[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]







 
      H.R. 3764, ``TRIBAL RECOGNITION ACT OF 2015''--PART 1 AND 2

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

                          LEGISLATIVE 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, October 28, 2015 (Part 1)

                   Tuesday, December 8, 2015 (Part 2)

                               __________

                           Serial No. 114-23

                               __________

       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
Jeff Denham, CA                      Debbie Dingell, MI
Paul Cook, CA                        Ruben Gallego, AZ
Bruce Westerman, AR                  Lois Capps, CA
Garret Graves, LA                    Jared Polis, CO
Dan Newhouse, WA                     Wm. Lacy Clay, MO
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Darin LaHood, IL

                       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, October 28, 2015 (Part 1).............     1

Statement of Members:
    Bishop, Hon. Rob, a Representative in Congress from the State 
      of Utah....................................................     2
    Ruiz, Hon. Raul, a Representative in Congress from the State 
      of California..............................................     4
        Prepared statement of....................................     5
    Young, Hon. Don, a Representative in Congress from the State 
      of Alaska..................................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Washburn, Kevin, Assistant Secretary of Indian Affairs, U.S. 
      Department of the Interior, Washington, DC.................     7
        Prepared statement of....................................    10

Additional Materials Submitted for the Record:
    List of documents submitted for the record retained in the 
      Committee's official files.................................    37
    United South and Eastern Tribes, Inc., Nashville, Tennessee, 
      October 28, 2015 Letter in opposition of H.R. 3764.........    27
    United South and Eastern Tribes, Inc., Nashville, Tennessee, 
      Statement for the Record...................................    33
    Ute Indian Tribe, Fort Duchesne, Utah, October 27, 2015 
      Letter in opposition of H.R. 3764..........................    26

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, December 8, 2015 (Part 2)...............    39

Statement of Members:
    Ruiz, Hon. Raul, a Representative in Congress from the State 
      of California..............................................    40
        Prepared statement of....................................    41
    Young, Hon. Don, a Representative in Congress from the State 
      of Alaska..................................................    39
        Prepared statement of....................................    40

Statement of Witnesses:
    Martin, Robert, Chairman, Morongo Band of Mission Indians, 
      Banning, California........................................    42
        Prepared statement of....................................    44
    Mullane, Nicholas H., II, Selectman, Town of North 
      Stonington, North Stonington, Connecticut..................    48
        Prepared statement of....................................    50
    Patterson, Brian, President, United South and Eastern Tribes, 
      Inc. (USET), Nashville, Tennessee..........................    60
        Prepared statement of....................................    62
    Reyes, Sean D., Attorney General, State of Utah, Salt Lake 
      City, Utah.................................................    45
        Prepared statement of....................................    47

Additional Materials Submitted for the Record:
    List of documents submitted for the record retained in the 
      Committee's official files.................................    81
      
      
      
  LEGISLATIVE HEARING ON H.R. 3764, TO PROVIDE THAT AN INDIAN GROUP MAY 
  RECEIVE FEDERAL ACKNOWLEDGMENT AS AN INDIAN TRIBE ONLY BY AN ACT OF 
 CONGRESS, AND FOR OTHER PURPOSES, ``TRIBAL RECOGNITION ACT OF 2015''--
                                 PART 1

                              ----------                              


                      Wednesday, October 28, 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 2:48 p.m., in 
room 1334, Longworth House Office Building, Hon. Don Young 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Young, Benishek, LaMalfa, 
Radewagen, Bishop; Ruiz, Torres, and Grijalva.
    Also Present: Representatives Lowenthal and Dingell.
    Mr.  Young. The committee will come to order. The 
subcommittee is meeting today to hear testimony following bill, 
H.R. 3764, the ``Tribal Recognition Act of 2015,'' sponsored by 
Full Committee Chairman from Utah, Mr. Bishop.
    Under Committee Rule 4, any oral opening statements at 
hearings are limited to the Chairman and Ranking Minority 
Member and Vice Chair and designee of the Ranking Member. This 
will allow us to hear from our witness sooner, and help Members 
to keep their schedules.
    Therefore, I ask unanimous consent that other Members' 
opening statements be made part of the hearing record, if they 
are submitted to the Subcommittee Clerk by 5:00 p.m. today or 
close of the hearing, whichever comes first.
    [No response.]
    Mr.  Young. Hearing no objections, so ordered.
    I also ask unanimous consent that the gentlewoman from 
Michigan, Mrs. Dingell, and the gentleman from California, Mr. 
Lowenthal, be allowed to join us on the dais to be recognized 
and participate in today's hearing.
    [No response.]
    Mr.  Young. Hearing no objections, so ordered.

 STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM 
                      THE STATE OF ALASKA

    Mr.  Young. This is a bill that would allow Congress to 
make decisions on the consideration of petitions from groups 
seeking Federal recognition as Indian tribes. Congress' 
authority over Indian affairs is established in Article I, 
Section 8 of the Constitution. The Supreme Court has held that 
Congress has absolute authority over Indian affairs, and such 
an authority is exclusive in nature.
    This is the foundation of the bill sponsored by the 
Chairman of the Committee, Mr. Bishop. H.R. 3764 would give 
Congress the primary role over actions related to Federal 
recognition of tribes. Unlike many recognition bills previously 
considered in this body, this bill provides that the 
congressional determinations will be informed by the analysis 
of the Department of the Interior's professional experts.
    Today we have but one witness: the Assistant Secretary of 
Indian Affairs, but it does not mean that this committee's 
study will be the end of this bill. We will have a second 
hearing to obtain the views of tribes, tribal organizations, 
and other experts to discuss this crucial issue concerning 
Federal Indian policy. This is crucially important to this 
legislation.
    Personally, I would suggest respectfully that this is an 
attempt to try to make it a level playing field for everyone; 
and we think this will occur.
    [The prepared statement of Mr. Young follows:]
  Prepared Statement of the Hon. Don Young, Chairman, Subcommittee on 
               Indian, Insular and Alaska Native Affairs
    This is a bill that will allow the Congress to make informed 
decisions in the consideration of petitions from groups seeking Federal 
recognition as Indian tribes.
    Congress' authority over Indian affairs is established in Article 
I, Section 8 of the Constitution. The Supreme Court has held that 
Congress has absolute authority over Indian affairs, and such authority 
is exclusive in nature.
    This is the foundation of the bill sponsored by the Chairman of the 
Full Committee, Mr. Bishop. H.R. 3764 would give Congress the primary 
role over actions related to the Federal recognition of tribes. Unlike 
many recognition bills previously considered in this body, this bill 
provides that congressional determinations will be informed by the 
analysis of the Department of the Interior's professional experts.
    Today we will have just one witness, the Assistant Secretary for 
Indian Affairs, but this does not end the committee's study of the 
bill. We will have a second hearing to obtain the views of tribes, 
tribal organizations, and other experts to discuss this crucial issue 
concerning Federal Indian policy.

                                 ______
                                 

    Mr.  Young. I do not see Mr. Grijalva. Is your boss coming?
    Mr. Grijalva, will you have an opening statement?
    Mr.  Grijalva. I will let the Ranking Member do that first.
    Mr.  Young. Well, I would appreciate it if he was here on 
time.
    Chairman Bishop, would you like to have a comment while we 
are waiting patiently?
    Mr.  Bishop. Yes, if Raul does not want it, I will be happy 
to take it for you.
    [Laughter.]

 STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    Mr.  Bishop. Let me just introduce this bill, if I could, 
very briefly for you.
    In the past, Congress has made designations of tribes that 
have been done in an inconsistent, unpredictable, and non-
transparent manner. Unfortunately, the agencies in the past 
have also done recognitions of tribes in an inconsistent, 
unpredictable, and non-transparent manner.
    So, it is very clear that the solution needs to go forward, 
that the standards--and here, Mr. Chairman, I am actually 
amenable to what the standards may be, or changing those 
standards. But the standards should be set in statute, so that 
everyone knows exactly what those statutes are. The agency 
would then be responsible to evaluate petitions, make 
recommendations, but ultimately it would come back to Congress 
to fulfill the congressional responsibility of actually making 
the designation.
    The Constitution clearly says in the Indian Commerce Clause 
that Congress has the authority over Indian affairs. And the 
U.S. Supreme Court as repeatedly instructed that the 
Constitution grants Congress, not the President, not the 
Secretary of the Interior, not even the Assistant Secretary for 
Indian Affairs, plenary and exclusive powers over Indian 
affairs.
    So, what I want to do is to make sure that the issue is 
that Congress will do its job. It may be cumbersome, it may be 
uncomfortable, but it is congressional responsibility. The 
standards should be set, they should be open, they should be 
clear, they should be in statute, and then we move forward with 
that.
    I also want to say one thing as we move toward the future, 
that many in our agencies and in the Administration have a 
mind-set that is stuck in the late 1800s. In the 1800s, Max 
Weber was very confident in saying there should be a separation 
of authority between administration, and then get rid of that 
ugly politics that was part of it, so that the Administration 
could be done in a clear, simple, scientific manner. The only 
problem with that is that is not the way the real world works.
    The Administration, even if they had the responsibilities, 
are still ripe with biases, unpredictability, as they go 
through the Byzantine backdoor alleys in making a decision. The 
politics that were supposedly removed is the only way people 
get a voice in the process. If you remove that, and just have 
the Administration making those decisions, you don't like it, 
tough. There is no other way to do it.
    It is through politics, people, elected officials--that 
means the House and the Senate--where they actually have 
contact with them, that is where the people's voice is actually 
heard. If we are going to move into the 21st century on this 
issue, as well as others, we have to mirror those back 
together. So, the politics and the Administration come back 
into one, so the people have a chance to actually be heard in 
this particular process as we move forward.
    What we have to do is move to 21st century solutions, not 
be stuck in the mind-set of the 1800s, and have Congress do 
what Congress is constitutionally required to do, make sure the 
legislative authority rests within Congress and will not be 
transferred, either by us or usurped by anybody else, into any 
other branch of government.
    The details of how these standards are? I am still open and 
amenable. But that Congress has to be the one making this 
decision, that is the philosophy.
    I appreciate that. I hope I took enough time, so that the 
Ranking Member had a chance to get here and get his breath.
    Mr.  Young. I do appreciate the gentleman's sacrifice in 
taking the time necessary to get the Ranking Member here. So 
you shall be rewarded.
    Mr. Ruiz, you are next.

 STATEMENT OF THE HON. RAUL RUIZ, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Dr.  Ruiz. Thank you, Mr. Chairman. I would like to thank 
our sole witness today, Secretary Washburn, for coming back to 
our subcommittee once again to share the Administration's 
views. And while I do appreciate speaking with the Secretary, I 
am very concerned that there are no tribal leaders here today 
to provide their views on a bill that affects their very 
sovereignty and self-determination. I urge and advocate for 
tribal leaders to share their views on H.R. 3764 in this 
committee at a later date.
    Mr. Chairman, H.R. 3764 will take away the Secretary of the 
Interior's authority to acknowledge tribes, and places it 
solely in the hands of Congress. In other words, it will 
consolidate power to recognize tribes in the hands of a few--
namely, the Chairman of the Natural Resources Committee and the 
Speaker of the House--because the Chairman of the Committee 
determines what legislation gets and does not get a hearing or 
a mark-up, and the Speaker of the House decides which bill may 
be or may not be considered on the House Floor.
    Today the Federal acknowledgment process applies a more 
non-partisan, open, transparent, evidence-based approach in 
implementing fair and legal solutions to right the wrongs 
performed by the Federal Government and Congress toward Native 
Americans. While the process can be improved, it is at least 
more objective and evidence-based.
    H.R. 3764, on the other hand, would infuse partisanship and 
politics into the recognition process by only allowing Congress 
to acknowledge Indian tribes. This places the lives and future 
of Native Americans in the hands of a dysfunctional, hyper-
partisan Congress. It moves away from Native American self-
determination and toward politicians' self-interest.
    For decades, tribes and lawmakers have called for changes 
to the Part 83 process to make it more standardized, more 
transparent, and efficient. The provisions in this bill will 
most certainly make the process more arbitrary, non-
transparent, and drawn out.
    First, while tribes and this committee have criticized the 
old Part 83 process as broken and cumbersome over the past 15 
years, this bill codifies the majority of that same process. 
Going backwards to the old problematic process and expecting a 
different result is just not smart.
    Furthermore, the bill mandates no timeline on action on 
behalf of Congress to act on any of the recommendations 
provided by the Department of the Interior; just report to 
Congress, it says. That is it. No provision or timeline for 
Congress to act. It just leaves the entire issue in limbo.
    In fact, there is no requirement that a petitioner even has 
to go through the process at Interior, making it a better 
option just to bypass the expense, time, and rigor of the Part 
83 process altogether, and go straight to a Member of Congress 
and, ultimately, to the Chairman of the Natural Resources 
Committee. This leaves me to wonder exactly how this new 
process will in any way be more standardized or efficient.
    Next, the bill turns an objective, transparent process 
based on science and evidence to one negotiated perhaps behind 
the scenes and influenced by political and special interests 
with the ear of the Chairman and the Speaker. Included in the 
current process are public notices, updates, and public input.
    Under this legislation, those would only happen if a tribe 
chooses to go through this process; and, even then, the final 
decision can be made behind closed doors.
    For example, outside interests could lobby for limitations 
to be added as a condition of sovereignty. These could be 
anything: like land use, tribal enrollment limits, taxation 
provisions, and the list goes on and on. The pressure from 
local constituencies and special interests, people and groups 
that may be anti-tribe or anti-sovereignty, could result in a 
watered-down sovereignty with many conditions and hindrances.
    Self-determination is difficult enough today without these 
types of unwarranted limitations. But since the only avenue for 
recognition will be an Act of Congress, tribes will be forced 
to accept these politically-motivated conditions.
    Third, I, and many in Indian country, am also very 
concerned at what is meant in this bill by ``lawfully'' 
recognized tribes. Does this bill suggest that there are 
unlawfully recognized tribes?
    In conclusion, the Department of the Interior's Part 83 
process at least provides a non-partisan, research-based 
approach to determining the validity of tribal claims. Taking 
that avenue away will consolidate power in the hands of the 
Chairman of the Natural Resources Committee and the Speaker of 
the House, resulting in even further delays and difficulties 
and leaving tribal recognition decisions victim to political 
whims and outside influence.
    I look forward to the testimony from our witness today, and 
learning more about the intentions surrounding this 
legislation. Thank you, Mr. Chairman, and I yield back.
    [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. I'd like to thank our sole witness today, 
Secretary Washburn, for coming back to our subcommittee once again to 
share the Administration's views. And while I do appreciate speaking 
with the Secretary, I am very concerned that there are no tribal 
leaders here today to provide their views on a bill that affects their 
very sovereignty and self-determination.
    We must ever be vigilant to avoid repeating historical wrongs 
against tribes, and the best way we can accomplish this is to have 
tribal leaders at the table. I only hope that we can remedy this 
oversight by having a chance for tribal leaders to share their views at 
a later date.
    Mr. Chairman, the result of this legislation is clear: H.R. 3764 
will take away the Secretary of the Interior's authority to acknowledge 
tribes, in order to consolidate that power in the hands of a few--
namely the Chairman of the Natural Resources Committee and the Speaker 
of the House. Now, many may argue that it is Congress that is deciding, 
but the fact is that the Chairman of the Committee determines what 
legislation can get a hearing and mark-up, and the Speaker of the House 
decides which bills may be considered on the House Floor.
    Today, the Federal acknowledgement process applies a non-partisan, 
open, transparent, evidence-based approach in implementing fair and 
legal solutions to right the wrongs performed by the Federal Government 
and Congress toward Native Americans. While the process can be 
improved, it is at least objective and evidenced based, and has 
resulted in the re-establishment of government-to-government 
relationships with 18 tribes to date.
    H.R. 3764 would infuse partisanship and politics into the 
recognition process by only allowing Congress to acknowledge Indian 
tribes. One only has to look around at the dysfunction in Congress 
today, as evidenced by the fact that only 1 out of 74 bills referred to 
this committee has been signed into law throughout the entire year, to 
see that this is not a path forward. And that this makes tribal 
recognition more about the self-interest of a few politicians, rather 
than self-determination and sovereignty of legitimate tribal nations.
    For decades, tribes and lawmakers have called for changes to the 
Part 83 process to make it more standardized, transparent, and 
efficient. The provisions in this bill will almost certainly make the 
process more arbitrary, secretive, and drawn out.
    First, while tribes and this committee have criticized the old Part 
83 process as ``broken'' and ``cumbersome'' over the past 15 years, the 
bill codifies it with almost no improvements. Going backwards to the 
old problematic process and expecting a different result is just not 
smart.
    Furthermore, the bill mandates no action on behalf of Congress to 
act on any of the recommendations provided by the Department of 
Interior. And after completing this enormously expensive process, the 
only requirement at the end is that Interior must submit a report of 
their findings to the House Committee on Natural Resources and the 
Senate Committee on Indian Affairs. That's it. No provision or timeline 
for Congress to act on Interior's recommendation. It just leaves the 
entire issue in limbo.
    In fact, there is no requirement that a petitioner even has to go 
through the process at Interior--making it a better option just to 
bypass the expense, time, and rigor of the Part 83 process altogether 
and go straight to a Member of Congress and ultimately to the Chair of 
the Natural Resources Committee. This leaves me to wonder exactly how 
the new process will in any way be more standardized.
    Next, the bill turns an objective, transparent process based on 
science and evidence, to one negotiated behind the scenes and 
influenced by special interests with the ear of the Chairman and 
Speaker. Included in the current process are public notices, updates, 
and public input.
    Under this legislation, those would only happen if a tribe chooses 
to go through this process, and even then, the final decision will be 
made behind closed-doors with no accountability.
    For example, outside interests could lobby for limitations to be 
added as a condition of sovereignty. These could be anything--land use, 
tribal enrollment limits, taxation provisions . . . the list goes on. 
The pressure from local constituencies and special interests--people 
and groups that may be anti-tribe or anti-sovereignty--could result in 
``watered down'' sovereignty with many conditions and hindrances.
    Self-determination is difficult enough today without these types of 
unwarranted limitations. But since the only avenue for recognition will 
be an Act of Congress, tribes will have no choice but to accept these 
political motivated conditions.
    Third, I, and many in Indian country, am also very concerned at 
what is meant in the bill by ``lawfully'' recognized tribes. In fact I 
would like to give Chairman Bishop an opportunity to explain just what 
he means by this. Do you believe that any of the 18 tribes recognized 
through the Department's Part 83 process were ``unlawfully'' 
recognized? Because the bill certainly seems to imply this.
    In conclusion, many tribes have still not established or reaffirmed 
their relationship with the Federal Government. The Department of 
Interior Part 83 process, even if we could still improve it, provides a 
non-partisan, research-based approach to determining the validity of 
tribal claims. Taking that avenue away will consolidate power in the 
hands of a few members, resulting in even further delays and 
difficulties and leaving tribal recognition decisions victim to 
political whims and outside influence.
    I look forward to the testimony from our witness today and learning 
more about the intentions surrounding this legislation. Thank you Mr. 
Chairman, and I yield back.

                                 ______
                                 

    Mr.  Young. I thank the gentleman. I can assure the 
gentleman that this is a hearing, but we will change the way 
the process works, because we do believe, and I believe, that 
the will of the Secretary, which changes at each 
administration, is not a good way to do business. This is the 
house of the people, not the house of the Administration. It is 
our responsibility, under the Constitution--it is very clear--
that Congress makes these decisions.
    Now, it does not mean that we cannot improve on this 
legislation, where the Interior Department can make 
recommendations. We have to decide whether we vote on it or not 
vote on it. And that is something that meets the criteria, it 
is what I call more transparent.
    I know exactly what--I believe my 15th Secretary of Indian 
Affairs--they all had a difference of opinion. No one knows 
where they were going. This is why we are having this hearing--
it is a hearing. And, as Mr. Bishop has said, this is what we 
are going to work on.
    Now, for the Members, we have a 15-minute vote on, and then 
a rule vote for 5 minutes. I wonder how much time we have left.
    Would you like to have 10 minutes' discussion from the 
witness, and then we come back, or what is your pleasure? OK. I 
would say let's plan on meeting here around 3:25 p.m., if that 
works out.
    [Recess.]
    Mr.  Young. The committee will come to order. I think we 
are all in agreement we are going to go forth with our witness. 
And everybody knows the rules. Kevin, you should know them 
better than anybody else. We will have your testimony, and I 
will be somewhat lenient if you would like to extend that 5 
minutes to a little longer. I will grant that to you. Do not 
make it too long.
    So, Kevin, you are up, and then we will go through a series 
of questions.

   STATEMENT OF KEVIN WASHBURN, ASSISTANT SECRETARY OF INDIAN 
    AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, DC

    Mr.  Washburn. Thank you, Chairman, Ranking Member, 
Chairman Bishop, and other members of the committee. It is a 
real pleasure to be here once again to debate an important 
aspect of Federal Indian policy.
    Tribes today continue to face tragic problems: high suicide 
rates among Native youth, high rates of domestic violence, high 
rates of sexual assault of women and even children, poor levels 
of education, crumbling Federal and tribal schools, and the 
loss of sacred landscapes. The Obama administration has worked 
very hard not only to increase funding to address many of these 
serious tribal problems, but also by supporting tribes to 
develop their own tools to address those problems.
    For example, we have taken a lot of lands into trust, and 
we are fixing the allotment fractionated interest problem with 
Congress' help through the Cobell settlement. Next week, the 
President will be inviting tribal leaders to Washington for the 
annual White House Tribal Nations Conference, and this is the 
seventh time the President has invited all the tribal leaders 
to Washington to consult with them on the matters that are 
important to them.
    Frankly, that is how we get our marching orders. That is 
where we get them, we get them from Indian country. Whenever 
you hear me say anything, I am usually trying to pair it with 
what Indian country has told me, because that is my job. I am 
their advocate, and they are my constituents.
    I appreciate Chairman Young's statement at the beginning, 
that this issue is going to take a lot of the committee's time. 
But I would respectfully urge the committee to work on some of 
these other issues that I have just highlighted that are so 
important to Indian country. Including with those: subsistence 
rights and taxation issues. We would love to have a lot more 
laws like the Hearth Act, which was passed in a bipartisan way 
by Congress in 2012, laws that respect tribal sovereignty and 
put more control in the hands of tribes. We would love to see a 
lot more focus on laws like that, that we can all agree on.
    Let me turn respectfully to the bill before the committee 
today, H.R. 3764. The Obama administration has a lot of 
experience with congressional recognition, including formally 
recognizing two tribes, the Shinnecock Tribe of Long Island, 
New York, and, more recently, the Pamunkey Tribe of Virginia.
    Let me say first, that since treaty times the 
Administration, the President, has had a real role in 
recognizing tribes. Early presidential administrations had to 
figure out who to go talk with to come up with proposed 
treaties to bring back to the Senate for ratification. So, 
since the very beginning of our republic, it has been the 
executive branch that has had a significant role in recognizing 
not just foreign nations, but also tribal nations.
    And we have done it--it has changed over the years, but 
that has been an executive power for all this time. And, 
frankly, it is a small minority of tribes that have ever been 
congressionally recognized. Most of them have been recognized 
by the executive branch or through treaties, and very few of 
them formally by all of Congress.
    We have spent the last 3 years especially working on this 
issue, looking carefully at our old set of regulations, and 
working to improve them. Why did we do that? We did it because 
we heard a lot of people say that the old process was broken. 
If you are wondering who called it broken, your counterpart on 
the Senate side, Lisa Murkowski, looked at the process in 2009 
and said that the process is one that just does not work.
    Indian Affairs Chairman, current Chairman, Senator John 
Barrasso, said that the process needs reform and needs to be 
fixed. He said that in 2012. And way back in 2004, Republican 
Chairman of the Senate Indian Affairs Committee, Ben Nighthorse 
Campbell, described the process as having inequities, and said 
that most people admit that it is badly broken. And Chairman 
Young himself, on the House Floor in 1998, nearly 20 years ago, 
called the process, ``slow, cumbersome, and enormously 
expensive.''
    By the way, there are lots of other people who have made 
comments calling the system broken; those are just some of the 
Republicans that I quoted. We felt that we could not ignore all 
the people who have criticized the process, and we set about to 
reform that process. It is very important to have a process 
that has public trust, so we reformed our rule. We adopted a 
lot of improvements, none of them radical, all of them 
evolutionary, rather than revolutionary.
    What I find troubling about H.R. 3764 is that it has 
adopted the old version of the rule that so many people 
describe as broken, and is now seeking to codify that old 
broken approach in the law. H.R. 3764 omits all of the 
improvements that we have made; they are not in there. I would 
be happy to explain those in response to questions.
    But let me get to something even more concerning, and that 
is this: H.R. 3764 has some very troubling language regarding 
existing recognized tribes, and places them at serious risk for 
litigation. The United States has recognized, as I think I 
said, 566 tribes already, and also recently recognized the 
567th, the Pamunkey Tribe of Virginia, which is still in the 
administrative appeal process.
    In Section 11 of the bill, H.R. 3764 says that an Act of 
Congress is required for tribes to be acknowledged. It then 
says that the bill does not affect the status of tribes that 
were lawfully acknowledged prior to the date of this Act. If 
you read that quickly, you might think that this means that 
H.R. 3764 will have only prospective effect.
    But here again, I have real questions about the way it is 
drafted. The bill does not say that all of the 566, or 567 
tribes including Pamunkey, are currently acknowledged, lawfully 
acknowledged. It does not acknowledge them as legitimate. It 
says only the tribes that were lawfully acknowledged by the 
United States are currently unaffected by this Act if it 
passes. In other words, it implies that there is a question as 
to which of those 567 tribes are lawfully acknowledged.
    This language gives me a knot in my stomach, primarily 
because of this committee's own recent history. In a hearing 
last spring, the committee raised significant doubt about the 
legitimacy of some of those tribes, and the Federal 
Government's recognition of those tribes, and also about the 
lawfulness of our processes at Interior. The committee clearly 
has expressed doubts about many of those 566 or 567 tribes. 
There are well over 30 tribes the Department has formally 
recognized since 1960, through Part 83 or related processes 
that pre-dated Part 83, including 17 that the United States has 
recognized under the formal Part 83 rules. Under the language 
that is in this bill, if this bill passes, then every one of 
those tribes is at risk, because they are not congressionally 
recognized.
    Frankly, Chairman, the bill raises issues about the 229 
tribes in Alaska. In a hearing memorandum dated September 26, 
2015, this committee wrote that the status of all the Indian 
tribes in Alaska has been the subject of dispute. We had a 
witness in here who talked about his real concerns about the 
lawful acknowledgment of those tribes. So, the bill may well 
have the effect of terminating the acknowledgment of those 229 
tribes and forcing them to go back through this system to get 
Federal congressional acknowledgment if this bill passes.
    In the same September 26 memo, the committee criticized the 
Department for recognizing tribes outside the regulatory 
process, and it pointed to 17 California rancherias involved in 
the so-called Tillie Hardwick legislation. Those tribes were 
recognized through litigation settlements, and those also have 
not been subject to congressional recognition.
    That gives me great pause, that there are some tribes that 
may not meet the terms of this bill, and may not be legitimate 
if this bill passes. At the very least it creates significant 
doubts about their legitimacy. That might be good for lawyers, 
but it is not good for economic development for tribes, because 
they are not going to get people willing to finance their 
operations and their work if they have doubts about their 
legitimacy.
    We have been down this road before with Carcieri. The 
Supreme Court gave us the gift of Carcieri, but this would be 
Congress giving us this gift of uncertainty and creating 
litigation.
    So, I am here to tell you that the Obama administration 
remains firmly committed to protecting and restoring Indian 
lands, and continuing to use their rational, rigorous procedure 
to acknowledge tribes. We think H.R. 3764 is a big step 
backward.
    Chairman, I am way over time, but I would like to address 
just one matter that Chairman Bishop raised, if that is OK. If 
I could briefly comment on his statement about congressional 
power. Chairman Bishop suggested that this system we have seems 
to be like a system from the 1800s. I would actually 
respectfully quibble with Chairman Bishop's history. To me it 
is more of a New Deal-era type model.
    In the New Deal, we used expert agencies to start making 
difficult and complex decisions, and Congress had delegated 
power to them. To me, that is kind of what is going on here. We 
have this Office of Federal Acknowledgment filled with master's 
and Ph.D.-level scientists who do the work to figure out 
whether to acknowledge folks. It is not a very political 
process, it is a very scientific process, and it is a process 
that we have great confidence in. It does not move very fast. 
And, frankly, it is a process that is very, very, rigorous, but 
it ultimately gets to an up or down decision on groups that 
seek recognition.
    One of my concerns is that a decision that goes before 
Congress--someone might never get an up or down decision. It 
might just come over here and just hang out there, and no one 
ever gets a firm no or a firm yes. And if they get a firm no 
from us, they can litigate that, they can get due process about 
that. Congress would not present that opportunity, because you 
cannot litigate against Congress for those sorts of things.
    So, the bill gives me great concern, and I would be happy 
to answer any other questions about the bill. I appreciate the 
committee's patience in letting me go way over on time.
    [The prepared statement of Mr. Washburn follows:]
 Prepared Statement of Kevin K. Washburn, Assistant Secretary--Indian 
                Affairs, U.S. Department of the Interior
    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 the 
Administration's view on Chairman Bishop's bill, H.R. 3764, a bill to 
provide that an Indian group may receive Federal acknowledgment as an 
Indian tribe only by an Act of Congress, and for other purposes. The 
Administration strongly opposes H.R. 3764.
                               h.r. 3764
    As introduced last week by Chairman Bishop, H.R. 3764 appears to 
codify in large part regulations promulgated more than 20 years ago 
that were widely criticized as having resulted in a ``broken'' 
recognition process that took decades to complete. H.R. 3764 would 
further slow that broken process by delaying a decision on recognition 
until Congress acts on a report received by the Department. As H.R. 
3764 was only introduced a week ago, the Department has not had time to 
do a complete analysis of the Bill. This statement reflects our larger 
overarching concerns with H.R. 3764.
    A significant concern is that H.R. 3764 casts doubt on the status 
of tribes that have already been recognized by the Federal Government. 
The Department's current regulatory process draws a bright line--it 
does not apply to tribes ``already acknowledged as Indian tribes by the 
Department.'' H.R. 3764, by contrast, states only that it does not 
apply to those tribes ``that have been lawfully acknowledged to be 
federally-recognized Indian tribes.'' Use of the term ``lawfully'' 
seems to imply that some tribes have been ``unlawfully'' federally 
acknowledged. This past spring the subcommittee held a hearing in which 
doubts were raised about the lawfulness of recognition by the 
Department of the Interior. The bill seems to embrace such misguided 
thinking and places tribes at risk for litigation as to their lawful 
recognition. The Administration strongly opposes legislation that 
purports to terminate or call into question the status of any of the 
existing federally-recognized tribes.
         the department's efforts to reform the part 83 process
    As the subcommittee is aware, on April 22, I provided an overview 
of the Department's efforts to improve the Department's Federal 
acknowledgment process. These efforts began in 2009 when Secretary 
Salazar and others in the Administration testified before the Senate 
Committee on Indian Affairs on our work to reform the process. I began 
working on this issue almost as soon as I undertook my position as 
Assistant Secretary. In March of 2013, I testified before this 
committee on 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, and then preparation of a 
proposed rule, followed by another round of consultation and public 
input on the proposed rule.
    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, our workgroup 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.
    Once the comment period on the proposed rule closed on September 
30, 2014, the Department's internal workgroup reviewed each of the 
written and transcribed comments on the proposed rule and drafted the 
final rule. The internal workgroup 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 were extraordinarily 
helpful to the Department as it drafted a final rule. Just as the 
proposed rule was the product of extensive comments on the discussion 
draft, the final rule reflects 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 was extraordinarily helpful to inform our thinking as we 
moved forward with the final rule. The final rule that was ultimately 
published, and that became effective July 31, 2015, reflects years of 
intensive input from thousands of commenters and makes significant 
improvements to transparency, timeliness, efficiency, and flexibility.
    In summary, 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, nonfederally-
recognized tribes, and members of the public. H.R. 3764 ignores the 
public comment on our rulemaking and embraces the process that has been 
widely perceived as ``broken.''
                  improvements to the part 83 process
    The current rules implement significant improvements to the 
process, none of which are included in H.R. 3764. For example, the 
regulations provide for greater transparency by increasing public 
access to petitions and by increasing notice of petitions. The current 
rules promote timeliness and efficiency by providing for expedited 
decisions and a uniform evaluation start date of 1900. The rule also 
promotes fairness and objectivity by ensuring a consistent baseline of 
the criteria based on previous determinations. The current rule also 
promotes due process, transparency and integrity by providing for a 
hearing process before an Administrative Law Judge before a final 
decision is issued. H.R. 3764 does not implement these reforms or any 
reforms to promote fairness, flexibility, efficiency or to improve the 
transparency of the ``broken'' process.
                               conclusion
    I would like to thank you for the opportunity to provide the 
Administration's views on H.R. 3764. I will be happy to answer any 
questions the subcommittee may have.

                                 ______
                                 

    Mr.  Young. OK, Kevin, I hope you appreciate the Chairman's 
patience. Ten minutes is a long time.
    Mr.  Washburn. Thank you.
    Mr.  Young. Mr. Ruiz.
    Dr.  Ruiz. Thank you, Mr. Chairman.
    Mr. Secretary, the bill includes that very alarming 
provision that seems to call into question the lawful Federal 
recognition status for some tribes. As in my opening statement, 
I stated this suggests that there may be some unlawful tribes 
out there.
    Could you elaborate on the adverse effects that could cause 
on any of the tribes?
    Mr.  Washburn. Yes, Ranking Member. Thank you, Dr. Ruiz. 
The problem is that the bill, and the committee's own past 
hearing memos, call into question the existence and legitimacy 
of some tribes. I will tell you that the tribes involved in the 
Tillie Hardwick litigation would be at some risk, because the 
committee itself has called them out as being of questionable 
legitimacy because they do not have a congressional act 
recognizing them. And that is--Big Valley Rancheria, Blue Lake 
Rancheria, Elk Valley, Chicken Ranch, Cloverdale, Greenville, 
Mooretown, North Fork Rancheria, Picayune, Pinoleville, Potter 
Valley, and it goes on. I could read a much longer list. Those 
tribes are all at risk if this bill passes, and I think that 
they are probably concerned when they see this bill.
    Dr.  Ruiz. I think that, if I could ask a point of 
clarification from the author of the bill, if that is OK, to 
Chairman Bishop--is that OK?
    Mr.  Young. You can ask him; he does not have to answer.
    Dr.  Ruiz. Of course. So, Chairman Bishop, do you consider 
the 18 tribes that the Department of the Interior has 
recognized since 1978 to be lawfully recognized tribes under 
this bill?
    Mr.  Bishop. Well, let me give you the hypothetical back. 
Do you consider there are any tribes that have been unlawfully 
recognized?
    Dr.  Ruiz. What is that?
    Mr.  Bishop. Do you consider any tribes have been 
unlawfully recognized?
    Dr.  Ruiz. That is my question. That was my question to 
you.
    Mr.  Bishop. No, that is the question--the same thing. It 
is part of the question to him. If he is complaining about 
lawfully, are there unlawfully recognized tribes? Is that what 
you are saying?
    Dr.  Ruiz. No. My question to you, Mr. Chairman, is that in 
your bill----
    Mr.  Young. Let's just stop that, and ask the witness.
    Dr.  Ruiz. OK.
    Mr.  Young. OK.
    Dr.  Ruiz. Let me--may I----
    Mr.  Bishop. I only took 30 seconds of your time. I am 
sorry; I was prepared to go longer.
    Mr.  Washburn. Thank you, Dr. Ruiz and Chairman Bishop. I 
would say that the Obama administration believes that every one 
of the 567 tribes is lawfully recognized. I would say that the 
bill creates some real ambiguity about that question, though.
    Again, you just need to look at the committee's own hearing 
memos to see that there is ambiguity created in those memos. If 
this bill passes the way it is written, those tribes may very 
well have to litigate whether they are legitimate. The Obama 
administration would defend them, but this bill would subject 
them to litigation, potentially.
    Dr.  Ruiz. I think that is why it is important that we have 
clarification from the writers of the bill that can tell us--do 
the 567 recognized tribes match the definition of being 
lawfully recognized?
    And I know you will answer later, unless you want to answer 
now. Sure, I will yield.
    Mr.  Bishop. Look, I appreciate the concept. You have 
memos. They are not the same thing as statute. We want to 
clarify everything in statute--if you don't have any fear that 
anything was unlawfully done.
    What I would like to do, we are going to have another 
hearing, obviously, when we bring the Native Americans in.
    Dr.  Ruiz. OK.
    Mr.  Bishop. That is the question I want to ask of them. If 
they have an issue with that, then we revisit it.
    Dr.  Ruiz. OK.
    Mr.  Bishop. I would like to actually listen to the Native 
Americans themselves, get some testimony toward that. Nothing 
personal, but I want to hear from somebody else.
    Mr.  Washburn. Chairman Bishop, I am a member of the 
Chickasaw Nation of Oklahoma. I am a Native American. But I do 
believe you should have some tribal leaders at this table to 
testify, I agree. Thank you.
    Dr.  Ruiz. Mr. Secretary, during the process of coming up 
with your new Part 83--which, you know, we could still improve 
on, but it is what you came up with--can you describe the input 
that you received from Congress, and how you incorporated that 
information into that decision?
    Mr.  Washburn. Yes. Thank you, Dr. Ruiz. We looked at past 
congressional bills. There have been a lot of bills that have 
been filed over here that have never been enacted. So we looked 
at that input.
    We received comments from over 4,000 people on our 
discussion draft, and we received comments from over 3,000 
people on our proposed rule. We looked at all of those 
comments. Thankfully, some of them were repetitions of other 
comments. But we looked at all of them, and that is how we made 
our process.
    I will say that I was a little bit surprised. I am 
impressed that Chairman Bishop was able to keep this under 
wraps, but it was like legislation by ambush, because I never 
even knew you were working on this bill. So I am impressed that 
you were able to keep it under wraps in a place like this. But 
we have heard a lot of information from a lot of experts, and 
we could have certainly helped with the drafting.
    Dr.  Ruiz. How did you incorporate the Congress' input into 
the new Part 83 that your Department came up with?
    Mr.  Washburn. Well, we tried to deal with the very 
criticisms that we heard from Congress, that it was too 
cumbersome, for example. And this bill, I think, would make it 
more cumbersome, because even after we do all of our work, then 
it has to come over here for action. So it does not seem 
consistent with the criticisms that we have heard of the bill.
    This bill adopts the old version of the rule, the old 
broken process that people said was broken. That is the one 
that has been adopted in this bill. And I understand Chairman 
Bishop's concern--that he is not so concerned about the 
details, he just wants Congress to have this. But the details 
in this work really matter. It really is about details, and it 
is detailed work.
    Mr.  Young. I would suggest one thing. Again, this is a 
hearing. And it is to look for improvement in this legislation. 
I think that is what we are going to attempt to do. I expect to 
do it.
    I will just go back through history, Kevin. One of my 
frustrations was when Ada Deer, without consultation with 
anyone, including the tribes, made 229 tribes by a stroke of 
the pen. She sat right where you are, with no input from 
anybody. What she was trying to do was break down the Alaska 
Native Land Claims Act by creating all the tribes, within the 
tribes. That was the frustrating thing, and that is the thing I 
really have not appreciated from any of the secretaries having 
the latitude of being able to do something without consultation 
with anybody.
    Now, it has been created. Fine. Do they like it? Maybe. But 
they were not even consulted. Just because you--not you, but 
that seat--did it. And that is my interest in this legislation.
    Mr. LaMalfa, I believe you are next.
    Mr.  LaMalfa. Thank you, Mr. Chairman. I cannot let go by 
earlier what the Ranking Member was saying about the process 
becoming such a closed, political--I mean this is the founding 
principles that the country was named on, that we have 435 in 
the House of Representatives that represent 700,000 people and 
come together, as we just did off the Floor a while ago, 
casting votes in the full light of the public here. That is the 
process, and we are working through the process. The Chairman 
is going to see to that, that we are having one. So, I was 
disappointed in those comments earlier, that instead of vesting 
that in an executive branch to make decisions, that--go counter 
to what my questions are going to be about, and I am kind of 
disappointed by that.
    So, moving on, thank you, Mr. Washburn, for showing up 
today, for being with us. Looking back, the genesis of this 
bill kind of grows out of what I would point out, a document 
called, ``The Highlights of the Final Federal Acknowledgment 
Rule,'' released with the final recognition rule in June. The 
BIA states--and I quote--``Any petitioner that was previously 
denied Federal acknowledgment in this process may not re-
petition.'' Does this accurately state today your position that 
denied these tribes that they may not re-petition?
    This is what that document looks like, right here, so----
    Mr.  Washburn. Yes, sir. I know the document. Thank you, 
Congressman LaMalfa. Yes, there was a lot of discussion about 
that in our review process, about whether we should allow 
groups that have gone through the process and failed, whether 
they should be allowed to re-petition. Those groups have the 
right to come to Congress to ask you, because you certainly do 
have the power to recognize tribes, if you wish. In fact, you 
have a couple of bills sitting before this committee to 
recognize six tribes in Virginia and one tribe in Montana. So, 
this committee and Congress have the ability to recognize 
tribes.
    But what we have said is that if they have failed in our 
process, at this time they cannot re-petition, because we have 
a lot of groups that we have not reviewed for the first time. 
So, we certainly need to go through all of those groups before 
we are going to allow any groups that have already gone through 
the process once to come back at the process.
    We have said that there should be no re-petitioning, at 
least at this time, for acknowledgment from our process.
    Respectfully, let me just address the first thing that you 
were concerned about. This is the people's house, and it has a 
very important role to play. But you all have a lot on your 
plate. We still do not have a budget. Our fiscal year started 3 
weeks ago, and we still do not have a budget. And that is 
something that affects everybody, nationwide. Acknowledgment is 
a very important activity, but it tends to affect regional 
interests only. We have experts that can do that work, and 
leave you to the very important work which, frankly, is----
    Mr.  LaMalfa. Well, this is all important work.
    Mr.  Washburn [continuing]. Not going so well.
    Mr.  LaMalfa. I need to reclaim my time. I am sorry, but 
because there is an inconsistency. That is what I will follow 
up with here--is that your office sent a letter informing a 
group in California that its petition could be considered under 
new rules. This group had been formally denied recognition by 
the BIA in 2011 under this document here. It is probably hard 
to see from that distance, but it goes back to 2011, and it was 
reprocessed again here on August 31.
    It also had its appeal denied by the IBIA in 2013. So, 
again----
    Mr.  Washburn. What is the name of the group?
    Mr.  LaMalfa [continuing]. It appears that you are acting 
as if these never occurred in this new policy that you just a 
minute ago said you do not revisit old denials.
    Mr.  Washburn. I am sorry, Congressman, what is the name of 
the group?
    Mr.  LaMalfa. Well, it is a Southern California tribe. I do 
not really want to name names here today, but they have 
reapplied. And----
    Mr.  Washburn. Well, we don't----
    Mr.  LaMalfa [continuing]. It shows to me a bigger issue of 
inconsistency of what you just asserted would be the rules, and 
now people can come back outside of that rule and reapply once 
again.
    Mr.  Washburn. Well, like I said, we have changed our 
rules. We now allow--beginning earlier this year, we have said 
there is going to be no more re-petitioning. We have closed 
that down, and we have actually closed all other routes to get 
recognition, because there have been some other case-by-case 
approaches that we have closed down.
    We now have one very rigorous process for tribes to go 
through, and that is a new development. That is what we did 
with our rule. We made it clear that everybody--and fair. Every 
group has to go through the exact same process. So I do not 
know which group it is you are referring to, but the policy did 
change this year. It is now the policy of no re-petitioning.
    Mr.  LaMalfa. So anything that may be in the pipeline would 
now be considered over?
    Mr.  Washburn. Well, I don't know. I do not know the 
specific circumstances of the specific cases----
    Mr.  LaMalfa. OK. Well, I need to yield back, Mr. Chairman, 
but we will visit that later. Thank you, sir.
    Mr.  Young. Mr. Chairman? Ranking Member?
    Dr.  Ruiz. Go ahead, Norma.
    Mr.  Young. No, no, no, no.
    Dr.  Ruiz. Oh, yes. He is going to defer to Norma.
    Mr.  Young. You are up.
    Mrs.  Torres. Thank you, Chairmen Young and Bishop, and 
thanks for the opportunity to be repetitive here. I know you 
have been around quite a bit, quite long. I am the new Member 
here, so I am going to probably ask some of the same questions.
    Absolutely, this is Congress, and the people's house. And 
Congress has exercised its plenary power and delegated the 
authority to recognize tribes to the Department of the 
Interior. Over the years, Congress has repeatedly asked the 
Department to fix the broken Part 83 process.
    Can you describe for me some of the changes the Department 
has recently made, particularly regarding transparency, and how 
those changes that you have made are implemented or reflected 
on this bill?
    Mr.  Washburn. Yes, Madam Torres, thank you for the 
question. We really did hear from you, from Congress, and from 
people out there that our old process was not very transparent. 
So, we made real efforts to increase the transparency. People 
felt like it was a little bit of a black box, that information 
goes in, and then an answer pops out. We are really trying to 
change that.
    So, one of the things we have done in our new regulation is 
require that all that information that comes in--and it is 
sometimes tens of thousands of pages of information--it goes up 
on the Web. Unless it is Privacy Act-protected or something 
like that, it is going to go up on the Web, so anybody can 
evaluate it.
    One of the other things that we did in our new regulation 
is we have always notified the governor and the attorney 
general about when a petition comes in of the state in which 
the group is in, but we did not notify county governments. We 
heard from counties that they want to know, too. So, in our 
rule we changed that so that we also notify the county the 
tribe is located in.
    This bill, H.R. 3764, does not provide any notice to 
counties. So, again, it took the old version of the regulation, 
and used that as the model for this bill. And that old version 
was much less transparent than what we are doing today. This 
bill would be better considered if it adopted our new rules 
that have much more transparency.
    Mrs.  Torres. Chairman Young, in the interest of improving 
the bill, is this something that could be considered, Chairman 
Bishop, through an amendment process, or--thank you.
    I am very concerned about creating a political process, 
where Members that are of a political party or affiliated with 
a political party will be forced to pick and choose between 
winners and losers, empowering through the lobbying effort, 
those who can pay for access and those who may not be able to 
pay for access.
    Can you elaborate on some unintended consequences if 
Congress has the sole responsibility for recognizing tribes? 
What would that process look like? Would it be as transparent?
    I know you said posting some of these comments on the Web 
site. I am trying to get the bigger picture.
    Mr.  Washburn. Yes, Madam Torres. I think that it would 
be--I mean who knows why Congress makes decisions? And how they 
choose which issue to take up, because it is a target-rich 
environment. There is a lot of stuff that comes before 
Congress. And I think you are right, it would involve more 
lobbyists, because it would take getting someone to advocate 
over here to get a bill taken up, and----
    Mrs.  Torres. I am going to interrupt you for a minute and 
use myself as an example. I have not a single tribe within my 
district, but I made it my business to learn the issues, tribal 
issues, not just in my home state of California, but across the 
country. I am not sure that we have that caliber of interest 
from all of the Members, or the time that they can allocate to 
doing that--if you can finish your statement.
    Mr.  Washburn. Thank you, Madam Torres. Yes, that is the 
problem, you all cannot be experts in this stuff, you just 
cannot. And I cannot either, frankly. But we have a staff of 
PhDs that are experts that can do this work. And, frankly, they 
are more competent to do the work, and they are more focused. 
They are experts. They are not acting in a political way, and 
it does not matter how many lobbyists you have to get something 
through.
    Congress has the ability to do this work anyway. So that 
will still happen, there will still be people who can come over 
here and advocate for tribes to get congressional recognition. 
But, ours provides a different, alternative route.
    Mrs.  Torres. To the issue of the Indian Child Welfare Act, 
how would this bill impact that?
    Mr.  Washburn. Well, certainly it could. There is a lot of 
litigation pending right now about the Indian Child Welfare 
Act. And if this bill puts any of those tribes at risk of 
legitimacy, then those issues could come up there, like 
anywhere else. And it would undermine tribes' ability to 
protect their own children, potentially.
    Mrs.  Torres. Which is alarming, given the fact that we 
have so many of our Indian youths committing suicide.
    I yield back my time.
    Mr.  Young. Mr. Gosar.
    Dr.  Gosar. Thank you. Secretary Washburn, it is good 
seeing you. I must be missing something here. Was there a 
Supreme Court ruling, or a new law passed by Congress, or 
something I missed here that allowed you to go through these 
new regulations?
    Mr.  Washburn. No. Actually, no one----
    Dr.  Gosar. So--no, no, no, I get it. You talk about it--it 
is my time--you talk about its inconvenience, that we have not 
passed a budget. But the Administration is part of the problem.
    So there was no Supreme Court ruling, or no new law passed 
by Congress, yes or no, that gave you jurisdiction to 
acknowledge tribes? Was there? Yes or no? It is pretty easy, 
legitimate question.
    Mr.  Washburn. It is not new, but yes, we do have laws that 
have passed that----
    Dr.  Gosar. There was no new Supreme Court ruling or law 
passed by Congress to give you additional jurisdiction. Yes or 
no?
    Mr.  Washburn. It is true that they are not new.
    Dr.  Gosar. No. The answer is no. Yet the BIA decided to 
move forward and enact these over-reaching new regulations by 
regulatory fiat, something very typified by this 
Administration, and dramatically water down and reduce the 
standards by which tribes become federally recognized in this 
country.
    Do you think your agency's new regulations will withstand 
congressional and judicial scrutiny?
    Mr.  Washburn. Yes.
    Dr.  Gosar. Well, you must think like the glass is half 
full kind of guy. I think that is what you are. I mean you have 
to think that the Chairman of the Natural Resources Committee, 
being forced to draw up a bill because your agency did not work 
with Congress.
    You have several tribes and tribal organizations that have 
come out in opposition to these new mandates. You have a 
bipartisan rider in the base bill of the House Interior 
appropriations blocking these new regulations. And you stated 
earlier there are no new laws from Congress, and no new Supreme 
Court decisions that mandated your decision--your agency to put 
these over-reaching new mandates--wow.
    So, let me ask you a question. So you are familiar with 
Article I, Section 8, Clause 3, are you not? Yes or no?
    Mr.  Washburn. Yes.
    Dr.  Gosar. What does that clause mean to you?
    Mr.  Washburn. It means that Congress has the authority to 
regulate commerce with Indian tribes and foreign nations, and 
among the states.
    Dr.  Gosar. So, let's take that aspect. Let's take that 
clause. In fact, tribes have absolute sovereign immunity 
against everyone except the Federal Government. Correct?
    Mr.  Washburn. Well, I would not----
    Dr.  Gosar. Oh, be careful on your answer there.
    Mr.  Washburn [continuing]. Line that up to that. Tribes do 
have----
    Dr.  Gosar. Now you better be careful on that answer.
    Mr.  Washburn. Tribes have sovereign immunity, but it does 
not necessarily rise from that particular clause.
    Dr.  Gosar. The answer probably should be yes.
    Mr.  Washburn. Well, you are the expert.
    Dr.  Gosar. So, given your scholarly knowledge, I mean, I 
was insulted by your conversation, frankly, trying to spank 
Congress in regards to this--in what you said earlier.
    So, given your scholarly knowledge on Article I, Section 8, 
I am perplexed that you failed to realize that Congress is the 
only body that can make substantial changes to the process by 
which tribes become federally recognized, and that you are 
opposed to H.R. 3764. Under H.R. 3764, BIA would still play a 
critical role in the tribal recognition process, analyzing 
applications and submitting recommendations to Congress, who 
would then authorize recognition.
    H.R. 3764 is consistent with our Constitution, and 
recognizes that a solemn Act of Congress is required for a new 
tribe to become federally recognized, and that this process 
does not become dramatically changed by some bureaucrat sitting 
behind a desk in Washington, DC.
    So, you claim in your testimony that your new regulations 
provide for a greater transparency by increasing public access 
to petitions. Yet the final new rule actually prevents third 
parties from participating in the Secretary's review of a 
petition. This deviates significantly from current policy. If 
you truly wish to increase transparency, why the new 
restriction?
    Mr.  Washburn. I am not sure I follow you. We have invited 
much greater participation in the process of making decisions 
by making all this information public. We have put it up on Web 
sites so that people can evaluate it for themselves and write 
to us with their concerns, if they have concerns. So, we 
actually have a lot more opportunity for public input into our 
decisions.
    Dr.  Gosar. You really miss the point, in the fact that the 
plenary body for this discussion is sitting at this table. Is 
sitting at this table. It sits in the 435 and the other 100. 
How absurd, that you and this Administration thinks, with a 
stroke of a pen, they are going to change those rules and 
regulations. This is defiance like I have never seen before.
    This is worse than any other jurisdiction that I have seen, 
whether it be the EPA, the water rule, whether it be the clean 
power rule--this is worse than all of that, because this 
distorts the Constitution, plain and simple. I yield back, Mr. 
Chairman.
    Mr.  Young. Mr. Grijalva.
    Mr.  Grijalva. Thank you, Mr. Chairman.
    Mr. Secretary, you referenced the hearing meeting in April, 
and that the discussion expected was a robust discussion on the 
proposed rule, where that was going to go, and our feedback as 
to what those reforms meant, and on and on. The discourse 
turned into a direction that was quite alarming to Indian 
country in the sense of questioning legitimacy of the 
acknowledgment process, the Secretary's role, the 
Administration's role, and the authority. So, Indian country is 
on high alert about what this means. And they should be, 
rightfully so. I think in this legislation there is a 
precedent, and I kind of see the Chairman's legislation as a 
first step toward a slippery slope on a bunch of issues, not 
only dealing with this issue of recognition and acknowledgment, 
but issues more fundamental, government-to-government, trust 
responsibility, and the sovereignty issue that is central to 
this whole discussion.
    As I understand, the primary rationale is to once again 
place Congress in the role of the final arbitrator--or the only 
arbitrator--in the acknowledgment process. Because that is a 
constitutional--not only a prerogative, but it is a dereliction 
that we have not been doing it up to this point.
    So, that constitutional question, if I may, your response 
to that is that we have no choice but to do this legislation, 
because otherwise we are violating the Constitution.
    Mr.  Washburn. No, thank you, Mr. Ranking Member. Let me 
just say that this process has been going on, at some level, 
since the very first days of treaties. And, more recently, the 
process that we have just reformed started in 1978. And the 
Ronald Reagan administration recognized six tribes, 
administratively, through this process. So, if what we are 
doing here is unconstitutional, it was done unconstitutionally 
by President Reagan, President George W. Bush, President 
Clinton--it has been done for years and years. So I do not 
really find that very compelling.
    In 1994, Congress passed an act called the Tribal List Act, 
saying the only properly-acknowledged tribes are the ones 
recognized by the Secretary of the Interior. In the findings, 
Congress said that is one of the ways that tribes can be 
recognized, by the Secretary of the Interior--also by Congress 
or by the courts.
    So, I do not think that there are any serious questions 
about----
    Mr.  Grijalva. OK.
    Mr.  Washburn [continuing]. Congress' delegation, or its 
ability to delegate this issue.
    Mr.  Grijalva. Two related issues now on the assumption 
that the process would be Congress-centric and nothing else. Or 
you might once in a while provide some information, a 
recommendation, but that the final arbiter would be Members of 
Congress, and they could initiate, they could accept, they 
could wait, they could whatever, because that process is not 
defined in the legislation.
    But let's--the slippery slope question, which is what has 
Indian country on alert beyond this recognition issue. Land 
taken into trust, the same argument could be applied in terms 
of what the Secretary is doing now, in acknowledging that land 
coming into trust and becoming part of the Indian land. Would 
that fit that same criteria?
    Mr.  Washburn. Well, I am certain--that is one of the 
things that Indian country is concerned about. And Indian 
country is watching this hearing. One of the things they are 
worried about is, in the spring, first, this committee took up 
acknowledgment, and then they took up land into trust, and 
questioned the Interior's ability to take land into trust. I do 
think there is some concern that the next shoe to drop may be 
Congress trying to take away the Administration's ability to 
take land into trust and say, ``Well, that is our 
responsibility, too.''
    I do not think tribes want to put that much power in the 
Majority of Congress. I think that they would rather the 
Administration continue to have the ability to take land into 
trust.
    Mr.  Grijalva. Last question, and it is more of a comment--
Congress, and its function, is critically important. And this 
institution is important, but it is an institution ripe for 
getting politicized on almost every issue. So, then we face a 
situation, potentially, of the legitimacy of a recognition, or 
an acknowledgment of a tribe, past or present, being now part 
of a more involved process, which involves everything else 
attendant to legislation that happens here, from lobbyists to 
everything that follows that process.
    I see that as a detriment to any independent analysis. I 
see it as a detriment to Indian country, that might not have 
the means to be able to access decisionmakers. I see that as 
potentially possibly the most threatening part of it, in that 
this legislation now opens the door to a process that should be 
transparent, clean. It is cumbersome now because you do not 
have the resources, but to bring it into the full control of 
Congress without any other check and balance, I think, is a 
very, very dangerous precedent. I yield back.
    Mr.  Young. I thank the gentleman. I want to remind 
everybody again this is a hearing on a bill. And I am always 
interested that we have this Administration that threatens to 
veto an Indian Energy Act. Where is the support for the 
American Natives, the first Americans, which is strongly 
supported by all the tribes? I want everybody to remember that 
you start making this a partisan issue--I will go through the 
partisan issue, and a lot of talk, not much action, especially 
by this Administration.
    I suggest, respectfully, that we ought to really look at 
the big picture if we truly want to help the American Indians--
or just talk about it. I have been here long enough to watch 
this high suicide rate. What did you do about it? Nothing. 
Poverty? What did you do about it? Nothing. Old status quo. I 
am trying to change the status quo, trying to make them more 
self-sufficient, improve their way of life, be part of 
America--not by talk, but by action. Yet every time I turn 
around, Kevin, your Administration proposes to take away what 
is their right. And not a word. Including your Department.
    Mr. Chairman? Mr. Bishop? You are up.
    Mr.  Bishop. Thank you. I think I am appreciative of 
everyone's ability to see into my soul of what my motives 
actually are. I wish I was as sure as the rest of you are, what 
my motives actually are.
    So, let me ask you something actually about the bill, 
itself. I have heard the complaints that you have given. You 
are talking about the findings, which, as I said, to me, the 
criteria on which recognition would take place. And I think 
this is actually no surprise to you. When we talked on the 
phone once I said I do not really care if your findings and 
criteria are perfect; it is an issue of who has the legal 
responsibility to make the final decision.
    Let's say that I just took everything you had for Sections 
3 through 10, that all the criteria you have written down so 
far is just criteria, and then kept Section 11, which says 
Congress then makes the final decision. Would you then support 
the bill?
    Mr.  Washburn. Well, I would say this, Chairman. That is a 
fair request. And that would improve the bill, no question, I 
believe. The down side of that is that the biggest criticism 
that we have----
    Mr.  Bishop. I am sorry. I appreciate you wanting to 
explain here. I do not have much time. Just--would that satisfy 
you? Would----
    Mr.  Washburn. No.
    Mr.  Bishop. No?
    Mr.  Washburn. Sorry.
    Mr.  Bishop. All right. I would ask of you a couple of 
things, just personally. I have read the citations you have 
given on the rules, as to which laws give you the power to do 
what you are doing. To be honest, I cannot find the reference 
to which you say you have that power in there. And I understand 
the Indian Reorganization Act of 1934 was not one of the six 
statutes that you----
    Mr.  Washburn. No, it was not.
    Mr.  Bishop. So, at some point in here I would like you 
just to point out to me--and you can do this in writing, too, 
we do not need to take the time right here to do it--but where 
you actually get that power. Because, as I read the verbiage in 
here, it is not only obtuse, it just does not even exist.
    You will acknowledge, though, that as I envision this 
process to go through, that the Department would still be 
involved in looking at the data from every tribe, and making 
recommendations to Congress, that that would have to be the 
first step.
    Mr.  Washburn. That is true.
    Mr.  Bishop. So, the involvement in BIA would have to be 
there, which is one of the things I think becomes significant, 
important. Although I will take exception to the idea that the 
agency itself is non-partisan. You guys are as partisan as 
everyone else up here. It is part of the process that goes 
through there.
    I also will admit there are some things have been brought 
up now, like your recommendation of a timeline. I like that 
concept. That is something we should definitely look at, as 
well. There should be a timeline as to when decisions should be 
made for the agency, as well as for us. I kind of like that 
approach going in there, as well as anything that would 
indicate litigation, and look at that. I would like to do that.
    I would hope you would admit that if we put the criteria in 
statute, it has far more power and clarity than if it was 
simply in a regulation, especially a regulation that could be 
waived later on. And that, I think, is one of the concepts that 
has to be here. So, I would like to look at that.
    I would like to ask you one question, if you can give me a 
guarantee--and this is only because it has historically 
happened--that if indeed this bill goes to the House and the 
Senate--seems like it is going to go to the President's desk--
that this Administration will not hurry up and make a lot of 
tribal recognitions just before the bill actually goes into 
some kind of effect, if there is an enacting date. I say that 
only because that is exactly what Teddy Roosevelt did when 
Congress gave him limitations on his power, and he quickly went 
through and made a lot of national forests and then signed the 
bill that said he could not make a national forest.
    Am I assuming that this Administration, or you, would 
recommend this Administration would not do that kind of a 
tactic?
    Mr.  Washburn. I am not going to bind the Administration. 
My sense is we will do what we think is right, and what is 
just----
    Mr.  Bishop. Now that is the scary part. One of the reasons 
why I would like this in statute is so we know exactly what the 
game is, what the ball looks like, and it is listed in statute. 
You guys can make the recommendation, but it is still Congress' 
responsibility, legally, to make that final decision. That is 
the way the world should work in some way.
    I do want to take one umbrage at your history. I am a 
history teacher, so----
    Mr.  Washburn. Fair enough.
    Mr.  Bishop. You are not FDR. It does go back to the late 
1800s. It was Max Weber that had that first concept coming in 
there of separating politics from administration. The agencies 
do run on that kind of mind-set, well before World War I. And 
also, sadly, this is an era in which the new fun political 
philosophy was Communism. That did not work out, either.
    It is time for a paradigm shift, and it is time to actually 
have the agencies working with Congress, not opposed to 
Congress. If you have specific recommendations as far as the 
procedures of what the policy should be, I am more than happy 
to look at that. I will be more than happy to make those type 
of amendments. And, if any other Member has those type of 
things, I want to look at that kind of stuff.
    My goal is simply to have, in statute, inexplicably, what 
the criteria is, without the ability of any agency to actually 
try to waiver that--to make it the standard, so that everybody 
knows what it is. My goal is actually to empower Native 
American tribes, and we should be doing that. Unfortunately, we 
do not have a great record. We give a lot of lip service about 
it, but there is not a great record of actually doing that 
empowerment. That is the goal and the purpose here, but still 
can be done.
    I am sorry, I am over time, but you are still stuck in the 
1800s--late 1800s admittedly, but the 1800s. I yield back.
    Mr.  Young. I thank you, Chairman. I was going to come to 
that, what you said.
    Kevin, if we were to adopt the rules which you have written 
up, which were asked for, and then you made the recommendation 
after the information was submitted to you, to the Congress, 
yes or no, we would be able to see it. Then a time frame on 
which there could be action by Congress, and if not acted upon, 
it would automatically be recognized as a tribe. What would be 
wrong with that? Because we still play a role then.
    Mr.  Washburn. Yes. Well, that is starting to sound a 
little more positive. Because if we make a----
    Mr.  Young. Kevin, all due respect, we have never been 
negative. That is the thing that hurts me. I have tribes 
writing me letters already, without looking at what we are 
doing. My frustration is there seems to be a political ginning 
up in Indian country. And, sometimes, I want to know who really 
is speaking for Indian country. We are trying to solve a 
problem. We asked you to do that. You have done a fair job in 
your rules, which you brought forth. OK?
    Mr.  Washburn. Thank you.
    Mr.  Young. Now we are going to put a time frame in there, 
where if we do not act, it automatically becomes the 
recommendation of the Department of the Interior. That means 
you are involved, it means we are involved.
    Who can object to that? You have to admit every secretary 
that comes before this committee is different: different 
policy, different philosophies, et cetera. And it goes back to 
the Chairman's idea--that puts the Congress back in the 
position of having a role, as the Constitution says. Instead of 
coming up here and banging me on the head all the time, why 
don't you come up with some good suggestions? Because we are 
going to solve this problem, not letting an individual, human 
being, one administration, be different than one in the past, 
with the tribes not knowing what direction they have to go in.
    I have tribes that I really think they did everything they 
were supposed to do, and because--it was not you--they did not 
accept it. What is that tribe supposed to do then? Then they 
come to Congress.
    So I am just suggesting--look, I am going to ask you a 
question. My time is my time, I have the gavel, I will use what 
I want. You are on the Department of the Interior, correct?
    Mr.  Washburn. Yes, sir.
    Mr.  Young. You realize what the mineral management has 
done on recommendations of Rule--3,000, by the way, pages--I 
want everybody to listen to this--3,000 pages on coal mining, 
and with those regulations, the effect upon Native lands. Are 
you aware of that?
    Mr.  Washburn. Well, I have heard a little bit of 
discussion about it. It is not within my authority----
    Mr.  Young. But it is your purview, because what they are 
proposing, they are taking away the coal that belongs to the 
Natives, the tribes that you are here defending. It takes that 
wealth away from them, arbitrarily.
    Now, I am suggesting your seat should be screaming bloody 
murder down in minerals and management. They have the gall to 
say in that report--3,000 pages--that we will make up for the 
loss of jobs in the coal industry by hiring people to implement 
the regulation to enforce this regulation. That is really good 
government work.
    But I am saying where is the defense of this Administration 
to defend the tribes against the taking from one of the 
agencies?
    Mr.  Washburn. Well----
    Mr.  Young. Have you been--is your staff there? Are they 
aware of it?
    Mr.  Washburn. We are very much engaged in discussions 
internally with the Administration, and we win some and we lose 
some, but I am not going to air the dirty laundry here.
    Mr.  Young. OK. Kevin, that is our problem. I am very 
frustrated with this whole thing, because here we created these 
tribes, and by an Act of Congress, an act of the 
Administration, they are going to take what is rightfully 
theirs without compensation. Where is the outcry on this side 
of the aisle?
    Dr.  Ruiz. Are you asking?
    Mr.  Young. Why doesn't someone say something in defense of 
these tribes and their wealth being taken away by the 
Administration, saying, ``We are helping the Natives out'' ? 
That is the thing that frustrates me, not a word. Every one of 
the reservations that have coal are going to loot the value of 
the coal. So I just want you to be aware of this; I am very 
aware of this, and we are going to try to stop this in the 
appropriation process. But we have to have a larger, louder 
voice in the Department of the Interior when they start 
screwing around with the first Americans. And that is really 
what they are doing. Then they have a big conference next week, 
wherever it is, and they say, ``Oh, we are helping the tribes 
out.'' Yet they are taking their property.
    Now, we are going to continue the bill, Kevin. We are going 
to continue this, and we are going to arrive at--I think my 
solution to it would be your input, our input, constitutionally 
we have a solution. And that is what we will work on.
    You have some questions----
    Dr.  Ruiz. Yes, I do.
    Mr.  Young. OK.
    Dr.  Ruiz. Well, I want to----
    Mr.  Bishop. Mr. Chairman, can I just take a privilege 
right here, and apologize?
    Dr.  Ruiz. Absolutely.
    Mr.  Bishop. This is one of the ironies of time. I actually 
have some of the Utah Native Americans that are in my office 
that I need to meet with. I just want to excuse myself in 
saying I am sorry I am being rude by walking out of here, but 
anything you have, I am still open to those ideas, if you will 
be happy to send them to me. Anything you guys have, I am open 
to those ideas. But the bottom line is still--we make the 
decision.
    Dr.  Ruiz. Well, I am appreciative of you being----
    Mr.  Bishop. I will apologize.
    Dr.  Ruiz [continuing]. Open to those ideas, and working 
with us.
    I also have a letter here from the Ute Indian Tribe that 
you are going to meet with, Chairman Bishop, in opposition to 
the bill. I ask unanimous consent that it be entered in the 
record.
    [No response.]
    Mr.  Young. Without objection.
    [The letter from the Ute Tribe offered by Dr. Ruiz for the 
record follows:]

                                  UTE INDIAN TRIBE,
                                  Fort Duchesne, Utah 84026

                                                   October 27, 2015

Hon. Rob Bishop, Chairman,
House Committee on Natural Resources,
Washington, DC 20515.

Re: Opposition to Tribal Recognition Act of 2015 (H.R. 3764)

    Dear Chairman Bishop:

    The Ute Indian Tribe appreciates your interest and work in the area 
of federal recognition of Indian tribes. Recognition of Indian tribes, 
the first inhabitants of this great land, is one of the United State's 
most solemn and important obligations. Federal recognition establishes 
a special and unique government-to-government relationship between the 
Federal Government and an Indian tribe, and creates significant legal 
rights, responsibilities and commitments.
    Given the significance of Federal recognition decisions, the Tribe 
must oppose H.R. 3764. While we support Congressional oversight of the 
Department of the Interior to protect the integrity of the recognition 
process and to prevent a flood of new tribes from diminishing already 
scarce Indian affairs budgets, acts of Congress should not be the only 
or the primary way that the United States recognizes Indian tribes.
    First, Federal recognition of Indian tribes should not be subject 
to Congressional politics. In some cases, partisan politics or a single 
U.S. Senator seeking to filibuster could prevent a deserving tribe from 
being recognized. In other cases, a politically powerful group could 
get recognized as an Indian tribe whether or not they have a history of 
being an Indian tribe.
    Second, the bill provides no standards or requirements for Congress 
to follow in making decisions on Federal recognition. The bill requires 
the Secretary of the Interior to provide a report summarizing her view 
of petitions for Federal recognition, but the bill does not require 
Congress to consider the Secretary's views. Congress could even act on 
its own with or without a report from the Secretary.
    Third, Congress is not staffed or equipped to manage the 
recognition of Indian tribes. Under the current system, the Department 
of the Interior utilizes anthropological, genealogical, and historical 
research methods, to verify and evaluate petitions for Federal 
recognition. Individual Members of Congress and Congressional 
Committee's lack the staff, resources and expertise to assess these 
petitions.
    As Chairman of the Natural Resources Committee with its 
Subcommittee on Indian, Insular and Alaska Native Affairs, and as our 
Congressional Representative, the Tribe requests that you consult with 
us and other tribes on matters involving Federal Indian law and policy. 
While there are some areas needing serious reform, for example, Indian 
energy development, there are other significant cornerstones of Federal 
Indian law that should be maintained, for example, government-to-
government consultation, the Indian Reorganization Act and the Indian 
Self-Determination and Education Assistance Act. Working together and 
consulting on these important matters we can find common ground that 
honors the treaty and trust relationship upon which the United States 
was built.
    Thank your for your consideration of our opposition to H.R. 3764. 
We look forward to working with you on this bill and other legislation 
to improve our future while honoring and maintaining our past. Please 
contact the Tribe's Business Committee to arrange future consultations 
on these matters.

            Sincerely,

                                  Shaun Chapoose, Chairman,
                                     Ute Tribal Business Committee.

                                 ______
                                 

    Mr.  Young. Again, what bothers me, Indian country is not 
trying to solve problems.
    Dr.  Ruiz. I also ask unanimous consent that the following 
letter and resolution in opposition to this bill from the 
United South and Eastern Tribes be entered into the record.
    [No response.]
    Mr.  Young. Without objection.
    [The letter from the United South and Eastern Tribes 
offered by Dr. Ruiz for the record follows:]

              United South and Eastern Tribes, Inc.
                                       Nashville, Tennessee

                                                   October 28, 2015

Hon. Rob Bishop, Chairman,
House Committee on Natural Resources,
1324 Longworth House Office Building,
Washington, DC 20515.

    Dear Chairman Bishop:

    On behalf of United South and Eastern Tribes we write in strong 
opposition to the proposed elimination of the Secretary of Interior's 
well-established legal authority to recognize American Indian groups 
via the federal acknowledgement process, thereby forcing Tribes to 
petition Congress for federal recognition. We are deeply concerned that 
placing sole authority for recognition in the hands of Congress will 
unduly inject unrelated political considerations into a process that is 
at the heart of the Federal trust responsibility.
    The government to government relationship between Tribal Nations 
and the United States begins at the point where each recognizes the 
sovereignty of the other. For this reason it is important that the 
Federal Government have in place a credible, non-politicized process 
for determining which Tribes it recognizes. Administrative recognition 
provides an orderly process, administered by experts, such as ethno-
historians, genealogists, anthropologists, and other technical staff, 
that is insulated from political considerations unrelated to the 
historic legitimacy of a Tribe.
    The United States Congress and numerous courts have repeatedly 
acknowledged the Secretary of the Interior's authority to extend 
recognition to Indian Tribes. United South and Eastern Tribes, along 
with eight other Tribes and Tribal organizations, submitted comments 
for the record of the hearing of April 22nd to the House Natural 
Resources Committee providing legal validation and support for the 
Secretary's authority to acknowledge Tribes. While there may be 
differences of opinion regarding the revised Part 83 federal 
recognition process, there is overwhelming agreement within Indian 
Country that the Secretary is well-positioned to recognize Tribes.
    We urge that you reconsider this proposed legislation and instead 
work directly with Tribes to address any changes that Congress might 
appropriately adopt to improve this important process. USET believes 
strongly that all branches of government share equally in the federal 
trust responsibility and opposes any effort that fails to fully 
recognize the obligations and authorities of each. We look forward to 
working with you to ensure that this is upheld.

            Respectfully,

        Brian Patterson,              Kitcki Carroll,
        President.                    USET Executive Director.


                                 ______
                                 

    Dr.  Ruiz. Thank you very much.
    Mr.  Young. They will have----
    Dr.  Ruiz. In terms of----
    Mr.  Young. Just a moment, I am not finished.
    Dr.  Ruiz. Yes, sir. Go ahead.
    Mr.  Young. Without objection. Again, this is an example of 
your so-called--you brought up the word ``lobbyist.'' Who do 
you think is ginning these letters up?
    Dr.  Ruiz. It is from the Ute. And to suggest that they are 
being influenced and cannot make their own decisions because 
of----
    Mr.  Young. I asked you the question. Who do you think----
    Dr.  Ruiz. Well, I think the Utes are----
    Mr.  Young. OK.
    Dr.  Ruiz [continuing]. Deciding for themselves what they 
want to support or not.
    Mr.  Young. When they get a chance to testify, we will find 
out----
    Dr.  Ruiz. OK.
    Mr.  Young [continuing]. Who represents them here.
    Dr.  Ruiz. OK. So thank you for accepting these letters. I 
just want to make it very clear, from what I have heard, is 
that the Republicans disagree that those that have been 
recognized through the Department of the Interior, and all 
those Californian tribes that have been recognized through the 
judicial system are, in fact, illegal and not recognized.
    Mr.  Young. That is not true.
    Dr.  Ruiz. Well, the arguments that I have heard have been 
attacking the Administration for not having the legal authority 
to recognize those tribes. So it makes sense, logical sense, 
that one could conclude that you are in disagreement for the 
legal existence on all those tribes that have not been 
recognized by Congress.
    Now, let me put that to rest. It is U.S. Code 25, U.S. Code 
2 and 9, and 43 U.S. Code 1457 that granted the Assistant 
Secretary of Indian Affairs the authority to ``have management 
of all Indian affairs, and all matters arising out of Indian 
relations. This authority includes the authority to 
administratively acknowledge Indian tribes.'' So, yes, the 567 
tribes that have been recognized are legally recognized.
    Now, on the merits of this bill, and the fact that Congress 
wants to only have the authority to recognize tribes, I am 
actually very disappointed in Congressman LaMalfa, who would 
assume that Congress does not have hyper-partisan, dysfunction, 
inability during these times, and that somehow Congress 
miraculously works, functions, and has the approval of the vast 
majority of----
    Mr.  LaMalfa. Would the gentleman yield?
    Dr.  Ruiz. No, sir, not right now.
    So, that is the part that I am most concerned about this 
bill. I am expressing the concerns and the outrage that I have 
heard from tribes throughout the Nation, that not only is it an 
offense to suggest that these legally-recognized tribes, oh by 
the way, are all of a sudden not legally recognized, and open 
them up to litigation, but, in fact, suggesting that would 
disempower those tribes by taking away their ability to 
advocate for themselves as a sovereign nation.
    This bill in particular has a problem that it does not 
afford the extensive, evidence-based process that we can rely 
on--anthropologists, geologists, and epidemiologists--to give 
us some evidence to confirm that the tribes' claims are 
absolutely accurate to a point where we can provide that 
evidence, scientific based, to those claims.
    Now, this bill would put the power to recognize tribes in 
the hands of the Chairman of this Committee and the Speaker of 
the House. There is no doubt you know how this place works. It 
will be the Chairman and the Speaker who decides which tribes 
can and cannot be recognized. And in this era of hyper-
partisanship, to suggest otherwise is absurd.
    The other thing is that this is not about ideology or 
philosophy or a lesson in the Constitution, because, clearly, 
they have had the right to recognize tribes.
    We need to honestly put people above this partisanship, and 
solutions above ideology. A solution to safeguard, truly, the 
interest of Native Americans and the self-determination, and to 
make sure that we do not infuse the political interest of 
career politicians, to allow different venues and checks and 
balances for tribes to be fully recognized to the extent that 
they want to be fully recognized, not to the extent that the 
Chairman of the Natural Resources Committee and the Speaker of 
the House would decide who they favor, and who they do not 
favor.
    So, my solution would be to create a bill regarding the 
solutions of the Part 83 which future Secretaries of the 
Interior would have to follow, but have the process also be 
under the Department of the Interior--if you want a check and 
balance--as well as Congress. You asked for a recommendation, 
that is a part of a solution that I believe will protect tribes 
from the partisanship and the self-interest of politicians and 
give it a more scientific, evidence-based process. I yield back 
my time.
    Mr.  Young. I always appreciate the gentleman talking about 
partisanship. We are the bad guys every time. Every time. I 
have listened to you every time, and the Ranking Member. Yet 
you came up with a solution that I proposed. Do you have 
hearing problems? I proposed that. That is what I suggested. 
Let them do their job, make the recommendations, and put a time 
frame we either have to act on it in a period of time or it 
becomes the recommendation of the Department of the Interior. 
Now that is progress.
    I have sat through this too many times and listened to you 
talking about how bad Republicans are. And, unfortunately, I 
want to remind you I was in a position of being in the Minority 
22 years, and watched your side of the aisle never do a thing. 
I have records of this--lip service, you bet you, but nothing. 
I have been trying to change that M.O. for self-determination, 
being able to do as they wish to do. And you cannot do it every 
time you sit in that chair and say how bad we are, as 
Republicans. You do not have to say it. Show us where you have 
done anything correct for the Native people. You have not. And 
that is the thing that despairs me the most. You use this as a 
political football. There is nothing in this for me at all, 
nothing. But that thing bothers me, when you constantly say 
Republicans are bad.
    Mr. LaMalfa, you would like to respond?
    Mr.  LaMalfa. Thank you, Mr. Chairman. Let's get back to 
the basics here. We are having a hearing on a proposal for a 
bill.
    Mr.  Young. Be nice once in a while. Do not be so----
    Mr.  LaMalfa. We are hearing ideas, we are gathering input 
from the Administration through the BIA, and we will be 
gathering more information from the tribes on how this affects 
them. I think what we are looking for is more consistency. I 
asked the Assistant Secretary earlier--does the current policy 
state that--I will read the quote again--``Any petition that 
was previously denied Federal acknowledgment in this process 
may not re-petition.'' That accurately states the position.
    So, we are moving in a direction where the BIA is going to 
take a lesser role. And I still have this ideal concept that 
the founders had, that this is the people's house. We would 
still ask the BIA to do the research, to turn up all the old 
records and the archeology, all the anthropology, all the old 
things that have to do with the background needed to properly 
research the tribe. It would just come to us for the end 
results, for the accountable people that have to stand for 
election every 2 years. And I do not even want to talk in 
partisan terms, you know.
    Are we here to throw out previous recognitions? Not at all. 
We are here to tighten up the process. And it is one that needs 
to be tightened. So to say that, well, because of hyper-
partisanship, or K Street, or lobbyists, or all that stuff, 
then why would we do anything? Why don't we just cede 
everything over to the Administration to make all the 
decisions? I think down at 1600 they may like more of that, 
that is certainly what it appears in recent years.
    But I come here all the way from California, as do some of 
my colleagues here--and one from Alaska--each week to have 
these things out, and do the best we can, as representatives 
directly of the people. We have direct responsibility, answer 
directly to them at our town halls, at our opportunities to see 
our members in the district, and for those to come see us here 
in Washington, as well, and ask for changes in policy.
    So, we are impugning the entire foundation of what this 
country, this institution, this House of Representatives, is 
founded on when we make statements like that. You know? It is 
certainly not perfect. I would not defend that it is perfect, 
but we have a process that we are supposed to try and make 
better all the time, and try to adhere to, improving it all the 
time. And maybe we will get over the partisanship, or the other 
aspects that influence us. But we have to do the best we can. I 
still think that the founding principles of vesting that power 
into the lower house first, or even the upper house, the power 
with the people, instead of ceding that over to a bureaucracy, 
is going to give the best possible outcome in the long run.
    But it is a combination. We are asking to work with the 
BIA. They have said in the new rules here that they do not want 
to have all that power, that indeed it is a process that needs 
to have an end some time. And we should have that stamp of 
approval at the end. So I think, with this hearing, on the 
concept of this bill, we are moving in the right direction. We 
are trying to do that.
    So, I appreciate, Mr. Chairman, that you are trying to host 
that and do that, and I will yield back.
    Mr.  Young. I thank the gentleman. You are up.
    Mr.  Grijalva. Thank you, Mr. Young. And honestly, I 
appreciate the comments you made about lip service, because I 
agree with you. I think there is a lot of talk. And what 
happens is, on issues important to Indian country, that we end 
up dealing with issues of either ideological convenience, or of 
convenience as to who is able to grease the process the best.
    Now, I really think, Mr. Chairman, that you are correct. It 
is a series of actions that this Congress needs to take, 
beginning with the budgets, and the request that came in, in 
terms of resources, before--Members on this side of the aisle 
have filed legislation dealing with Indian health care, 
diabetes, renewable energy development, BIA school reform, the 
Respect Act that codifies consultation, and the Indian Health 
Act and improvements to that, land-into-trust issues that have 
come--been filed by numerous Members of both sides of the 
aisle.
    So, I agree with you, Mr. Chairman. I think--but for Indian 
country, it is kind of the proof is in the pudding--if we can 
step away from some of these ideological debates, and deal with 
some of the really pragmatic things that are going to make the 
life of our fellow citizens better, then we should deal with 
those. This committee is in a perfect role. We have that 
jurisdictional responsibility to the rest of Congress. And I 
think--and I couldn't agree with you more, that if we take some 
steps, then maybe we could start not just walking, not just 
talking, but actually walking that talk.
    And I would pledge, toward that end, our side of the aisle 
is more than prepared to sit with you and begin to look at 
those pragmatic steps down the line. And thank you, Mr. 
Chairman, I yield back.
    Mr.  Young. I thank the gentleman. I can assure you that we 
are going to have another hearing, and we are going to have 
tribal representation here. And especially to those that are 
going to testify--we are going to try to streamline this issue, 
have a set of rules that the next secretary has to follow, 
regardless of the position of the Administration, that there 
will be some set program on how we accomplish this goal.
    I am going to look forward to that group that has some new 
input. Maybe we will come to those solutions, because the 
Chairman is serious about it, I am serious about this. I want 
to make sure that we accomplish the goal of making sure that 
self-determination is done through the tribes. We can do that, 
and I expect, Kevin, to work with you, and be done.
    Do you have a question?
    Mrs.  Torres. I have a comment. If you don't mind, I really 
want to go back to Chairman Bishop's comments that he is happy 
and willing to work with us to come up with some type of 
transparency agreement to ensure that all of those folks that 
have a say-so, have an opportunity to come to the table.
    Again, I am very concerned, and I want to ensure that, for 
the record, we all understand that my concern is with the very 
poor tribes that may not be able to afford a representative to 
come here and represent them, or may not be able to pay freight 
to come here, and may not have an opportunity to have 1 or 2 
minutes to speak to the issue of sovereignty. I want to make 
sure that there is a process for them to be heard. So, to that 
extent, I want to thank Chairman Bishop's opportunity--or 
extending us the opportunity to bring about those 
recommendations.
    Mr.  Young. Again, here is the deal. You talk about not 
having--that is only if the Congress was to pass this 
legislation being petitioned by a tribe that had a lot of 
money.
    My goal originally with Kevin--and, as was before--is to 
improve the way that the Department establishes legitimacy of 
the application. And I don't know how they do that, frankly, 
because they do apply, it is a big process to have this occur. 
He goes through a lot. My biggest concern is he is there today; 
who is going to be there tomorrow?
    Mrs.  Torres. I get that.
    Mr.  Young. Will they accept it the next time? That is not 
the correct way to do it--have a platform that says everyone 
has to do it the same way, and then we have the final say. If 
there is no objection, everything looks--we don't even--but 
there is a time frame. We have to act.
    That is what we are going to do in the final--and I am 
going to recognize you for about 2 minutes, because I have 
another meeting to go to.
    Dr.  Ruiz. Sure, I will just be real quick, because you 
asked me what the Democrats have done; they passed the Indian 
Health Care Improvement Act under the ACA, and this 
Administration has----
    Mr.  Young. That was my bill.
    Dr.  Ruiz. Well, it is great. But it got passed.
    Mr.  Young. That was my bill, you know. That was my bill.
    Dr.  Ruiz. And it passed.
    Mr.  Young. And who do you think worked on it?
    Dr.  Ruiz. Yes.
    Mr.  Young. My staff worked 15 years.
    Dr.  Ruiz. So see, I am giving you compliments.
    Mr.  Young. Yes, well, yes, go ahead.
    [Laughter.]
    Dr.  Ruiz. I am giving you compliments. See? Also, there 
has been----
    Mr.  Washburn. Bipartisanship.
    Dr.  Ruiz. Bipartisanship. Also, there has been some 
increase in funding, especially within the Indian Health 
Service, within this Administration's budget. Just because you 
asked me, I had to answer that.
    Another founding principle that we have is a wonderful set-
up that is remarkable, and that is checks and balances. So, 
let's give the tribes the ability to have checks and balances, 
as well, and not put that complete authority in the hands of 
the Chairman of the Natural Resources Committee and the 
Secretary of the Speaker's House.
    I would suggest that, yes, Secretary Washburn has been 
responsive. The reason why we are here to begin with is because 
we asked him to change the rules. He changed the rules because 
we asked him to change the rules. So, to say that he refused to 
work with us is completely false. He changed the rules. We 
don't like the rules? Then let's write the rules, but let's 
also give them, the tribes, an ability to use another venue, so 
that it does not depend on the political interests of Members 
of Congress, so that we can help tribes keep some level of 
evidence and scientific approach, rather than the political 
interest of individual Members. That is all I am saying. Thank 
you very much.
    Mr.  Young. I thank the gentleman. Keep in mind--I think 
that is the same thing I said. I asked Kevin to rewrite these--
Kevin is going to be gone in 11 months.
    I bet you are happy about that. And how do I know who else 
is going to be sitting in that chair? How does a tribe know? We 
are going to rewrite this bill, and that is to let you guys 
have an opportunity to rewrite this bill using a little common 
sense, and we may end up with a solution to a problem. Then we 
will see whether this President would sign it. Remember, Kevin, 
you only have 11 months. So speak up when you get a right time. 
I think we are about out of time.
    With that, the committee is adjourned.

    [Whereupon, at 4:47 p.m., the subcommittee adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

Prepared Statement of the United South and Eastern Tribes, Inc. for the 
  October 28 Hearing of the House Subcommittee on Indian, Insular and 
 Alaska Native Affairs on H.R. 3764, ``Tribal Recognition Act of 2015''
Independent Authority of Executive Branch to Recognize Tribal Nations

    On behalf of United South and Eastern Tribes (USET), we submit the 
following written testimony for inclusion in the record of the House 
Natural Resources Committee, Subcommittee on Indian, Insular and Alaska 
Native Affairs' legislative hearing on H.R. 3764, the Tribal 
Recognition Act of 2015. USET is a non-profit, inter-tribal 
organization representing 26 federally-recognized tribal nations from 
Texas to Florida and up to Maine.\1\ USET is dedicated to enhancing the 
development of federally-recognized Indian tribes, to improving the 
capabilities of tribal governments, and assisting USET Member Tribal 
Nations in dealing effectively with public policy issues and in serving 
the broad needs of Indian people. This includes ensuring each branch of 
the Federal Government works to fulfill solemn obligations to tribal 
nations in execution of the Federal trust responsibility.
---------------------------------------------------------------------------
    \1\ USET member Tribes include: Alabama-Coushatta Tribe of Texas 
(TX), Aroostook Band of Micmac Indians (ME), Catawba Indian Nation 
(SC), Cayuga Nation (NY), Chitimacha Tribe of Louisiana (LA), Coushatta 
Tribe of Louisiana (LA), Eastern Band of Cherokee Indians (NC), Houlton 
Band of Maliseet Indians (ME), Jena Band of Choctaw Indians (LA), 
Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag Tribe (MA), 
Miccosukee Tribe of Indians of Florida (FL), Mississippi Band of 
Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut (CT), 
Narragansett Indian Tribe (RI), Oneida Indian Nation (NY), 
Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy Tribe at 
Pleasant Point (ME), Penobscot Indian Nation (ME), Poarch Band of Creek 
Indians (AL), Saint Regis Mohawk Tribe (NY), Seminole Tribe of Florida 
(FL), Seneca Nation of Indians (NY), Shinnecock Indian Nation (NY), 
Tunica-Biloxi Tribe of Louisiana (LA), and the Wampanoag Tribe of Gay 
Head (Aquinnah) (MA).
---------------------------------------------------------------------------
    Although Congress has properly delegated authority to the executive 
branch to make a determination regarding the Federal recognition of 
tribal nations, the executive branch also has independent recognition 
authority granted by the Constitution. If Congress now attempts to 
restrict the executive branch's recognition authority through H.R. 
3764, which would provide that only Congress may recognize tribal 
nations, that legislation would likely be deemed unconstitutional.
    There are currently 566 federally-recognized tribal nations 
included on the list the Department of the Interior maintains at the 
direction of Congress.\2\ Federal recognition marks the beginning of a 
government-to-government relationship, and it is predicated on the 
entity possessing sovereign tribal government status for purposes of 
Federal law.\3\ Congress has authority to initiate a government-to-
government relationship, but most tribal nations did not receive 
Federal recognition in this manner. Instead, many tribal nations 
received Federal recognition from the executive branch.\4\ The 
standards the executive branch uses for determining whether an entity 
possesses sovereign tribal government status for purposes of Federal 
law grew out of case law,\5\ drawing from cases that articulate where 
tribal nations' inherent sovereignty originated,\6\ how they maintain 
that sovereignty over time,\7\ and what their political governing 
structure must entail.\8\
---------------------------------------------------------------------------
    \2\ 25 U.S.C. Sec. 479a-1 (requiring Department to maintain and 
publish list); 80 Fed. Reg. 1,942 (Jan. 14, 2015) (listing federally-
recognized tribal nations). The Department has since issued a positive 
final determination recognizing one additional tribal nation. 80 Fed. 
Reg. 39,144 (July 8, 2015).
    \3\ H.R. Rep. No. 103-781 (1994) (stating recognition is formal 
political act that establishes government-to-government relationship); 
140 Cong. Rec. S6145 (May 19, 1994) (Sen. McCain) (``The recognition of 
an Indian tribe by the Federal Government is just that--the recognition 
that there is a sovereign entity with governmental authority which 
predates the U.S. Constitution and with which the Federal Government 
has established formal relations.''); Cohen's Handbook of Federal 
Indian Law 134 (Nell Jessup Newton et al. eds., 2012 ed.).
    \4\ Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir. 2004) 
(``Federal recognition may arise from treaty, statute, executive or 
administrative order, or from a course of dealing with the tribe as a 
political entity.'') (quoting William C. Canby, Jr., American Indian 
Law in a Nutshell 4 (4th ed. 2004)); 140 Cong. Rec. S6145 (May 19, 
1994) (``Over the years, the Federal Government has extended 
recognition to Indian tribes through treaties, executive orders, a 
course of dealing, decisions of the Federal courts, acts of Congress 
and administrative action.'') (Sen. McCain); Cohen's Handbook of 
Federal Indian Law 134 (Nell Jessup Newton et al. eds., 2012 ed.) 
(``Tribes recognized by treaty, statute, administrative process, or 
other intercourse with the United States are known as federally-
recognized tribes.''). Some tribal nations, including those involved in 
the Tillie Hardwick litigation, received recognition after a court made 
a judicial determination that a past attempt to terminate the tribal 
nation's Federal recognition failed and thus remained.
    \5\ See Cohen's Handbook of Federal Indian Law 138-39 (Nell Jessup 
Newton et al. eds., 2012 ed.).
    \6\ See Worcester v. Georgia, 31 U.S. 515 (1832).
    \7\ See United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 
1974), aff'd, 520 F.2d 676 (9th Cir. 1975).
    \8\ See Morton v. Mancari, 417 U.S. 535 (1974).
---------------------------------------------------------------------------
    Although you have been fully briefed on the matter, we reiterate 
that Congress has properly delegated authority to the executive branch 
to recognize tribal nations through 25 U.S.C. Sec. 2, 25 U.S.C. Sec. 9, 
and 43 U.S.C. Sec. 1457. Like Congress' constitutional grant of 
recognition authority through the Indian Commerce Clause,\9\ the 
statutes delegating recognition authority to the executive branch do so 
in broad terms. Many courts have recognized Congress' proper delegation 
of recognition authority through these broad statutes.\10\ Congress 
when it enacted the 1994 Federally Recognized Indian Tribe List Act 
reiterated its past delegation of recognition authority to the 
executive branch.\11\
---------------------------------------------------------------------------
    \9\ U.S. Const., art. I, Sec. 8, cl. 3 (granting Congress power to 
``regulate Commerce with . . . the Indian Tribes''); see also Cohen's 
Handbook of Federal Indian Law 136 (Nell Jessup Newton et al. eds., 
2012 ed.).
    \10\ Muwekma Oholne Tribe v. Salazar, 708 F.3d 209, 211 (D.C. Cir. 
2013) (citing Sec. 2 and Sec. 9); Samish Indian Nation v. United 
States, 419 F.3d 1355, 1370 (Fed. Cir. 2005) (citing Sec. 2 and 
Sec. 9); Miami Nation of Indians of Indiana, Inc. v. U.S. Dep't of the 
Interior, 255 F.3d 342, 345 (7th Cir. 2001) (citing Sec. 2 and Sec. 9); 
Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 59-60 
(2nd Cir. 1994) (citing Sec. 9); James v. U.S. Dept. of Health and 
Human Services, 824 F.2d 1132, 1137 (D.C. Cir. 1987) (citing Sec. 2 and 
Sec. 9); Robinson v. Salazar, 885 F. Supp. 2d 1002, 1024-25 (E.D. Cal. 
2012) (citing Sec. 2 and Sec. 9); Burt Lake Band of Ottawa and Chippewa 
Indians v. Norton, 217 F. Supp. 2d 76, 77 (D.D.C. 2002) (citing Sec. 2 
and Sec. 1457); Kahawaiolaa v. Norton, 222 F. Supp. 2d 1213, 1219 (D. 
Haw. 2002) (citing Sec. 2, Sec. 9, and Sec. 1457); Miami Nation of 
Indians of Indiana, Inc. v. Babbitt, 887 F. Supp. 1158, 1163 (N.D. Ind. 
1995) (citing Sec. 2 and Sec. 9); see also Kahawaiolaa v. Norton, 386 
F.3d 1271, 1273 (9th Cir. 2004); United Tribe of Shawnee Indians v. 
United States, 253 F.3d 543, 549 (10th Cir. 2001); W. Shoshone Bus. 
Council for & on Behalf of W. Shoshone Tribe of Duck Valley Reservation 
v. Babbitt, 1 F.3d 1052, 1057-58 (10th Cir. 1993); Cohen's Handbook of 
Federal Indian Law 136 (Nell Jessup Newton et al. eds., 2012 ed.) 
(citing Sec. 2 and Sec. 9).
    \11\ Pub. L. No. 103-454, Sec. 103, 108 Stat 4791 (1994) (stating 
tribal nations may be recognized ``by the administrative procedures set 
forth in part 83 of the Code of Federal Regulations denominated 
`Procedures for Establishing that an American Indian Group Exists as an 
Indian Tribe' '') (codified at 25 U.S.C. Sec. 479a findings); Cherokee 
Nation of Oklahoma v. Norton, 389 F.3d 1074, 1076 (10th Cir. 2004), as 
amended on denial of reh'g (2005); United States v. Livingston, No. CR-
F-09-273-LJO, 2010 WL 3463887, *14 (E.D. Cal. Sept. 1, 2010); see also 
25 U.S.C. Sec. 479a(2) (defining ``Indian tribe'' to mean ``any Indian 
or Alaska Native tribe, band, nation, pueblo, village or community that 
the Secretary of the Interior acknowledges to exist as an Indian 
tribe'').
---------------------------------------------------------------------------
    Separate from congressional delegation, the executive branch has 
independent constitutional authority to recognize tribal nations. The 
Constitution grants the executive branch authority to undertake 
diplomatic and administrative actions consistent with Federal 
recognition.\12\ This authority is most clearly granted through the 
Constitution's Treaty Clause.\13\ The Constitution also grants the 
executive branch the authority to receive and provide ambassadors.\14\
---------------------------------------------------------------------------
    \12\ Cohen's Handbook of Federal Indian Law 136 (Nell Jessup Newton 
et al. eds., 2012 ed.); see also Mark D. Myers, Federal Recognition of 
Indian Tribes in the United States, 12 Stan. L. & Pol'y Rev. 271, 272 
(2001) (``In theory, the President could unilaterally recognize a tribe 
by taking action consistent with recognizing a foreign government, such 
as making a proclamation of recognition, establishing regular dealings 
with the tribe, or applying existing law to the tribe. Power to 
undertake certain diplomatic and administrative actions consistent with 
Federal recognition of tribes is constitutionally and statutorily 
committed to the executive branch.'').
    \13\ U.S. Const., art. II, Sec. 2, cl. 2 (``He shall have Power, by 
and with the Advice and Consent of the Senate, to make Treaties, 
provided two-thirds of the Senators present concur . . .'').
    \14\ U.S. Const., art. II, Sec. 2, cl. 2 (``[H]e shall nominate, 
and by and with the Advice and Consent of the Senate, shall appoint 
Ambassadors, other public Ministers and Consuls, Judges of the supreme 
Court, and all other Officers of the United States . . .).
---------------------------------------------------------------------------
    The executive branch has exercised its congressionally granted 
recognition authority in various ways. Long before Congress delegated 
recognition authority to the executive branch, and even before the 
United States was formed, the executive branch engaged in treaty 
negotiations with tribal nations.\15\ President George Washington 
entered into and then worked with the Senate to ratify the first 
treaties in 1789, thereby establishing that treaties with tribal 
nations would utilize the same process treaties with foreign nations 
must go through.\16\ Before the treaty making era ended in 1871, most 
tribal nations had entered into a treaty with the United States.\17\ 
Although the Senate was involved in ratifying these treaties, the 
executive branch utilized its constitutional treaty making authority 
and was therefore the governmental branch responsible for treaty making 
with tribal nations.\18\
---------------------------------------------------------------------------
    \15\ United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 
196 (1876) (``From the commencement of its existence, the United States 
has negotiated with the Indians in their tribal condition as nations, 
dependent, it is true, but still capable of making treaties. This was 
only following the practice of Great Britain before the Revolution.''); 
Cohen's Handbook of Federal Indian Law 31-32 (Nell Jessup Newton et al. 
eds., 2012 ed.); Mark D. Myers, Federal Recognition of Indian Tribes in 
the United States, 12 Stan. L. & Pol'y Rev. 271, 272 (2001).
    \16\ Cohen's Handbook of Federal Indian Law 31-32 (Nell Jessup 
Newton et al. eds., 2012 ed.); see also United States v. Forty-Three 
Gallons of Whiskey, 93 U.S. 188, 197 (1876) (``Besides, the power to 
make treaties with the Indian tribes is, as we have seen, coextensive 
with that to make treaties with foreign nations.''); Worcester v. 
Georgia, 31 U.S. 515, 519 (1832).
    \17\ Marks v. United States, 161 U.S. 297, 302 (1896); William W. 
Quinn, Jr., Federal Acknowledgment of American Indian Tribes: The 
Historical Development of a Legal Concept, 34 Am. J. Legal Hist. 331, 
339 (1990) (stating 372 tribal nations recognized through treaties).
    \18\ Cohen's Handbook of Federal Indian Law 25, 393 (Nell Jessup 
Newton et al. eds., 2012 ed.); Felix S. Cohen, Handbook of Federal 
Indian Law 33-34, 274 (1942).
---------------------------------------------------------------------------
    Courts have acknowledged that the executive branch has independent 
constitutional authority to recognize tribal nations, although they 
have gone on to discuss Congress' proper delegation of authority as a 
sufficient grant of power. The Seventh Circuit in Miami Nation of 
Indians of Indian, Inc. v. Dep't of the Interior, the seminal case 
finding that Congress properly delegated recognition authority to the 
executive branch, made an important and telling reference to separate 
executive branch recognition authority.\19\ The court there stated it 
is not ``clear that [recognition] has to be authorized by Congress.'' 
\20\ Instead, the court explained: ``Recognition is, as we have pointed 
out, traditionally an executive function. When done by treaty it 
requires the Senate's consent, but it never requires legislative 
action, whatever power Congress may have to legislate in the area.'' 
\21\ The next year, the United States District Court for the District 
of Hawaii noted of its own volition that the court in Miami had 
suggested the executive branch has independent recognition 
authority.\22\
---------------------------------------------------------------------------
    \19\ 255 F.3d 342 (7th Cir. 2011).
    \20\ Miami Nation of Indians of Indian, Inc. v. Dep't of the 
Interior, 255 F.3d 342, 346-347 (7th Cir. 2001).
    \21\ Miami Nation of Indians of Indian, Inc. v. Dep't of the 
Interior, 255 F.3d 342, 346-347 (7th Cir. 2001).
    \22\ Kahawaiolaa v. Norton, 222 F.Supp.2d 1213, 1218 n.6 (D. Haw. 
2002).
---------------------------------------------------------------------------
    When the executive branch exercises its recognition authority, 
courts have deferred to its decision as a political question not 
subject to review.\23\ The Tenth Circuit in Western Shoshone Business 
Council for and on Behalf of Western Shoshone Tribe of Duck Valley 
Reservation v. Babbitt explained that judicial deference to the 
executive branch's determinations of tribal recognition is ``grounded 
in the executive's exclusive power to govern relations with foreign 
nations.'' \24\ Thus, deference stems from the executive branch's 
exercise of its independent constitutional powers.
---------------------------------------------------------------------------
    \23\ United States v. Holliday, 70 U.S. 407, 419 (1865) (``In 
reference to all matters of this kind, it is the rule of this court to 
follow the action of the executive and other political departments of 
the government, whose more special duty it is to determine such 
affairs.''); Miami Nation of Indians of Indiana, Inc. v. U.S. Dep't of 
the Interior, 255 F.3d 342, 347-348 (7th Cir. 2001); United States v. 
Washington, 384 F. Supp. 312, 400 (W.D. Wash. 1974) (``The recognition 
of a tribe as a treaty party or the political successor in interest to 
a treaty party is a Federal political question on which state 
authorities and Federal courts must follow the determination by the 
legislative or executive branch of the Federal Government.'').
    \24\ 1 F.3d 1052, 1057 (10th Cir. 1993); see also Felix S. Cohen, 
Handbook of Federal Indian Law 33-34, 274 (1942) (``[T]he question of 
tribal existence and congressional power has been classed as a 
`political question' along with the recognition of foreign governments 
and other issues of international relations.'').
---------------------------------------------------------------------------
    Courts have found that the executive branch's treaty negotiations 
with Tribal Nations constitute Federal recognition.\25\ The Department 
of the Interior in making determinations regarding whether a tribal 
nation is federally recognized has also treated treaty negotiations as 
indicative of Federal recognition.\26\ Also evidencing Federal 
recognition, and often resulting from treaties, is a Federal 
reservation created for a tribal nation.\27\ In fact, in defining 
``tribe'' in the Indian Reorganization Act, Congress acknowledged that 
``Indians residing on one reservation'' possess sovereign tribal 
government status.\28\
---------------------------------------------------------------------------
    \25\ The Kansas Indians, 72 U.S. 737, 738 (1866) (holding state not 
permitted to apply laws to Indians where ``the tribal organization of 
Indian bands is recognized by the political department of the National 
government as existing; that is to say, if the National government 
makes treaties with, and has its Indian agent among them, paying 
annuities, and dealing otherwise with `head men' in its behalf'').
    \26\ See, e.g., 25 C.F.R. Sec. 83.12(a)(1) (listing treaty 
relations as one method for demonstrating previous Federal recognition 
for purpose of regulatory recognition process); 25 C.F.R. Sec. 292.8(a) 
(listing treaty negotiations as method for demonstrating past 
recognition for purposes of Indian Gaming Regulatory Act); Cohen's 
Handbook of Federal Indian Law 146 (Nell Jessup Newton et al. eds., 
2012 ed.); Felix S. Cohen, Handbook of Federal Indian Law 269, 271 
(1942).
    \27\ Cohen's Handbook of Federal Indian Law 141 (Nell Jessup Newton 
et al. eds., 2012 ed.) (``Normally a group will be treated as a tribe 
or a recognized tribe if Congress or the executive has created a 
reservation for the group by treaty, agreement, statute, executive 
order, or valid administrative action and the United States has had 
some continuing political relationship with the group.'')
    \28\ 25 U.S.C. Sec. 479; Felix S. Cohen, Handbook of Federal Indian 
Law 33-34, 270 n.22 (1942).
---------------------------------------------------------------------------
    Since the treaty making era ended, the executive branch has legally 
federally-recognized tribal nations through other means. For example, 
the executive branch replaced treaties with Executive orders 
immediately after treaty making ended.\29\ When Congress enacted the 
Indian Reorganization Act in 1934, the Department of the Interior 
conducted sovereign tribal government status examinations to determine 
which tribal entities were eligible for benefits under the Act, thus 
resulting in their recognition.\30\ In 1978, the Department of the 
Interior promulgated the Federal recognition regulations in order to 
create a more consistent process for Federal recognition,\31\ and it 
published its first comprehensive list of federally-recognized tribal 
nations in 1979.\32\
---------------------------------------------------------------------------
    \29\ See Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 211 (D.C. 
Cir. 2013); California Valley Miwok Tribe v. United States, 515 F.3d 
1262, 1263 (D.C. Cir. 2008).
    \30\ Muwekma Oholne Tribe v. Salazar, 708 F.3d 209, 211 (D.C. Cir. 
2013); 59 Fed. Reg. 9,280 (Feb. 25, 1994) (stating tribal nations 
recognized on case-by-case basis before Department of Interior 
promulgated Federal recognition regulations in 1978); Cohen's Handbook 
of Federal Indian Law 146 (Nell Jessup Newton et al. eds., 2012 ed.); 
Felix S. Cohen, Handbook of Federal Indian Law 33-34, 270 (1942); 
William W. Quinn, Jr., Federal Acknowledgment of American Indian 
Tribes: The Historical Development of a Legal Concept, 34 Am. J. Legal 
Hist. 331, 357 (1990).
    \31\ See 25 C.F.R. Part 83; Muwekma Oholne Tribe v. Salazar, 708 
F.3d 209, 211 (D.C. Cir. 2013).
    \32\ 44 Fed. Reg. 7,235 (Feb. 6, 1979).
---------------------------------------------------------------------------
    Although Congress has properly delegated authority to the executive 
branch to federally-recognized tribal nations, the executive branch 
also has independent recognition authority granted by the Constitution. 
If Congress now attempts to restrict the executive branch's recognition 
authority, it risks a finding that its legislation is unconstitutional.
    USET urges that you reconsider this proposed legislation and 
instead work directly with tribal nations to address any changes that 
Congress might appropriately adopt to improve this important process. 
USET believes strongly that all branches of government share equally in 
the Federal trust responsibility and opposes any effort that fails to 
fully recognize the obligations and authorities of each. We look 
forward to working with you to ensure that this is upheld. Should you 
have any questions or require further information, please contact Ms. 
Liz Malerba, USET Director of Policy and Legislative Affairs, at 202-
624-3550 or [email protected].

                                 ______
                                 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S 
                            OFFICIAL FILES]

   October 19-24, 2008, National Congress of American 
            Indians, Resolution No. PHX-08-055, ``NCAI Policy 
            on Federal Recognition of Indian Tribes.'' 2 pages.

   October 1, 2012, Alliance of Colonial Era Tribes, 
            Resolution No. 2012-07-01, ``Calling on the 
            Congress of the United States to Affirm the 
            Acknowledgment of Tribes identified in Federal 
            records as tribal communities prior to 1960, those 
            who had tribal citizens attend federally-funded 
            Indian schools and closely associated Indian 
            mission boarding schools.'' 2 pages.

   October 13-18, 2013, National Congress of American 
            Indians, Resolution No. TUL-13-002, ``Supporting 
            the Bureau of Indian Affairs Proposed Reform of the 
            Federal Recognition Process.'' 3 pages.

   October 28, 2015, Ma-Chis Lower Creek Indian Tribe 
            of Alabama, Testimony submitted to Chairman Bishop 
            regarding H.R. 3764. 4 pages.

   November 9, 2015, Rev. John Norwood, Ph.D., General 
            Secretary, Alliance of Colonial Era Tribes, Letter 
            to Chairman Young regarding H.R. 3764. 2 pages.

                                 # # #

                                     



 LEGISLATIVE HEARING ON H.R. 3764, TO PROVIDE THAT AN INDIAN GROUP MAY 
  RECEIVE FEDERAL ACKNOWLEDGMENT AS AN INDIAN TRIBE ONLY BY AN ACT OF 
 CONGRESS, AND FOR OTHER PURPOSES, ``TRIBAL RECOGNITION ACT OF 2015''--
                                 PART 2

                              ----------                              


                       Tuesday, December 8, 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 11:09 a.m., in 
room 1334, Longworth House Office Building, Hon. Don Young 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Young, Benishek, Gosar, LaMalfa, 
Denham, Cook, Bishop; Ruiz, Sablan, Torres.
    Also present: Representative Grijalva.
    Mr. Young. The Subcommittee on Indian, Insular and Alaska 
Native Affairs will come to order. The subcommittee is meeting 
today to hear testimony following bill H.R. 3764, the ``Tribal 
Recognition Act of 2015,'' sponsored by the Full Committee 
Chairman, Mr. Bishop from Utah.
    Under Committee Rule 4, any oral opening statements are 
limited to the Chairman and Ranking Minority Member and Vice 
Chair and designee of the Ranking Member. And, very frankly, 
anybody who wishes to have an opening statement, I will grant 
that permission, too.
    Therefore, I ask unanimous consent that anybody that does 
not wish to make a statement can submit it to the committee by 
the close of the day.

 STATEMENT OF THE HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF ALASKA

    Mr. Young. As I mentioned earlier, we are here to hear 
testimony on H.R. 3764. The subcommittee previously received 
testimony from the Department on October 28. This hearing is 
the committee's and the Chairman's effort to obtain the views 
from the stakeholders on this legislation.
    Established in Article I, Section 8 of the Constitution and 
held by the Supreme Court, Congress has exclusive and absolute 
authority over Indian affairs. The bill provides that 
congressional determinations will be informed by the analysis 
of the Department of the Interior's professional experts. This 
process will ensure designations of tribes will be conducted in 
a consistent manner, moving forward into the future.
    As the Full Committee Chairman already noted previously, 
these recognition standards should be set in statute.
    We have several witnesses today from tribal, state, and 
local communities.
    [The prepared statement of Mr. Young follows:]
  Prepared Statement of the Hon. Don Young, Chairman, Subcommittee on 
               Indian, Insular and Alaska Native Affairs
    As I mentioned already, we will be hearing testimony on H.R. 3764. 
The subcommittee previously received testimony from the Department of 
the Interior on October 28. This hearing is the committee and 
Chairman's efforts in obtain the views from stakeholders on this 
legislation.
    Established in Article I, Section 8 of the Constitution and held by 
the Supreme Court, Congress has exclusive and absolute authority over 
Indian affairs.
    This bill provides that congressional determinations will be 
informed by the analysis of the Department of the Interior's 
professional experts. This process will ensure designations of tribes 
will be conducted in a consistent manner moving forward into the 
future.
    As the Full Committee Chairman already noted previously, these 
recognition standards should be set in statute.
    We have several witnesses here today; from tribal, state, and local 
communities.

                                 ______
                                 

    Mr. Young. I will now recognize the Ranking Member for his 
opening statement.

 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 
recognize and thank the Chairman for scheduling this second 
hearing on H.R. 3764, so that we can hear from state, local, 
and tribal leaders on this issue.
    Let me start by reiterating my sentiments from the first 
hearing on this bill. H.R. 3764 is a thinly veiled attempt to 
upend the legally-supported ability for the Secretary of the 
Interior to federally recognize Indian tribes, in order to 
consolidate that power in the hands of a few politicians. It 
would take away the options for the tribes to rightfully 
petition the government for Federal recognition in a more open, 
objective, scientific, evidence-based, and transparent process 
and, instead, put it solely in the hands of a few politicians, 
making it less transparent, less consistent, less objective, 
and more at the whims of partisan dysfunction.
    In essence, the bill will disempower legitimate tribal 
groups and empower politicians, specifically the Chairman of 
the Natural Resources Committee and the Speaker of the House, 
who can decide which bills we choose to vote on and which bills 
we choose not to vote on. This bill will weaken tribal self-
determination and strengthen politicians' self-interest.
    The big picture here is that there are problems with the 
Federal recognition process. The Assistant Secretary has made 
changes, as instructed by this committee, but many tribes 
continue to have concerns, legitimately, that those changes do 
nothing to address the problems. This bill does nothing to 
address the problems with the old process. And we need to 
address the new process, and make changes to those.
    The process can still be improved to uphold the sovereignty 
of our Native Nations. But eliminating the process altogether, 
and putting it in the hands of a hyper-partisan, dysfunctional 
Congress is counterintuitive to the goals of transparency, 
consistency, and integrity.
    Indian country is not calling for a wholesale repeal of the 
Federal recognition process. In a recent op-ed in Indian 
Country Today titled, ``Attempt by Congress to Steal Native 
Sovereignty Unconstitutional,'' President John Yellow Bird 
Steele of the Oglala Sioux Tribe states that, ``H.R. 3764 
misreads the Constitution, overturns longstanding historical 
precedent, increases the bureaucracy and legislative burden on 
Indian tribes and politicizes the Federal Acknowledgment 
Process.''
    Also, the letter in opposition submitted by the Cherokee 
Nation Principal Chief Bill John Baker, states that, ``H.R. 
3764 does little to implement any of the reforms found in the 
new Part 83 process, and, as currently written, does not 
provide new solutions that improve upon the fairness and 
transparency of the current process.''
    And, in the letter in opposition from the Ute Indian Tribe, 
they clearly lay out the arguments that were made against this 
bill at the last hearing: specifically, that H.R. 3764 will 
wrongly take the Federal recognition process out of the 
rigorous science and evidence-based approach of the Part 83 
process, and replace it with one subject to partisan politics 
and the whims of outside special interests.
    With over 30 percent of Native children living in poverty 
today, and suicide rates among Native youth over two times the 
national average, it is disappointing that this committee is 
focusing and fast-tracking legislation that much of Indian 
country both opposes and did not ask for.
    Thank you, 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 recognize and thank the 
Chairman for scheduling this second hearing on H.R. 3764, so that we 
can hear from state, local and tribal leaders on this issue.
    Let me start by reiterating my sentiments from the first hearing on 
this bill. H.R. 3764 is a thinly veiled attempt to upend the legally 
supported ability for the Secretary of the Interior to federally 
recognize Indian tribes, in order to consolidate that power in the 
hands of a few. It would take away the option for tribes to rightfully 
petition the government for Federal recognition in a more open, 
objective, scientific, evidence-based and transparent process, and 
instead replace it with one that is outdated, has no clear path 
forward, and is ripe for political corruption and outside influence.
    In essence, the bill will disempower legitimate tribal groups and 
empower politicians, specifically the Chairman of the Natural Resources 
Committee and the Speaker of the House. This will weaken tribal self-
determination and strengthen politician's self-interest.
    The big picture here is that there are problems with the Federal 
recognition process. The Assistant Secretary has made changes, but many 
tribes continue to have concerns that those changes do nothing to 
address the problems with the old process, while introducing new ones 
that do need to be addressed.
    The process can still be improved to uphold the sovereignty of our 
Native nations. But eliminating the process and putting it in the hands 
of a hyper-partisan, dysfunctional Congress is counter-intuitive to the 
goals of transparency, consistency, and integrity.
    Despite what might be inferred here today, Indian country is not 
calling for wholesale repeal of the Federal recognition process. In a 
recent op-ed in Indian Country Today titled ``Attempt by Congress to 
Steal Native Sovereignty Unconstitutional,'' President John Yellow Bird 
Steele of the Oglala Sioux Tribe states that ``H.R. 3764 misreads the 
Constitution, overturns longstanding historical precedent, increases 
the bureaucracy and legislative burden on Indian tribes and politicizes 
the Federal Acknowledgement Process.''
    Also, the letter in opposition submitted by Cherokee Nation 
Principal Chief Bill John Baker states that ``H.R. 3764 does little to 
implement any of the reforms found in the new Part 83 process, and, as 
currently written, does not provide new solutions that improve upon the 
fairness and transparency of the current process.''
    And, in the letter in opposition from the Ute Indian Tribe they 
clearly lay out the arguments we made against this bill at the last 
hearing: Specifically, that H.R. 3764 will wrongly take the Federal 
recognition process out of the rigorous science and evidenced-based 
approach of the Part 83 process, and replace it with one subject to 
partisan politics and the whims of outside special interests.
    With over 30 percent of Native children living in poverty today and 
suicide rates among Native youth over two times the national average, 
it is disappointing that this committee is focusing and fast-tracking 
legislation that much of Indian country both opposes and did not ask 
for.
    Thank you Mr. Chairman, I yield back.

                                 ______
                                 

    Mr. Young. Does the Chairman----
    Mr. Bishop. No, we have enough partisan crap going on here 
right now. I would rather get to the testimony of the witnesses 
as quickly as possible. I will yield.
    Mr. Young. I see little attempt on the other side of the 
aisle to work together, to listen, instead of opinionizing. You 
do that all the time. The Ranking Member doesn't understand one 
thing. We are here to try to solve a problem. You may not 
agree, but this is what this hearing is about, not to sit here 
and make a partisan issue out of it.
    Dr. Ruiz. No, this hearing is about----
    Mr. Young. I'll now introduce our witnesses--the Honorable 
Sean Reyes, the Honorable Robert Martin, Nicholas Mullane, and 
the Honorable Brian Patterson, I think all of you are in front 
of us.
    You know the rules. You have 5 minutes. The lights will go 
on, you know how they are handled. If I think it is a good 
statement being made about how you can solve a problem, we 
might give you a leniency to go on.
    I now recognize the Honorable Robert Martin to testify at 
this time.

 STATEMENT OF ROBERT MARTIN, CHAIRMAN, 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 with 
this opportunity to again testify before you on issues of 
tribal recognition.
    When I addressed this subcommittee in April, we believed 
the proposed regulations would relax the then-existing 
standards without addressing the core underlying problems with 
the process. While Morongo fully understands and appreciates 
the changes that were made before the regulations became final, 
we believe the Department of the Interior has only partially 
hit the target.
    Furthermore, we believe that the new regulations will do 
little to address the inconsistent application of the rules, 
and the inherent problems associated with governmental 
bureaucracy.
    Given this view, Morongo believes Congress must act to 
restore the rigorous pre-July 1 standards into law, and scale 
back the Administration's authority. In April, we raised five 
specific concerns with the proposed regulations. Our primary 
concern was and still is that the Department could allow a 
petitioner to become a federally-recognized tribe, even if 
there is no historical evidence that the tribe existed prior to 
the formation of the United States, or first contact with 
settlers.
    While the term ``historical'' is redefined in the final 
rule as meaning the year 1900, rather than 1934, the Department 
seems to have missed our point. Tribal sovereignty is based on 
the fact that tribal governments predate the Constitution and 
first contact with Europeans. That is why the pre-July 1 
regulations require such a demonstration, and why we are happy 
to see the standard is maintained in H.R. 3764.
    Our second major concern was the watering-down of the 
requirements for external identification since 1900. This 
concern was addressed in the final rule of H.R. 3764.
    Third, we were concerned that the Department's proposal 
would allow for evidentiary gaps of 20 years or more. 
Fortunately, the Department largely maintained the existing 
evidentiary standard, which H.R. 3764 preserves as well.
    Fourth, we expressed concern about reaffirmation. Morongo 
appreciates the new policy on this matter, but we would have 
preferred the Department to categorically prohibit petitioners 
from using this made-up process in the regulation itself.
    Fifth, based on the Department's testimony and press 
releases, we believe that the final rule prohibited previously-
denied petitioners from going back through the less-rigorous 
process. We supported that position. Unfortunately, we now know 
that at least one previously-denied petitioner was invited to 
seek Federal acknowledgment on August 31 of this year. This 
inconsistency is troubling to Morongo.
    Should H.R. 3764 be enacted, the Secretary would no longer 
have the independent ability to recognize tribal governments. 
That power would rest exclusively with Congress.
    We grasp the controversial nature of this proposal, but 
when our Tribal Council discussed the issue at length, we 
ultimately concluded that such a change is necessary to address 
lack of consistency on issues, such as reaffirmation and re-
petitioning. While we are not so naive as to believe that 
Congress is immune to political influence, we have more faith 
in our locally-elected representatives than the bureaucrats 
that have no connection to our communities.
    With that said, we encourage Congress to identify a process 
for the timely consideration of reports submitted by the 
Assistant Secretary. Changes to this effect need be included 
prior to enactment.
    Finally, in Section 11 of the bill that states the 
legislation shall not affect the status of any Indian tribe 
that was lawfully federally acknowledged, this seems to call 
into question whether the Secretary ever had the authority to 
acknowledge tribes.
    We have provided the committee with a suggested remedy to 
this problem in our testimony for the record. Thank you.
    [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 again 
testify before you on the issue of tribal recognition. As you may 
recall, I was before this panel in April to address what was then a 
proposal by the Administration to amend the Federal acknowledgement 
regulations.
    At that time our tribe believed the proposed regulation would relax 
the then-existing rigorous standards without addressing some of the 
core, underlying problems with the process itself. While Morongo fully 
understands and appreciates the changes that were made before the 
regulations became final, we remain concerned the new regulations 
undermine the political relationship between federally-acknowledged 
tribes and the United States. Furthermore, we believe the new 
regulations will do little to address the inherent problems associated 
with government bureaucracy and the inconsistency with which the 
Department of the Interior has executed this function. Given this view, 
Morongo believes Congress must act to put the more rigorous original 
standards into law.
    As we testified earlier, this issue is fundamental to all of Indian 
country; it is 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 and status provided to a sovereign 
government. Conversely, setting the bar too low undermines the 
political relationship between federally-acknowledged tribes and the 
United States by blurring the distinction between a truly sovereign 
political entity and a mere aggregation of individuals who may have 
some common ancestry.
    After having reviewed the changes to Part 83, it appears the 
Department of the Interior has only partially hit the target.
    In April, we raised five specific concerns with the proposed 
regulations.
    Our primary concern was and still is that the Department could 
allow a petitioner to become a federally-recognized tribe even if there 
is no historical evidence that the tribe existed before the formation 
of the United States. Instead, the Department proposed using an 
arbitrary date as the benchmark. While the Department did modify the 
final rule to redefine ``historical'' as meaning the year 1900, rather 
than 1934, as had been proposed, the Department seems to have missed 
our point.
    We strongly believe that tribal sovereignty is based on the fact 
that tribes and their governments pre-existed the Constitution and 
first contacts with Europeans. That is why the pre-July 1st Federal 
regulations required a demonstration of tribal existence from the 
founding of the United States in 1789, or first sustained contact. This 
pre-July 1st standard is maintained in H.R. 3764.
    Our second major concern was the potential watering down of the 
requirements for external identification. Under the pre-July 1st rules, 
petitioners must provide evidence of identification by external sources 
since 1900. This helps the government differentiate historic tribes 
from groups that only recently assert tribal heritage. This requirement 
was largely addressed in the Final Rule and is also maintained in H.R. 
3764.
    Third, we were greatly concerned that the Department's proposal 
would allow for evidentiary gaps of 20 years or more. This is a far cry 
from the more rigorous pre-July 1st requirement of ``substantially 
continuous existence.'' Fortunately, the Department agreed and largely 
maintained the existing evidentiary standard. H.R. 3764 also 
incorporates this requirement.
    Fourth, Morongo shares the Assistant Secretary's view that 
``reaffirmation'' by the Department is not a viable form of 
acknowledgment. While we appreciate the policy memo that accompanied 
the new regulations, the July 1st Rules would have been stronger if the 
Department categorically prohibited petitioners from using this made-up 
process in the regulation itself.
    Our fifth and final area of concern was whether previously denied 
petitioners can re-petition under the newer, more lenient standards. On 
its face, we were concerned that such a provision would create two 
classes of tribes: those that can meet the exacting standards, and 
those that cannot. As this committee knows, creating two classes of 
tribal governments is a recipe for disaster in Indian country.
    Based on the Department's testimony and press releases, we believed 
that the Final Rule removed the avenue to re-petition, rightly 
preserving the original determinations and avoiding the creation of two 
classes of tribes.
    But we have since learned that this is not the case. Thanks to the 
diligent work of this committee, we now know that despite a March 16, 
2011 press release from the Department of the Interior stating that 
``Assistant Secretary--Indian Affairs Larry Echo Hawk today issued a 
final determination not to acknowledge [a] petitioner,'' that same 
petitioner was re-invited to seek Federal acknowledgement under the new 
regulations on August 31 of this year.
    We recognize that the specific historical documentation 
requirements have become of secondary interest to the committee, given 
the more fundamental changes proposed by H.R. 3764. The foundational 
shift that would occur, should this bill be enacted, is that the 
Secretary would no longer have the ability to recognize tribal 
governments. That power would rest exclusively with Congress.
    The Morongo Tribal Council has discussed this issue at length, and 
we concluded that such a change is necessary. While we appreciate the 
fact that many of the proposed changes to the Part 83 regulations 
ultimately were not incorporated in the final regulations, we simply 
believe the current process is inherently flawed and subject to 
influence by those who have the best relationships within the executive 
branch. The lack of consistency on issues such as reaffirmation and re-
petitioning has convinced us that Congress should be directly involved 
in the acknowledgement process. While we are not so naive as to believe 
that Congress is immune to political influence, we have more faith in 
our locally elected representatives than in an untold number of 
bureaucrats that have no connection or direct accountability to our 
communities.
    However, our support for congressional involvement in the process 
does not mean that there is not still room for improvement.
    The Morongo Tribe encourages Congress to identify a process for the 
timely consideration of reports submitted by the Assistant Secretary. 
While we understand that not taking action on an issue is one way 
Congress can state its opinion, a petitioning group should not be stuck 
in perpetual limbo. Therefore, the report presented by the Assistant 
Secretary deserves a timely and substantive response from Congress. 
Fundamentally, we believe timely consideration of any report the 
Administration submits to Congress will assure greater integrity of the 
process. We hope changes to this effect can be included prior to 
enactment.
    In addition to the foregoing concerns, we are concerned about the 
provision in Section 11 of the bill that states that the legislation 
shall not affect the status of any Indian tribe that was lawfully 
federally acknowledged. As now worded, this language could be construed 
as calling into question whether the Secretary has ever had the 
legitimate authority to acknowledge tribes, potentially creating a 
legal quagmire for many tribes. We would prefer that this language be 
clarified by, for example, incorporating the language used in Section 
83.12(a) of the final rule that explicitly confirms the recognized 
status of any Tribe for which lands have been taken into trust pursuant 
to an Act of Congress, whether or not that Act specifically named the 
Tribe as a beneficiary of such lands. This would be particularly 
appropriate in California, where Congress authorized the establishment 
of reservations or Rancherias without necessarily identifying the Tribe 
or Tribes for which the reservation or Rancheria would be created.
    Thank you for your consideration of our views.

                                 ______
                                 

    Mr. Young. Thank you.
    Mr. Reyes, you are next.

 STATEMENT OF SEAN D. REYES, ATTORNEY GENERAL, STATE OF UTAH, 
                      SALT LAKE CITY, UTAH

    Mr. Reyes. Thank you and good morning, Chairman Young, 
Ranking Member Ruiz, Chairman Bishop from the great state of 
Utah, and members of the subcommittee. Thank you very much for 
the opportunity to appear before you today to provide the 
Office of the Utah Attorney General's views regarding H.R. 
3764.
    First and foremost, I am proud to be American. But I am 
also extremely proud of my native Hawaiian heritage, its rich 
cultural traditions, and its contributions to this country. I 
have a great desire to protect its people and unique 
characteristics so it may continue to bless this Nation.
    Similarly, I am sensitive to the importance of tribal 
recognition as part of historic agreements between our 
government and Native American people, and as an ongoing 
commitment by our Nation to allow Native American people to 
protect their rich cultural, religious, and indigenous beliefs 
and traditions.
    The question at issue is not should potential tribes be 
recognized, but who should make the final determination of 
recognition when so many critical interests are at stake. Some 
of those interests belong to the several and sovereign states 
of our Nation. In addition to my role as our state's top legal 
and law enforcement official, I also speak on behalf of a 
number of my state attorney general colleagues.
    For certain states, H.R. 3764 would directly affect current 
potential recognition of Native American groups. These states 
have concerns regarding the increase in a number of very small 
groups of Native Americans, sometimes as small as two or three 
families, seeking Federal recognition through the current 
Department of the Interior procedures, as administered by the 
BIA.
    The DOI, over a period of years, has become more liberal in 
granting tribal recognition. Once these small groups are 
federally recognized, they receive Federal benefits and, of 
more concern, are not subject to local taxation, criminal laws, 
local zoning laws, et cetera. As such, tribal acknowledgment 
impacts fields and areas as diverse as U.S. Government 
contracting, tribal contracting, to issues related to roads, 
law enforcement, gaming, hunting, land and water rights.
    And just on the record, I wanted to strike from our written 
statement a reference to a Super 8(a) status as being in error.
    In Utah, there are seven Native American tribes, which are 
currently recognized federally. While none of these would be 
directly affected by H.R. 3764 and, even if no further groups 
in Utah ever seek or are granted recognition, there are a 
number of collateral issues related to H.R. 3764 that are 
significant to my state and our country.
    For example, within recent years, we in Utah have had 
several Federal cases regarding zoning, which are the types of 
issues that this legislation could potentially impact. To cite 
just one matter from Utah, it is 428 F.3d 966, styled Shivwitz 
Band of Paiute Indians v. State of Utah. In summary, it created 
a tension between tribal and local interests regarding zoning. 
And while both the Federal District Court and the Tenth Circuit 
correctly concluded that lands held by tribes are properly 
exempt from state and local regulatory authority when tribes 
properly exercise their sovereign discretion, the case provides 
one more example of why initial tribal designation authority 
must be deeply considered to properly balance political and 
policy interests of the state, as well as local and tribal 
sovereign entities.
    While current law allows state and local participation in 
DOI and BIA decisionmaking processes, the power of tribal 
designation carries with it collateral consequences for state 
and local regulatory authority that can most appropriately be 
considered by this body. Congress, where the several states 
have direct representation to debate and decide such matters, 
rather than an executive agency where the several states do 
not, is the proper body to decide where the sovereignty of each 
state may be altered by the actions of the Federal Government.
    H.R. 3764 would provide a more thorough and comprehensive 
procedure for Native American groups and communities to obtain 
Federal recognition, allowing critical DOI and BIA input, but 
also allowing this body, where the several states have ample 
and immediate representation, to properly consider and, if 
necessary, reasonably debate and discuss possible collateral 
consequences on state sovereignty due to Federal recognition of 
new tribal entities.
    In summary, many state and Federal interests are impacted 
by acknowledgment or recognition of tribal status. The DOI, 
through the BIA, should continue its important work of 
examining evidence and working with petitioners in the 
recognition process. But Congress is a more accountable body to 
the people of the several states than any executive agency, and 
is thus more appropriately situated to make the final tribal 
recognition decisions.
    The clear language of the Constitution, buttressed by clear 
pronouncements of the Supreme Court, makes Congress the proper 
and exclusive body that should make final decisions on issues 
of tribal recognition. Thank you.
    [The prepared statement of Mr. Reyes follows:]
 Prepared Statement of the Hon. Sean D. Reyes, Attorney General, State 
                                of Utah
    Chairman Young, Ranking Member Ruiz and members of the 
subcommittee, thank you for the opportunity to appear before you today 
to provide the Office of the Utah Attorney General's views regarding 
H.R. 3764, To provide that an Indian group may receive Federal 
acknowledgment as an Indian tribe only by an Act of Congress, and for 
other purposes.

    On behalf of the state of Utah, and at the request of Chairman 
Young, I, Utah Attorney General Sean D. Reyes, hereby testify regarding 
H.R. 3764 as follows:

    First and foremost, I am proud to be American. But I am also proud 
of my Native Hawaiian heritage, its rich cultural traditions and its 
contributions to this country. I have a great desire to protect its 
people and unique characteristics so it may continue to bless this 
Nation. Similarly, I am sensitive to the importance of tribal 
recognition as part of historic agreements between our government and 
Native American people and as an ongoing commitment by our Nation to 
allow Native American people to protect their rich cultural, religious 
and indigenous beliefs and traditions. The question at issue is not 
``should potential tribes be recognized'' but ``who should make the 
final determination of recognition'' when so many critical interests 
are at stake.
    Some of those interests belong to the several and sovereign states 
of our Nation. In addition to my role as our state's top legal and law 
enforcement official, I also speak on behalf of a number of my state 
attorney general colleagues. For certain states, H.R. 3764 would 
directly affect current potential recognition of Native American 
groups. These states have concerns regarding the increase in number of 
very small groups of Native Americans, sometimes as small as two or 
three families, seeking Federal recognition through the current 
Department of Interior (``DOI'') procedures as administered by its 
Bureau of Indian Affairs (``BIA''). The DOI, over a period of years, 
has become more liberal in granting tribal recognition, as evidenced by 
the July 1, 2015 BIA rule relaxing standards by revising the ``Part 
83'' recognition regulations. Once these small groups are federally 
recognized they receive Federal benefits and, of more concern, are not 
subject to local taxation, criminal laws, local zoning laws, etc. As 
such, tribal acknowledgement impacts fields and areas as diverse as 
U.S. Government contracting (e.g., ``Super 8(a) status'' for Alaska 
Native Corporations), tribal contracting (e.g., Utah's Ute Tribal 
Employment Rights Ordinance or ``UTERO'') to issues related to roads, 
law enforcement, gaming, hunting, land and water rights.
    In Utah, there are seven Native American Tribes,\1\ which are 
currently recognized federally. While none of these tribes would be 
directly affected by H.R. 3764 and, even if no further groups in Utah 
ever seek or are granted recognition, there are a number of collateral 
issues related to H.R. 3764 that are significant to my state and our 
country.
---------------------------------------------------------------------------
    \1\ Confederated Tribes of the Goshute, Navajo, Ute, Northwestern 
Band of Shoshone, Pauite Indian Tribe, Skull Valley Bank of Goshute, 
Ute Mountain Ute.
---------------------------------------------------------------------------
    For example, within recent years we in Utah have had Federal cases 
regarding zoning which are the types of issues this legislation could 
potentially impact. To cite just one matter from Utah, Shivwitz Band of 
Paiute Indians et al. v. State of Utah et al., 428 F.3d 966 (10th Cir. 
2005) involved the named tribe's authority to buy and use property 
abutting St. George, Utah, incorporating it as part of its Indian 
Lands, and then leasing it to a billboard company. The billboard 
company then put up billboards that would have been non-conforming 
under St. George zoning laws had the land at issue remained under city 
jurisdiction, and unincorporated into the tribe's lands. While both the 
Federal District Court and the Tenth Circuit correctly concluded that 
lands held by tribes are properly exempt from state and local 
regulatory authority when tribes properly exercise their sovereign 
discretion, the case provides one example of why initial tribal 
designation authority must be deeply considered to properly balance 
political and policy interests of state, as well as local, and tribal 
sovereign entities.
    While current law allows state and local participation in DOI and 
BIA decisionmaking processes (though curtailed after the recent BIA 
Rule), the power of tribal designation carries with it collateral 
consequences for state and local regulatory authority that can only be 
appropriately considered by this body. Congress, where the several 
states have direct representation to debate and decide such matters, 
rather than an executive agency, where the several states do not, is 
the proper body to decide where the sovereignty of each state may be 
altered by the actions of the Federal Government. H.R. 3764 would 
provide a more thorough and comprehensive procedure for Native American 
groups and communities to obtain Federal recognition, allowing critical 
DOI and BIA input, but also allowing this body, where the several 
states have ample and immediate representation, to properly consider 
and if necessary reasonably debate and discuss possible collateral 
consequences on state sovereignty due to Federal recognition of new 
tribal entities.
    Further, Congress is constitutionally the proper entity to maintain 
the appropriate balance of powers regarding these ``political'' 
questions. Article I, Section 8, Clause 3 of the Constitution vests 
Congress with exclusive authority to ``regulate commerce . . . with the 
Indian Tribes.'' Combined with Congress' treaty making powers under the 
Constitution, the U.S. Supreme Court has acknowledged ``plenary power'' 
for Congress related to all Indian affairs through the ``Indian 
Commerce Clause.'' Inherent in this delegation is the authority to 
recognize a tribe or to deny acknowledgement of the same.
    In summary, many state and Federal interests are impacted by 
``Acknowledgement'' or recognition of tribal status. The DOI, through 
the BIA, should continue its important work of examining evidence and 
working with petitioners in the recognition process. But Congress is a 
more accountable body to the people of the several states than any 
executive agency and is thus more appropriately situated to make the 
final tribal recognition decisions. The clear language of the 
Constitution, buttressed by clear pronouncements of the Supreme Court, 
makes Congress the proper and exclusive body that should make final 
decisions on issues of tribal recognition.
    This concludes my testimony. I am happy to answer questions 
concerning this bill.

                                 ______
                                 

    Mr. Young. I thank you.
    Mr. Nicholas Mullane, you are up.

STATEMENT OF NICHOLAS H. MULLANE, II, SELECTMAN, TOWN OF NORTH 
           STONINGTON, NORTH STONINGTON, CONNECTICUT

    Mr. Mullane. Good afternoon, Mr. Chairman, Ranking Member 
Ruiz, Mr. Bishop, members of the committee. This testimony is 
submitted on behalf of the town of North Stonington, 
Connecticut. I am Nicholas Mullane, a selectman for the town, 
and I am accompanied by my first selectman, Sean Murphy. 
Together with our neighbors, Ledyard and Preston, our town has 
experienced virtually all of the problems that would be 
resolved by H.R. 3764.
    Mr. Young. Do me a favor and put your microphone closer to 
your mouth, please.
    Mr. Mullane. Is that close enough? That close. Is that 
better, sir? I'm sorry. Do I get the clock turned back?
    We are located a few miles from the Mohegan Sun, and right 
next door to the Mashantucket Pequot Reservation. The combined 
population of our towns is approximately 25,000, less than the 
attendance at Foxwoods on an average day. The history of the 
experience is a perfect case study for this bill. In 1983, 
Congress recognized the Mashantucket Pequot Tribe by statute 
without factual review by the Department of the Interior. The 
Reagan administration originally opposed that law, stating 
ultimately that the Department does not believe it can support 
further legislation which would legislatively recognize a group 
of Indian descendants as a tribe unless it has had adequate 
opportunity to review the historical and current factual basis 
for the group's claim to tribal status through the BIA 
Acknowledgment Office.
    In 1998, our towns began their role as interested parties 
in Interior's review of the acknowledgment petitions for the 
Eastern Pequot and the Paucatuck Eastern Pequot groups. We saw 
a result-oriented Assistant Secretary take control and turn 
what BIA technical staff saw as a negative decision into a 
positive finding. The Interior Board of Appeals ultimately 
reversed this highly political result. Subsequently, the 
Inspector General issued a scathing review of the political 
decisions of Interior's acknowledgment process during that era.
    While we did not participate directly, we witnessed the 
process to recognize the Mohegan Tribe. Interior conducted a 
review under Part 83 and, without political interference, 
issued a positive finding. Congress effectively ratified the 
findings of the Mohegan Settlement Act, which also approved 
agreements with the tribe, the state, and the town of 
Montville, Connecticut.
    Finally, we participated in Part 83 recent rulemaking. 
Through this new rule, Interior has greatly weakened the 
criteria for acknowledgment, limited the rights of third 
parties, eliminated the role of the Board of Indian Appeals, 
and provided petitioners with clear procedural advantages. The 
new rules even sought to reinstate the incorrect, politically-
motivated state recognition rule, and allowed previously-denied 
groups to reapply.
    Fortunately, Interior dropped some of these most seriously 
flawed elements of the proposed Part 83 rules. But the end 
result is still very troubling. These experiences point to the 
wisdom of the bill, H.R. 3764. This bill would avoid the 
defects of tribal acknowledgment left solely to Congress, 
without the benefit of expert findings under Part 83, and also 
avoids the pitfalls of leaving acknowledgment solely to 
Interior, where politically-motivated decisionmakers not 
limited by any statutory standards can change the rules of the 
game to produce the desired result, based on politics.
    While I believe that some important changes should be made 
to the bill, it is a vast improvement over the status quo. Our 
main recommendation is to incorporate some of the procedural 
requirements from the previous regulations, especially full 
participation of interested parties and review by the Board of 
Indian Appeals, as necessary.
    We also suggest that 1 year is not sufficient to complete 
detailed examination of historical records. If the process is 
to arrive at the truth, there is no substitute for thorough 
examination of evidence.
    Finally, we emphasize that the requirement that Congress 
affirmatively recognize Indian tribes is essential. Any 
proposal that would allow the Department's recommendation to 
take effect after a specific period of time would be a 
tremendous step backward.
    I have more, but I do not have the time, I am sorry.
    Mr. Young. I haven't shut you up yet.
    Mr. Mullane. Oh. In closing, I refer you back to Interior's 
comment on the Mashantucket Pequot law. In that statement, 
Interior did not object to congressional recognition, but only 
to taking such action without the Department or BIA's review. 
That is what H.R. 3764 calls for, and this two-tiered process 
is exactly what is needed to comply with the Constitution and 
reduce the potential for politically-motivated decisions and to 
maintain the credibility of the acknowledgment process with the 
results.
    [The prepared statement of Mr. Mullane follows:]
Prepared Statement of Nicholas H. Mullane II, Selectman for the Town of 
                     North Stonington, Connecticut
    Mr. Chairman, Ranking Member Ruiz, and members of the subcommittee, 
this testimony is submitted on behalf of the town of North Stonington, 
Connecticut. I am Nicholas H. Mullane II, a Selectman for the Town, and 
I am accompanied by First Selectman Shawn P. Murphy. Together with our 
neighbors Ledyard and Preston, our town of North Stonington has 
experienced virtually all of the problems addressed in H.R. 3764, the 
bill that is before this subcommittee seeking to improve the tribal 
acknowledgment process. We greatly appreciate the opportunity to share 
with you the lessons that we have learned.
    To set the stage, our three towns are located in rural southeastern 
Connecticut and serve as the host communities for the Foxwoods Resort 
and the Mashantucket Pequot Reservation. We are located a few miles 
from the Mohegan Sun Resort and that Tribe's Reservation. The combined 
population of our three towns, approximately 25,000, is substantially 
less than the attendance at Foxwoods on an average day. We have 
participated extensively and at great expense in the review of two 
acknowledgment petitions backed by wealthy gaming investors. The 
history of our experiences is a perfect case study for this bill.
    While we have had disputes with the Mashantucket Pequot Tribe over 
the years on issues such as off-reservation trust land expansion, 
taxation, and land use controls, we are proud of our track record of 
working constructively together for the mutual benefit of our local and 
tribal governments.
    In 1983, Congress recognized the Mashantucket Pequot Tribe by 
statute without the benefit of factual review by the Department of the 
Interior. The Reagan administration originally opposed that law, on the 
grounds that it would bypass the administrative acknowledgment process. 
Although the Administration ultimately supported the law based on the 
unique circumstances involved, the Department of the Interior testified 
that it could not categorically state that the Mashantucket Pequot 
petitioner would meet the criteria for Federal acknowledgment, and it 
warned that:

        the Department does not believe it can support any future 
        legislation which would legislatively recognize a group of 
        Indian descendants as a tribe unless it has had an adequate 
        opportunity to review the historical and current factual bases 
        for the group's claim to tribal status through the Bureau's 
        Federal Acknowledgement Office. Such a review is necessary not 
        only to ensure the equitable and uniform application of the 
        special laws relating to Indians but also is mandated by 
        fundamental fairness to those other Indian groups which have 
        labored diligently to compile a comprehensive record in support 
        of their claim to tribal status and waited patiently in turn 
        for their petitions' active consideration.\1\
---------------------------------------------------------------------------
    \1\ Sen. Rpt. 98-222, at 20 (Sept. 14, 1983) (Statement of John W. 
Fritz, Deputy Assistant Secretary for Indian Affairs, Department of the 
Interior) (emphasis added).

    While we do not comment on whether the Tribe would have met the BIA 
acknowledgment criteria, we note that, ever since enactment of this 
law, questions have been raised about the political motivations of the 
congressional process that led to the Tribe's recognition and 
---------------------------------------------------------------------------
establishment of its Reservation.

    In 1998, our Towns began their role as interested parties in 
Interior's review of the acknowledgment process conducted under the 
Part 83 rules for the Eastern Pequot and Paucatuck Eastern Pequot 
groups. We saw a result-oriented Assistant Secretary take control of 
that review and turn what BIA technical staff saw as negative findings 
for both groups into a positive finding. The Assistant Secretary at 
that time, Kevin Gover, did so by means of two politically-motivated 
maneuvers: (1) forcing the two groups into a single petitioner to cure 
their individual deficiencies under the criteria, and (2) ruling that 
state recognition equated with Federal recognition. We ultimately 
reversed this highly political result thanks to the independent legal 
review conducted by the Interior Board of Indian Appeals (IBIA), which 
rejected the incorrect state recognition theory in 2005. Interior 
issued a negative determination on the combined Eastern Pequot petition 
in 2006. Subsequently, the Interior Inspector General issued a scathing 
review of the politicized decisions of Interior's acknowledgment 
process during that era.

    Next, while we did not participate directly, we witnessed the 
process used to recognize the Mohegan Tribe. In that case, Interior 
conducted a review under Part 83 and, without political interference, 
issued a positive finding in 1994. Congress then effectively ratified 
that finding in the Mohegan Nation of Connecticut Land Claims 
Settlement Act of 1994, which also approved the negotiated agreements 
between the Tribe and the state and the town of Montville. There has 
been no subsequent litigation or controversy.

    Finally, we participated recently in the rulemaking process to 
revise Part 83. Through this new rule, Interior has greatly weakened 
the criteria for acknowledgment, limited the participation rights of 
third parties like our Towns, eliminated the objective role of the 
IBIA, and provided petitioner groups with clear procedural advantages. 
The new rules even sought to reinstate the incorrect and politically-
motivated state recognition rule and to allow previously denied groups, 
like the Eastern Pequots, to reapply. Fortunately, thanks to our 
diligent congressional delegation, our governor, and the oversight of 
this committee, Interior dropped some of the most seriously flawed 
elements of the proposed Part 83 rules. But the end result is still 
very troubling and shows the effect of a partisan and political agenda 
at Interior to facilitate the recognition of new tribes.

    These experiences point to the wisdom of H.R. 3764. This bill 
avoids the defects of tribal acknowledgment left solely to Congress, 
without the benefit of expert, detailed, historical and factual 
findings under the Part 83 criteria. It also avoids the pitfalls of 
leaving acknowledgment solely to Interior, where politically-motivated 
decisionmakers not limited by any statutory standards can change the 
rules of the game to produce the desired result based on partisanship 
and politics.

    While we believe some important changes should be made to H.R. 
3764, it is a vast improvement over the status quo in four ways.

    First, H.R. 3764 is based on the constitutional principle that 
Congress has plenary authority over Indian affairs and has never 
delegated the power to acknowledge tribes to Interior. The bill keeps 
Congress as the ultimate decisionmaker, in keeping with the legislative 
branch's responsibilities, duties, and authority over Indian affairs.

    Second, H.R. 3764 solves the problem that there are no statutory 
standards governing acknowledgment decisions. Interior is operating in 
an open field where it can make up whatever rules it wants, for 
partisan and political reasons, as demonstrated by the recently 
concluded rulemaking. Our Towns previously submitted extensive comments 
to the Department's proposed rulemaking, detailing numerous objections 
and recommendations to the proposed revisions, most of which remained 
unaddressed in the final rulemaking. Those objections remain relevant 
and the recommendations could easily be adapted to the process 
envisioned in H.R. 3764. Our comments included a detailed legal 
analysis of why the Secretary lacks the legal authority to recognize 
tribes under Federal law, and that analysis is attached to our written 
testimony.

    Third, H.R. 3764 solves the problem of the overly permissive 
standards for acknowledgment now in effect by returning to the time-
tested and objective criteria that were in effect in 1994.

    Fourth, it solves the problem of Congress acting without the 
benefit of expert technical advice and findings, by giving that role to 
Interior to make recommendations after the review of the evidence under 
appropriate criteria.

    In short, H.R. 3764 is based on firm constitutional principles and 
relies on checks and balances that avoid the problems presented by a 
process conducted solely by Congress, or solely by Interior.

    We commend the committee for this bill, but we also recommend some 
important changes.

    Our main recommendation is that H.R. 3764 could be improved by 
incorporating at least some of the procedural requirements from the 
previous regulations, especially the full participation of interested 
third parties and independent review by the IBIA. Our concern is that, 
without the discipline imposed by review of final agency action of 
tribal group petitions by an independent Board of Appeals, the 
Department's reports and recommendations to Congress could easily 
become mere rubber stamps. We have seen ideologically-motivated 
Assistant Secretaries bend and break the rules to achieve pre-
determined outcomes based on partisanship and politics, even knowing 
they were subject to judicial scrutiny. It is not clear that a report 
and recommendation, even if required by statute, would be subject to 
judicial review, but full participation by interested third parties, 
and review by the IBIA, would help ensure that the expert judgment of 
the historians, genealogists, and other professionals of the Office of 
Federal Acknowledgment would not be simply shunted aside by improper 
political considerations at the Assistant Secretary level.

    We also suggest that 1 year may not be sufficient for the Office of 
Federal Acknowledgment to complete a detailed examination of the 
historical record, which in some cases will necessarily reach as far 
back as the earliest colonial era. Our experience is that the review 
process can be lengthy and burdensome, for both petitioners and 
interested third parties such as our Town, but that ultimately, if the 
process is to arrive at the truth, there is simply no substitute for a 
thorough, detailed, and rigorous examination of the evidence. A 2-year 
deadline should be more than sufficient to allow the Department to 
complete its work, and such a deadline would address the primary reason 
the process under the previous acknowledgment regulations was seen by 
some as ``broken.''

    To minimize ongoing uncertainty and to reach finality in this 
important process, we also suggest that reasonable deadlines to submit 
letters of intent and documented petitions are necessary so that all 
petitioner groups can be identified and resources budgeted accordingly, 
to the benefit of all interested parties, including federally-
recognized tribes. We also support the new requirement in the 
regulations that all materials be made public on the Department's Web 
site. Transparency is essential in order to facilitate the 
participation of interested third parties, and we appreciate the new 
regulations in this one respect.

    Finally, we emphasize that the requirement that Congress 
affirmatively recognize Indian tribes is essential. Any proposal or 
amendment that would allow the Department's recommendation to take 
effect after a specified period of time would be a tremendous step 
backwards, even compared to the Department's new regulations. Indeed, 
such a provision would undermine the benefits of this bill, and magnify 
the concern that the Department could merely rubber stamp affirmative 
recommendations for ideological and political reasons. The thrust of 
H.R. 3764 must be preserved: the Department should not retain the 
ability to make unilateral acknowledgment decisions that become 
effective by default. The bill as written appropriately places on 
Congress the responsibility and duty to acknowledge Indian tribes by an 
Act of Congress, not by default.

    In closing, I refer you back to the Interior comment on the 
Mashantucket Pequot Indian Claims Settlement Act of 1983. In that 
statement, Interior did not object to congressional recognition, but 
only to taking such action without a technical review of a petitioner's 
qualifications for tribal status. That is what H.R. 3764 calls for, and 
this two-tier process is exactly what is needed to comply with the 
Constitution and reduce the potential for politically-motivated 
acknowledgment decisions. Even if some tribal advocates are correct 
that Interior has legal authority to recognize the tribes, H.R. 3764 is 
a vastly approved process that should be enacted.

    Tribal acknowledgment is very important business, not only for 
petitioner groups, but also for states, local governments, existing 
tribes, and all American citizens. Thank you for your serious effort to 
ensure objective and fair tribal acknowledgment decisions that abide by 
the rule of law. And thank you for the opportunity to submit this 
testimony.

                               ATTACHMENT

Excerpts of comments submitted by the Towns of Ledyard, North 
Stonington, and Preston, Connecticut on the Proposed Regulations on 
Federal Acknowledgment of American Indian Tribes, 79 Fed. Reg. 30,766 
(May 29, 2014).

The Proposed Regulations Would Confirm That There Has Been No Valid 
Delegation of Acknowledgment Authority to the Secretary

. . .

The essence of this argument is that Congress may delegate its 
legislative power to the Executive Branch, but only when the statute 
involved specifies the standards that the agency receiving the 
delegated power must meet. . . . Over the course of the acknowledgment 
program since 1978, the issue of the Secretary's authority has not 
arisen in a serious legal challenge because DOI has developed and 
consistently adhered to a reasonably rigorous set of acknowledgment 
criteria and procedures. The proposed regulations, however, cast 
virtually all of that precedent aside and, in doing so, reveal the 
potentially disastrous consequences of vesting unbridled discretion for 
such an important federal government determination in the Executive 
Branch. The current proposal invites legal challenges and confirms the 
underlying constitutional defect of allowing an agency sub-cabinet 
level political appointee like the AS-IA to wield great power (i.e., 
establish a government-to-government relationship between the United 
States and tribes with sovereign status) without any expression 
delegation of power to do so or guiding principles or standards set by 
Congress. As discussed in this section, the U.S. Constitution prohibits 
implementation of the proposed regulations, and any subsequent 
determinations based upon them would be invalid.
Constitutional Standard

Article I, Section 1, of the U.S. Constitution vests ``All legislative 
Powers'' in the ``Congress of the United States.'' For that reason, as 
the U.S. Supreme Court noted in Chrysler Corporation v. Brown, 441 U.S. 
281, 302 (1979): ``[T]he exercise of quasi-legislative authority by 
governmental departments and agencies must be rooted in a grant of such 
power by the Congress and subject to limitations which that body 
imposes.'' See also accord Louisiana Public Service Commission v. FCC, 
476 U.S. 355, 374 (1986) (reiterating that ``[a]n agency may not confer 
power on itself''); Lyng v. Payne, 476 U.S. 926, 937 (1986) 
(reiterating that ``an agency's power is no greater than that delegated 
to it by Congress'').

The preamble in the final acknowledgment rule that was promulgated in 
1978 contains the following provision that identifies the statutes that 
purportedly delegated the Deputy Assistant Secretary of the Interior 
for Indian Affairs authority to promulgate the rule: ``AUTHORITY: 5 
U.S.C. 301; and sections 463 and 465 of the revised statutes 25 U.S.C. 
2 and 9; and 230 DM [Department of the Interior Manual] 1 and 2.'' See 
43 Fed. Reg. 39362 (1978). However, none of those statutes grants such 
authority, and the Washburn Proposal tests the question of whether the 
quasi-legislative act of promulgating the Part 83 regulations passes 
Constitutional muster.

Congress may only delegate a portion of its legislative power to the 
Executive Branch if the text of the statute delegating that authority 
sets out an ``intelligible principle to which the person or body 
authorized to [exercise the delegated authority] is directed to conform 
. . .'' J.W. Hampton, Jr. & Company v. United States, 276 U.S. 394, 409 
(1928). The U.S. Supreme Court elaborated on this standard in Yakus v. 
United States, 321 U.S. 414, 426 (1944), and stated 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 also AFL-CIO v. Am. 
Petroleum Inst., 448 U.S. 607 (1980); Whitman v. Am. Trucking Ass'ns, 
531 U.S. 457, 472 (2001); In re NSA Telecomms. Record Litig., 671 F.3d 
881 (9th Cir. 2011).
The U.S. Supreme Court invoked the nondelegation doctrine, as 
articulated in J.W. Hampton, in Panama Refining Company v. Ryan to 
strike down a provision of the National Industrial Act. 293 U.S. 388 
(1934). Section 9(c) of Title I of the National Industrial Act 
delegated authority to prohibit the transportation of petroleum and 
petroleum products in interstate and foreign commerce to the President. 
Section 9(c) stated:

        ``The President is authorized to prohibit the transportation in 
        interstate and foreign commerce of petroleum and the products 
        thereof produced or withdrawn from storage in excess of the 
        amount permitted to be produced or withdrawn from storage by 
        any State law or valid regulation or order prescribed 
        thereunder, by any board, commission, officer, or other duly 
        authorized agency of a State.''

Id. at 407.

This delegation language sets minimal limits on the President's 
authority to prohibit the transportation of petroleum products. The 
Court found that, in enacting section 9(c), Congress ``has declared no 
policy, has established no standard, has laid down no rule'' for the 
President's exercise of the legislative power that the statute 
delegated, in violation of the nondelegation doctrine. Id. at 430.

Similar to the delegation provisions at issue in Panama Refining, the 
delegation provisions that the Department is relying on to issue the 
revised Part 83 regulations, described in more detail below, do not 
contain any standards constraining the legislative powers that Congress 
purportedly conferred upon the Department. The delegation provisions 
that the Department is relying on are very broad and do not articulate 
any Congressional policy, standards, or rules that Interior must follow 
when acting under its delegated authority. Under the standards set 
forth in J.W. Hampton and Yakus, such a delegation violates the U.S. 
Constitution.

While the Federal courts have upheld broad delegations of legislative 
power that contain minimal standards and principles to guide the 
Executive Branch in exercising those powers, it is unlikely that a 
court would uphold a delegation of legislative power that contained no 
standards or principles to guide the Executive Branch. As discussed 
below, the delegation statutes that the Department is relying on as the 
basis for its authority to issue the Part 83 regulations impose no 
standards or principles to guide Interior in exercising this authority. 
As such, the unconstrained delegation of legislative power to the 
Department violates the nondelegation doctrine and the U.S. 
Constitution.
Statutory Authority Relied on By BIA for The Acknowledgment Process

As described below, the assertion that Congress intended 5 U.S.C. 
Sec. 301 and 25 U.S.C. Sec. 2 and Sec. 9 to convey to the Secretary of 
the Interior (Secretary) the legislative authority that the Indian 
Commerce Clause grants to Congress to create new federally-recognized 
tribes--i.e., tribes in a political sense--is incorrect.\2\
---------------------------------------------------------------------------
    \2\ DOI sometimes relies upon the Federally Recognized Indian Tribe 
List Act of 1994, Pub. L. 103-454, 108 Stat. 4791, as proof that it has 
delegated authority for administrative recognition. The List Act does 
not serve as a source of delegation nor does it set any standards. 
Instead, Congress simply makes a finding that ``Indian tribes presently 
may be recognized by Act of Congress: by the administrative procedures 
set forth in Part 83 of the Code of Federal Regulations; . . . or by a 
decision of a United States court.'' Pub. L. No. 103-454, Sec. 103. In 
fact, the legislative history of the List Act takes issue with the 
authority of DOI to terminate tribes, noting that Congress ``has never 
delegated that authority to the Department.'' H.R. Rep. 103-781, at 3 
(1994). Recognizing the need for Congressional delegation to terminate, 
no such act has occurred to allow for acknowledgment of tribes either. 
Even if the List Act could be interpreted to be evidence of 
Congressional acquiescence in administrative acknowledgment, such 
acquiescence would at most apply to the regulations in effect at that 
time. Because the proposed regulations deviate significantly from those 
regulations, no acquiescence would be inferred from the Act.

---------------------------------------------------------------------------
5 U.S.C. Sec. 301

The relevant provision of 5 U.S.C. Sec. 301, which Congress enacted in 
1966--see Pub. L. No. 89-554, 80 Stat. 379--provides:

        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 does not delegate authority to the 
Secretary to acknowledge new federally-recognized tribes in Congress' 
stead. In fact, this provision does not even mention Indians. And if 
Congress did intend the text to convey that legislative authority, the 
text contains ``no standards for the guidance of [Executive Branch 
action], so that it would be possible in a proper proceeding [in which 
the Secretary by final agency action creates a new federally-recognized 
tribe] to ascertain whether the will of Congress has been obeyed.'' 
Yakus, 321 U.S. at 426. If this provision could serve as a 
Constitutionally-valid source of delegation, any agency could take any 
action without regard to Congressional limitations or standards.

25 U.S.C. Sec. 2

Congress enacted 25 U.S.C. Sec. 2 182 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, in 1832, Congress 
intended that text to convey to the Commissioner of Indian Affairs 
(Commissioner) legislative authority to create new federally-recognized 
tribes in Congress' stead, on its face the text contains no standards 
that control the Commissioner's exercise of that legislative authority.

In fact, however, Congress intended no such result. The circumstances 
existing in 1832 when Congress enacted this law confirm a very 
different intent.

In 1806 Congress created the office of Superintendent of Indian Trade 
inside the War Department to manage the Indian trading posts that 
Congress had authorized the President to operate on the frontier. See 2 
Stat. 402 (1806). In 1816, President James Madison appointed Thomas 
McKenney as Superintendent. See Herman J. Viola, Thomas L. McKenney, 
Architect of America's Early Indian Policy: 1816-1830 4-5 (1974). In 
1822, Congress enacted a statute that ordered the trading posts closed. 
See 3 Stat. 683 (1822). As a consequence, Superintendent McKenney no 
longer had any statutorily mandated duties. To fill the vacuum, in 1824 
``Secretary of War [John C.] Calhoun, by his own order, and without 
special authorization from Congress, created in the War Department what 
he called the Bureau of Indian Affairs [BIA]. To head the office 
Calhoun appointed McKenney and assigned him two clerks as assistants . 
. . .'' Francis P. Prucha, American Indian Policy in the Formative 
Years: The Indian Trade and Intercourse Acts, 1790-1834 57 (1979).

Secretary Calhoun's decision to create the BIA may have been a sensible 
policy choice. But the Secretary's action was without congressional 
action. For that reason, with Secretary Calhoun's approval, in 1826 
Thomas McKenney drafted a bill that he submitted to Congress and whose 
enactment would create the BIA. Id. 58-59. In 1832, Congress enacted 
the McKenney bill as ch. 174, sec. 1, 4 Stat. 564 (1832); today, 25 
U.S.C. Sec. 2.

By 1832 the Secretary of War was distributing annually more than $1 
million in gratuities to Indians, operating 54 Indian schools, and as 
of 1830 had issued 98 licenses to traders doing business in Indian 
country. As Senator Hugh White of Tennessee, the Chairman of the 
Committee on Indian Affairs, informed his colleagues when the bill that 
would be enacted as 25 U.S.C. Sec. 2 reached the Floor of the Senate, 
``To all these different branches the personal attention of the 
Secretary of War is now required. The creation, therefore, of such an 
officer [i.e., the Commissioner of Indian Affairs] as is provided by 
the bill, be deemed to be indispensably necessary.'' See 8 Gales & 
Seaton's Register of Debates in Congress, at 988 (1832). Senator 
White's explanation in 1832 is the accurate description of the intent 
of Congress embodied in 25 U.S.C. Sec. 2, and the extraordinary power 
of acknowledging the existence of Indian tribes in a government-to-
government relationship with the United States is well outside the 
scope of that job description.

There is, therefore, no basis to conclude that, in 1832, Congress 
intended its enactment of 25 U.S.C. Sec. 2 to delegate an employee of 
the War Department with unfettered authority to decide which groups 
would be designated as federally-recognized tribes whose members 
henceforth would have a ``government-to-government'' relationship with 
the United States. That interpretation of Congress' intent stretches 
credulity past breaking.
25 U.S.C. Sec. 9

Congress enacted 25 U.S.C. Sec. 9 180 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, in 1834, Congress intended that text to convey to the 
Commissioner legislative authority to recognize new federal tribes in 
Congress' stead, on its face the text contains no standards that 
control the Commissioner's exercise of that legislative authority.

Again, however, as with 25 U.S.C. Sec. 2 and Sec. 9, Congress intended 
no such result. 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.'' It does not convey 
the authority to acknowledge Indian tribes, and it certainly does not 
prescribe any standards. Many Federal laws contain similar grants of 
rulemaking authority, but such power is conferred for purposes of 
carrying out the requirements of the contextual law, which serves as 
the standards to be applied. Section 9 has no such context, and can at 
best attach itself only to other Acts of Congress ``relating to Indian 
affairs.'' There is no Act of Congress on tribal acknowledgment; 
Congress has been silent on this subject. As a result, there are no 
standards to apply.

43 U.S.C. Sec. 1457

In 1991, AS-IA Eddie Brown published for public comment a proposed rule 
whose promulgation would revise 25 C.F.R. Part 83 (as 25 C.F.R. 54.1 et 
seq. (1978), the original acknowledgment regulations, had been 
recodified) in a number of respects. See 56 Fed. Reg. 47320 (1991). As 
authority for the proposed rule, as had been the case in 1978, the rule 
cited 5 U.S.C. Sec. 301 and 25 U.S.C. Sec. Sec. 2, 9. See id. 47324. 
However, in 1994 when AS-IA Ada Deer promulgated the final rule, see 59 
Fed. Reg. 9280 (1994), without comment or explanation, she added 43 
U.S.C. Sec. 1457 to the list of authorities. See id. 9293.

The terms of 43 U.S.C. Sec. 1457 charge the Secretary with 
responsibility for ``the supervision of public business relating to'' 
thirteen different subject areas. One of those subject areas is 
``Indians.'' That is the sum of the statute. Nothing in the text of 43 
U.S.C. Sec. 1457 delegates to the Secretary Congress' legislative 
authority to recognize new tribes under Federal law. If Congress did 
intend 43 U.S.C. Sec. 1457 to delegate the Secretary that authority, 
the text does not contain any ``intelligible principle'' for the 
exercise of that authority with which the Secretary would have a 
nondiscretionary duty to comply.

Thus, as the preceding discussion confirms, Congress has never spoken 
on the tribal acknowledgment issue; it has not extended such power to 
the Secretary, and it has not articulated any standards on principles. 
As a result, the Washburn Proposal would be in direct violation of the 
Supreme Court's delegation doctrine.

The Department itself has acknowledged this problem, as it expressed in 
1975 when the BIA's Chief of the Office of Tribal Relations informed 
the Huron Potawatomi Tribe:

        [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. Nor, even if such authority can be said 
        to exist, does the law appear clear as to the applicable 
        standards and procedures for recognition.

Letter from Leslie N. Gay, Jr., Chief, BIA Branch of Tribal Relations, 
to David Mackety, Huron Potawatomi Athens Indian Reservation (December 
18, 1975).

. . .

[O]n June 16, 1977, the Deputy Commissioner published for public 
comment a proposed rule whose promulgation would provide one year for 
Indian groups to petition the Secretary to acknowledge a group's status 
as a ``federally-recognized tribe'' and for the Commissioner to approve 
or deny a petition, subject to review of that decision by the 
Secretary. See 42 Fed. Reg. 30647 (1977). On June 1, 1978 the AS-IA 
published, again for public comment, a revised version of the proposed 
rule whose text differed from the text of the original rule in various 
respects. See 43 Fed. Reg. 23743 (1978). . .\3\
---------------------------------------------------------------------------
    \3\ In addition, the 1977 proposal required a determination that 
``the petitioning group has had the status of a federally-recognized 
Indian tribe and should continue to be dealt with as such by the United 
States.'' 42 Fed. Reg. 30647, 30648 (June 16, 1977) (emphasis added; 
proposed 25 C.F.R. Sec. 54.8(a)). . . . Without any explanation, the 
second proposed rule in 1978 fundamentally changed this premise to an 
objective of ``acknowledging the existence of those American Indian 
tribal groups which have maintained their political, ethnic and 
cultural integrity despite the absence of any formal action by the 
Federal Government to acknowledge or implement a Federal 
relationship.'' 43 Fed. Reg. at 23744 (emphasis added). The final rule 
in 1978 also did not include any explanation for this change of 
position or its legal basis.

Two months after publication of the 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 and related bills. See Federal Recognition of Indian Tribes: 
Hearing on H.R. 13733 and Similar Bills Before the Subcomm. on Indian 
Affairs and Public Lands of the House Comm. on Interior and Insular 
---------------------------------------------------------------------------
Affairs, 95th Cong. (1978).

One of the witnesses was Deputy AS-IA Rick Lavis who informed the 
subcommittee that the Department 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.'' Id. at 22. When Representative Teno Roncalio (D-
WY), the Chairman of the Subcommittee, asked, ``You feel that you can 
make recognition for the tribes without statutory requirement of 
Congress? '', Deputy Lavis answered: ``We are operating on the 
assumption that the statutory authority already exists.'' Id.

When Chairman Roncalio then asked for a ``quick citation'' of that 
statutory authority, Deputy Lavis deferred to Scott Keep, an Assistant 
Solicitor, who responded: ``Mr. Chairman, it is from a general 
interpretation of the various laws including the Passamaquoddy case . . 
. 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.'' 
Id.
. . .

Indeed, this very problem was noted as recently as the March 19, 2013 
hearing on tribal acknowledgment in the House Subcommittee on Indian 
and Alaska Native Affairs. In that hearing, Chairman Don Young (R-AK) 
asked AS-IA Washburn where the Department had received its authority to 
acknowledge tribes. He was given the same vague answer about general 
Indian responsibilities that has served as the Department's 
justification for Part 83 for 35 years.
. . .

Case Law

Over the 36 years of the Federal acknowledgment program, the courts 
have often deferred to, or made reference to, the Department's role in 
acknowledging tribes under Federal law. Very few of these cases, 
however, have involved challenges to the Department's authority to take 
such action. And, of those cases, only one weakly briefed and 
distinguishable case has addressed the delegation doctrine.

In a 2003 law review article, Solicitor's Office attorney and tribal 
acknowledgment expert Barbara Coen states, ``[t]he United States 
Constitution, Article I, Section 8, provides Congress with the power to 
regulate commerce with Indian tribes, and Congress delegated 
implementation of its statutes dealing with Indian affairs to the 
Department of the Interior. Pursuant to this statutory authority, the 
regulations governing the process were issued following notice and 
comment rulemaking under the Administrative Procedure Act (APA).'' 
Barbara N. Coen, The Role of Jurisdiction in the Quest for Sovereignty: 
Tribal Status Decision Making: A Federal Perspective on Acknowledgment, 
37 New. Eng. L. Rev. 491, 493 (2003). She asserts in a footnote that 
``[t]he Secretary of the Interior's authority to promulgate the 
regulations was upheld'' in four cited cases. Id., n.16. As discussed 
below, none of these cases confronts the delegation doctrine issue head 
on.
James v. U.S. Department of Health and Human Services, 824 F.2d 1132 
(D.C. Cir. 1987)

In this case, a faction of the Gay Head Wampanoag Tribe of 
Massachusetts brought suit against the Department seeking Federal 
recognition as a tribe. The Court rejected the tribal faction's 
petition and required it to exhaust administrative remedies provided by 
Part 83 before seeking judicial relief.

The Court acknowledged that the tribal faction was required to exhaust 
administrative remedies before seeking judicial relief ``since Congress 
has specifically authorized the Executive Branch to prescribe 
regulations concerning Indian affairs and relations.'' Id. at 1137. In 
making that statement, the Court cited 25 U.S.C. Sec. Sec. 2, 9.

The Court also reasoned that ``Congress has specifically authorized the 
Executive Branch to prescribe regulations concerning Indian affairs and 
relations. Regulations establishing procedures for federal recognition 
of Indian tribes certainly come within the area of Indian affairs and 
relations.'' Id. at 1138. The Court never addressed the delegation 
doctrine, and this statement is, at most, mere dicta because in their 
amended complaint, and in the briefing at both the District and Circuit 
Courts, the plaintiff did not challenge the validity of the 
regulations. See Attachment 5. In fact, as made clear by their reply 
brief in the Court of Appeals, the plaintiffs accepted the 1978 
regulations that defined the acknowledgment criteria; they simply 
argued ``the 1978 process was intended to apply only to tribes which 
could not show prior federal recognition.'' Reply Brief, at 4.\4\ As a 
result, the decision in James has no bearing on the question of whether 
the Secretary has the delegated power to acknowledge tribes pursuant to 
intelligible principles.
---------------------------------------------------------------------------
    \4\ Later in their brief, plaintiffs stated they ``are opposed to 
the federal acknowledgment process on limited grounds'' not because it 
lacks underlying authority but ``because they believe it does not and 
should not be applied to a tribe such as theirs which is already 
federally recognized.'' Id. at 10 (emphasis in original).

Miami Nation of Indians of Indiana, Inc. v. Babbit, 887 F. Supp. 1158 
---------------------------------------------------------------------------
(N.D. Ind. 1995)

The Miami Nation of Indians in Indiana challenged the validity of the 
1978 Federal acknowledgment regulations on the grounds that Congress 
did not delegate the authority to abrogate a treaty or terminate a 
previously recognized tribe. The Court examined whether, in 
promulgating the 1978 rules, the Department violated the limits that 
the APA places on Congressional delegations of authority to terminate 
tribes, not on whether the Department violated the limits that the 
Constitution places on such delegations of authority to grant 
acknowledgment.

Merely repeating the government's argument, the Court indicated that 
``[n]o statute explicitly authorized the Secretary of the Interior to 
promulgate regulations concerning the acknowledgment of Indian tribes'' 
and noted that ``the Secretary relied upon his general statutory 
authority contained in 25 U.S.C. Sec. Sec. 2 and 9 when promulgating 
the acknowledgment regulations.'' Id. at 1163.

The Court also stated that `[a]lthough the Miamis assert that such 
authority is ``tenuous,'' they do not contend that the Secretary is 
wholly unauthorized to promulgate any regulations concerning the 
acknowledgment of Indian tribes.' Id. at 1164. The Court cites the 
holding in James (discussed above) that upheld the Secretary's 
authority to promulgate the 1978 regulations under 25 U.S.C. 
Sec. Sec. 2, 9. The Court in Miami Nation, like the court in James, did 
not confront the legal question whether Congress delegated the 
authority to acknowledge tribes under clear standards. Attachment 6.

United Tribe of Shawnee Indians v. United States, 253 F.3d 543 (10th 
Cir. 2001)

The United Tribe of Shawnee Indians of Kansas brought action against 
the Department of the Interior and the Department of Defense seeking a 
declaration of its status as a federally-recognized tribe and a 
declaration that a constructive trust in favor of the Tribe be placed 
on certain lands.

The Court's discussion focused on whether the Tribe's suit was barred 
by sovereign immunity and whether, if it was not barred by sovereign 
immunity, the Tribe was required to exhaust all administrative remedies 
before seeking judicial relief.

In its discussion of whether the ultra vires exception to the doctrine 
of sovereign immunity applied so as to allow the Tribe's claim to go 
forward, the Court noted that the doctrine only applies where the 
government officer lacked delegated power. Id. at 548. The Court 
rejected the ultra vires exception and found that the Secretary did 
have delegated power to decide the status of Indian tribes. Id. at 549. 
The Court stated, without elaborating, that the ``BIA has been 
delegated the authority to determine whether recognized status should 
be accorded to previously unrecognized tribes.'' Id. at 549. As with 
the other cases, a claim was not made under the delegation doctrine, 
and the Court did not address the need for meaningful standards. Again, 
the plaintiff tribal group did not contest the Secretary's authority 
under Part 83; instead, it simply argued it had been previously 
recognized and did not need to comply with the acknowledgment rules. 
Attachment 7.

Kahawaiolaa v. Norton, 222 F. Supp. 2d 1213 (D. Haw. 2002)

A group of Native Hawaiians brought a claim asking the Court to declare 
the Part 83 regulations unconstitutional because the regulations 
exclude Native Hawaiians from consideration for Federal acknowledgment 
as an Indian Tribe. The plaintiffs never challenged Part 83 on 
delegation grounds. Instead, they argued racial discrimination under 
the Fifth Amendment because they were precluded from applying for 
recognition as a result of the exclusion of Hawaii in 25 C.F.R. 
Sec. 83.1. Attachment 8. The Court dismissed the Native Hawaiians' 
claim as a nonjusticiable political question.

The Court addressed the delegation issue in an overview of the Federal 
acknowledgment process but does not discuss the Constitutional issue. 
Id. at 1215. The Court's analysis in this case focused on the 
application of the political question doctrine to the Federal 
acknowledgment process, not on whether the delegation to the Department 
violated Constitutional principles.

Burt Lake Band of Ottawa and Chippewa Indians v. Norton, 217 F. Supp. 
2d 76 (D.D.C. 2002)

The Burt Lake Band of Ottawa and Chippewa Indians of Michigan brought 
suit against the Department seeking Federal recognition as a Tribe. The 
Court dismissed the Tribe's claim for failure to exhaust administrative 
remedies. In relation to the delegation issue, the Court simply stated 
that ``Congress authorized DOI and its Bureau of Indian Affairs 
(``BIA'') to regulate and manage all matters relating to Indian affairs 
under the direction of the Executive Branch . . . Pursuant to this 
delegation of authority to DOI, BIA promulgated regulations 
establishing procedures for federal recognition of Indian groups as 
Indian tribes.'' Id. at 77. The court did not address the issue of 
whether proper standards had been used for that purported delegation. 
While the plaintiff made a vague delegation argument in its complaint, 
the narrow issue was whether DOI could deny acknowledgment to a tribe 
previously recognized by Congress. Attachment 9. The question of 
whether DOI could acknowledge tribes on its own accord was not 
addressed.

Robinson v. Salazar, 885 F. Supp. 2d 1002 (E.D.Cal. 2012)

The only case to raise the delegation doctrine is Robinson v. Salazar, 
885 F.Supp. 2d 1002, 1034 (E.D. Cal. 2012). In that case, the Kawaiisu 
Tribe of the Tejon of California brought suit against the Department 
seeking Federal recognition as a Tribe, title to certain lands in 
California, and relief from other alleged violations of common and 
statutory law. The Tribe directly raised the issue of whether Congress' 
broad delegation of authority to the Department under 25 U.S.C. 
Sec. Sec. 2 and 9 violated the nondelegation doctrine. The Tribe argued 
that Congress' delegation of authority, as it relates to Interior's 
authority to issue the Part 83 regulations, violated the nondelegation 
doctrine because Congress did not give the Department clear guidelines 
to follow for determining tribal status. Id. at 1036. In rejecting the 
nondelegation argument, the Court stated:

        This Court does not find that delegation to the DOI to 
        determine tribal recognition violates the non-delegation 
        doctrine. Plaintiffs' citations to generalized legal 
        authorities are inapplicable in light of the vast statutory 
        authority before this Court and including centuries of history 
        and judicial opinions adjudicating and upholding the DOI 
        regulations. Plaintiffs generalities do not demonstrate that 
        Congress' delegation to the Executive, and thereby, the 
        promulgation of regulations by DOI, violate the non-delegation 
        doctrine.

Id. at 1037.

This decision is not dispositive of the delegation argument. It relies 
principally on James, which, as noted above, only addressed the issue 
in a gratuitous discussion not relevant to the claims in the case. 
Moreover, the issue is treated lightly in the pleadings, with a mere 
paragraph in plaintiffs third amended complaint, and a brief discussion 
in plaintiff's opposition brief, in both instances raised as an 
argument against the Federal defendant's affirmative defense that the 
Kawaiisu Tribe had failed to exhaust its administrative remedies by 
seeking acknowledgment under the Part 83 regulations. Attachment 10. 
The Court never points to the standards that it believes satisfy the 
delegation doctrine; it only assumes that they exist. The Court's 
decision suffers from the same ``generalities'' that it observed the 
plaintiff's argument suffered from.

Over many years, DOI has managed to avoid triggering a meaningful legal 
challenge to its acknowledgment program under the delegation doctrine 
because the Part 83 regulations have provided a generally accepted, 
rigorous, and objective process that has resulted in decisions that 
adhere to case law precedent and have been consistent with each other. 
While there is a clear legal infirmity in the absence of statutory 
basis for the authority to make these decisions, there has been no need 
to carry the argument forward in a legal challenge. The proposed 
regulations would, however, change all that. They would result in 
extreme results that are inconsistent with precedent. The criteria 
would be so far afield from current Part 83 standards as to illustrate 
the very problems that the delegation doctrine is designed to avoid--
Executive Branch action unfettered by controlling legal principles that 
results in wild swings in agency decisionmaking untethered by any 
guidance from Congress or the existence of enforceable standards.

. . .

                                 ______
                                 

    Mr. Young. I thank you.
    I believe my next witness is Brian Patterson.

   STATEMENT OF BRIAN PATTERSON, PRESIDENT, UNITED SOUTH AND 
       EASTERN TRIBES, INC. (USET), NASHVILLE, TENNESSEE

    Mr. Patterson. Chairman Bishop, Ranking Member Grijalva, 
Chairman Young, Ranking Member Ruiz, members of the 
subcommittee, if it is true that relationships are paramount 
and everything else is derivative, as such I look forward to 
the engagement in the dialog to follow on H.R. 3764, the Tribal 
Recognition Act.
    In addition to my duties as President of the United South 
and Eastern Tribes, I serve my people as Bear Clan 
Representative to the Oneida Nation Men's Council, a position I 
have held for over 25 years. As USET President, I am serving in 
my fifth term, representing the inter-tribal organization of 26 
federally-recognized tribal nations, from Texas to Florida, up 
to Maine--quite a wide, diverse geographic area.
    USET's mission includes ensuring each branch of the Federal 
Government works to fulfill its solemn obligations to tribal 
nations. As USET and others have previously noted, the Part 83 
Federal acknowledgment process, as administered by the Bureau 
of Indian Affairs, is vital and is essential to the fulfillment 
of the trust responsibility. It has been authorized by 
Congress, affirmed by the judicial branch, and firmly rooted in 
the U.S. Constitution.
    While there are many differences of opinion regarding the 
appropriate standards of review in the revised Part 83 process, 
there is widespread agreement within Indian country that the 
Secretary of the Interior is well positioned to recognize 
tribes on behalf of the United States.
    As such, we urge this subcommittee to consider whether the 
unique and sacred diplomatic relationship between our 
respective sovereign nations is best served by the proposed 
wholesale elimination of the executive branch recognition 
authority via H.R. 3764.
    The government-to-government relationship between tribal 
nations and the United States began at a point where each 
recognizes the sovereignty of the other. For this reason, it is 
important that the Federal Government have in place a credible, 
non-politicized, and orderly process for determining which 
tribal nations it recognizes.
    USET is deeply concerned that placing sole authority for 
recognition in the hands of Congress will unduly inject 
unrelated political considerations into this process. On this 
fundamental point, too much is at stake for the recognition 
process to be politicized.
    While Federal recognition via an Act of Congress is one way 
the Federal Government acknowledges tribal nations, it should 
not be the only way. As this body well knows, critical pieces 
of legislation, including those of a non-controversial nature, 
are sidelined or stymied with increasing frequency, due to the 
nature of the political process.
    In addition to concerns related to politics, it is 
essential to recognize that the U.S. Congress and numerous 
courts have repeatedly acknowledged the Secretary of the 
Interior's authority to extend recognition to tribal nations. 
Although Congress has properly delegated authority to the 
executive branch to make a determination regarding the Federal 
recognition of tribal nations, the executive branch also has 
independent recognition authority granted through the U.S. 
Constitution.
    The executive branch has exercised its constitutionally-
granted recognition authority in various ways. Long before 
Congress delegated recognition authority to the executive 
branch, the executive branch engaged in treaty negotiations 
with tribal nations. Although the Senate is involved in 
ratifying these treaties, the executive branch utilized its 
constitutional treaty-making authority and, therefore, the 
governmental branch responsible for treaty-making with tribal 
nations.
    The courts have found the executive branch treaty 
negotiations with tribal nations constitute Federal 
recognition. Since the era of treaty-making ended, the 
executive branch has recognized tribal nations through other 
means such as Executive orders. We urge that you reconsider 
H.R. 3764, and instead work directly with the Administration 
and tribal nations to discuss any changes that might improve 
this important process.
    More importantly, we ask the subcommittee to reconsider how 
it is determining its priorities for Indian country.
    Finally, USET believes strongly that all branches of the 
Federal Government share equally in the Federal trust 
responsibility, and oppose any effort that fails to fully 
recognize the obligations and authorities of each.
    I invite any and all members of this subcommittee to take 
the opportunity to come to our tribal nation homelands to 
discuss our priorities firsthand with us. Thank you, sir.
    [The prepared statement of Mr. Patterson follows:]
  Prepared Statement of Brian Patterson, President, United South and 
                          Eastern Tribes, Inc.
    Chairman Bishop, Ranking Member Grijalva, Chairman Young, Ranking 
Member Ruiz, members of the subcommittee: thank you for providing me 
with the opportunity to testify on H.R. 3764, the Tribal Recognition 
Act. My name is Brian Patterson. In addition to serving as Bear Clan 
Representative to the Oneida Nation Men's Council, I am serving in my 
fifth term as President of United South and Eastern Tribes, a non-
profit, inter-tribal organization representing 26 federally-recognized 
tribal nations from Texas to Florida and up to Maine. USET is dedicated 
to enhancing the development of its Member Tribal Nations, to improving 
the capabilities of these governments, and assisting USET Member Tribal 
Nations in dealing effectively with public policy issues and in serving 
the broad needs of Indian people. This includes ensuring each branch of 
the Federal Government works to fulfill solemn obligations to tribal 
nations.
    As USET and others have previously noted, the Part 83 Federal 
Acknowledgement Process, as administered by the Bureau of Indian 
Affairs, is vital to fulfillment of the trust responsibility, as well 
as authorized and upheld by Congress, the judicial branch, and the 
Constitution. While there may be differences of opinion regarding the 
appropriate standards of review in the revised Part 83 Process, there 
is overwhelming agreement within Indian country that the Secretary is 
well-positioned to recognize tribes on behalf of the United States. As 
such, we urge this subcommittee to consider whether the unique and 
sacred diplomatic relationship between our respective sovereign Nations 
is best served by the proposed wholesale elimination of executive 
branch recognition via H.R. 3764.
    I would like to note that many of USET's Member Tribal Nations' 
diplomatic relations with the United States were achieved through 
executive processes, including the Part 83 process. For those tribes 
who have gone through executive processes, there is no doubt that they 
were ``lawfully'' recognized as a matter of constitutional and 
statutory authority; just as importantly, the process in USET's 
experience assured that those that were recognized were justifiably 
recognized as a matter of history and moral right.
    The government-to-government relationship between tribal nations 
and the United States begins at the point where each recognizes the 
sovereignty of the other. For this reason it is important that the 
Federal Government have in place a credible, non-politicized process 
for determining which tribal nations it recognizes. Executive 
recognition provides an orderly process, administered by experts, such 
as ethno-historians, genealogists, anthropologists, and other technical 
staff, that is insulated from political considerations unrelated to the 
historic legitimacy of a tribal nation. USET is deeply concerned that 
placing sole authority for recognition in the hands of Congress will 
unduly inject unrelated political considerations into a process that is 
at the heart of the Federal trust responsibility.
    While Federal recognition via Act of Congress is one way the 
Federal Government acknowledges tribal nations, it should not be the 
only way. As this body well knows, critical pieces of legislation, 
including those of a non-controversial nature, are sidelined or 
stymied, with increasing frequency, due to the mercurial nature of the 
political process. A common criticism of Part 83 is the length of time 
associated with receiving a decision. While H.R. 3764 does include 
deadlines for recommendations from the Secretary of the Interior, it 
places no deadline on the introduction of corresponding legislation, 
should Congress agree with the Secretary's positive determination. 
Moreover, even if the legislation were to prescribe a timeline, there 
is virtually no way to assure that a Federal recognition bill would not 
languish in Congress for months, years, or even indefinitely for 
reasons unrelated to the merits of a tribe's request for Federal 
recognition.
    In addition to concerns related to the political process, it is 
essential to recognize that the U.S. Congress and numerous courts have 
repeatedly acknowledged the Secretary of the Interior's authority to 
extend recognition to tribal nations. This spring, USET, along with 
eight other tribal nations and tribal nation organizations, submitted 
testimony for the record of the hearing of April 22 to this 
subcommittee providing legal validation and support for the Secretary's 
authority to acknowledge tribal nations. As the testimony notes, 
Congress has properly delegated authority to the executive branch to 
recognize tribal nations through 25 U.S.C. Sec. 2, 25 U.S.C. Sec. 9, 
and 43 U.S.C. Sec. 1457. Like Congress' constitutional grant of 
recognition authority through the Indian Commerce Clause, the statutes 
delegating recognition authority to the executive branch do so in broad 
terms. Many courts have recognized Congress' proper delegation of 
recognition authority through these broad statutes. Congress, when it 
enacted the 1994 Federally Recognized Indian Tribe List Act, reiterated 
its past delegation of recognition authority to the executive branch.
    There are currently 566 federally-recognized tribal nations 
included on the list the Department of the Interior maintains at the 
direction of Congress. Congress has authority to initiate a government-
to-government relationship, but most Tribal Nations did not receive 
Federal recognition in this manner. Instead, many tribal nations 
received Federal recognition via the executive branch. The standards 
the executive branch uses for determining whether an entity possesses 
sovereign tribal government status for purposes of Federal law grew out 
of case law, drawing from cases that articulate where tribal nations' 
inherent sovereignty originated, how they maintained that sovereignty 
over time, and what their political governing structure must entail.
    Although Congress has properly delegated authority to the executive 
branch to make a determination regarding the Federal recognition of 
tribal nations, the executive branch also has independent recognition 
authority granted by the Constitution. The Constitution grants the 
executive branch authority to undertake diplomatic and administrative 
actions consistent with Federal recognition. This authority is most 
clearly granted through the Constitution's Treaty Clause. The 
Constitution also grants the executive branch the authority to receive 
and provide ambassadors.
    The executive branch has exercised its congressionally-granted 
recognition authority in various ways. Long before Congress delegated 
recognition authority to the executive branch, and even before the 
United States was formed, the executive branch engaged in treaty 
negotiations with tribal nations. President George Washington entered 
into and then worked with the Senate to ratify the first treaties in 
1789, thereby establishing that treaties with tribal nations would 
utilize the same process treaties with foreign nations must go through. 
Before the treaty-making era ended in 1871, most tribal nations had 
entered into a treaty with the United States. Although the Senate was 
involved in ratifying these treaties, the executive branch utilized its 
constitutional treaty-making authority and was therefore the 
governmental branch responsible for treaty-making with tribal nations.
    Courts have found that the executive branch's treaty negotiations 
with Tribal Nations constitute Federal recognition. The Department of 
the Interior in making determinations regarding whether a tribal nation 
is federally recognized has also treated treaty negotiations as 
indicative of Federal recognition. Also evidencing Federal recognition, 
and often resulting from treaties, is a Federal reservation created for 
a tribal nation. In fact, in defining ``tribe'' in the Indian 
Reorganization Act, Congress acknowledged that ``Indians residing on 
one reservation'' possess sovereign tribal government status.
    Since the treaty-making era ended, the executive branch has legally 
federally-recognized tribal nations through other means. For example, 
the executive branch replaced treaties with Executive orders 
immediately after treaty-making ended. When Congress enacted the Indian 
Reorganization Act in 1934, the Department of the Interior conducted 
sovereign tribal government status examinations to determine which 
Tribal entities were eligible for benefits under the Act, thus 
resulting in their recognition. In 1978, the Department of the Interior 
promulgated the Federal recognition regulations in order to create a 
more consistent process for Federal recognition, and it published its 
first comprehensive list of federally-recognized tribal nations in 
1979.
    As USET has discussed in testimony submitted for the record of the 
October 28 hearing, if Congress now attempts to restrict the executive 
branch's recognition authority through H.R. 3764, that legislation 
would likely be deemed unconstitutional. We urge that you reconsider 
H.R. 3764 and instead work directly with Tribal Nations to address any 
changes that Congress might appropriately adopt to improve this 
important process. USET believes strongly that all branches of 
government share equally in the Federal trust responsibility and 
opposes any effort that fails to fully recognize the obligations and 
authorities of each. We welcome the opportunity for tribal nations and 
tribal nation organizations to work with this subcommittee and Chairman 
Bishop to address and improve the Federal Acknowledgement Process so 
that it better reflects our country's commitment to a government-to-
government relationship with tribal nations, including as they are 
recognized.

                                 ______
                                 

    Mr. Young. I thank the witnesses for the testimony.
    Mr. Ruiz.
    Dr. Ruiz. Thank you very much. This question is for both 
Chairman Martin and President Patterson.
    First, thank you for your thoughtful testimonies. I 
appreciate your deep commitment to upholding the integrity of 
the government-to-government relationships between the United 
States and federally-recognized tribes, one that we share. This 
question is for the both of you.
    I am concerned that this bill does little to improve 
transparency or consistency in the Federal recognition process. 
As you both noted in your testimony, this bill provides really 
no timeline for Congress to act on the Assistant Secretary's 
recommendation. Given this fact, many petitioning groups may 
choose to forego providing their ability to meet the rigorous 
set of standards in place at the Department of the Interior, 
and instead go directly to the Chair of the Natural Resources 
Committee.
    By eliminating the ability for petitioning groups to gain 
recognition through the Department of the Interior, do you 
think petitioning groups might be encouraged to skip the costly 
Part 83 process altogether? President Patterson?
    Mr. Patterson. I think Indian country has become well 
versed in a process that is not of our own. When we entered 
into the unique trust relationship with this country, we vested 
ourselves into a process that governs this relationship.
    I think as Part 83 moves forward, USET has no comments on 
the revisions that are offered. However, we do realize the 
strength of the process. We do realize that the effect of 
recognition should take place in an orderly process that is 
across the Federal Government.
    Dr. Ruiz. So, if the Secretary does not have the authority 
to recognize tribes, do you think tribes would bypass the 
rigorous system through the Department of the Interior and 
instead go through the Congress?
    Mr. Patterson. I think that the executive branch should 
have authority to recognize tribes through an orderly process.
    Perhaps I am not clearly understanding the issue, or----
    Dr. Ruiz. The issue is this. Let's say a tribe that is--or 
a group that legitimately can be a tribe has to go through the 
cost, the time, the rigorous loopholes that we want the 
Administration and groups to go through in order to be 
recognized. When they look at the path of least resistance, and 
can easily go to a Member of Congress that has affinity with 
that tribe, would they forego that rigorous process of 
transparency, and rather, go through the political process?
    Mr. Patterson. When tribal nations seek recognition and 
acknowledgment through the Federal Government, namely with the 
executive branch, there is a process of criteria that needs to 
be maintained and met; and I think that any other comparative 
process should meet a basic requirement.
    Dr. Ruiz. So if it does not, and there is a path of least 
resistance, it seems like the tribes would choose to go to the 
path of least resistance.
    Mr. Patterson. Ranking Member Ruiz, Indian country should 
not be subjected to the political whims----
    Dr. Ruiz. OK. So this question is for the both of you, as 
well.
    This bill has the potential to allow one vocal constituent 
from the Chairman of the Natural Resources Committee to 
convince the Chairman to only allow recognition bills to be 
heard in the committee if they include a provision that 
restricts the petitioning group's ability to game, have land 
taken into trust, or even their inherent sovereign immunity. By 
housing the power to recognize tribes solely within Congress, I 
believe that this bill injects even more unrelated politics 
into a process that the both of you acknowledge as too 
political to begin with. We have already seen this with most 
tribal recognition legislation considered here in Congress 
requiring a gaming prohibition in order to advance.
    Given these political realities, how does eliminating the 
Secretary of the Interior's authority to recognize tribes 
prevent the creation of two classes of Indian tribes?
    Mr. Martin. Thank you. I think we look at this differently. 
What I think there would be is--a more likely scenario is that 
Congress would be waiting for the Department to have their 
analytical design or process to bring forward. And then I think 
that the process that we would support, and have--I maintain in 
all of my testimony--is the rigor. We do not want to see any 
diminishing of that process.
    Dr. Ruiz. So, it seems if we go back to the Part 83 and 
keep the rigor in, that you would be OK with the Department of 
the Interior using that rigor as criteria consistently with all 
tribes?
    Mr. Martin. Well, we have a problem with the Department of 
the Interior and some of the actions they have taken recently 
with gaming, with reaffirmation. Tribes or tribal groups that 
have not passed the seven standards, and then they are asked to 
come back, that is a problem that the Morongo has. So, that 
would be our position.
    Dr. Ruiz. OK.
    Mr. Young. Time is up. Which one of you want to go first?
    Dr. Benishek. Well----
    Mr. Young. OK, Doc, go ahead. That is fine.
    Dr. Benishek. Thanks, gentlemen. Chairman Martin, can you 
talk to me about the need for an appeals process in case a 
potentially-valid tribal petition has been rejected?
    Mr. Martin. I am sorry, I don't understand.
    Dr. Benishek. Apparently, there is not much of an appeals 
process if the potentially-valid petition has been rejected. Do 
you think that is important, to have an appeal process?
    Mr. Martin. There is a standard that has to be met. If they 
cannot meet the standard, then I think they are turned down. 
And, of course, I was talking about another group that did 
that, and they were re-invited back to petition again for 
instatement, I guess, is the word I am trying to find.
    So I am not sure the appeal process----
    Dr. Benishek. Well, I am just considering what if a 
technical error in the application, or something like that, 
when they really have a valid claim, but there has been some 
kind of a technical error in the application process, and they 
fail because of that, is there no opportunity for correction of 
that?
    Mr. Martin. For correction of that? There should be. 
Another important thing, I think, is that these should be 
handled in a timely manner. I have heard of applications going 
20 years. That is just outrageous. They should be handled in a 
timely manner, so these groups can go forward with what they 
are doing.
    Dr. Benishek. All right, thanks. That is all I have. Thank 
you, Mr. Chairman.
    Mr. Young. You are up.
    Mr. Grijalva. Thank you, Mr. Chairman.
    Mr. Reyes, in your testimony you indicated--I am going to 
summarize it, and if I do it incorrectly, I apologize--that the 
state should have--in this case, Utah--a bigger say in a 
recognition process, given collateral situations, i.e., loss of 
tax revenue, potential gaming, et cetera that a recognized 
tribe would undertake.
    Mr. Reyes. I think that is a fair summary.
    Mr. Grijalva. OK, thank you. Would you say that that same 
concept, legal-wise, would apply to land taken into trust for a 
tribe?
    Mr. Reyes. Could you elaborate? In what way are you 
talking?
    Mr. Grijalva. Well, that is a Department issue now.
    Mr. Reyes. Correct.
    Mr. Grijalva. They go through that process. Let's say tribe 
land taken into trust, it could have the same collateral 
situations that you brought up, relative to recognition. Do you 
see this concept extending?
    Mr. Reyes. Not necessarily, no. I think recognition is a 
unique issue unto itself, and there are a number of collateral 
issues. So, no, my testimony was not geared toward issues 
beyond recognition, sir.
    Mr. Grijalva. Thank you.
    Chairman Martin, let me get to the point, and I appreciate 
your testimony very much. And the question would apply to 
President Patterson, as well. In the legislation, there are two 
things--two points that you made. One, the rigorous process 
that Interior would take in this recognition process, problems 
aside that you might have presently with the Administration of 
the Interior, or the Deputy Secretary, that aside, that that 
rigorous process would be undertaken, and that, as a 
consequence, that would become the template in which Congress 
would then make a final decision as to recognition or not. That 
would become then Congress' sole--the sole authority would be 
with Congress, based on the criteria, a rigorous, transparent 
criteria.
    If that situation does not exist in the legislation, that 
there is no path forward, how would you react to that, if that 
rigorous process was not the template, that it would be 
primarily Congress' sole authority to recognize or not?
    Mr. Martin. I think what we would like to see is a blended 
type of process that these groups would go through, and that is 
the Department and Congress, as well. You know, I am going to 
keep going back to----
    Mr. Grijalva. Well, as the bill is written--Mr. Chairman, 
with all due respect--even all the historical, factual work 
that Interior might do through a rigorous process on behalf of 
a tribal petition, there is no path forward in the legislation, 
no time frame, no up or down vote required, nothing. The issue 
could languish there, as you complain, the 20-year languishing, 
which--you are correct, that is too long--would be the 
discretion of an authority of Congress whenever they dealt 
with, regardless of the process. Don't you think that needs to 
be part of the legislation?
    Mr. Martin. Well, I think there is a lot that needs to be 
part of the legislation, and that could just be one of them.
    Mr. Grijalva. OK, thank you.
    Mr. Patterson?
    Mr. Patterson. I think oftentimes Federal Indian policy and 
legislation are not shaped in a manner that is most pro-
sovereign. Indian country is part of a process, a system, where 
we lack the most--we lacked a role in mandatory consent. 
However, at the end of the day, Indian country must trust the 
system, a system that fulfills in a manner that is fair, 
equitable, and consistent.
    Does USET believe that Part 83 should be the sole venue? 
While we may err in preference for use of the Part 83 process, 
we do not take the position that it should be the sole avenue 
for recognition. In fact, you, as Congress, currently have the 
authority to recognize----
    Mr. Grijalva. Yes.
    Mr. Patterson [continuing]. Tribal nations, should you 
desire. And, in fact, as recently----
    Mr. Grijalva. Independent of Interior.
    Mr. Patterson. Yes, yes. What I have heard my tribal 
leaders speak of is the due process which--the Administration 
process would include experts such as ethno-historians, 
genealogists, anthropologists, other technical staff to help it 
come to a determination.
    Mr. Grijalva. Thank you, Mr. Chairman.
    Mr. Young. Thank you.
    Mr. Bishop. Yes, first of all, let me thank all of you for 
being here. I do appreciate your time and effort to be here.
    Mr. Reyes, I would like to have introduced you as a 
constituent, but you are not. I am a constituent of yours, so 
you control me. I do have a couple of questions for you, Sean, 
if I could start off with that.
    One of the other panel witnesses here has written in his 
testimony that if Congress attempts to restrict the executive 
branch's recognition authority, it would likely be deemed 
unconstitutional. All right, you are the top attorney from the 
state. Do you have concerns about the constitutionality of the 
proposed legislation?
    Mr. Reyes. No, sir. I do not. I think clear constitutional 
precedent is delegated power, and well within the purview. And 
the Supreme Court has interpreted very clearly, in no uncertain 
terms, that Congress has plenary power, in terms of its 
relations with the Indian tribes. So, I do not have any 
constitutional concerns.
    Mr. Bishop. OK, thank you. Let me go on with that. You also 
said that tribal recognition has collateral consequences that 
carries, which is one of the reasons Congress should be in a 
better situation to do that, ``where the several states''--I am 
quoting from you--``have direct representation to debate and 
decide such matters, rather than the executive agency, where 
the several states do not.'' Can you elaborate on that 
particular point?
    Mr. Reyes. Sure. Let me say, first of all, from the 
perspective of my colleagues, the other attorneys general that 
I work with, the states have a--how should I say it?--a 
cautious view of all Federal bodies, given some of the Tenth 
Amendment tensions that we encounter. But choosing between an 
unaccountable subsidiary of the executive branch versus a body 
like Congress, that has direct accountability to the citizens 
of the states, I think the choice for us is the latter.
    Again, we believe that----
    Mr. Bishop. So what you are saying is the DOI, BIA have not 
only the ability to ignore local governments, they have a 
propensity to do that?
    Mr. Reyes. That has been our experience in the past. And we 
have more trust in this body, again, in terms of our 
experiences with a number of different issues.
    Let me, if I could, clarify something, Mr. Chairman, 
because I think Congressman Grijalva asked an important 
question, and maybe I was not understanding it correctly 
immediately, and maybe I misspoke. In part to his question 
would this extend, for instance, to transfer tribal lands into 
trust, I think it would affect that in one sense, that the 
predicate to any of those issues is recognition, to begin with.
    So, if our premise is that recognition is best decided by 
Congress, then I guess it would follow that, subsequently, any 
other issues that stem from recognition would be subject to the 
same analysis.
    Mr. Bishop. OK, Sean. One thing you have to learn in this 
place is to answer his questions on his time, not my time.
    Mr. Reyes. Oh, I apologize.
    Mr. Grijalva. But it was a good answer. Thank you, Mr. 
Chairman.
    Mr. Bishop. He will ask the dumb questions all the time. I 
appreciate that. But let's----
    Mr. Reyes. It is the lawyer in me. I have to just----
    Mr. Bishop. Yes or no, do you feel comfortable that the 
other states' attorneys general, both parties, would feel 
comfortable with your recognition of where the role of 
federalism plays?
    Mr. Reyes. I have consulted with attorneys general from 
both parties, but I do not want to say that I represent every 
single attorney general here. I am not in a representative 
capacity.
    Mr. Bishop. That is good enough.
    Chairman Martin--there will be another round; I will get to 
the rest of you here down the row. I know you do not speak for 
all of Indian country. BIA claims they do, but no one speaks 
for all of Indian country. But can you characterize what you 
have heard from other tribal leaders who follow this 
recognition issue on the new Part 83? I mean is it fair to say 
tribal leaders want the procedures fixed, they do not want the 
criteria to be relaxed?
    Mr. Martin. I think that is fair to say. I have not spoken 
with all tribal leaders in California, but there has been some 
conversation. And to almost every one that I have talked to, 
they do not want to see it relaxed at all, any more than I 
would.
    Mr. Bishop. See, one tribal leader sat in my office one 
time and said, ``I don't care what the game I have to play is, 
I just want to know what the ball looks like.''
    Mr. Martin. Yes.
    Mr. Bishop. That is the purpose of what we are trying to do 
here. When all of you were talking about how the process and 
the procedures are important, that is why it has to be spelled 
out, so it cannot be changed.
    One of the problems we have in Part 83 is not only has the 
Department established that, they have given themselves the 
power to waive that when they want to, which means no one knows 
what the ball looks like. That is what we are aiming at here. 
Contrary to a lot of things that are said about it, we want a 
firm process, a process that will go through it.
    Mr. Chairman, I do have other questions for the rest of the 
panel here, but I only have 7 seconds to do it, so I will wait 
until I get another shot at this. I yield back.
    Mr. Young. Mr. Sablan.
    Mr. Sablan. Thank you very much. Good morning, everyone, 
and thank you, Mr. Chairman, for holding this hearing.
    I must say that this is all new to me. While I do know of 
some individuals back in the Northern Marianas who tell me that 
they are part of a particular Indian tribe, Indian nation, 
there is no recognized tribe in the--but my selfish reason for 
trying to understand this relationship is--do you see those 
five flags up there, well, four of those flags are territories 
and a commonwealth that is managed or administered, in part, by 
the Department of the Interior, an office within Interior.
    In my 7 years in Congress, I have learned that appointed 
officials and bureaucrats have taken it upon themselves that 
they know better what is good for the people of my district, 
for example, than their elected representative, and that the 
board that Mr. Patterson mentioned--mandatory consent? I mean I 
think an election gives consent of the people to whoever they 
choose to represent their interests in Congress and, from 
Congress, the Federal Government.
    But then we have appointed officials who think that they 
know better what is good for, I know in my case, the Northern 
Marianas. I am trying to learn here if that is the same 
relationship that Indian countries and Indian tribes are having 
with the Department of the Interior. If it is similar to what 
we are experiencing right now, then you guys have big problems 
on your hands, because I know I do.
    The Office of--that is supposed to be our chief advocate, 
is consulted by almost everyone throughout the Federal 
Government, executive branch, and only--for those agencies to 
come up with decisions that we find to be really--you know, we 
read about them in the papers. So why are we here, when--and it 
is unfortunate. It does not bring progress, it does not move us 
forward. It creates division and it creates, many times, a 
suspicion of what the Federal Government is doing to the 
territories.
    So, I am trying to learn if there are similar processes 
that the Indian countries or Indian tribes are going through 
that we are going through also in having an office that is 
responsible to be the chief advocate of the territories, when 
they are not.
    Thank you, Mr. Chairman. Thank you for this hearing.
    Mr. Young. Thank you.
    Mr. LaMalfa.
    Mr. LaMalfa. Thank you, Mr. Chairman. Of course, for 
tribes, this is probably the single most important issue in the 
recognition for already recognized tribes, or the effect that 
new recognitions may or may not have on existing ones and their 
way of doing business. So, indeed, if there had been a more 
consistent handling of this, I think, from the BIA and through 
the Administration, then we probably would not be having this 
bill, or a need for a bill like this today.
    There is a lot of frustration with timelines. One of the 
panelists talked about 20 years waiting to hear back. So, 
indeed, groups that have valid cases for recognition might hear 
immediately, they might not ever hear back from the BIA. So, 
consistency is part of what is needed here. And Assistant 
Secretary Washburn, in a previous hearing, said he intends to 
continue to allow previously-denied tribes a chance to apply 
and apply again. It kind of gets to the point of what are 
really the rules here.
    Again, I am disappointed that some of the talk in this and 
previous hearings is like it is all politicized--because of 
Congress, who has the most accountability in the House of 
Representatives, we stand in front of the American people every 
2 years in our districts, and have accountability. So, if 
people want to say that the Constitution and having duly 
elected officials making the laws through the constitutional 
process is too politicized, then I guess that is giving up on 
the American way of doing things.
    I would be shocked, Mr. Chairman, shocked to hear that 
politics would be coming out of the Administration or the BIA. 
So, I think we ought to lay that aside, and see what is the 
best policy here, is that consulting with the BIA, and the 
vetting they do--the House can make good decisions here.
    So, Chairman Martin, welcome. You had alluded in your 
testimony earlier concerns you had that, indeed, with the 
existing standards for recognition, that they are moving the 
goal post, so to speak, on that re-petition of application over 
and over again, that under new or lesser, laxer standards, the 
BIA could be giving more recognition out under standards that 
were not consistent with before. You mentioned that.
    So, can you talk about how you feel that would affect 
Indian country, in general, or your tribe, specifically, if you 
wish?
    Mr. Martin. Well, I do not like to use so much the term 
``dumbing down,'' but if the standards are dumbed down in any 
way, I do not think that looks good for the tribes and our 
ancestors, when they were originally set on these reservations 
throughout the country, and they had to go through a strict--
maybe sometimes forced on them--application or process that 
they became a reservation.
    The tribes were governments before first contact with the 
Europeans. We had trade, we had commerce, and they lived very 
well within that. I think now if you take and try to change 
those standards that have been in place for all these years, it 
does not take into consideration all the things that these 
tribes have gone through over the years.
    Now, to change that, make it easier for a tribal group to 
get recognized--and I mean that respectfully--I am sure there 
are groups that should be recognized, but a tribal group that 
has not been recognized since 1900 or 1934 is relatively close 
to today. And, 1789 I know is a date that seems to be talked 
about, but we pre-dated that, as well.
    Mr. LaMalfa. Mr. Chairman, under previous recognitions or 
re-recognitions, much documentation was required, and over a 
long period of time for tribes to come up with some of this 
documentation.
    Now, again, my understanding of the newer way of doing 
things is that there be much larger gaps in the documentation 
filled in by I don't know what. Do you want to comment on that?
    Mr. Martin. Well, yes. The whole process that seems to be 
where we are at is--Morongo would be opposed to. Any of these 
things, again, that dumbs it down, we are going to oppose.
    Mr. LaMalfa. Yes. So a previous set of rules, more 
stringent than the newer set, is really not fair to the ones 
that went through the right way, is it?
    OK, Mr. Chairman, I will yield back. Thank you.
    Mr. Young. Mr. Denham.
    Mr. Denham. No questions.
    Dr. Ruiz. Yes, yes. So my understanding here is that the 
old process was broken. Throughout the years, Congress, through 
numerous hearings, complained and urged the Administration 
throughout different administrations to fix that process. So 
the Administration currently created a new process. There are 
some legitimate concerns about perhaps consistency, 
reaffirmation, second chances, weakening some of the processes.
    However, this bill takes that old process and puts it 
solely as a recommendation, but does not require any of these 
characteristics to be fulfilled in order to be federally 
recognized, just like Congress has the full authority to 
recognize tribes, and ultimately can recognize any tribe they 
want to since the beginning of our Constitution.
    So now, in terms of the policy, how will this bill create 
consistency, when there are newly elected folks every 2 years? 
How will this bill create transparency, when those 
conversations are done between staff and tribes and non-tribal 
members weighing in on whether tribes should be recognized or 
not? And how does this bill promote an evidence-based, 
scientific framework or process in which decisions are based on 
that are required to be based on those?
    Can anybody elaborate how this bill will actually improve 
consistency, transparency, scientific-based decisions?
    Mr. Mullane. I am going to make a strange comment. I do not 
think the old system was broken. It was not administered 
correctly, and I will point out how.
    One, BIA was understaffed and under budget. A person would 
submit a letter of intent, and not submit a completed 
application, and wait 20 years, complain about it, and hope 
some miracle would happen.
    I am of the opinion that you need what the old system had--
it was a process--due process, as I called it, balance and 
checks--and that means somebody submits a letter of intent, an 
application, fills out the application, BIA goes and reviews 
it.
    In addition to what has been talked about, I would like 
also third parties, interested parties, to be reinstated so 
they get involved with the process as it goes along, and not 
have an end comment that, at that point in time, cannot be 
followed. Then----
    Dr. Ruiz. So my understanding here is--because this 
discussion is going back to what we would like to see changed, 
but----
    Mr. Mullane. No, I am--yes.
    Dr. Ruiz. But----
    Mr. Mullane. I am saying that I support this bill. I 
support it with the type of comments that I am making.
    Dr. Ruiz. But so far, this bill, in and of itself, does not 
provide more transparency, consistency, or scientific-based 
decisionmaking, the way it is written.
    So, my question would be, if we would go back to the old 
process and make some modifications that do not weaken the 
system, that creates a firm codified process of criteria to be 
recognized----
    Mr. Mullane. In law.
    Dr. Ruiz. And let's say the personal relationships with the 
current administrations are gone, we have a whole new era, a 
whole new time, a whole new decade----
    Mr. Mullane. You know----
    Dr. Ruiz. If we codify those decisionmaking, scientific-
based criteria that will remain throughout the years, and 
create consistency with transparency, would that be an option?
    Mr. Mullane. That is what I am getting at.
    Dr. Ruiz. So, yes.
    Mr. Mullane. I feel that the old criteria, which had 
interested parties, which did have an appeals board, and did 
allow people to get involved as they went along--but again, 
the----
    Dr. Ruiz. So it sounds like we actually have a third way. 
We actually have a path that we can move forward to find a 
solution that will meet both the tribes' interests and also the 
Chairman of the Natural Resources Committee's and this 
subcommittee's interests, as well, which is--instead of 
completely eliminating the Secretary of the Interior from 
recognizing tribes, let's go back, change the Part 83 process, 
codify through law the rigorous, scientific-based criteria, so 
that there is no other choice from the Department of the 
Interior for recognizing tribes, other than that criteria.
    Mr. Mullane. But that leaves all the responsibility, 
interpretation, and application with one party. That is why 
Congress should be involved to ratify what the BIA 
acknowledgment technical group researches, finds, and 
recommends, and still have the Interior appeals available, in 
case somebody at the point in time when you say, ``We have made 
a decision''--interested parties or others could say, ``No, I 
want this looked at again.'' Right now, if you leave it all in 
one house, you are not going to fix the problem. And my 
testimony clearly stated that.
    Now, if you take and eliminate the BIA----
    Dr. Ruiz. So----
    Mr. Mullane [continuing]. Which----
    Dr. Ruiz. In terms of your----
    Mr. Young. Time is up right now.
    Dr. Ruiz. Thank you very much.
    Mr. Mullane. I am sorry.
    Dr. Ruiz. That is OK.
    Mr. Young. Mr. Gosar.
    Dr. Gosar. Sorry about jumping in here. We have three 
different hearings at the same time. Mr. Mullane, you said in 
your testimony that your town participates in the 
acknowledgment process run by the Department of the Interior 
under Part 83, both in the review of petitions and the recent 
rulemaking--you touched on it, but can you quickly elaborate on 
what your experience was during this process, and what 
recommendations you have to improve the tribal recognition 
process? I know you highlighted a little bit here, but I wanted 
to give you a little more time.
    Mr. Mullane. OK. One, you have to properly staff BIA, and 
you have to give them the budget. There has to be a timeline 
given when the person sends a letter of intent, that he submits 
an application, and then the clock starts running, and not wait 
20 years and play politics or try to get it passed.
    This criteria that you presently have and enforce is weaker 
than the old one, or this one that we are looking at here. You 
should not relax it at all. You should not limit the third 
party or interested parties, and they should be allowed to be 
involved as they go on. As in my case, we had substantial 
information and research available to contribute that the 
tribes or BIA were not paying attention to.
    The petitioners do, under the existing--not in the old, but 
somewhat on this--have an advantage. Those that have been 
rejected should not be allowed to reapply. They failed.
    The benefit of factual findings by BIA, the appeals 
process, and Congress to ratify is a due process that means 
nobody is going to have all the power. If you leave the 
research BIA group alone, they have proven they have done their 
job, they can do it.
    You should not have a time limit of approval if it is a 
real hardship, and the tribe just does not have the 
information, or it is incorrect, or whatever. At some point in 
time there has to be a determination. You submitted a letter of 
intent. You cannot comply with the application, you've got a 
warning, then you are rejected, and you are off the list. Go to 
somebody else.
    Some of these people have been on there, like the Paucatuck 
Eastern and Eastern Pequots. They complained, ``We have been on 
there 25 years.'' They never completed the application. So it 
was a false complaint.
    Congress, from what I have heard and been told and read, 
has not delegated the authority. They should be the final one 
that has the say that ratifies what BIA has recommended, unless 
there is a flaw in their process or other information that has 
come up. But if it goes through a proper process and sequence, 
and there is no political meddling, those things will be few 
and far between.
    I think that this bill, with a few modifications, with BIA 
doing their share, appeals courts being available, interested 
parties being involved, and the transparency of that--i.e. 
anything that comes in gets distributed to your Web site, put 
up there so everybody knows who is doing what, where, and how.
    And unless you have a balance system--in my town, I am a 
selectman, I do something. I have to go to the board of 
finance, and then I have to go to the town meeting, and I have 
to get an affirmative vote. That is a balance and check. The 
old system did not have the balance and checks. The one that 
Mr. Washburn put forward does not have the balance and checks, 
eliminates the interested parties, eliminates the appeals 
process, and it is doomed for failure.
    Dr. Gosar. Let me ask you a quick question. Do you think 
the Secretary of the Interior has the legal authority to 
acknowledge Indian tribes? Point blank, yes or no?
    Mr. Mullane. No, they do not have the authority to 
recognize----
    Dr. Gosar. Attorney General Reyes, great to see you. Are 
you aware of any U.S. Supreme Court ruling, or bills passed 
into law, that prompted the issuance of this new Part 83 rule?
    Mr. Mullane. Say that again, sir, I----
    Dr. Gosar. No, I am asking the Attorney General from Utah.
    Mr. Reyes. I am not, sir.
    Dr. Gosar. What is that?
    Mr. Reyes. I am not familiar with----
    Dr. Gosar. And you have done extensive findings throughout 
and up currently?
    Mr. Reyes. That is correct. Our office, and other offices, 
in preparation for this.
    Dr. Gosar. You find that very unusual?
    Mr. Reyes. I do. I do not know what would have spurred 
that, other than, again, perhaps political interests.
    Dr. Gosar. Well, maybe it is because we have also had 
comments about the treaty application in the United States and 
other findings, that you cannot pass something to Congress, so 
we will just bypass Congress. That seems like that is the M.O. 
of this Administration.
    Mr. Reyes. That has been an overarching concern of ours in 
a general sense, sir, yes.
    Dr. Gosar. I thank the gentleman, yield back.
    Mr. Young. Mr. Chairman?
    Mr. Grijalva. Thank you very much, Mr. Chairman.
    Again, President Patterson, the factors in a rigorous 
process for recognition: science, fact, history, genealogy, and 
proof toward that end before recognition can occur, and we have 
also heard about collateral consequences at this hearing. I am 
assuming those can be everything from a revenue issue, non-
tribal opposition, not in my county, not near my town, 
opposition, opposition to gaming.
    The non-collaterals then begin to carry significant weight 
in the discussion about recognition, as I see it, because the 
process then becomes totally political in the sense that 
Members of Congress--a Senator could put something on hold for 
eternity, as we have seen. A hearing could not be scheduled, as 
we have seen. There is no time sequence to the legislation, 
there is no due date on when a decision would be made.
    Tell me how those two forces, the collateral consequence 
versus the process that Rule 83 and the changes that have been 
made, are trying to address, and how do you see that?
    Mr. Patterson. As sovereign governments, our relationship 
with the United States depends on a certainty within the 
process that is used to govern our relationship. I would say 
making Congress solely responsible for the recognition of that 
relationship subjects the sacred bond and the sacredness of the 
trust responsibility to the whims and instability within the 2-
year elective cycles.
    I further acknowledge and extend, as our Federal partner, 
you are obligated to fulfill the sacred duty, as elected 
representatives from your state, and we acknowledge and 
recognize your role within state rights and interests. However, 
when you swear your oath of office, as Representative Cole 
recently reminded Congress, that the U.S. Constitution--you are 
swearing your oath to tribal sovereignty, to uphold and protect 
it.
    USET is not opposed to improving a process. We are not--
look, I live in New York State. And within the tribal nations 
that have inhabited the land since time immemorial, we have had 
many, many issues that come within our local communities, 
within local governments, state governments, as well as Federal 
Government. We know that there are three sovereigns within this 
land, and we must find ways to work together.
    In fact, there are many, many examples that demonstrate 
abilities to reach agreement with other governments. My nation 
in New York State recently came into a historic agreement which 
resolved all the differences within the local governments, the 
local communities, the counties, and the state.
    However, it is the unique trust relationship that exists 
between the United States and our respective tribal nations. 
And states are not necessarily concerned with promoting or 
protecting our inherent sovereign authority. So, we look to 
this body to fulfill your duty and your sacred oath of office.
    Mr. Grijalva. That is the mission creep that worries me as 
we go through this legislation, in that you get to the point 
where you have diluted the government-to-government 
relationship, the trust relationship, and then you have many 
collateral entities having a say as to what happens and does 
not happen, in terms of that decision. That worries me in the 
legislation.
    I just want to point out that forced relocation, landless 
tribes, allotments, broken treaties, forced assimilation, those 
were all within the purview of congressional authority, as 
well. And I would suggest that a third, independent look that 
is rigorous, that eliminates influences is something this 
legislation needs to look for.
    I yield back, Mr. Chairman.
    Mr. Bishop. Mr. Chairman?
    Mr. Young. Yes?
    Mr. Bishop. If I might, again, Mr. Martin, let me come to 
you the first time.
    It appears that the Department is allowing a petitioner 
that was denied acknowledgment under previous Part 83 rules to 
reapply under the 2015 rules. Isn't that contrary to what the 
Assistant Secretary's new rule would be, that no group 
previously denied could reapply?
    Mr. Martin. It appears to me that that is in conflict with 
what the Secretary had said----
    Mr. Bishop. So, for you----
    Mr. Martin [continuing]. By allowing this person or this 
group to come back again and again.
    Mr. Bishop. So, for you and Mr. Mullane--is there anything 
that would stop a future assistant secretary from revising the 
Part 83 rule again in order to allow another petitioner that 
was previously denied to have re-recognition or reapply? Is 
there anything that would allow a future secretary to change 
the rules again to allow that to take place, currently?
    Mr. Mullane. Well, you have the branch acknowledgment that 
looks at the technical data. Upon completion of the technical 
data, they will go through--and I am going to use the seven 
criteria.
    Mr. Bishop. But let me go specifically to what we are 
talking about. If already under this rule they are re-allowing, 
renegotiating people who have been denied, is there anything in 
what we are doing in the status quo within the Department of 
the Interior that would stop a future assistant secretary from 
going through the same process and changing the rules again to 
allow somebody who had been denied to reapply?
    Mr. Mullane. There is a solution to that. Congress passes 
the regulations into a law, which they must follow. Therefore, 
if they have not followed the law, and they are using their own 
regulations, and I want to say abusing them, no, you are not 
going to stop them. But it is going to be quickly determined, 
because the branch of acknowledgment is required to sign off, 
and what the BIA secretary says does not matter.
    Mr. Bishop. All right, thank you, and that is what we are 
trying to do here.
    Mr. Mullane. OK.
    Mr. Bishop. In the legislation--Sean, or Attorney General 
Reyes, look. In 2002, the Interior Inspector General issued a 
report, and he said that he told his experts that 
acknowledgment decisions are political, and he was not talking 
about Congress, he was talking about BIA. So, since it appears 
the political branch understands recognition is a political 
matter, would you agree that it is more constitutionally proper 
for that recognition decision to be made in Congress?
    Mr. Reyes. Yes.
    Mr. Bishop. That was simple enough. All right. Then you can 
answer his other question, if you want to.
    Now, what--I am sorry, I was joking. It was a joke.
    Mr. Reyes. No, I can elaborate. Clearly, there are politics 
all around, and to pretend that there is not because it is the 
executive branch exercising its prerogative is, I think, naive.
    Mr. Bishop. Thank you. To the witnesses, unless you want to 
contradict anything I am going to say right here, we have 
talked about the significance of having a process established 
so that it does not change. That is what the bill is attempting 
to do. We have talked about a timeline here, which I 
understand.
    But you also brought up the fact that sometimes those 
timelines can have inadvertent consequences that you do not 
want, in addition to which there is no way to enforce a 
timeline. I mean we have timelines that the Department of the 
Interior shall, within 3 years, do X. And if they do not do X, 
there is nothing you can do about it. We can also take away 
funding, so they cannot do X, even if we want to. So a timeline 
is problematic.
    We have talked about how BIA should have a review process, 
which is what the bill actually wants to do. That review 
process should be there before a final decision should be made. 
But, if there is going to be a government-to-government 
relationship, that only happens after somebody is recognized 
officially. What I am trying to do here is find out a way.
    So, I appreciate what you are saying, I appreciate the 
input. You have offered some of your opinions on the new Part 
83 rules, especially as it relates to third party, to the 
appeals process. I think we should look at that in much greater 
detail. But a lot of the decisions, the statements that have 
been made here, I think, are leading us to the general point, 
that it is Congress' responsibility. Someone needs that final 
say. But, it needs to be based not on flippant, arbitrary 
decisions and rules that can be changed at someone's whim, but 
by what is legally established through statute. And that is 
what we are after here.
    I appreciate the concepts, your coming in here. I 
appreciate you being here. I have enjoyed your testimony. And I 
will yield back, then.
    Mr. Young. Thank you, Mr. Chairman.
    Dr. Ruiz. I will just make some quick--nobody is denying 
the constitutional authority of Congress to recognize tribes. 
That is in existence right now. And there have been precedents 
and legal precedents that also recognize the authority of the 
Department of the Interior to recognize tribes.
    This bill does not add transparency, does not add 
consistency, does not add scientific-based, does not make it 
less political than what we already have. And if Congress 
believes--and we do--that it should be the one to recognize 
tribes, then my question would be why has there not been a 
tribal recognition bill that has passed Congress in over a 
decade, despite the existence of pending legislation 
recognizing several tribes that are considered legitimate and 
non-controversial, two of which our committee heard testimony 
on earlier this year?
    So, to think that Congress would expedite and shorten the 
process with the current dysfunction that exists is not 
something I would really put all my eggs in one basket on.
    This bill, in and of itself, without any changes, I have 
yet to hear how it would add transparency, consistency, or a 
scientific-based decision, or even a timeline, or how it would 
speed it up.
    So, my suggestion, and the solution, would be--let's codify 
the criteria, make the changes from the old, broken system that 
we dislike to begin with, not adopt the disliked system into 
recommendations, but let's codify a new and improved system 
that we can all agree on that is rigorous, that does not weaken 
the criteria--right?--so that the Administration can have a 
more scientific-based approach, objective approach, less 
political, and yet still keep Congress' authority, through 
their own process, to recognize tribes, as well.
    Mr. Bishop. Will the gentleman yield for just a second?
    Dr. Ruiz. Absolutely, Chairman.
    Mr. Bishop. That is what we are trying to do with this 
thing. But, if you remember, the last time we had a witness 
here from the Secretary, I asked him, if we did all of that, 
would he still support the bill, and the answer was no. They 
wanted the power.
    I actually agree with what you are after. I want to do 
that. If you have specific suggestions on how we can improve 
the bill to do that, I am all for it, we will take it to the 
Floor and do it right there. That is what I want, but the issue 
is, let me get some specifics with that.
    Dr. Ruiz. So I guess I reclaim my time. The fundamental 
difference here is whether or not we will allow the Department 
of the Interior to recognize tribes.
    Now, what we are looking at are two processes. One is a 
very rigorous, tedious, time-consuming process that is 
scientifically based, an objective that we could create with 
congressional law, but still allow the Department of the 
Interior to ultimately decide. We can even include input from a 
committee of Members of Congress, a bipartisan committee, 
versus only allowing the process which occurs in Congress, 
which we know is not as scientific-based, not very consistent, 
not very transparent, and more political than the Department of 
the Interior's approach.
    I think the fundamental question is----
    Mr. Bishop. Are you willing to yield again?
    Dr. Ruiz. Can we put these processes in place so that 
tribes can have an option and not just completely be at the 
whims of this committee?
    Yes, I yield my time.
    Mr. Bishop. All right, and this will be the last comment I 
make on this. And I am sorry we are cutting you guys out, and 
you are supposed to be here, testifying; but be happy, listen.
    That is exactly what I am talking about, except the premise 
from which you started. These guys have all given you examples 
of how the present system with the Department of the Interior 
has not been transparent, has been politicized, has been 
reviewed, has had the opportunity of having a change at the 
whim of the Department. The Department is as political as any 
other institution.
    So, as long as the last say is in Congress, which is 
legally where it ought to be, and legally where it is, involve 
the BIA--that is what the bill does, it tries to involve the 
BIA in the process of going through the criteria, but we list 
what the criteria is, so that they make recommendations to us, 
and we make the decisions.
    But if you allow the decision to be made in the Department 
of the Interior, all of a sudden you do what happens in the 
2002 report: it becomes a very politicized process there. So, 
you are not going to get rid of the politics. But the 
transparency is not necessarily in the Administration. The 
transparency is when it comes here in a political process, 
where we do things in an open committee meeting, and you 
actually have to be responsible for it.
    I am sorry, Mr. Chairman, you are getting antsy. I am done. 
I was done several minutes ago. Just shut me off and close it 
down and we are----
    Mr. Young. I want to thank the witnesses. I hope everybody 
understands--and I do want to say this to my Ranking Member--
this is a hearing. I think we made some progress, because I do 
not think the system--Is anybody totally happy with the present 
system? Raise your hand.
    Mr. Mullane. The----
    Mr. Young. The present system. Are you totally happy----
    Mr. Mullane. The present system, I think, is too young to 
get much feedback, but----
    Mr. Young. I mean--see, my problem--you must understand 
this. In fact, I am going to ask my staff, and they will not 
like me. The last hundred years I am going to find out how 
every tribe was recognized, and see where the consistency is. 
There is none.
    The Secretary came to my state and made 228 tribes by a 
stroke of the pen.
    Mr. Mullane. OK.
    Mr. Young. That is not the way it should be done, and I am 
not going to have that type of thing happen again.
    Mr. Mullane. Right.
    Mr. Young. It is not fair to the tribes, it is not fair to 
the states, it is not fair to attorney generals.
    Mr. Mullane. Let me----
    Mr. Young. I am not asking you a question.
    Mr. Mullane. OK.
    Mr. Young. Just keep that in mind. I am going to suggest 
that each one of you have some ideas, and maybe you would like 
to write a little paragraph. We are going to improve this 
system. There is going to be consistency. Congress is still 
going to play its role. And there is just not going to be willy 
nilly, have different tribes recognized by different 
secretaries that, very frankly--and, by the way, it is 
interesting, even the Secretary of Indian Affairs told his 
career experts in the branch of acknowledgment and research, 
``Acknowledgment decisions are political.''
    There is nothing not politics in what we do, our side or 
the BIA. You are not going to get rid of that. Transparency is 
transparent so we can get it through this House, not through 
the agency. Because every time when I have gone through a--they 
have been rejected. Another tribe has done exactly the same as 
the people who submitted. One side is rejected, the other is 
not, and no justification.
    So, we are going to solve this problem. I think it is a 
problem. That is going to be your role.
    Another thing, I believe, Mr. Patterson, you said in your 
testimony that H.R. 3764 is likely to be unconstitutional. In 
your opinion, were previous actions taken by Congress to 
restrict the executive branch recognition authority also 
unconstitutional?
    Mr. Patterson. Sir, I think to suggest and interject 
verbiage such as ``legally,'' suggests that something illegal 
has happened. For the April 22 hearing, the Obama 
administration's Part 83 revisions and how they may allow the 
Interior Department to create tribes and not recognize them, 
the suggestion that they are creating something suggests 
something illegal is going on. And whoever came up with that 
verbiage, in my opinion, should firmly be held accountable to 
those words----
    Mr. Young. But you have----
    Mr. Patterson. Words are powerful things, Chairman.
    Mr. Young. You have not answered my question.
    Mr. Patterson. Yes, sir.
    Mr. Young. The second thing I want to ask you, in your 
statement you give an example--the executive branch's 
recognition is unconstitutional. For example, the Act of June 
7, 1956, Congress restricted the Department from recognizing 
the Lumbee Tribe. Do you think this restriction is an 
unconstitutional infringement on power of the executive branch 
to recognize the Lumbees?
    Mr. Patterson. I will answer the question in this regard, 
in our November 12 submission--I am not a lawyer, I cannot sit 
here--I can tell you what my ancestors did to influence the 
Constitution, which you all recognized the Iroquois 
contribution to the democracy of this country.
    I am not a constitutional lawyer, but I will say please 
infer to our November 12 written testimony. We answer that 
exact point in the manner in which Indian country has developed 
its own subject matter experts to meet the demands of Indian 
country participating in this system that is not----
    Mr. Young. Are you happy with the present system?
    Mr. Patterson. All systems can be improved, sir.
    Mr. Young. That is what we are trying to do.
    Mr. Patterson. All systems can be improved.
    Mr. Young. I suggest, respectfully, that you and each 
person at that table give us some suggestions.
    Mr. Patterson. We would welcome that opportunity to further 
engage in dialog.
    Mr. Young. And that is what we would like to have.
    Mr. Patterson. Thank you, Chairman.
    Mr. Young. Mr.--I cannot see your name tag. Go ahead.
    Mr. Mullane. Me?
    Mr. Young. Yes. Mr. Mullane.
    Mr. Mullane. I think one of the problems is the Assistant 
Secretary of the Interior, BIA, is an inconsistent element in 
this. That should be taken away from and possibly given to a 
career individual who runs the acknowledgment group. There are 
two categories. I want to say there is one that is working on 
finished petitions, going through the process and review, and 
trying to keep a schedule. Another one is where, when a person 
says, ``I want to submit a letter of intent,'' well, before you 
do that, do you have a draft 80 percent complete of your 
petition, so we can review it?
    To give you some indication that--you are 100 miles away, 
and you don't stand a prayer, OK? Because there has to be the--
sorted out for those that sit in the system for 25 years, and 
waste the technical people's time. OK?
    If you do not like a career politician being appointed, 
then maybe it is a 3-panel or 1-panel judge, depending upon the 
seriousness of the confrontation on that. This bill has a 
better foundation to build off of than the present system by 
Mr. Washburn. I would like to take you up on your offer and 
send some of the things in that we think should be added to 
this.
    As far as the political aspect of BIA, that you have 
observed and I have experienced, there has to be a 
restructuring in regard to who that person is, and he cannot 
influence the technical people's research, review, and reports. 
You cannot have that. That is like saying you are going to go 
to one doctor, who says you need a brain surgery, and this is 
how it goes--they refer you to a dentist to do it. You do not 
do that.
    So that is brief, but we will take you up on the offer, and 
we will send you some things. I do like this bill, I would like 
you to work off it. It can be improved and get there.
    Mr. Young. This is my intent--to make things clear, more 
positive, consistent. Each one of you has a point of view, and 
I am serious about accepting your help. But having it exist as 
now being offered, and even the past, it does not fly.
    So, I am going to ask you each respectfully, come to us, we 
are writing a bill. This is what hearings are all about. It is 
not to tear down something, it is not to do it differently. I 
want to take your help and put it in the business. You are the 
stakeholders, that is the reason we had this hearing.
    I want to thank the Chairman for requesting it. We had the 
government last time. This time we had the stakeholders.
    Mr. Mullane. I look forward to the opportunity.
    Mr. Young. Thank you, and with that, adjourned.

    [Whereupon, at 12:38 p.m., the subcommittee was adjourned.]

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S 
                            OFFICIAL FILES]

   January 21, 2016, Alan Titus, Rob & Ross, Testimony 
            submitted to Chairman Young regarding H.R. 3764. 3 
            pages.

                                 [all]