[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
__________
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______
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Louie Gohmert, TX Madeleine Z. Bordallo, GU
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
John Fleming, LA CNMI
Tom McClintock, CA Niki Tsongas, MA
Glenn Thompson, PA Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY Jared Huffman, CA
Dan Benishek, MI Raul Ruiz, CA
Jeff Duncan, SC Alan S. Lowenthal, CA
Paul A. Gosar, AZ Matt Cartwright, PA
Raul R. Labrador, ID Donald S. Beyer, Jr., VA
Doug LaMalfa, CA Norma J. Torres, CA
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.
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\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).
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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\
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\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).
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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\
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\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'').
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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\
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\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 . . .).
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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\
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\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).
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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\
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\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).
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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.
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\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.'').
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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\
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\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\
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\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]