[Congressional Record Volume 147, Number 39 (Thursday, March 22, 2001)]
[Extensions of Remarks]
[Pages E432-E433]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        FEDERAL RECOGNITION PROCEDURES FOR CERTAIN INDIAN GROUPS

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                       HON. ENI F.H. FALEOMAVAEGA

                           of american samoa

                    in the house of representatives

                        Thursday, March 22, 2001

  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 several 
Congresses. In 1994, the House passed similar legislation but that 
effort died in the Senate. Last year, the Senate came closer to passing 
legislation to address this problem than did the House. In an effort to 
bring the two houses of Congress together, I am introducing a companion 
bill to S. 504, which was introduced by Senator Campbell on March 9, 
2001.
  Despite the joint efforts of many Senators and Members of Congress 
over a period of years, we are still faced with an expensive, unfair 
process through which Indian groups seeking federal recognition must 
go. I 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 bureaucratic maze of the Bureau of Indian Affairs, 
and 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. I acknowledge the recent 
reaffirmation of a federal trust relationship for the King Salmon Tribe 
(Alaska), the Shoonaq' Tribe of Kodiak (Alaska), and the Lower Lake 
Rancheria (California), and the recognition of Chinook Indian Tribe/
Chinook Nation of Washington. This is a step in the right direction, 
but recognition for the Chinooks took 22 years, and the other three 
tribes were somehow ``overlooked'' by the BIA for a number of years. I 
thank former Assistant Secretary Kevin Gover for acknowledging this 
``egregious oversight'', and then correcting it. Regrettably, even at 
the current rate of recognition, it will take the Bureau of Indian 
Affairs many decades 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--in particular, 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 tribe 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 30-
year-old clerical error of the Bureau of Indian Affairs which 
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 recognition procedures. Former President 
Clinton 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.''
  Mr. Speaker, the legislation I am introducing today addresses most 
the above concerns by establishing an independent three member 
commission which consider 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. 
Previous bills I have introduced on this issue were an attempt to 
streamline and make 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.
  Because some have expressed concern that prior bills would open the 
door for more tribes to conduct gambling operations on new 
reservations, the bill I introduce today will codify the existing 
criteria used for recognition rather than change to revised criteria 
under which

[[Page E433]]

some have said would make it easier for groups to qualify.
  Underlying this bill is the issue of Indian gaming. While I cannot 
say that no new gambling operations will result from this bill, I do 
believe that this bill will have only a minimal impact in the area. I 
would like to remind my colleagues that:
  (1) unlike state-sponsored gaming operations, Indian gaming is highly 
regulated by the Indian Gaming Regulatory Act;
  (2) before gaming can be conducted, the tribes must reach an 
agreement with the state in which the gaming would be conducted;
  (3) under IGRA (the Indian Gaming and Regulatory Act) gaming can only 
be conducted on land held in trust by the federal government;
  (4) gaming can only be conducted at a level the state permits on non-
Indian land; and
  (4) any gaming profits can only be used for tribal development, such 
as water & 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. 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 not long ago 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 consultation and years of work. I have sought 
to work with many parties to come up with sound, careful changes which 
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.
  In conclusion Mr. Speaker, I hope we can take final action on the 
issue of Indian recognition early in this century by addressing at 
least some of the wrongs of the past two centuries.

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