[Congressional Record Volume 143, Number 37 (Thursday, March 20, 1997)]
[Extensions of Remarks]
[Pages E536-E537]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    INDIAN FEDERAL RECOGNITION ADMINISTRATIVE PROCEDURES ACT OF 1997

                                 ______
                                 

                       HON. ENI F.H. FALEOMAVAEGA

                           of american samoa

                    in the house of representatives

                        Thursday, March 20, 1997

  Mr. FALEOMAVAEGA. Mr. Speaker, today I am introducing the Indian 
Federal Recognition Administrative Procedures Act of 1997, a bill to 
simplify and objectify the existing procedures for extending Federal 
recognition to Indian tribes. This bill is identical to legislation 
that I introduced in the 104th Congress, and is similar to legislation 
that the House passed in the 103d Congress.
  The reason I am introducing this bill is because the process by which 
the Federal Government traditionally chooses to recognize Indian tribes 
is broken. It is broken because it is biased, it is too expensive, it 
is incomprehensible to all but the most trained technicians, and the 
BIA which makes the recognition determinations has applied its criteria 
in an uneven manner. In fact, in the only appeal of a negative 
recognition decision to be decided to date involving the Samish Tribe 
of Washington, the Interior Department's own board of appeals found 
that the BIA's recognition process ``did not give [the tribe] due 
process'' and rejected the BIA's position ``as not being supported by 
the evidence.''
  But even more interestingly, a Federal court found in the same case 
that the attorneys for the United States who had been arguing against 
recognizing the Samish violated the law and the constitutional rights 
of the Samish Tribe. The court lambasted the actions of the Interior 
Department--including both the Solicitor's Office and the Assistant 
Secretary for Indian Affairs--because they had conspired to alter key 
findings of the Department relating to Samish land claims in closed-
door meetings. The court found that the tribe's case had been ``marred 
by both lengthy delays and a pattern of serious procedural due process 
violations.''
  Sadly, all of this could have been avoided--much of it at public 
expense--were it not for a clerical error of the Bureau of Indian 
Affairs which 27 years ago inadvertently left the Samish Tribe's name 
off the list of recognized tribes in Washington.
  With a record like this, it is little wonder that many tribes have 
lost faith in the Government's current recognition procedures. Even the 
President recognizes the problem. In a letter last year to the Chinook 
Tribe of Washington, the President wrote, ``I agree that the current 
Federal Acknowledgment process must be improved.'' He said that some 
progress has been made, ``but much more must be done.'' My bill will 
finish the job. If we can pass my bill then the Federal recognition 
process will be impartial, easy to understand, open to public scrutiny, 
and more affordable. then finally, perhaps, we can begin doing justice 
to the hundreds of tribes that we wrongfully terminated, forgot about, 
or accidentally left off some list. I hope that Congress and the 
President will support my efforts to address these problems.
  Let me go into some detail why the recognition process is broken and 
why it needs to be fixed.
  First, it is too expensive for Indian tribes. Experts estimate that 
the cost of producing an average petition ranges from $300,000 to 
$500,000. Over the past 16 years, the BIA has spent more than $6 
million to evaluate petitions.
  Second, it takes too long. Since 1978, when the BIA recognition 
regulations were put into place, only 14 tribes have been acknowledged, 
and 15 have been denied. During the same period, the BIA has received 
over 160 petitions or letters of intent to petition. In 1978, there 
were already 40 petitions pending. Bud Shapard, the former head of the 
Bureau of Acknowledgment and Research and primary author of the 
existing regulations testified before this Committee that ``the current 
process is impossibly slow. [The BIA's acknowledgment rate] works out 
statistically to be 1.3 cases a year. At that rate, it will take 110 
years to complete the process.''
  Third, it is subjective, flawed, and has been applied in an uneven 
manner. The BIA's handling of the Samish case demonstrates the lack of 
fairness in the process. The Federal courts and the Interior 
Department's own board of appeals found that the BIA's recognition 
process ``did not give [the tribe] due process'' and rejected the BIA's 
position ``as not being supported by the evidence.'' This was 
compounded by the fact that the Solicitor's Office and the BIA 
attempted to hide from the public the judge's findings that the BIA's 
tribal purity test was flawed, that the BIA's research and methods were 
``sloppy and unprofessional'', and that the BIA had ``prejudged'' the 
Samish case in violation of due process.
  Furthermore, Bud Shapard testified before Congress that,

       [b]ecause there is no clear definition of what the 
     petitioners are attempting to prove and what the BIA is 
     attempting to verify, the regulations require nonsensical 
     levels of research and documentation. This results in 
     regulations full of vague phrases requiring subjective 
     interpretations. By my count the 1978 original regulations 
     contained 35 phrases that required a subjective 
     determination. The 1994 revised and streamlined regulations 
     not only doubled the length of the regulations, they more 
     than doubled the areas that required a subjective 
     determination.

  Fourth, it is a closed or hidden process. The current process does 
not allow a petitioning tribe to cross-examine evidence or the 
researchers, and does not allow the tribe to even review the evidence 
on which the determination was made until the end of the process.
  Fifth, it is biased. The same Department responsible for deciding 
whether to recognize a tribe is also institutionally biased against 
recognition. An earlier House report recognized that the BIA has an 
``internal disincentive to recognize new tribes when it has difficulty 
serving existing tribes and more new tribes would increase the BIA 
workload.''
  My bill addresses these problems.
  First, to eliminate any conflict of interest and institutional bias, 
my bill establishes an independent presidentially appointed three-
member commission outside of the Department of the Interior to review 
tribal recognition petitions. The bill also allows the new independent 
commission to give research advice to petitioners, and provide 
financial assistance to petitioners. Tribes currently receive little, 
if any assistance with their applications.
  Second, my bill gives petitioning tribes the opportunity for formal, 
on-the-record hearings. Such hearings will open the decisionmaking 
process giving petitioners a much better idea of what their obligations 
are and more confidence in the ultimate decision. Such hearings will 
also focus the examination of the Commission and the staff in a manner 
that is completely lacking in the present process. Furthermore, my bill 
also makes clear that the Commission itself will preside at both the 
preliminary and adjudicatory hearings.
  Third, my bill makes clear that records relied upon by the Commission 
will be made available in a timely manner to petitioners. In order to 
facilitate proper and accurate recognition decisions, it is important 
that the Commission and its staff provide petitioners with the 
documents and other records relied upon in making preliminary 
decisions.
  Fourth, my bill explains the precedential value of prior BIA 
recognition decisions and to make the records of those decisions 
readily available to petitioners. The BIA has stated that it views its 
prior decisions as providing guidance to petitioners. Tribes, however, 
have found it very difficult to gain access to copies of the records 
relating to those decisions. If those prior decisions are considered 
precedent, the records of those decisions should be made available to 
petitioners.
  Fifth, my bill would make several changes to the Federal recognition 
criteria. The bill would eliminate the requirement of descendence from 
an historical tribe. Compelling petitioners to demonstrate descendence 
from a historic tribe violates policy established by Congress--section 
5(b) of the act of May 31, 1994, Public Law 103-263. In that statute, 
Congress acted to remove any distinction that the Department might make 
between historic and nonhistoric tribes. In addition, the genealogical 
requirements inherent in showing descendence from a historical tribe 
seem to emphasize race over the political relationship that really 
should be at issue in deciding whether to recognize a tribe.
  In addition, the bill would reconfigure the present recognition 
criteria to more closely follow the so-called Cohen criteria. Before 
1978, the Department of the Interior made acknowledgment decisions on 
an ad hoc basis using the criteria roughly summarized by Assistant 
Solicitor Felix S. Cohen in his ``Handbook of Federal Indian Law'' 
(1942 edition) at pages 268-72. In 1978, the Department issued 
acknowledgment regulations in an attempt to standardize the process. 
Both the process and the criteria established in the regulations were 
different than those used before 1978. Under the Cohen criteria, a 
tribe needed to show at least one of the following: it had treaty 
relations with the United States; it had been called a tribe by 
Congress or Executive Order; it had communal rights in lands or 
resources; it had been treated ads a tribe by other Indian tribes; or 
it had exercised political authority over its members.
  My bill would require a petitioning tribe to prove: that it and its 
members have been identified as Indians since 1934; that it has 
exercised political leadership over its members since 1934; that it has 
a membership roll; and that it exists as a community by showing at 
least one of the following: first, distinct social

[[Page E537]]

boundaries; second, exercise of communal rights with respect to 
resources or subsistence activities; third, retention of a native 
language or other customs; or fourth, that it is state-recognized.
  Finally, my bill sets strict time limits for the Commission to act, 
thus eliminating delay. It requires the new Commission to publish 
petition in Federal Register within 30 days of receipt. It requires the 
Commission, within 60 days of receipt, to set a date for a preliminary 
hearing. It requires the Commission, within 30 days of the preliminary 
hearing, to decide whether to extend recognition or require a trial-
type hearing. And it requires the Commission to hold the trial-type 
hearing within 180 days of the preliminary hearing and make a decision 
within 60 days after the hearing.
  These are all important measures and I hope that my colleagues will 
support me in my endeavor to set right much of the injustices that the 
United States has visited upon the Indian tribes.

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