[Congressional Record Volume 145, Number 9 (Wednesday, January 20, 1999)]
[Extensions of Remarks]
[Pages E81-E82]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      INTRODUCTION OF LEGISLATION

                                 ______
                                 

                       HON. ENI F.H. FALEOMAVAEGA

                           of american samoa

                    in the house of representatives

                       Tuesday, January 19, 1999

  Mr. FALEOMAVAEGA. Mr. Speaker, I rise today to introduce a bill to 
provide improved administrative procedures for the Federal recognition 
to certain Indian groups.
  Mr. Speaker, I have been working on this issue now for over seven 
years. In 1994, the House passed similar legislation but that effort 
died in the Senate. Although this legislation was defeated in the House 
late last year, we are still faced with an expensive, unfair process 
through which Indian groups seeking federal recognition must go. I 
still wish to help address the historical wrongs that the two hundred 
unrecognized tribes in this nation have faced. This bill streamlines 
the existing procedures for extending federal recognition to Indian 
tribes, removes the tremendous bureaucratic maze and subjective 
standards the Bureau of Indian Affairs has placed against recognizing 
Indian tribes, but also provides due process, equity and fairness to 
the whole problem of Indian recognition.
  Mr. Speaker, a broad coalition of unrecognized Indian tribes has 
advocated reform for years for several reasons. First, the BIA's budget 
limitations over the years have, in fact, created a certain bias 
against recognizing new Indian tribes. Second, the process has always 
been too expensive, costing some tribes well over $500,000, and most of 
these tribes just do not have this kind of money to spend. I need not 
remind my colleagues of the fact that Native American Indians today 
have the worst statistics in the nation when it comes to education, 
economic activity and social development. Indeed, Mr. Speaker, the 
recognition process for the First Americans has been an embarrassment 
to our government and certainly to the people of America. If only the 
American people can ever feel and realize the pain and suffering that 
the Native Americans have long endured, there would probably be another 
American revolution.
  Mr. Speaker, the process to provide federal recognition to Native 
American tribes simply takes too long. The Bureau of Indian Affairs has 
been completing an average of 1.3 petitions per year. At this rate, it 
will take over 100 years to resolve questions on all tribes which have 
expressed an intent to be recognized.
  Mr. Speaker, the current process does not provide petitioners with 
due process--for example, the opportunity to cross examine witnesses 
and on-the-record hearings. The same experts who conduct research on a 
petitioner's case are also the ``judge and jury'' in the process!
  In 1996, in the case of Greene v. Babbitt, 943 F. Supp. 1278 (W. 
Dist. Wash), the federal court found that the current procedures for 
recognition were ``marred by both lengthy delays and a pattern of 
serious procedural due process violations. The decision to recognize 
the Samish took over twenty-five years, and the Department has twice 
disregarded the procedures mandated by the APA, the Constitution, and 
this Court,'' (p. 1288). Among other statements contained in Judge 
Thomas Zilly's opinion were: ``The Samish people's quest for federal 
recognition as an Indian tribe has a protracted and tortuous history . 
. . made more difficult by excessive delays and governmental 
misconduct.'' (p. 1281) And again at pp. 1288-1289, ``Under these 
limited circumstances, where the agency has repeatedly demonstrated a 
complete lack of regard for the substantive and procedural rights of 
the petitioning party, and the agency's decision maker has failed to 
maintain her role as an impartial and disinterested adjudicator . . .'' 
Sadly, the Samish's administrative and legal conflict--much of which 
was at public expense--could have been avoided were it not for a 
clerical error of the Bureau of Indian Affairs which 29 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 recent recognition procedures. President 
Clinton has acknowledged the problem. In a 1996 letter 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.''
  To those who say we should retain the current criteria, and not 
permit tribes which have been rejected under the current administrative 
procedure to apply for reconsideration, I say read the Greene case. It 
is rare that a court is so critical of an executive agency, but in this 
case there clearly is a problem. This bill addresses the problem 
directly.

  Mr. Speaker, the legislation I am introducing today will eliminate 
the above concerns by establishing an independent three member 
commission which will work within the Department of the Interior to 
review petitions for recognition. This legislation will provide tribes 
with the opportunity for public, trial-type hearings and sets strict 
time limits for action on pending petitions. In addition, the bill 
streamlines and makes more objective the federal recognition criteria 
by aligning them with the legal standards in place prior to 1978, as 
laid out by the father of Indian Law, Felix S. Cohen in 1942.
  Some have expressed concern that this bill will open the door for 
more tribes to conduct gambling operations on new reservations. While I 
cannot say that no new gambling operations will result from this bill, 
I do believe that

[[Page E82]]

this bill will have only a minimal impact in this area. I would like to 
remind my colleagues that: unlike state-sponsored gaming operations, 
Indian gaming is highly regulated by the Indian Gaming Regulatory Act; 
before gaming can be conducted, the tribes must reach an agreement with 
the state in which the gaming would be conducted; under IGRA (the 
Indian Gaming and Regulatory Act) gaming can only be conducted on land 
held in trust by the federal government; and any gaming profits can 
only be used for tribal development, such as water and sewer systems, 
schools, and housing.
  The point I want to make is even if an Indian group wanted to obtain 
recognition to start a gambling operation, they couldn't do it just for 
that purpose. Ninety percent of the substance of the current criteria 
are unchanged in the bill before us today. For a group to obtain 
federal recognition, it would still have to prove its origins, cultural 
heritage, existence of governmental structure, and everything else 
currently required.
  Should that burden be overcome, a tribe would need a reservation or 
land held in trust by the federal government. This bill makes no effort 
to provide land to any group being recognized.
  If the land issue is overcome, under the Indian Gaming Regulatory 
Act, a tribe cannot conduct gaming operations unless it has an 
agreement to do so with the state government. A prior Congress put this 
into the law in an effort to balance the rights of the states to 
control gambling activity within its borders, and the rights of 
sovereign tribal nations to conduct activities on their land. The 
difficulty in obtaining gaming compacts with states made the national 
news for months last year because of the almost absolute veto power the 
states have under current law. The U.S. Supreme Court affirmed this 
reading of the law in Seminole Tribe of Florida v. Florida, 517 U.S. 44 
(1996).
  I want to emphasize this point--this is not a gambling bill, this is 
a bill to create a fair, objective process by which Indian groups can 
be evaluated for possible federal recognition.
  Mr. Speaker, this bill is not perfect in every form, but it is the 
result of many hours of consultations. I have sought to work with the 
tribes and with the Administration to come up with sound, careful 
changes that recognize the historical struggles the unrecognized tribes 
have gone through, yet at the same time recognizes the hard work the 
Bureau of Indian Affairs has done lately in making positive changes 
through regulations to address these problems. We have reached 
agreement on almost every major issue, and these changes have been 
incorporated into this bill.
  In conclusion, Mr. Speaker, I hope we can take final action on the 
issue of Indian recognition before this century ends and start the next 
century by addressing at least some of the wrongs of the past two 
centuries.

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