[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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