that ``The
Department also takes the position that sections such as 25 United
States Code, sections 2 and 9, giving the Secretary and the
Commissioner of Indian Affairs responsibility for Indian affairs gives
him the authority to determine who is encompassed in that category.''
---------------------------------------------------------------------------
\1\ Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388
F. Supp. 649 (D. Me. 1975), aff'd, 528 F.2d 370 (1st Cir. 1975). In
Passamaquoddy the District Court held that Congress intended the word
``tribe'' in the Nonintercourse Act of 1793 to mean tribe in its
ethnological sense, rather than tribe in its political sense. Contrary
to Assistant Solicitor Keep's assertion, that holding has nothing to do
with the question of whether prior to 1977 Congress had enacted a
statute that delegated the Secretary of the Interior authority to
create new federally recognized tribes in Congress' stead.
---------------------------------------------------------------------------
Two weeks after the hearing, on August 24, 1978 the BIA promulgated
its proposed regulations as a final rule.
As Assistant Solicitor Keep had predicted, the final rule
identified 5 U.S.C. 301 and 25 U.S.C. 2 and 9 as the statutes in which
the BIA believed that Congress had delegated the BIA authority to
promulgate regulations in which the Assistant Secretary of the Interior
for Indian Affairs granted himself the authority to create new
``federally recognized tribes'' unilaterally by final agency action.
See 43 Federal Register 39,362 (1978).
But the texts of those statutes indicate that Congress intended
their enactments to delegate the Assistant Secretary no such authority.
The U.S. Supreme Court has instructed that, while Congress may
enact a statute in which it delegates a portion of its legislative
power to the executive branch, the constitutional doctrine of
separation of powers requires that the text of the statute contain an
``intelligible principle to which the person or body authorized to
[exercise the delegated authority] is directed to conform'' and that a
statute that delegates legislative authority is invalid if its text
contains ``an absence of standards for the guidance of [Executive
Branch action], so that it would be impossible in a proper proceeding
to ascertain whether the will of Congress has been obeyed.'' See J.W.
Hampton, Jr. & Company v. United States, 276 U.S. 394, 409 (1928);
Yakus v. United States, 321 U.S. 414, 426 (1944). And see also
Louisiana Public Service Commission v. FCC, 476 U.S. 355, 374 (1986)
(reiterating that ``[a]n agency may not confer power on itself'').
The texts of 5 U.S.C. 301 and 25 U.S.C. 2 and 9 not only do not
contain any intelligible principles or identifiable standards to guide
the Assistant Secretary's decisionmaking regarding his creation of new
``federally recognized tribes,'' the texts cannot fairly be read to
delegate the Assistant Secretary any authority to create new tribes.
Because they do not, the regulations the BIA promulgated in 1978, the
amendments to those regulations it promulgated in 1994, and, if they
are published in a final rule, the new amendments the BIA published in
the Federal Register on May 29, 2014 as a proposed rule were and are
ultra vires.
5 U.S.C. 301
5 U.S.C. 301 states: ``The head of an Executive department or
military department may prescribe regulations for the government of his
department, the conduct of its employees, the distribution and
performance of its business, and the custody, use, and preservation of
its records, papers, and property.'' On its face that statutory text
contains no delegation of authority to create new ``federally
recognized tribes,'' and, if arguendo it does, the text contains no
standards to guide the exercise of that authority.
25 U.S.C. 2
Congress enacted 25 U.S.C. 2 172 years ago. See ch. 174, sec. 1, 4
Stat. 564 (1832). As now codified, the text of the statute reads: ``The
Commissioner of Indian Affairs shall, under the direction of the
Secretary of the Interior, and agreeably to such regulations as the
President may prescribe, have the management of all Indian affairs and
of all matters arising out of Indian relations.'' If arguendo in 1832
Congress intended that text to delegate the Commissioner legislative
authority to create new ``federally recognized tribes'' in Congress'
stead, the text contains no standards to guide the exercise of that
authority.
25 U.S.C. 9
Congress enacted 25 U.S.C. 9 170 years ago. See ch. 162, sec. 17, 4
Stat. 738 (1834). As now codified, the text of the statute reads: ``The
President may prescribe such regulations as he may think fit for
carrying into effect the various provisions of any act relating to
Indian affairs, and for the settlement of the accounts of Indian
affairs.'' If arguendo in 1834 Congress intended that text to delegate
the President legislative authority to create new federally recognized
tribes in Congress' stead, the text contains no standards to guide the
exercise of that authority. In addition, the text of the statute only
grants the President legislative authority to prescribe regulations to
carry into effect the provisions of an ``act relating to Indian
affairs.'' What was the act relating to Indian affairs that the
promulgation of the regulations in 1978 carried into effect? There was
no such act.
43 U.S.C. 1457
In 1994 when the BIA amended the regulations it promulgated in 1978
it added 43 U.S.C. 1457 to the list of statutes it believes delegates
the BIA authority to promulgate the regulations. See 59 Federal
Register 9293 (1994). But the text of 43 U.S.C. 1457 simply charges the
Secretary of the Interior with responsibility for ``the supervision of
public business relating to'' 13 different subject areas, one of which
is ``Indians.'' That is the sum of the statute. Nothing in the text of
43 U.S.C. 1457 delegates to the Secretary authority to create new
federally recognized tribes. And if arguendo Congress did intend 43
U.S.C. 1457 to delegate the Secretary that authority, the text contains
no standards to guide the exercise of that authority.
25 U.S.C. 479a-1
On May 29, 2014 when the BIA published its most recent proposed
rule, which, if published as a final rule will amend 25 C.F.R. 83.1 et
seq., the regulations it promulgated in 1978 and amended in 1994, it
added 25 U.S.C. 479a-1 to the list of statutes it believes delegates
the BIA authority to promulgate the regulations. 25 U.S.C. 479a-1 is
section 104 of the Federally Recognized Tribe List Act (FRITLA), which
Congress enacted in 1994. The text of the statute reads: ``The
Secretary [of the Interior] shall publish in the Federal Register a
list of all Indian tribes which the Secretary recognizes to be eligible
for the special programs and services provided by the United States to
Indians because of their status as Indians.''
Nothing in that statutory text delegates the Secretary new
authority to create new federally recognized tribes. And Congress
intended no such result. The text of the FRITLA was written, and then
was reported as an amendment in the nature of a substitute for the
original text of H.R. 4180, by this committee. When it reported its
amendment, the committee informed the House (and the BIA) that ``If
enacted, H.R. 4180 would make no changes in existing law.'' See H.R.
Rep. No. 103-781, at 6 (1994). So why the BIA now would represent that
this committee intended Congress' enactment of 25 U.S.C. 479a-1 to
delegate the Secretary new authority to create new federally recognized
tribes is inexplicable.
3. In 1994 the BIA amended the Regulations It Promulgated in 1978 in
Order to Make It Easier for the Assistant Secretary of the Interior for
Indian Affairs to Designate a Group Composed of Individuals of Native
American Descent as a ``Federally Recognized Tribe.''
25 C.F.R. 54.7 (1978) required a petition filed by an ``Indian
group'' to establish that the group had satisfied seven eligibility
criteria. One of the most important was that the petition demonstrate
that a ``substantial portion'' of the group's membership ``inhabits a
specific area or lives in a community viewed as American Indian and
distinct from other populations in the area, and that its members are
descendants of an Indian tribe which historically inhabited a specific
area.'' See 25 C.F.R. 54.7(b) (1978).
In 1994 when the BIA amended its regulations, after designating 25
C.F.R. 54.7(b) (1978) as 25 C.F.R. 83.7(b) (1994), it rewrote that
eligibility criterion to state that a petition now need demonstrate
only that ``a predominant portion of the petitioning group comprises a
distinct community and has existed as a community from historical times
until the present.'' The regulations then defined the term
``community'' to mean ``any group of people which can demonstrate that
consistent interactions and significant social relationships exist
within its membership and that its members are differentiated from and
identified as distinct from nonmembers.'' See 25 C.F.R. 83.1 (1994).
In its final rule the BIA explained the purpose of that change as
follows: ``The old definition implied a geographic community, while the
revised one focuses on the social character of the community.'' See 59
Federal Register 9287 (1994). In other words, a ``federally recognized
tribe'' henceforth could be a social club whose members live scattered
in towns and cities across a state, and indeed throughout the Nation.
For example, in 2000 Assistant Secretary of the Interior for Indian
Affairs Kevin Gover granted a petition that a group that calls itself
the Cowlitz Indian Tribe had filed and designated the group as a
federally recognized tribe. See 65 Federal Register 8436 (2000).
Today, the headquarters of the Cowlitz Indian Tribe is located in
an office building in Longview, Washington, a town on the Interstate 5
freeway 48 miles north of Portland, Oregon. In 1995 when a BIA
anthropologist investigated the Cowlitz Indian Tribe, the
anthropologist discovered that 1,030 of the group's 1,577 members lived
in 133 different towns and cities throughout the state of Washington,
184 members lived in Oregon, 120 members lived in California, and that
the group's 483 other members lived in 34 other states as far south as
Alabama and Florida and as far east as New Jersey, New York, and
Connecticut. If in 1994 the BIA had not rewritten 25 C.F.R. 54.7(b)
(1978) to remove the eligibility criterion that required a
``substantial portion'' of the members of a group to ``inhabit a
specific area'' that diaspora would have been disqualifying.
4. If They Are Promulgated in a Final Rule, the Changes to the
Eligibility Criteria in 25 C.F.R. 83.7 (1994) That the BIA Has Proposed
in the Proposed Rule It Published in the Federal Register on May 29,
2014 Will Further Loosen the Eligibility Criteria and, as a
Consequence, Will Increase the Number of Petitions the Assistant
Secretary of the Interior Will Grant in the Future.
For example:
25 C.F.R. 83.7(a) (1994) requires a group to demonstrate that it
``has been identified as an American Indian entity on a substantially
continuous basis since 1900.'' (emphasis added). Proposed 25 C.F.R.
83.11(a) (2014) requires a group to ``describe its existence as an
Indian tribe, band, nation, pueblo, village, or community at any point
in time during the historical period.'' (emphasis added). And proposed
25 C.F.R. 83.1 (2014) defines ``historical'' to mean ``1900 or
earlier.''
25 C.F.R. 83.7(b) (1994) requires a group to demonstrate that ``a
predominant portion of the petitioning group comprises a distinct
community and has existed as a community from historical times until
the present.'' (emphasis added). Proposed 25 C.F.R. 83.11(b) (2014)
requires a group to ``demonstrate that it existed as a distinct
community from 1934 until the present without substantial
interruption.'' (emphases added).
25 C.F.R. 83.7(c) (1994) requires a group to demonstrate that it
``maintained political influence or authority over its members as an
autonomous entity from historical times until the present.'' (emphasis
added). Proposed 25 C.F.R. 83.11(c) (2014) requires a group to
demonstrate that it ``maintained political influence or authority from
1934 until the present without substantial interruption.'' (emphases
added). Note: a group no longer will need to demonstrate that it
maintained political influence or authority ``over its members.''
25 C.F.R. 83.7(e) (1994) requires a group to demonstrate that its
``membership consists of individuals who descend from a historical
Indian tribe or from historical Indian tribes which combined and
functioned as a single autonomous political entity.'' Proposed 25
C.F.R. 83.11(e) (2014) requires a group to demonstrate that ``at least
80 percent of [its] membership . . . consist[s] of individuals who can
demonstrate that they descend from a tribe that existed in historical
times or tribes that combined and functioned in historical times.''
(emphasis added). Note: a group no longer will need to demonstrate that
combined tribes functioned ``as a single autonomous political entity.''
5. The Creation of New ``Federally Recognized Tribes'' Has Significant
Policy and Budgetary Consequences.
It is reasonable to assume that, because it is proposing to loosen
the eligibility criteria in 25 C.F.R. 83.7 (1994), the BIA believes
that the creation of additional new ``federally recognized tribes''
should be encouraged. But the creation--either by Congress or by the
Assistant Secretary of the Interior for Indian Affairs--of a new
federally recognized tribe has significant policy and budgetary
consequences of which Congress should be aware. Two of the most
important are:
Sovereign Immunity
Decades ago the U.S. Supreme Court decided that every ``federally
recognized tribe'' has sovereign immunity that it may invoke to prevent
the tribe and its businesses and employees from being sued without the
tribe's consent in both the Federal and the state courts.
In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., a
decision the U.S. Supreme Court issued in 1998, after noting that it
was the Court, rather than Congress, that invented the rule that
federally recognized tribes have sovereign immunity and that the Court
had done so ``almost by accident,'' three dissenting justices condemned
the rule as ``unjust,'' and pondered why federally recognized tribes
should ``enjoy broader immunity than the states, the Federal
Government, and foreign nations? '' While the six other justices
decided that the doctrine of stare decisis required the Court to
continue to adhere to the rule, they settled on that result
begrudgingly and only after noting that ``There are reasons to doubt
the wisdom of perpetuating the doctrine,'' and that those reasons
``might suggest a need to abrogate tribal immunity, at least as an
overarching rule.'' Despite their misgivings, in the end those justices
decided that, rather than the Court abrogating tribal immunity as an
overarching rule, the Court should ``defer to the role Congress may
wish to exercise in this important judgment.''
But since the Kiowa Tribe decision, this committee and the Senate
Committee on Indian Affairs have expressed no interest in investigating
whether, in the second decade of the 21st century, it is appropriate to
allow a federally recognized tribe to invoke sovereign immunity. While
sovereign immunity is a subject that is beyond the scope of this
hearing, the subcommittee should be aware that sovereign immunity is
implicated each time a new federally recognized tribe is created.
Who Is, or Should Be, an ``Indian'' ?
As noted above, in 1934 Congress decided that an individual is an
``Indian'' for the purposes of the IRA only if he or she is ``of one-
half or more Indian blood.'' And in 1971 Congress decided that an
individual is an ``Alaska Native'' for the purposes of the Alaska
Native Claims Settlement Act only if he or she is ``of one-fourth
degree or more Alaska Indian, Eskimo, or Aleut blood, or combination
thereof.'' But in 1978 the BIA decided that a group should be eligible
to petition the Assistant Secretary of the Interior for Indian Affairs
to designate the group as a new ``federally recognized tribe'' as long
as the group is composed of individuals who each have any percentage of
Native American blood quantum because they each have an ancestor who
was a member of ``a tribe which existed historically or from historical
tribes which combined and functioned as a single autonomous entity.''
See 25 C.F.R. 54.7(c) (1978).
In 1994 when it amended the regulations it promulgated in 1978, the
BIA maintained its ``any percentage of Native American blood quantum''
standard. See 25 C.F.R. 83(e) (1994). However, in the amendments to its
regulations that it published in the Federal Register on May 29, 2014
as a proposed rule the BIA proposed that a group should be eligible to
petition the Assistant Secretary of the Interior for Indian Affairs to
designate the group as a new ``federally recognized tribe'' even if up
to 20 percent of the individuals who are members of the group do not
have any Native American blood quantum whatsoever. See 25 C.F.R.
83.11(e) (2014).
As a matter of policy, is it appropriate for a group to be
designated as a new ``federally recognized tribe'' because the
individuals who are members of the group each had single great or
great-great or great-great-great grandparent who was a Native American?
What the answer to that question should be is a policy decision for the
Congress that is beyond the scope of this hearing, other than to note
that the question is implicated each time a new federally recognized
tribe is created.
However, the policy concern Oklahoma Senator Don Nickles expressed
about the BIA's tribal recognition process in 1993 during the
confirmation hearing of Bruce Babbitt to be Secretary of the Interior
merits the subcommittee's consideration. At the time Senator Nickles
was a member of both the Senate Committee on Indian Affairs and the
Senate Committee on Appropriations, where he served as Ranking Member
of the Subcommittee on Interior and Related Agencies. Senator Nickles
advised Secretary-Designate Babbitt that
I also think you need to look at blood quantums, because you
are going to find that as you visit [IHS] hospitals and others,
that we do not have blood quantum requirements. And the net
result is two generations from now you are going to have
individuals that are 1/132 that are going to be demanding full
health care benefits for the remainder of their lives, and it
is going to be enormously expensive. It is an open-ended full
expense entitlement. So, keep that in mind. It is a growing,
expanding, building base. The Indian population has exploded.
And one of the reasons is because there is not a qualification
for or a requirement on quantum.
In conclusion, Mr. Chairman, insofar as the BIA's creation of new
``federally recognized tribes'' is concerned, since 1978 the BIA has
maintained that that is a quasi-private matter that concerns only the
BIA and the groups that have filed petitions that request recognition.
However, as I noted at the outset, the Indian Commerce Clause in the
U.S. Constitution grants Congress--and not the BIA--plenary and
exclusive power over Indian affairs. And because it does, it is past
time for Congress to reassume control of the tribal recognition
process.
Attachment:
December 18, 1975 Letter from U.S. Department of the Interior, Bureau
of Indian Affairs to Huron Potawatomi Athens Indian Reservation
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Young. I appreciate it. It is customary--I may break my
custom just a little bit, because the Full Chairman is looking
at his iPod, ignoring me.
[Laughter.]
Mr. Young. Mr. Chairman, do you have any questions? As a
courtesy, I am asking you, the Chairman of the Full Committee.
Do you have any questions you would like to ask the witnesses?
Mr. Bishop. I do, Mr. Chairman. I would actually feel more
comfortable waiting my turn, but if you want me to----
Mr. Young. No, I don't, really.
[Laughter.]
Mr. Young. Do you want to go ahead, or not?
Mr. Bishop. All right, let me just ask one to Secretary
Washburn, if I could. I appreciate listening to the testimony
that was here.
Chairman Young noted that, I think it was on March 26 of
this year, there was a bipartisan letter that was sent to
Interior from this committee. It was also signed by Mr.
Courtney and Ms. Esty, and I think Mr. Thompson, as well. It
expressed our concern with the proposed revision, especially to
Part 83, and urged the Department to--if I quote right--
``refrain from issuing final regulations until we have
conducted the oversight necessary to evaluate thoroughly the
issues associated with recognition.''
Despite the bipartisan concerns that this proposed revision
will pose a direct threat to the integrity of the tribal
recognition process and the unique stature of tribes, within 48
hours we find the Department had already sent the rule over to
OMB for final approval.
So, I guess the two questions. The first one is, Mr.
Assistant Secretary, are the concerns that we presented to you
not important? You know, I don't have a lot of time. I think
that can be yes or no. Are our concerns not important to you?
Mr. Washburn. Chairman, that is not fair. Of course your
concerns are important.
Mr. Bishop. All right. Then the question for the second one
is--I am not going to ask you why you failed to respond to
those concerns before submitting the revisions to OMB, but I
will ask you, will you commit to pull back Part 83 revisions
you submitted to OMB, so that we can conduct the appropriate
oversight and address the concerns held by this committee and
others?
Mr. Washburn. Chairman, we have been criticized for moving
too slow, and you are asking us to stop, in essence. And we
have been working on this for 2 years. So, respectfully, I
won't commit to doing that.
Mr. Bishop. You won't pull it back, even though we
responded to you, recognizing full well that we are talking
about a legislative function here, not an executive function.
You will not commit to pulling those back until we do the
proper oversight on that. That is what you just told me.
Mr. Washburn. Chairman, I have a stack of letters also
saying, ``You've got to get this done.'' We need reform in this
area. And there are five people that signed your letter, and
you are Chairman of a very important committee, as is Chairman
Young. But we have been working this process a very long time.
And this very subcommittee has held numerous oversight hearings
over the last four or five or six or seven Congresses on this
issue.
So, there has been a lot of oversight. And, in fact, that
is where we got a lot of our ideas, past bills that have passed
out of this committee. Those were some of the ideas that we
used to craft our proposals. So there has been an enormous
amount of effort, and we are going to try to get this done.
We believe that a lot of the issues that have been raised
here today have been addressed and will satisfy folks in the
final rule. Not all of them, but some of them certainly have
been addressed. And it is a difficult compromise, because we
have people all over the political map on this. But my job is
to do what I think is right, and I think we have reached that.
Mr. Bishop. You earlier said that no good deed or work goes
unpunished. I am still waiting for the good deed or the good
work. And, sir, I am not concerned with the speed or the number
that you have. I am concerned that we do it the right way. I
insist that we do it the right way. One way or another, we are
going to push you until we do it the right way. And, whether
that is quick or not, I don't care. But it must be the right
way.
I will yield back, Mr. Chairman.
Mr. Washburn. I share that commitment, Chairman.
Mr. Young. I thank----
Mr. Bishop. Wait. If you share it, are you going to pull it
back, then?
Mr. Washburn. I share the commitment to doing it the right
way. And I promise you that I will do it the right way, as I
see best. I have been given a----
Mr. Bishop. So you are going to pull it back.
Mr. Washburn. I don't plan to pull it back.
Mr. Bishop. Then we didn't do it the right way. Thank you.
Mr. Young. Thank the Chairman, and I appreciate it. And now
we will recognize the Ranking Member, as is customary--go
ahead.
Dr. Ruiz. Thank you so much, Mr. Chairman. And thank you,
Chairman Bishop, for being here today. I look forward to
working with the both of you this cycle closely, and making
sure we do this the right way.
Mr. Washburn, this proposed rule has been called a
clarification of existing practices within BIA related to what
standards are necessary for recognition. Earlier you talked
about making sure that we maintain its rigor, and we talked
about the threat of lowering the bar.
So, can you tell me whether or not it is BIA's current
practice to consider evidence from 1934 as being sufficient
historical evidence of tribal existence and community?
Mr. Washburn. No. Under the current rule, the unreformed
rule, no, 1934 is not the date when that begins.
Dr. Ruiz. OK. So then, if this is not BIA's current
practice, then are you not, in effect, lowering the bar from
recognition by changing that date?
Mr. Washburn. Well, you are quoting from a proposed rule, a
proposed rule that we now have had hundreds of comments on. So,
we have heard a lot of comments about that date of 1934.
Incidentally, we pulled that date of 1934 from legislation that
passed this committee in a previous Congress. That will teach
me to listen to you guys.
We have looked carefully at that date. We have looked at
other dates. Some people said it should be 1877. Some people
said it----
Dr. Ruiz. Well, what is the point--the trust responsibility
that we have for sovereign nations prior to the establishment
of our country is to respect those nations that we have the
responsibility for. So how will you determine--and I know that
this is the process, but isn't the date and the continuity of
evidence based on the original first Americans?
Mr. Washburn. Well, it is. It is just a matter of how many
years do you think they need to show their existence and their
continuity. And 1934 is a date that would show eight decades of
continuity. It wouldn't be someone that sprung from whole cloth
yesterday. That would be 81 years.
If we went back to 1915, that would be a century. And we
currently go back to, in essence, 1789 for some tribes, as
Senator Blumenthal recognized. But we didn't hardly have--
California wasn't even part of the United States in 1789. So
the date has to be necessarily somewhat flexible. And we have
been trying to figure out what would be the right date, so that
we get the rigor that we need, but not impose undue
responsibilities.
One last thing on that. We thought 1934 to the present was
an adequate time period because we have never had a tribe that
has passed through the process--or, indeed, has failed the
process--that could show that it existed since 1934, but
couldn't show existence prior to that. So the 1934 to the
present was a pretty good proxy for all of history, it turns
out. But it is very expensive to go back before 1934. It is
very expensive. It requires thousands of dollars worth of
historians to do that work.
So, we are trying to lower the cost, but maintain the
rigor. And that is why, in the proposed rule, we suggested the
1934 date. But again, we have heard a lot of comments about
that date. And----
Dr. Ruiz. I am going to ask another question. This is for
Mr. Cladoosby.
In general, NCAI has been supportive of the proposed rule,
but there is a sticking point when it comes to the
reconsideration of denied recognitions, the so-called third-
party veto, which would allow states and local governments the
power to deny the request for reconsideration. I agree with
you, that is indeed a dangerous precedent.
So, in your opinion, if it stays in the final rule, would
this provision empower states and local governments to press
for veto power over tribal affairs, such as water settlements
and land into trust?
Mr. Cladoosby. Well, the tribes that were previously
denied, it is my understanding, Mr. Assistant Secretary, they
cannot resubmit only if the denial is because of a third-party
intervention and that third party is now willing to support a
petition for review. So, you know, that is----
Dr. Ruiz. So, Mr. Washburn, how do you feel that this
provision would empower other entities to press for veto power
over tribal affairs?
Mr. Washburn. Well, what we were trying to do with that
notion that became the third-party veto is basically to
recognize that the people who have fought recognition also have
some equities. They sometimes spent thousands and thousands of
dollars to fight recognition. And it was--what they said was,
``It is unfair to us, because we have spent tens of thousands,
or even hundreds of thousands of dollars to fight this group,
and were successful.'' And now, if the Department lets them
just start over, then they are back at square one, even though
they have invested so much money on something they cared deeply
about. And that is, ultimately, what that provision was
intended to get at, recognize those equities.
Ultimately, what we have heard from a lot of people is that
provision may be unconstitutional or illegal. So, we have taken
that into consideration, because we certainly want a rule that
is defensible in court.
Dr. Ruiz. Sounds like there is a lot of reconsideration
going on here. And there is going to be a lot of editing of
these proposed rules. And there are going to be some
concessions that I am going to really be interested in
reviewing, once that becomes transparent. So, I appreciate all
of you here. And, Chairman Martin, good to see you today.
Mr. Young. I feel a little bit--I am watching Kevin
Washburn right now. He is the only one who has seen this rule.
So we are sort of poking in the skunk hole right now, not
knowing for sure that it is in there or not. So I do appreciate
the testimony. And I saw him grinning a couple times, so I
don't know what he is doing, frankly, but we will find out
later.
I believe--well, if he came in late, you know--well, I will
recognize the Vice Chairman, because it is a lady. Have you got
questions you would like to ask now or later?
Mrs. Radewagen. Thank you, Mr. Chairman. I do have
questions.
Mr. Young. OK.
Mrs. Radewagen. My question is for Chairman Martin. Do you
think it is better for Congress to determine the appropriate
standards for tribal recognition than for an unelected
Assistant Secretary of the Interior to do it?
Mr. Martin. No, I don't. How we look at this is it is a
weakening of the standards that have been placed for all the
tribes that are recognized today, it is who we are. I talked
earlier about it being inherent sovereignty of the tribe. And
when groups come in that want to be recognized as a tribe, they
haven't been where we are. How did they get where they are? I
don't know those answers, or have the answers to those
questions. So, no, I don't think it is the Secretary's place,
with all due respect.
Mrs. Radewagen. Thank you. Thank you, Mr. Chairman. I yield
back.
Mr. Young. Thank you, ma'am.
Mr. Courtney, welcome, by the way. I mean we always like
new blood.
[Laughter.]
Mr. Courtney. Thank you, Mr. Chairman. I really appreciate
the invitation to be here today, and also the fact that you
responded to a number of us who requested this hearing. I don't
think you needed much persuasion to do it, but as you pointed
out in your opening remarks, these rules just have a huge
impact that will go on for decades, as we have heard from Mr.
Mitchell quoting the prior experience here. So this hearing is,
I think, a very important one for our Nation.
I had an opening statement, which I am going to ask to be
submitted for the record. And basically, in a nutshell, eastern
Connecticut was the place where a number of these applications
that Senator Blumenthal referred to earlier--and that he worked
for years as the Attorney General. So we have some pretty sort
of battle-scarred veterans, in terms of people that went
through the process, small towns that, frankly, did not have
the budgets to deal with large legal expenses, and certainly
didn't have the inherent legal expertise. But they learned fast
the hard way, going through this process.
And, as Senator Blumenthal said, I think that many were
frustrated by the process, in terms of how opaque it was, the
fact that it took a long time, that the Department really
didn't help much, in terms of interested parties with just sort
of really common-sense assistance, in terms of guidelines,
explanations of procedures.
Mr. Washburn, these local leaders have prepared a 12-point
list of suggestions which are very mild, and very common sense.
Obviously, we are in a different era, technology-wise, in terms
of having the Internet and Web sites available for best
practices and webinars. So I am going to submit, again, their
list of 12 suggestions, both to committee staff and to your
office. And I would appreciate a response. They were not
incorporated in the proposed regulations. And, frankly, I am
not even sure they require regulations. Again, it is really
just about the way the Department operates for people who,
again, are impacted by applications, and just want to
understand better the way that they can weigh in.
But one of the changes that you proposed which, again, I
think sort of caught people by surprise was the ability of
local communities to participate in this process as full
parties with standing. In the case of the Eastern Pequots,
which Senator Blumenthal, again, took all the way to a Federal
district court judgment, the towns played a critical role in
terms of their participation in that litigation.
Looking at your proposed rules, they really are now going
to be almost commentators, as opposed to full parties or
participants. And I would just ask for your comment because,
again, they have to deal with all the issues of land use, of
just sort of being a referee, in terms of neighbors dealing
with each other. In my opinion, there is nothing--there was
hardly any participant that is more justified, in terms of
standing. And it seems like we are going backwards, as far as
their ability to fulfill that function.
Mr. Washburn. Thank you, Mr. Courtney. I wouldn't agree
with that at all. We have worked hard to ensure that local
governments have a voice. We know that any group that we
recognize as a tribe is going to have to have a relationship
with their local communities that they work with. And those
state and local communities deserve a voice in the process.
And, as you sort of recognized, nowadays it is easier to be
more transparent about these things. We sometimes get boxes and
boxes, literally tens of linear feet of documents. But nowadays
it is possible to put those sorts of things on the Web, and we
think those kind of things can make it more transparent, and
make it easier for anyone to participate. But certainly cities
and local governments.
Mr. Courtney. So it is your testimony--just want to make
sure I have this clear--that, again, a community like Ledyard,
Connecticut, or North Stonington, which, again, the Eastern
Pequot petition would have impacted, and who were full
participants with lawyers, et cetera, they would continue to
have that right to participate in the recognition
administrative process?
Mr. Washburn. Well, they have a--we will take information
from wherever it comes. So, I am not sure I would set them up
above others, because tribes also have a right, if there are
tribes locally that have an interest in the issue.
There are a lot of people that are interested when we take
these kinds of actions, or are considering these kinds of
actions. And certainly, yes, neighboring cities are among those
groups of people that we believe are interested, and we hope to
hear from whenever we are making these kinds of decisions.
Mr. Courtney. Thank you. Again, Mr. Chairman, we are
obviously going to learn more very soon, and I look forward to
working with you and the committee when those rules become----
Mr. Young. I thank the gentleman.
Mr. Courtney [continuing]. Public.
Mr. Young. And because you are directly affected, make
sure, if you see something that is questionable, contact the
committee. Come back and sit any time.
Mr. LaMalfa, you are next.
Mr. LaMalfa. Thank you, Mr. Chairman.
First, Assistant Secretary Washburn, again, going back to
your proposed rules, of course I am greatly concerned, as are
many on the committee, that this would allow for previously
rejected tribes to reapply under new, lower standards if they
had not made the cut before.
So there is a specific petition in southern California that
we are looking at. The Juaneno Band of Indians in southern
California have submitted multiple petitions as far back as
1982. In 2007, the BIA issued an initial negative determination
on these petitions, finding the band failed four out of seven
key criteria. In 2011, the BIA issued a final negative
determination, finding the Juaneno Band still failed four of
seven criteria, after having nearly 4 years to try and rectify
the problems, get more information, et cetera.
This Band appealed this decision to the Interior Board of
Indian Appeals, IBIA. The IBIA denied their appeal again in
June 2013, finding it baseless, which would seem like that
would be, probably, the end of the process. But in December
2013, you and Secretary Jewell decided against ending the
process. Instead, opened the door for having them try again
under new, weaker standards in these proposed new rules.
So, what I am trying to figure out, and many of my
colleagues here, how can you justify continuing to use limited
agency time and taxpayer dollars on the Juaneno Band, when they
clearly do not meet the standards? How many second chances are
you going to give them?
Mr. Washburn. Well, again, this is an issue that we got a
lot of feedback on. You will see how we resolved that when the
final rule comes out, and I invite oversight on that final
rule, because that is this committee's and this Congress's
responsibility.
Mr. LaMalfa. May I ask what does ``a lot of feedback''
mean? I mean where does that come from?
Mr. Washburn. We received numerous comments. I mean, we put
that proposed rule, that is notice and comment rulemaking. So
we put the proposed rule out publicly, and we invited comments.
And we received----
Mr. LaMalfa. You measure by volume of comments, or does
there have to be some substance to each of the comments from
people that have a stake in it, or have a background? Because I
can see plenty of comments in a newspaper online article that I
don't take very seriously.
Mr. Washburn. No, no, no----
Mr. LaMalfa. So, seriously, what is that?
Mr. Washburn. We had people that actually wrote us letters
that really carefully looked at this, including the people at
this table, many--several of the people at this table. And they
and their lawyers looked through this and made substantive
comments and gave us their very legitimate concerns, again,
some of which, in some of the areas we have accepted, and not
all of which we have accepted, because there is lots of
disagreement.
We found that, on any given issue, there was a range of
opinion about how we should handle those. But it was our job to
assimilate all those, listen to all those, and then do the best
we could, make the right call. So that is one of the areas
where we got some of the most comments. So----
Mr. LaMalfa. Are you getting comments that say that this is
to the detriment of existing tribes that have met the test at a
higher level, and then they are seeing others that would
perhaps, if approved under new, more lax rules, how are they
supposed to feel about that, about the fairness of that?
Mr. Washburn. Well, we certainly received comments like
that. And we take those to heart.
Mr. LaMalfa. That is the vast majority of other tribes that
would probably make those kinds of comments?
Mr. Washburn. Well, honestly, again, we received comments
all over the map on that very issue. You know, and I will tell
you, the way this came up was we had originally, in the
discussion draft, had changes to the criteria. What I am
hearing now is it is OK to change the process, but don't change
the standards, the criteria.
In the original discussion draft we talked about changing
the standards and the criteria, and my view at the time was,
well, if we are really just changing the criteria, if someone
that had been through the process failed because of a criteria,
and we change that criteria later, and they would have
succeeded under the new criteria, it was only fair to say if
they can prove that, they should be able to go through the
process. It seemed only fair. So, that is kind of where the
idea of re-petitioning came from.
But again, it has been quite controversial----
Mr. LaMalfa. Well, criteria is really the key element above
the process. I mean, if you are qualified to be a brain surgeon
because you have been through enough years of schooling, it
isn't that, oh, you just went through a process to get a
license. You have to have reached the level. The same would be
here, that--changing the important aspects of previous history,
historical records, what makes up a community, those are very
important cornerstones. And if that is what is being changed,
then it is really not right for the tribes that have
demonstrated that in the past.
Mr. Washburn. Well, you are absolutely right, Mr. LaMalfa.
And I would say that there have been advances in brain surgery,
though, and we need to recognize advances as well, as we think
about how to apply these standards.
But I think you are right. I don't disagree with your
fundamental point that these standards are--while not set by
Congress--and I would invite Congress to take a look at passing
a bill that actually provides standards, because Congress
absolutely has plenary authority here, and has the right to do
so. If you all give us standards, we will apply those, rather
than the ones that we are trying to come up with. This is not
an easy task----
Mr. LaMalfa. Part of the task of the committee here today
in getting to that, and you kind of nicely told our overall
Committee Chairman to pound sand on that a while ago.
Mr. Washburn. Well, it is a difficult task, and I am
willing to live with what I do. And I expect oversight from
you, once we publish a rule. And you can tell me whether you
disagree with it, and you can overrule it. You can pass a rule
yourself, if you disagree, because I think these are hard
questions, and there are views all over the country on what the
right answers are. And I think I am in the hot seat; I would
invite you to sit in it.
Mr. LaMalfa. Oh, OK we will heat it up. I yield back, Mr.
Chairman.
Mr. Young. I thank the gentleman. And, you know, one of the
things that I am hearing here, I am hoping that the revised
rule will meet a lot of the criticisms that have been made by
the witnesses. We do have another responsibility. Like Mr.
Mitchell said, what has been done, is it illegal?
So, we may write a bill. Now, I don't think the Secretary
has authority to do this, but if we pass it and it gets through
the Senate, which--I think it would be very possible--will the
Administration sign it? That is a real question. So I want you
to think.
Ms. Esty, you are up. Welcome to the committee for a short
period of time.
Ms. Esty. Thank you very much, Mr. Chairman. I want to
thank you and Ranking Member Ruiz for calling this important
hearing, and allowing me to join you and participate, as it is
very important to my state and to my district.
I also want to thank my friend, now departed, the senior
Senator from Connecticut, Richard Blumenthal, who is, as you
know, a long-time, passionate advocate for American families,
Connecticut families, and is well versed in the issues we are
addressing here today.
I would also like to thank Secretary Washburn and the whole
team who came, all of our witnesses today. These are difficult
and challenging issues, and I trust all of us, and believe all
of us are attempting to do the right thing and proceed forward
in fairness for native peoples and all Americans in this.
Last month, as you have already heard, I joined Chairman
Young, Chairman Bishop, Congressman Mike Thompson, and
Congressman Joe Courtney, in writing a letter to the Department
of the Interior, and we asked the Department to refrain from
issuing final rules until we have an opportunity to have full
oversight. That is why I and, I suspect, others of us here
today are distressed that those rules were sent over yesterday,
prior to this hearing. But I am grateful that we have the
opportunity today to flesh out some of these issues and to air
our concerns about the implications, intended and unintended,
of the proposed changes.
While I understand there is a desire to improve the current
tribal recognition process, I have very serious concerns about
the rules as proposed, as we have seen--understanding we have
not seen what was sent over yesterday.
I have heard from folks in the town of Kent, that is in my
district, that allowing a previously denied tribe, as we have,
a second bite of the apple would be tremendously disruptive,
economic and quality of life implications that are really
profound for one of a number of communities across this
country.
And I think we are all in agreement here, certainly on the
dais, about the need for fairness. But fairness includes
predictability and reliability. And I think it is those risks
being undermined if, as in the case of the tribes we are
looking at, previously fully adjudicated tribes have an
opportunity to re-litigate. And that unpredictability is
extremely costly, and poses psychic impacts on the communities
they would have to go--as well as major economic impact to re-
litigate.
So, we, as a Congress, have a responsibility to conduct a
thorough and fair oversight so we can fully understand those
implications. And I share the Chairman's and my colleagues'
hopes that the final rules address the concerns we have raised
here today.
So, Secretary Washburn, a quick question for you. The
proposed revisions that we saw most recently to the tribal
recognition process allow for tribes that have previously
received negative final determinations to re-petition. We know
well that the Federal recognition process can be time-consuming
and expensive. How can we be sure that the process will be fair
for tribes seeking Federal recognition in the future, if the
recognition process is now allowed to be opened up to tribes
that have been denied in the past?
Mr. Washburn. So the question is how is it fair to tribes
in the future if it is reopened to petitioning groups in the
future, if it is reopened to tribes in the past. Help me
understand your concern. Is it that we have people that are
waiting in line to be considered, and if we let the past people
who have failed the process come back in, that the people that
are already waiting in line would have to wait longer? Is that
it?
Ms. Esty. It is also the predictability issue. You are
saying now, if we change the criteria--as I understand your
answer just moments ago, was if the criteria changed, fairness
dictates that we allow tribes to reapply under the new
criteria. There is, you know, sort of a res judicata question
of at what point does this process end? When will we get
finality? How can we have assurance that the new and improved
process isn't again going to be asked, ``Let's change it again,
let's change the criteria'' ? And that prolongs the
uncertainty, makes it extremely difficult for communities, and
for tribes themselves.
So, that is the question of what kind of finality do we
have if we are changing criteria.
Mr. Washburn. Well, fair enough, and that is a concern that
we have heard. I know that everyone wants us to be finished
with this process eventually that any group that deserves to be
recognized gets its hearing, in essence, and then we make a
decision, and then we move on. And I don't know when that day
will come. We have a hard-working staff at the Department of
the Interior that is pedaling as fast as they can to get
through these petitions, and we are trying to make it easier on
them, to make the process somewhat more efficient.
But I think we all share the interest in finality that we
can get to the end of that list, eventually. Thank you.
Mr. Young. I thank the young lady. If you wish to stay, you
can. And maybe we will have a second round, if you wish to do
so. As I have offered to Mr. Courtney and yourself, your
interest in this is deeply appreciated. If you see something
that is a little bit questionable, bring it to our attention.
Ms. Esty. Thank you very much.
Mr. Young. OK. Mr. Gosar, you are next.
Dr. Gosar. Thank you, Mr. Chairman.
Assistant Secretary Washburn, good to see you again. Sorry
the Cats didn't beat the Badgers again.
Now, I am going to go back to the numbers of conversations
you just brought up. You testified that there were 3,000
comments, and more than 300 unique comment submissions on this
proposed rule. Right?
Mr. Washburn. Yes. Yes, that is right.
Dr. Gosar. So were there more comments in favor or in
opposition to the rule?
Mr. Washburn. You know, it is hard to say, because they
were very substantive comments and they didn't say, ``We are in
favor,'' or opposed, necessarily. I would say the vast majority
of them favored reform in some way, but they would say, ``But
we don't like this part of what you suggested,'' or, ``We don't
like that part.'' Some of them said, ``In fact, we have another
way we would rather you did it.''
So, I think the majority of people were interested in
reform of the rules, just like we have heard from Congress for
the past 20 years.
Dr. Gosar. Got you. So, of the 300 or so petitions the BIA
has on file that indicate at least an intent to eventually file
for recognition, how many new tribes do you expect to become
federally recognized over the next 10 years, as a result of the
relaxed requirements put forth in your proposed rule?
Mr. Washburn. I think that number is high that you quoted,
Mr. Gosar, Dr. Gosar. But----
Dr. Gosar. There were 300 unique submissions.
Mr. Washburn. That is comments on our rule. Those aren't
petitioners. I am sorry, maybe I just misheard you. So, I----
Dr. Gosar. So what you have is an inventory that you
currently have under your purview. How many do you think will,
based upon these new rules in the next 10 years?
Mr. Washburn. Oh, we hope that the process becomes a little
bit faster than it has been. We would like to say it was a lot
faster. And one of the things that our proposal does, and I
think the final rule will do, is increase the speed of
disapprovals, for example. There are seven criteria, and they
are difficult criteria, some of them. So, we have suggested
changes that would allow a disapproval if someone clearly
doesn't meet one of the criteria.
Dr. Gosar. I can understand that. But have you done an
analysis of the effects of this?
Mr. Washburn. Well, we have. It is hard to know exactly
what the effects are. We have been doing this process for 35
years, and we have denied 34 petitions and recognized 17, which
is one every 2 years has been recognized, basically. But, one
every year has been denied, in essence, on average.
So, we hope that it goes a little faster than that, going
forward. But our changes, I think, will be incremental, rather
than dramatic.
Dr. Gosar. So, in your opinion, in establishing a protocol,
what is your essential element of formulating a decision or a
process? I thought I heard time.
Mr. Washburn. I would say legitimacy and integrity. Time--
it is a very bureaucratic process. And, we have people with
graduate degrees doing very difficult, painstakingly detailed
work.
Dr. Gosar. I am glad you said that, because if we are
reopening the criteria, don't you think that body--I mean the
gentleman over here, Mr. Mitchell, made a pretty serious
allegation of the plenary power of Congress, and that you
really don't have that jurisdiction. So if you are changing the
criteria, don't you think you ought to come to us first?
Mr. Washburn. Well, this body has consented to this work
for over 35 years.
Dr. Gosar. How do you justify that?
Mr. Washburn. Well----
Dr. Gosar. Because, I mean, I keep hearing this, but I
fundamentally need to see that, Assistant Secretary. And that
is one of the things I would like to ask of you, is please
delineate for me that decision, that process, and why Congress
or where Congress actually gave you that statutory application.
And number two is whether they also fund you for that
aspect. Because it has to satisfy twice from that standpoint to
meet the anti-deficiency clause in that regard.
Mr. Washburn. Well, we certainly have been provided
funding, year in and year out, from the appropriations--well,
from Congress.
Dr. Gosar. That specifically said for this reason?
Mr. Washburn. Absolutely. And, in fact, you increased
funding----
Dr. Gosar. Well----
Mr. Washburn [continuing]. Within the past 10 years,
because we weren't moving fast enough. So you gave us more
money to hire more historians and more anthropologists and more
genealogists. So you have increased funding for the
acknowledgment process.
Dr. Gosar. But I think--I guess my point is changing back
to where you are looking at the criteria here, it changes the
whole dynamics here. You just don't have free reign to change
those criteria. That criteria needs to come back--if you change
that criteria, you have to come back here, because that is not
given to you, statutorily. So it changes the whole ball game.
That is what the Chairman was trying to allude. And I think
that is what the attorney over here, Mr. Mitchell, was trying
to do.
But I would like you to--as--you know, I know the
Chairman--I just want to finish this last thought.
Mr. Young. OK.
Dr. Gosar. I want to have you provide to this committee the
outline of where in statute, what in statute gives you the
detail to go forward on this application. And I thank you.
Mr. Young. I will tell the gentleman I don't believe the
Secretary is quite correct about--there is no line item, I
believe, in the budget for the program. It goes to the
Secretary, and then they disperse the money for this
recognition process. But it is not a line item from the
Congress.
Mrs. Torres.
Mrs. Torres. Thank you, Mr. Chairman. And this question is
for Assistant Secretary Washburn.
Among the 81 pending applications for recognition listed on
the Office of Federal Acknowledgments Web site, there are still
a number of applications that have been pending for a very
prolonged period of time, 20-plus years. Can you expand on the
impact the new rules would have on these types of longstanding
applications? And what ability does local government and tribes
have under the proposed rules to provide the Department with
meaningful feedback during this application process?
Mr. Washburn. Yes, Madam Torres, thank you. Let me just say
this. We do have a number of listed applicants, in essence, on
our Web site. Some of those applicants we don't even have a
good address for. They sent us a letter of intent many years
ago, said, ``We are interested in applying.'' And that is a
problem, because no doubt some community somewhere got spun up
about that, got upset about that, when they learned that there
might be an Indian tribe within their midst, and we have never
heard from them since.
So, one of the changes that we have proposed in our rule is
not to count that as an application, if they have just sent us
one letter and we have never heard from them again. So we now
will consider--under the proposal, at any rate, we will
consider a petition only when they have submitted a documented
petition that contains information under each of the seven
criteria. We won't take them seriously until they do that. So,
ultimately, at the end of this, we won't have 81 on that list.
We will have a far fewer number of groups that are serious
about trying for acknowledgment.
We do have a fair bit of opportunity for state and local
governments to participate in the process, to address your
second question. We currently notify the governor and the
attorney general in the state, and invite comments from local
governments as well. And that would stay the same. The only
difference is, under our proposal, we will make that
information a lot more transparent by putting it up on a Web
site, and we will allow people to register if they want to be
informed, and we will let them know when there has been
information--when there has been a petition submitted, and when
we receive that. So, we are working to make the process much
more transparent.
Mrs. Torres. So what process--help me understand the
process that you will follow regarding these one-pager
applications that you no longer have a current--a good address.
Will you have an outreach effort? Will you have a public
effort, where somebody could look at a Web site or somebody can
hear a PSA and find out that their application will no longer
be taken seriously?
Mr. Washburn. Well, we have always been willing to provide
technical assistance. But what we got early on, frankly, were a
lot of people, a lot of groups, writing us saying, ``We want to
be considered,'' and then we never heard from them again. And
they just never bothered to document their petition. And it is
hard to take that seriously, because they just haven't given us
any information to go on and, very likely, because they don't
have that information.
So, we want that to be clear. We don't want to have the
world anticipating an application from someone who really
doesn't have the goods, who doesn't have the evidence to back
up that application.
Mrs. Torres. Thank you, and I yield back my time.
Mr. Young. Colonel Cook, the Marines will report for duty,
sir.
Mr. Cook. I am here.
[Laughter.]
Mr. Cook. Thank you, Mr. Chair. You know, I have been
listening to all this, and I am thinking, God, 50 years ago, if
these rules were in place, I might have decided to try to
become a lawyer, with all the money that will be made available
with all these lawsuits, than going into the Marine Corps. No,
I am only kidding. I will always go into the Marine Corps
first, before.
Chairman Martin, I want to review the bidding a little bit
on the process. But my problem is we have a lot of tribes in my
area in southern California. By changing this, of course, there
is going to be more litigation now, more lawyers, all these
battles, and everything else. And, of course, one of the things
that might not be addressed right now is casino shopping.
And there is a certain city--sorry--in--there is no one
here in Nevada, I guess--in Nevada that probably has a
relationship with a tribe that might have a very, very shaky
claim on an aboriginal area that just so happens to be located
on a freeway on the way to Las Vegas. And for certain reasons,
they would fund or be in partnership with that tribe that has
very--at least none that I have found in the past, and you know
which one I am talking about. And do you think this will
encourage some of these folks to--this interpretation, new
process--to go out, find some members that claim they are part
of this tribe, and--because we have a great relationship in
California with the tribes.
I am a strong, strong supporter, not because of the
casinos, but because of some of the injustices that have been
done for years. This is money that could be going to schools,
to things that the tribe does on the reservation. And this
really, really bothers me, changing this whole process. And I
want to get your take.
The Chairman talked about another bite to the apple, you
heard a lot of this. And if you can just give me your feelings
on this, because----
Mr. Martin. Well, thank you, Congressman. I definitely
think that it opens it up for what we call reservation
shopping. We have been up front, vocal, all along for several
years now on reservation shopping, whenever it happens in our
area, or in another area in California, we have been opposed to
that.
And I do believe this could cause the opportunity for more
of that to happen when a small tribe that is isolated out, for
no fault of their own, but they are not in a business area that
would allow them to have revenue from a casino, gets an
opportunity to go into the convergence of two highways on a
very large city, and gets promised a lot of money, sure, they
are going to try and do everything they can. They are going to
try and prove a nexus to that area.
But we are opposed to that. I see lawsuits, a huge cost. I
think if, and I think the Secretary alluded to this, that of
the seven criteria, if these tribes or these tribal groups are
coming and they can't get past, let's say, number two, or
number one, then you stop it there. Don't let them come back
for 20 years. That has to be a huge cost to the government in
expert witness time and lawyers time. And I wouldn't keep
allowing that to happen. I just see that as a huge problem that
they have.
And, yes, I do definitely feel that that is going to cause
more problems than we have today.
Mr. Cook. I appreciate you answering that. I yield back.
Mr. Martin. Thank you.
Mr. Young. Mr. Mitchell, you testified contrary to the
BIA's position in 1932 and 1834 when it enacted Section 2 and 9
of Title 25, that Congress did not intend these statutes to
delegate the Secretary of the Interior authority to create new,
federally recognized tribes. But in the James v. Department of
Health and Human Service, the decision of the U.S. Court of
Appeals for the District of Columbia Circuit issued in 1987,
didn't that court say that Congress did intend Section 2 and 9
of Title 25 to delegate the Secretary that authority?
Mr. Mitchell. Mr. Chairman, the answer to that question is
yes, but no.
Mr. Young. Want to run for office?
[Laughter.]
Mr. Mitchell. The District of Columbia Circuit in the James
case--generally speaking, every time someone like me says what
I just testified in front of the committee, what people then
say is, ``Oh, but wait a minute. This has all been settled,
because the James decision from the D.C. Circuit says that
these statutes from the 1840s did, in fact, convey the
authority.''
There is a problem with that, and that is that, while, if
you read that decision, there is language that says that, yes,
there is--the Secretary has these 1978 regulations and Congress
gave them the authority to do all that in those 1840 statutes.
The problem with that is that if you read the decision, you
will find that the plaintiffs never challenged the validity of
the 1978 regulations. The court just said that in passing on
its way to dealing with completely unrelated issues that were
in the case. That is what I would hope Assistant Secretary
Washburn would agree with me is called in our business dictum,
which means it doesn't mean anything, legally. It is
interesting, but it doesn't mean anything.
In addition, the world being an oddly small place, if you
read that decision you will see that the lawyers who
represented the Jameses, the faction of this unrecognized tribe
that was the plaintiff, that the lawyers were a father and son
team named William and Robert Hahn out of Boston. Through total
serendipity, Bill Hahn is a social acquaintance of mine. And
when I realized that he had been the counsel for the plaintiffs
in this case, because of why it is always thrown out and
misstated, in terms of its legal precedent, I called Bill. And
he told me what I just told you, which is, ``No, we never
challenged the validity of the Secretary's regulations. None of
that was ever briefed. And the complaint in that case, and all
the briefing is out in a cardboard box in my garage in Boston.
If anybody would like me to go get it and send it down to the
committee, tell them I would be happy to go and find it.''
So, the point being is that your question is a good one,
because that comes up all the time. But, as I said, the answer
is that that case actually does not hold what some of the
language in it says.
Mr. Young. OK. Second, Don, the Assistant Secretary of the
Interior for Indian Affairs has granted since 1978 petitions
that have created 17 new federally recognized tribes. If you
are correct that the Assistant Secretary had no authority to do
that, what would you recommend this committee do?
Mr. Mitchell. Well, I think there are two things. First of
all, you shouldn't believe for a moment anything I have told
you. And what you----
Mr. Young. That is an honest lawyer, I can tell you that
right now.
[Laughter.]
Mr. Mitchell. No, no. But what you ought to do is you ought
to go find someone who does not have a dog in the fight, like
the solicitor at the Department of the Interior, somebody who
is knowledgeable and does not have a dog in the fight, to take
a look at what I did, in fact, testify to, and to give you some
advice as to whether or not my position regarding that
separation of powers issue is legally correct.
Now, for example, the General Accounting Office would be a
good place to ask. The Library of Congress provides that
service to Congress. You could ask them. There is a
constitutional subcommittee of the House Judiciary Committee. I
have never been over to that committee, but I would assume that
they have, on staff, lawyers who are experts in the
Constitution, but who do not know an Indian tribe from a piece
of sheetrock. So they could tell you whether the legal theory I
have told you is correct, without--it doesn't make any
difference whether it is Indians or anything else. And I think
that you should get that advice. And I am prepared to predict
that that advice will be what I have told you, but you should
get that advice from those people.
Now, second, what is going to happen here is that, if I am
correct, you have 17 groups that believe that they are Indian
tribes, several of which have either already built multi-
hundred-million-dollar casinos, and at least one, the Cowlitz
Indian Tribe in Washington, certainly aspires to build a
casino. And, eventually, some bright lawyer is going to figure
out what I figured out. And, if, in fact, those groups are not
federally recognized tribes because the people that recognize
them didn't have the authority, then those groups also are not
``Indian tribes'' within the definition of that term in the
Indian Gaming Regulatory Act. And, boy, is that going to be fun
to watch.
And the other way it may happen is that one of the legal
attributes of tribal status is that a real federally recognized
tribe has sovereign immunity. Sovereign immunity is asserted
all the time by Indian tribes to try and screw--and there is no
other word for it--people who, if they had been victimized by
the Federal Government or the state government, would have a
remedy in court.
Well, one of these days, one of these 17 tribes, in maybe a
slip and fall case where somebody slips in their casino and
breaks their neck, one of them is going to get in one of those
lawsuits and they are going to assert sovereign immunity, and
the attorney representing the plaintiff is going to say,
``Really? Well, you have sovereign immunity if you are a
federally recognized tribe. How, exactly, did you get to be a
federally recognized tribe?''
``Well, the Bureau of Indian Affairs told us that we
were.''
``Really? Where did the Bureau of Indian Affairs get that
legal authority? '' And that is going to be fun to watch.
Mr. Young. Thank you. And I just read in the paper the
other day that there is a shortage of lawyers. I don't believe
it.
[Laughter.]
Mr. Young. But thanks for the comment. And I would suggest,
and I am not saying this, if you want to read something quite
interesting, read his testimony. It is different. I can tell
you that, right now.
And who am I recognizing?
Mr. Mitchell. Mr. Chairman?
Mr. Young. Yes?
Mr. Mitchell. Just one last comment on that point. What I
did try and do in that testimony, staying barely within the
committee's page limit, was to give you at least my view of the
history of the whole tribal recognition process, starting from
1834 up through, as I said, 1978. And in terms of context, at
least, that is my best shot in a compact period of time. It is
obviously not a Law Review article or a book. But if you want
more historical context on this very important issue, I would
commend my own writing to you.
Mr. Young. OK. Who hasn't--the Chairman, he asked a
question. You want to ask some more? Oh, you have another
question, that is right, don't you? That is good. Would you
like to ask it?
Mr. Bishop. Yes, let me just ask one final one here.
First of all, let me thank all of you for being here. You
have come at great expense, and great time, and inconvenience.
I do appreciate it--I think your voices have been at least
recognized by us, and have been very, very similar in what is
going on. I just have one last technical question for Mr.
Washburn, if I could.
Is this proposed rule considered a significant or major
rule, under the Congressional Review Act?
Mr. Washburn. Chairman Bishop, it is considered significant
under Executive Order 12866, and that is why it is over at the
OIRA office within OMB. I have not analyzed the question that
you are asking, but we would be happy to look at that, and get
back to you.
Mr. Bishop. Does Mr. Mitchell have an answer on that?
Mr. Mitchell. Mr. Chairman, I have not looked at that
issue.
Mr. Bishop. Thank you. Yield back.
Mr. Young. I thank the Chairman of the Full Committee. I
now recognize the Minority leader.
Dr. Ruiz. Yes, Mr. Chairman, I ask unanimous consent that
the letter dated April 21, 2015 from the Regional Plan
Association be entered in the record on behalf of the gentleman
from New York, Mr. Jeffries.
And I also ask unanimous consent that the statement of the
gentleman from California, Mr. Thompson, be included in the
record.
[No response.]
Mr. Young. Without objection, so ordered.
Dr. Ruiz. Thank you.
Mr. Young. Any other questions that you would like to ask?
[No response.]
Mr. Young. The Members--well, make it short, because--the
Hawk and Dove is waiting for me. Go ahead.
[Laughter.]
Ms. Esty. Thank you, Mr. Chairman. Just two quick questions
for Secretary Washburn that are very specific to Connecticut.
The first has to do with the controlling effect of mere
existence of a state reservation. As far as I know, I think
Connecticut is the only state with that. And we have had a full
adjudication. The IBIA and the Department rejected the use of
Connecticut State designation as tantamount to Federal
recognition. So that is first.
And the other, can you clarify? There seems some ambiguity
about whether splinter groups of tribes that have previously
been denied, whether they would have the opportunity to apply.
It seems clear that splinter groups of currently acknowledged
ones would not, but it is ambiguous, as far as that rule.
Those are the two quick questions, please.
Mr. Washburn. Thank you, Madam Esty. We believe that the
existence of a state reservation or state recognition is
certainly relevant in some respects, and we have been wrestling
with what do we do with that, because, frankly, the states have
different ways of arriving at recognition, or a reservation.
And so we have been wrestling with that.
Splinter groups, our current rule takes efforts not to
recognize splinter groups, or not to create an avenue for
splinter groups to get independent recognition. And that is
important to us. We don't intend to change that at all.
And let me just add. I have heard some really troubling
things at this hearing, and I want you to know that the
Administration strongly believes that the 17 groups that it has
recognized as Indian tribes are, indeed, legitimate Indian
tribes. And we treat them just like any other Indian tribe.
I also would point out that the Constitution just says
``Indian tribes.'' It doesn't name any Indian tribes. And so
the question, then, is, ``Who is that? '' And the executive
branch has a responsibility to figure that out sometimes,
because we have a trust responsibility to Indian tribes. And
so, it is very important for us to exercise that.
And even before 1978, before this process, we recognized
Indian tribes that maybe didn't have a treaty. So, if you are
saying that those tribes are illegitimate, the Administration
would strongly disagree with that, because there are tribes
that don't have treaties that are, nevertheless, legitimate
Indian tribes in the United States.
Mr. Young. Only one comment, Kevin, that the Administration
does not have the trust authority with Indian tribes. It is the
Congress, only the Congress, not the Administration.
And I want to stress that within this Congress we have the
authority to do as we should, as a trust relationship with the
Indian tribes. That is the law.
And with that, I want to thank the Members and the
witnesses, and the committee is adjourned.
[Whereupon, at 6:38 p.m., the subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Prepared Statement of the Honorable Joe Courtney, a Representative in
Congress from the State of Connecticut
Chairman Young and Ranking Member Ruiz, thank you for the
opportunity to participate in today's hearing on the proposed
regulatory changes to the Bureau of Indian Affairs (BIA) tribal
recognition process. As you know, on March 26, 2015, I joined a number
of my colleagues requesting that your subcommittee conduct such a
hearing due to the serious consequences that clearly will occur if the
proposed rule change by BIA is actually made law.
As the Congressman for eastern Connecticut, which has experienced
impact that tribal recognition can result in, I speak for the vast
majority of my constituents in warning that any change in law must be
handled with care. We are the home of two American Indian tribes that
were lawfully federally recognized in the 1980s and 1990s and also the
home of two tribal applicants who failed to achieve recognition. The
former tribes, the Mohegan and the Mashantucket Pequot, achieved their
status through the BIA process (Mohegan) and an Act of Congress
(Mashantucket Pequot)--both constitutionally recognized outcomes.
The two tribes that did not succeed in gaining Federal
recognition--the Golden Hill Paugussett and the Eastern Pequot--pursued
their application administratively over a long period of years. One of
the tribes, the Eastern Pequot, went all the way to Federal District
Court after exhausting their administrative appeals.
It was our experience that there is a need for change--for example,
more transparency, local participation, and a more expeditious process
are warranted.
Some of those goals are addressed in the BIA's proposed rule
change. Unfortunately, the BIA goes far beyond merely changing
process--it also changes substantive law by radically rewriting
criteria for recognition, and by allowing applications that have
already been adjudicated to potentially start all over again, with new
criteria. Such a rewrite of the rules violate well established legal
principles that protect the finality of judgments which all Americans
have an interest in upholding. I believe the changes in criteria do not
belong in an administrative rule change. Such a change in substantive
law is the province of the Congress in which the constitution vests the
role of tribal recognition.
I look forward to seeing the testimony and committee record that
today's hearing generates. I submit for the record letters and comments
from local communities that have been part of eastern Connecticut's
recent history with the BIA.
Thank you for this opportunity.
______
Prepared Statement of the Honorable Mike Thompson, a Representative in
Congress from the State of California
Thank you Chairman Young and Ranking Member Ruiz for allowing me to
enter my statement for the record. A hearing at the House Committee on
Ways and Means has kept me from being there in person and I welcome the
opportunity to submit the views and concerns of my District on this
important subject from my Congressional District.
Like the members of this committee, I support tribal recognition
and land use for legitimate claims. When congressionally recognized
tribes follow established procedures and prove rightful privilege, they
should have full rights and responsibilities. We have seen communities
and tribes come together in many positive ways throughout the state of
California.
Unfortunately, some groups seek to use the courts or petitions to
the executive branch to circumvent Congress and gain recognition. In my
own District, we've seen one tribe that was congressionally
derecognized try to do just this. Fortunately, a U.S. District Court
Judge ruled against the Mishewal Wappo tribe in their suit against the
Federal Government seeking status restoration. Had the tribe been
successful in its suit, land in Napa County would have been placed into
Federal trust, exempting it from all local and state regulations.
More than 50 years after the Wappo tribe was congressionally
derecognized, an attempt to circumvent Congress and the U.S. Department
of Interior by going through the courts rightfully failed. The
motivation behind the lawsuit was clear. By the group's own admission,
if the lawsuit was successful, it would have attempted to build a
casino in Napa or Sonoma Counties. This ruling respects separation of
powers, complies with established statute of limitations law, and
protects our region's important agricultural lands from Las Vegas-style
gambling.
Earlier this year, I was pleased to join my colleagues on this
committee in sending a letter to Secretary of Interior Sally Jewel
expressing strong concerns with the proposed changes to Part 83. We
noted that the Department's proposed rules fail to address many of the
issues that have been identified and could create new problems that
lead to unintended and unjustifiable outcomes. It is our hope that the
Administration will work closely with Congress to draft rules that are
consistent with congressional precedent and take into consideration the
needs of the rightfully recognized tribes and their surrounding
communities.
We all commit to working together to improve the process to review
recognition claims. Unfortunately, the proposed rule could
unintentionally make it easier for illegitimate claims to be granted
and, as a result, give unfair advantage to newly recognized tribes and
have negative consequences for our communities for properly recognized
tribes.
I stand ready to work with Chairman Young, Ranking Member Ruiz, and
the Administration to find a commonsense and bipartisan solution.
______
State of Connecticut,
Office of the Attorney General,
Hartford, Connecticut,
May 4, 2015.
Hon. Don Young, Chairman,
House Subcommittee on Indian, Insular and Alaska Native Affairs,
1324 Longworth House Office Building,
Washington, DC 20515.
Re: Oversight Hearing on ``The Obama Administration's Part 83 Revisions
and How They May Allow the Interior Department to Create
Tribes, Not Recognize Them''
Dear Chairman Young:
On behalf of the State of Connecticut, I request that the attached
Comments of the State of Connecticut on the Proposed Rulemaking
Revising the Regulations Governing Federal Tribal Acknowledgment in 25
C.F.R. Part 83 be made part of the record for the above-referenced
hearing conducted by the House Subcommittee on Indian, Insular and
Alaska Native Affairs on April 22, 2015.
As was demonstrated by the testimony at the hearing, in particular
from Senator Richard Blumenthal, the proposed changes to the federal
tribal acknowledgment regulations are unjustified and threaten serious
adverse consequences for Connecticut. For the first time in the nearly
forty-year history of the acknowledgment regulations, the Interior
Department is making wholesale, dramatic changes in the substantive
requirements for acknowledgment as an Indian tribe. These changes will
have the effect of seriously weakening and undermining the core
acknowledgment criteria.
Moreover, as applied to previously denied Connecticut petitioners,
they would appear to have the effect of reversing prior acknowledgment
decisions for reasons that were expressly rejected in those decisions.
Rather than improving transparency, predictability and finality, the
proposed changes may undo settled and sensible acknowledgement
decisions on which the State and others have relied. To reverse those
decisions would impose substantial and unjustifiable disruption on
local communities and the State of Connecticut as a whole. The changes
proposed cannot be justified in the name of reform and expediency and
are contrary to the principles that have long governed federal tribal
acknowledgement.
The attached Comments, which were submitted to the Department as
part of its rulemaking process, detail the numerous serious problems in
the Department's flawed approach to changing the acknowledgment
regulations.
I thank you for addressing this very serious issue.
Sincerely yours,
George Jepsen,
Attorney General.
[Comments are being retained in the Committee's Official Files]
______
RPA--Regional Plan Association,
New York, NY 10003,
April 21, 2015.
Hon. Congressman Hakeem Jeffries
Eighth District of New York
Central Brooklyn District Office
55 Hanson Place, Suite 603
Brooklyn, NY 11217
Dear Congressman Jeffries:
RPA has begun work on a long-range comprehensive plan that will
tackle our region's most urgent challenges, including climate change,
fiscal uncertainty and economic opportunity. As RPA works to identify
challenges and opportunities, we take stock of policies and practices
with the potential to significantly affect our communities and quality
of life.
I am writing to you as a member of the House Judiciary Committee
regarding the proposed changes to Part 83 of title 25 of the Code of
Federal Regulations by the Department of Interior. Specifically, the
rules changes could potentially make way for more casino development in
the tri-state region. This is a questionable form of economic
development with substantial negative effects on vulnerable communities
and adverse consequences on local planning and land use.
On September 30, 2014, RPA wrote to Assistant Secretary Washburn
requesting detailed public impact assessments and hearings on the rules
changes, especially as they relate to potential changes to land use
planning and economic development in our and other affected
communities. The Department of Interior has not to date provided the
additional information or held additional public outreach.
We would appreciate if you would inquire about the tribal
recognition procedure and the proposed rule changes, which could have
profound land use and economic development impacts in affected
communities. We have also become aware of concerns raised about long-
standing discriminatory practices by on tribe being considered for
recognition, which must be taken into account.
Thank you for your attention to this matter.
Sincerely,
Elliot G. Sander,
Chairman.
Tom Wright,
President.
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
September 30, 2014--Comments of Connecticut Local
Governments on Proposed Revisions to Tribal
Acknowledgment and Office of Hearings and Appeals
Regulations--RIN 1076-AF18 and RIN 1094-AA54.
September 30, 2014--Comments of the State of
Connecticut to the BIA on the Proposed Rule Making
Revising Regulations Governing Federal Tribal
Acknowledgment in 25 C.F.R. Part 83.
April 19, 2015--Statement for the Record submitted
by Eastern Pequot Tribal Nation, Chairman Dennis
Jenkins, with Comments submitted to the BIA on
proposed Federal recognition.
April 21, 2015--Statement for the Record submitted
by Alliance of Colonial Era Tribes, Rev. John
Norwood (Nanticoke-Lenape).
April 22, 2015--Statement for the Record submitted
by MA-Chis Lower Creek Indian Tribe of Alabama.
April 22, 2015--Statement for the Record submitted
by Muscogee (Creek) Nation, Principal Chief George
Tiger.
April 22, 2015--Statement for the Record submitted
by Piedmont American Indian Association, Lower
Eastern Cherokee Nation SC, Chief Gene Norris.
April 22, 2015--Statement for the Record submitted
by Southeast Mvskoke Nation, Inc.
May 1, 2015--Statement for the Record submitted by
County of San Diego--Office of Strategy and
Intergovernmental Affairs, Director Geoff Patnoe.
May 4, 2015--Statement for the Record submitted by
Sault Ste. Marie Tribe of Chippewa Indians, Aaron
A. Payment.
May 5, 2015--Statement for the Record submitted by
Chairwoman Carolyn Lubenau, Snoqualmie Indian
Tribe.
May 5, 2015--Statement for the Record submitted by
city of Hawaiian Gardens, Councilmember Victor
Farfan.
May 5, 2015--Statement for the Record submitted by
Jena Band of Choctaw Indians, Tribal Chief B.
Cheryl Smith.
May 6, 2015--Statement for the Record submitted by
United South and Eastern Tribes, Inc., Jamestown
S'Klallam Tribe, W. Ron Allen, Chairman, Affiliated
Tribes of Northwest Indians, California Association
of Tribal Governments, Council of Athabascan Tribal
Governments, Inter Tribal Association of Arizona,
Maniilaq Association, Midwest Alliance of Sovereign
Tribes, Native American Rights Fund.
May 6, 2015--Statement for the Record submitted by
Stillaguamish Tribe of Indians, Chairman Shawn
Yanity.
May 6, 2015--Statement for the Record submitted by
Schaghticoke Tribal Nation, Chief Richard Velky.
May 6, 2015--Statement for the Record submitted by
the Towns of Ledyard, North Stonington, and
Preston, Connecticut.
May 6, 2015--Statement for the Record submitted by
United Houma Nation of Louisiana.
May 6, 2015--Statement for the Record submitted by
Jamestown S'Klallam Tribe, W. Ron Allen, Chairman.
May 6, 2015--Statement for the Record submitted by
Squaxin Island Tribe, Director Ray Peters.
May 6, 2015--Statement for the Record submitted by
Self-Governance Communication and Education Tribal
Consortium.
May 6, 2015--Statement for the Record submitted by
Choctaw Nation of Oklahoma.
[all]