[Congressional Record Volume 149, Number 31 (Wednesday, February 26, 2003)]
[Senate]
[Pages S2863-S2865]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DODD (for himself and Mr. Lieberman):
  S. 463. A bill to provide grants to ensure full and fair 
participation in certain decisionmaking processes of the Bureau of 
Indian Affairs; to the Committee on Indian Affairs.
  Mr. DODD. Mr. President, I rise with our colleague Senator Lieberman 
today to reintroduce two pieces of legislation intended to improve the 
process by which the Federal Government

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acknowledges the sovereign rights of American Indians and their tribal 
governments. The first bill is called the Tribal Recognition and Indian 
Bureau Enhancement Act, or the TRIBE Act. The second bill I am 
introducing is a bill to provide assistance grants to financially needy 
tribal groups and municipalities so that those groups and towns can 
more fully and fairly participate in certain decision-making processes 
at the Bureau of Indian Affairs.
  I offer these bills with a renewed sense of hope, knowing that they 
will contribute to the larger national conversation about how the 
Federal Government can best fulfill its obligations to America's native 
peoples. Senator Campbell and Senator Inouye have provided invaluable 
leadership on this issue. The bills I am reintroducing were the subject 
of a hearing before the Indian Affairs Committee last fall. While 
neither bill was reported out of Committee before the end of the last 
Congress, I hope that the Indian Affairs Committee will continue its 
work on these and related bills--including Senator Campbell's recently 
introduced tribal recognition bill--and will see fit to address the 
problems that currently plague the recognition process.
  Currently, there are some 200 petitions pending at the Bureau of 
Indian Affairs by groups from throughout our Nation seeking Federal 
recognition as Indian tribes. Nine of these are in the State of 
Connecticut. These are in addition to the two tribes already recognized 
in our State: the Mashantucket Pequot tribe and the Mohegan Tribal 
Nation.
  I want to emphasize that as a State, Connecticut has embraced its two 
established and federally recognized tribes--the Mashantucket Pequot 
tribe and the Mohegan Tribe. They have generated thousands of jobs for 
Connecticut residents--primarily in the gaming industry. In fact, 
Foxwoods Casino, owned by the Mashantucket Pequot Tribe, is the largest 
gambling casino in the world. Both tribes have delivered hundreds of 
millions of dollars into the treasuries of our State and towns dollars 
that have been used to help meet needs in housing, health care, 
education, and transportation for people throughout the State.
  Like any large enterprise, these casinos have placed significant 
demands on the roadways, water systems, and police and fire 
departments. By some estimates, an average of 20,000 to 40,000 people 
visit these two casinos every day, seven days a week, 365 days a year.
  Clearly, Federal recognition is an important legal status that can 
profoundly change both Indian and non-Indian communities. Our 
experience in Connecticut has taught us that Federal recognition is too 
important to be treated lightly.
  I would not be back before the Senate to address this issue if I did 
not believe that there are serious defects in the process for tribal 
recognition. This is a significant issue for Connecticut, but it is 
also a matter of concern for the entire country. The tribal recognition 
process is broken. And the process is harming communities and tribes 
across the country.
  The problems with the current recognition process have been well 
documented and I do not intend to restate all that has been said and 
written about the subject in recent years. Suffice it to say that it is 
widely recognized that the process is failing both tribal groups and 
other interested parties. The General Accounting Office, in a highly-
critical study released in November 2001, summarized the problem when 
it concluded that ``because of weaknesses in the recognition process, 
the basis for BIA's tribal recognition decisions is not always clear 
and the length of time involved can be substantial.''
  Senator Campbell, Chairman of the Indian Affairs Committee, has 
eloquently pointed out the irony that descendants of native peoples who 
have lived in North America for thousands of years are the only 
Americans that must be ``documented'' to prove their status. How much 
more bitter that irony has become now that a process established to be 
fair and considerate toward native peoples is, in many ways, working 
against them. Let me share with our colleagues some compelling facts, 
which I have referenced here on the floor of the Senate before.
  Decisions on tribal petitions do not take months to make. They 
typically take years--and sometimes decades, thanks to understaffing 
and the demands of complying with FOIA requests and litigation. At its 
current pace, it will take well over 100 years for BIA to clear just 
its existing backlog of tribal recognition petitions. Can you imagine 
any group of Americans having to wait years or decades to have their 
legal rights vindicated? We would not and do not tolerate those kinds 
of delays in other areas of federal administrative law. Yet they are 
commonplace with respect to groups seeking Federal tribal status.
  Tribes, towns, and other interested parties have often had their 
evidentiary submissions ignored. During consideration of two recent 
petitions, the BIA decided it would no longer accept evidence submitted 
on the petitions--but the agency failed to tell interested parties for 
eleven months. In the meantime, neighboring parties and other 
interested parties had spent large sums of time and money to submit 
voluminous additional evidence bearing on whether or not the petitions 
should have been granted.
  In some cases, the seven mandatory criteria for recognition have been 
selectively ignored by BIA. In the case of the Eastern Pequot and 
Paucatuck Eastern Pequot petitions, two of the seven criteria for 
recognition were waived by the then-Assistant Secretary for Indian 
Affairs. According to published reports, he effectively ignored the 
recommendations of the historians and genealogists on his staff who had 
found that those criteria had not been met. In another case, there was 
a 70-year period during which a petitioner could produce no evidence 
that it continuously existed as a distinct community exhibiting 
political authority. The BIA's technical staff concluded that a 70-year 
gap was too long to support a finding of continuous existence. Despite 
the lack of evidence, the Assistant Secretary decided that continuous 
existence could be presumed, and so he went on to deem this criterion 
to be met and to recognize the tribe.
  Again, the bottom line is that the recognition process is broken. 
Last year, one of our colleagues--a long-time champion for American 
Indian causes--called the current recognition process a ``scandal.'' I 
agree and I think it's bad public policy to allow Federal agencies to 
continue to make decisions when their decision-making procedures are so 
flawed.
  The current process is arcane, burdensome, time consuming, difficult 
to understand, and too easily manipulated for political purposes. The 
evidence is overwhelming that the rules of recognition are being 
applied strictly for some and bent or ignored altogether for others. 
That's wrong. That's unfair. The Chairwoman of the Duwamish Tribe of 
Washington State has said she and her people ``have known and felt the 
effects of 20 years of administrative inaccuracies, delays and the 
blase approach in . . . handling and . . . processing the Duwamish 
petitions.'' Because the process is so complicated and so different 
from other, more familiar, administrative procedures, it is hard for 
people to have confidence in the BIA's decisions--especially when the 
BIA appears to be applying the rules differently in different cases.
  The reforms proposed by the TRIBE Act are modest. The TRIBE Act will 
permit any Indian group in the continental United States that desires 
to be acknowledged as an Indian Tribe to file a petition with the BIA. 
If the group can satisfy the mandatory criteria for federal 
acknowledgment, then the group would be recognized.
  The legislation simply requires better notice to Indians and non-
Indian groups. It provides for better fact-finding and it requires the 
Secretary to publish a complete explanation of final decisions 
regarding documented petitions. The bill improves the recognition 
process in the following specific ways: first, it would authorize $10 
million per year to better enable the Bureau of Indian Affairs to 
consider petitions in a thorough, fair, and timely manner. Second, it 
would provide for improved notice of a petition to key persons who may 
have an interest in a petition, including: the governor and attorney 
general of the state where a tribe seeks recognition; other tribes; and 
elected leaders of towns in the vicinity of a tribe seeking 
recognition, third, it would require that a petitioner meets each of 
the seven mandatory criteria for federal recognition

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spelled out in the current Code of Federal Regulations, and fourth, it 
would require that a decision on a petition be published in the Federal 
Register, which would include a detailed explanation of the findings of 
fact and of law with respect to each of the seven mandatory criteria 
for recognition.
  I want to emphasize what this legislation would not do. It would not 
revoke or in any way alter the status of tribes whose petitions for 
federal recognition have already been granted. It would not restrict in 
any way the existing prerogatives and privileges of such tribes. Tribes 
will retain their right to self-determination consistent with their 
sovereign status. Finally, and perhaps most importantly, the TRIBE Act 
will not dictate outcomes or micro-manage the agency.
  As I have often said, I believe that every tribal Government that is 
entitled to recognition should be recognized and should be recognized 
in an appropriately speedy process. But I also think we have to make 
sure that the BIA's conclusions are accurate so there won't be endless 
questions and disputes over the Bureau's decisions. Every recognition 
decision carries with it a legal significance that should endure 
forever. Each recognition decision made by the BIA is a foundation upon 
which relationships between tribes and States, tribes and towns, 
Indians and non-Indians will be built for generations to come. We need 
to make sure that the foundation upon which these lasting decisions are 
built is sound and will withstand the test of time. We as a Nation 
cannot afford to build relationships between sovereigns on the shifting 
sands of a broken bureaucratic procedure.
  Let me close with a word about the second bill I am introducing. This 
bill will provide grants to allow poor tribes and municipalities an 
opportunity to effectively participate in important decision-making 
processes. When the Federal Government, through the Bureau of Indian 
Affairs, makes decisions that will change communities, it is only right 
that the government should provide a meaningful opportunity for those 
communities, whether tribal or non-tribal, to be heard.
  As we consider how best to reform the process for tribal recognition, 
we ought to be guided by the firm principles embedded in the bills I am 
offering here today: fairness, openness, respect, and a common interest 
in bettering the quality of life for all Americans. I look forward to 
discussing these and other ideas with Chairman Campbell, Senator 
Inouye, and my colleagues here in the Senate, tribal leaders, and 
others who believe the time for reform has come.
  Mr. LIEBERMAN. Mr. President, I rise to speak in support of the 
``Tribal Recognition and Indian Bureau Enhancement Act.'' I am proud to 
join the senior Senator from Connecticut in reintroducing this 
legislation.
  Senator Dodd and I are interested in making the tribal recognition 
process a more fair and open process. I am aware of another bill 
introduced last month by Chairman Campbell that also seeks to reform 
the Bureau of Indian Affairs' recognition process. While I am concerned 
with several aspects of the Senator's bill, I am nonetheless gratified 
to see that my colleagues on both sides of the aisle recognize that the 
current BIA process is fraught with problems.
  I know that both Chairman Campbell and Vice Chairman Inouye want to 
reform the broken tribal recognition process at the BIA. I look forward 
to working together with both Chairman Campbell and Vice Chairman 
Inouye to craft and pass legislation to fix a process that Vice 
chairman Inouye last year called a ``scandal.''
  I would first like to reiterate my support for the recognition of our 
historic Indian tribes. Unfortunately, this important recognition 
process is not operating as it should--in particular, the decisions are 
murky on the criteria for recognition when, and how, they may be 
satisfied--and those shortcomings are undermining the legitimacy of the 
entire process.
  The lack of public confidence in the tribal recognition process is of 
grave concern to me. In my home State of Connecticut, public interest 
in the recognition process has increased because of the ability of 
recognized tribes to open large casinos. Senator Dodd and I introduced 
both of these bills in the 107th Congress in an effort to reinvigorate 
the process and redeem the BIA program for future generations. Our bill 
will codify existing recognition criteria and require the BIA to 
provide notice of pending petitions to various interested groups--
something that will benefit both the tribes and the communities that 
surround them. The companion bill Senator Dodd and I have introduced 
today will and provide the resources that stakeholders of limited means 
require to meaningfully participate in the process. As a whole, our two 
pieces of legislation move towards a stronger recognition system in 
which all interested persons are able to participate, and participate 
meaningfully.
  In particular, the ``Tribal Recognition and Indian Bureau Enhancement 
Act'' is intended to ensure that recognition criteria are satisfied and 
all affected parties, including affected towns, have a change to fairly 
participate in the decision process. It ensures that: affected parties 
be given proper notice; that relevant evidence from petitioners and 
interested parties, including neighboring town, is properly considered; 
that a formal hearing may be requested, with an opportunity for 
witnesses to be called and with other due process procedures in place; 
that a transcript of the hearing is kept; that the evidence is 
sufficient to show that the petitioner meets the seven mandatory 
criteria in federal regulations; and that a complete and detailed 
explanation of the final decision and findings of fact are published in 
the Federal Register.
  Having created these new procedures, our second bill is intended to 
ensure that all stakeholders are able to participate in them. It would 
provide grants to local governments and needy tribes to allow them to 
hire genealogists, lawyers, and other professionals necessary to 
participate in proceedings. Grants would be available to assist 
eligible parties in BIA proceedings regarding the recognition of a 
tribe as well as proceedings regarding whether to place land into trust 
for a tribe. We view these bills as working in tandem: we can't make 
the recognition process stronger and more transparent without giving 
participants the appropriate professional resources. Together, these 
bills insist on systemic reform while investing in ore legitimate 
results.
  I want to stress that these bills do nothing to affect already 
recognized federal tribes or hinder their economic development plans. 
Nor do they change existing Federal tribal recognition laws. It is 
still my hope that tribes could support these reforms, so as to 
buttress the legitimacy of their recognition rulings.
  I again want to express my commitment to working with members from 
both sides of the aisle to craft a more fair and effective tribal 
recognition process for the BIA. The tribal recognition process is an 
important issue not only for Connecticut, but for many States 
throughout this great Nation of ours. The process, unfortunately, is 
broken, and we should come together to fix it for the benefit of all 
involved. I look forward to working with Senators Dodd, Chairman 
Campbell, and Vice Chairman Inouye on legislation to create a better 
recognition process.

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