[Congressional Record Volume 140, Number 38 (Tuesday, April 12, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: April 12, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
 A BILL TO PROHIBIT THE WITHDRAWAL OF ACKNOWLEDGMENT OR RECOGNITION OF 
      AN INDIAN TRIBE OR ITS LEADERSHIP ABSENT AN ACT OF CONGRESS

                                 ______


                           HON. CRAIG THOMAS

                               of wyoming

                    in the house of representatives

                        Tuesday, April 12, 1994

  Mr. THOMAS of Wyoming. Mr. Speaker, I rise today on behalf of myself, 
Congressman Richardson, chairman of the Subcommittee on Native American 
Affairs; Congressman Young of Alaska, the ranking Republican on the 
Committee on Natural Resources; and Congressman Boehlert, to introduce 
legislation to prohibit the withdrawal of Federal acknowledgment or 
recognition of an Indian tribe, or the leadership of a tribe, absent an 
act of Congress.
  Twice this Congress, the Bureau of Indian Affairs [BIA] has 
capriciously and improperly withdrawn Federal recognition from a native 
group or leader. In addition, a recent letter from the BIA to Mr. 
Miller of California seems to portend a growing number of such 
decisions.
  Mr. Speaker, let me briefly review these incidents. First, the BIA 
unilaterally withdrew recognition from the chosen leader of the Oneida 
Nation of New York last year. The Oneida were recently the first tribe 
in the Iroquois Confederacy to negotiate a gaming compact with the 
State of New York, and build a small casino on their reservation. The 
Onondaga tribal leadership, which plays a central role in the 
Confederacy, strongly opposes gaming. In April 1993, the Onondaga 
leaders scheduled a meeting of the Grand Council of the Confederacy to 
discuss, inter alia, the gaming issue with a view toward blocking the 
Oneida plans. The Grand Council met on April 24-25, and purportedly 
removed Ray Halbritter, the Oneida Nation representative, from his 
leadership position.
  Two days later, the Onondaga Tadodaho wrote the BIA and informed the 
Bureau of Halbritter's removal. In May, the Tadodaho wrote the BIA 
again, reiterating that Halbritter had been removed and another 
recognized in his place. On August 10, 1993, the present head of the 
BIA--Ada Deer--wrote the Onondaga accepting the certification of 
Halbritter's removal and shifting BIA recognition from Halbritter to 
the other individual.
  The BIA decision to switch recognition was horribly flawed for 
several reasons. First and foremost, this unilateral action was taken 
without consulting, notifying, or discussing it with the Oneida Nation 
or its leaders. Not even Representative Boehlert, in whose district the 
tribe resides, was notified. This raised serious, and I think fatal, 
due process issues.
  Second, the decision seemed to me to be based on specious premises. I 
seriously questioned the validity of Mr. Halbritter's removal as the 
representative of the Oneida. It is part of the Great Law of the 
Confederacy that all 50 chiefs who constitute the Great Council must be 
of ``one heart, one mind, one law'' before a decision of the council is 
binding. If the chiefs have not rolled their words into one bundle--
come to a unanimous agreement--then the issue must be set aside and the 
council recessed. I reviewed information at the time, including 
published news reports, which indicated to me that this was not the 
case in this matter; that the leaders of at least one of the six tribes 
of the Confederacy--the Kanyekehaka--stated that the purported decision 
of the council was not unanimous. Without that unanimity, it appeared 
to me that any action announced by the Tadodaho was ultra vires and 
thus invalid. Third, the removal of the principal representative of the 
Oneida is the prerogative of the clans and clan mothers of the nation, 
and not of the Great Council, the Onondaga as firekeepers of the 
council, or the Tadodaho. I saw no information that indicated that the 
nation had made that decision. In fact, as I have indicated, the BIA 
failed to consult with the Oneida people at all. The Bureau simply made 
up its mind unilaterally, and announced its decision to the Oneida.
  Faced with a flurry of protests from the Oneida, Assistant Secretary 
Deer issued a stay of her decision for a 45 day period. Luckily, 
through the hard work of the Oneidas' Congressman, Sherry Boehlert, the 
BIA eventually reversed its decision.
  Unfortunately, however, the BIA failed to learn anything from this 
debacle. In October last year, the Bureau unilaterally removed the 
Central Council of the Tlingit and Haida tribes from its list of 
recognized tribes. The BIA undertook this action precipitously, and 
with no more than a cursory post facto notification to the council. 
This, despite the fact that the council was explicitly recognized as a 
tribal organization in 1975, and has appeared on the BIA's list of 
recognized tribes every year since 1982. As with the Oneida, Congress 
was never consulted, or even notified. This latest action was so 
egregious that Senators Murkowski and Stevens introduced S. 1784, which 
the other body has passed, to return things to the status quo ante. We 
held a hearing on the topic last month, and it was not until then--four 
months after the fact--that the BIA deigned to offer even the most 
minimal explanation of its actions.
  Finally, in a recent letter to Chairman Miller, the BIA has presaged 
more problems to come. In that letter, and in a hearing before the 
Subcommittee on Native American Affairs last April, the Bureau 
indicated that it intends to differentiate between federally recognized 
tribes as being created or historic. The BIA has taken the position 
that created tribes do not possess all the powers of a sovereign tribal 
government: they cannot zone, regulate law and order, or tax.
  However, this whole convoluted dichotomy is not mandated by Congress, 
but rather is the spawn of a questionable opinion of the Solicitor of 
the BIA. In my opinion, it runs counter to the well-established 
principal that a tribe retains all inherent authority which has not 
been explicitly divested by Congress. When Federal recognition was 
extended to the tribes the BIA now terms ``created,'' we gave 
absolutely no indication that they were to have anything less than full 
sovereign authority. Yet now the BIA has unilaterally decided that they 
are not fully sovereign authority. Yet now the BIA has unilaterally 
decided that they are not fully sovereign.
  Once again, congressional action has been necessary to correct this 
blunder. We recently passed H.R. 734, a bill designed to prohibit this 
distinction from being applied to the Pascua Yaqui people of Arizona. 
Moreover, I note that Chairman Richardson will soon introduce 
legislation to forbid its application to any federally recognized 
tribe.
  These episodes are more than just a disturbing trend; they border on 
the scandalous. They show a bureaucratic arrogance and lack of 
comprehension of any notion of due process or tribal sovereignty which 
completely undermines any confidence either the tribes or Congress has 
in the BIA as an institution. If the BIA can take this sort of fickle 
and whimsical action, what tribe can feel secure in its present 
position? Federal recognition is of more than passing interest to the 
tribes; it is their life's blood. Recognition is a prerequisite to the 
services and benefits provided by the Federal Government to the tribes.
  Mr. Speaker, it is the Congress that is charged by the Constitution 
with plenary authority over Indian affairs; it is the Congress in which 
the Founding Fathers thought it best to determine the country's Indian 
policy. The BIA has shown that it is incapable of handling its 
responsibilities in this area, much as it has in many others. 
Consequently, I think it both proper and necessary to ensure that we 
have the final say on these forms of unilateral termination.
  This bill prohibits the BIA from withdrawing recognition from an 
Indian tribe or Alaska Native group, or from the duly elected 
leadership of such tribe or group, except by an act of Congress. It 
makes an exception for changes in tribal leadership that occur as a 
result of tribal elections. If for some reason the BIA wishes to 
withdraw such recognition, it must submit a petition to that effect to 
the two congressional committees of jurisdiction and to each of the 
Senators and Members of Congress in whose districts the effected tribe 
may reside. It is then up to us to make the final determination.
  If the BIA had some established, rational process by which such 
decisions were made, such as it has for granting Federal recognition in 
the first place, then this legislation might not be necessary. But it 
does not, and we have seen the disastrous result--a hodgepodge of ill-
conceived and ill-executed decisions which we have been forced to 
reverse.
  Mr. Speaker, the actions of the BIA have clearly demonstrated that we 
need this legislation. I look forward to working closely with Chairman 
Richardson on moving it swiftly through the House.

                          ____________________