[Congressional Record Volume 140, Number 63 (Thursday, May 19, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 19, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
   STATEMENT OF HON. CRAIG THOMAS OF WYOMING ON H.R. --: THE INDIAN 
       FEDERAL RECOGNITION ADMINISTRATIVE PROCEDURES ACT OF 1994

                                 ______


                           HON. CRAIG THOMAS

                               of wyoming

                    in the house of representatives

                         Thursday, May 19, 1994

  Mr. THOMAS of Wyoming. Mr. Speaker, I am pleased to rise today to 
cosponsor a bill introduced by Representative Bill Richardson, the 
Indian Federal Recognition Administrative Procedures Act of 1994.
  The question of whether a Native American group constitutes an Indian 
tribe is one of immense significance in the field of Federal Indian 
law. Because Congress' power to legislate for the benefit of Indians is 
limited by the Constitution to Indian tribes, for most Federal purposes 
it is not enough that an individual simply be an Indian to receive the 
protections, services, and benefits offered to Indians; rather, the 
individual must also be a member of an Indian tribe. Though it might 
seem to the layperson that there is only one kind of Indian tribe, for 
purposes of American Indian law there are actually two--those that are 
recognized by the Federal Government and those that are not.
  ``Recognized'' is more than a simple adjective; it is a legal term of 
art. It means that the government acknowledges as a matter of law that 
a particular native American group is a tribe by conferring a specific 
legal status on that group, thus bringing it within Congress' 
legislative powers. This Federal recognition is no minor step. A 
formal, political act, it permanently establishes a government-to-
government relationship between the United States and the recognized 
tribe as a ``domestic dependant nation,'' and imposes on the Government 
a fiduciary trust relationship to the tribe and its members. 
Concomitantly, it institutionalizes the tribe's quasi-sovereign status, 
along with all the powers accompanying that status such as the power to 
tax, and to establish a separate judiciary. Finally, it imposes upon 
the Secretary of the Interior specific obligations to provide a panoply 
of benefits and services to the tribe and its members. In other words, 
unequivocal Federal recognition of tribal status is a prerequisite to 
receiving the services provided by the Department of the Interior's 
Bureau of Indian Affairs [BIA], and establishes tribal status for all 
Federal purposes.
  Prior to 1978, recognition took many forms: Acts of Congress, 
executive orders, administrative decisions, and treaties. However, the 
process was ``sporadic at best * * * plagued with all sorts of pitfalls 
and a lack of a systematic approach.'' In the 1970's, the 
congressionally-established American Indian Policy Review Commission 
[AIPRC] proposed the formation of a firm legal foundation for the 
establishment and recognition of tribal relationships with the United 
States, and the adoption of a ``valid and consistent set of factors 
applied to every Indian tribal group. * * *'' Joining the chorus for 
standardization was the National Congress of American Indians, which 
called for a ``valid and consistent set of criteria applied to every 
group which petitions for recognition * * * based on ethnological, 
historical, legal, and political evidence.'' Senator James Abourezk, 
AIPRC's chairman, took the issue to the floor of the Senate, and 
introduced legislation calling for the establishment of an office in 
the BIA to handle recognition petitions in a uniform way.

  In 1978, the Interior Department, after exhaustive consultations with 
Indian country, established procedures to provide a uniform approach to 
the recognition process. Called the Federal Acknowledgment Process 
[FAP], the regulations set forth seven criteria a petitioning group 
must meet to be deemed a recognized tribe. Under the criteria, based in 
part on Cohen's model, for a group to be recognized as a tribe it must: 
(a) establish that it has been identified from historical times as 
American Indian or aboriginal; (b) establish that a substantial portion 
of the group inhabits a specific area or lives in a community viewed as 
* * * Indian; (c) establish that the group has maintained tribal 
political influence or other authority over its members as an 
autonomous entity; (d) furnish a copy of the group's present governing 
document * * * (e) furnish a list of all known members, and show that 
their descendency from an historic tribe; (f) establish that the 
membership is composed principally of persons who are not members of 
any other tribe; (g) establish that the group is not the subject of 
congressional legislation that has expressly terminated or forbidden 
the Federal relationship.
  The BIA FAP office is staffed by two teams of professionals including 
historians, genealogists, ethnologists, and anthropologists. These 
teams do exhaustive research on the petitions they receive, and examine 
such factors as Indian identity and community, as well as political and 
cultural cohesiveness. Once a petition is received it is reviewed for 
any obvious deficiencies. These are noted for the tribe, which is given 
the opportunity to supply additional material to supplement its 
petition. The petitions are then placed on active consideration in the 
order received.
  Although theoretically desirable, the FAP is in practice a dismal 
failure. Since its inception in 1978, the BIA has recognized only 9 
groups, and denied recognition to 13. Approximately 101 groups are 
presently in some stage of the process, a process that can take many 
years and thousands of dollars to complete. There have been charges of 
institutional bias against some petitioning groups, as well as a lack 
of consistency in final FAP decision. The BIA constantly ignores its 
own time restraints, stringing groups along with promises of ``just one 
more month.'' Part of their failure is not their fault; they have been 
historically underfunded and thus understaffed. Still, the process is 
necrotic.
  As a result, a growing number of groups have come to Congress for 
legislative recognition outside of the FAP process. Legislative 
recognition replaces the standardized with the arbitrary; historical 
merits examined by objective and neutral professionals are supplanted 
by emotional arguments, influential sponsors, and the partisan nature 
of this institution. The result is a lack of uniformity which dilutes 
the concept of tribal sovereignty and the government-to-government 
relationship between the tribes and the United States. In addition, the 
increasing frequency with which we bypass established administrative 
processes in favor of the quick-fix of congressional recognition serves 
to subvert the Federal acknowledgment program by encouraging other 
groups to do the same.
  As the ranking Republican member of the Subcommittee on Native 
American Affairs, I have participated in several hearings on these 
recognition bills. At each hearing, both Democrats and Republicans 
alike stressed the need to do something about fixing the system. We 
have now finally come to a point to be able to do just that.
  Chairman Richardson and I, along with the subcommittee staff, have 
worked diligently over the past few months to craft legislation to 
improve the process and make it what it was supposed to be--prompt, 
accurate, fair, and less burdensome. Our bill makes several important 
changes. It removes the FAP from the BIA and places it in an 
independent commission not subject to the political eddies and currents 
of the Bureau. It provides for set time limits for consideration of 
petitions, and direct access to Federal court if those deadlines are 
not met. Most importantly, in my mind, the bill provides for a 
simplified and expedited process for those groups that can establish 
descent from a treaty signatory or Indian Reorganization Act-eligible 
tribe.
  The bill still needs some fine tuning, but the chairman and I felt 
that it was more important to get the ball rolling by introducing the 
bill now. Any omissions or required additions can be handled at 
subcommittee markup, after we have heard from Indian country.
  I am sure that we will hear some institutional opposition from the 
BIA to this move--what bureaucracy supports its own dismemberment--but 
I believe it is vitally important for us to pass this legislation, and 
pass it in time for it to become law this year. I look forward to 
working closely with Chairman Richardson toward that end. I hope my 
colleague will join in supporting it when it comes to the floor.

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