[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

                               __________

       Printed for the use of the Committee on Natural Resources

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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


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    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]