[Congressional Record (Bound Edition), Volume 155 (2009), Part 17]
[Extensions of Remarks]
[Page 23472]
[From the U.S. Government Publishing Office, www.gpo.gov]




        THE INDIAN TRIBAL FEDERAL RECOGNITION ADMINISTRATIVE ACT

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                       HON. ENI F.H. FALEOMAVAEGA

                           of american samoa

                    in the house of representatives

                       Thursday, October 1, 2009

  Mr. FALEOMAVAEGA. Madam Speaker, I rise today to introduce the Indian 
Tribal Federal Recognition Administrative Procedures Act, a bill to 
provide for an improved administrative process for federal recognition 
of certain Indian groups.
  The fact of the matter is the process by which the Department of the 
Interior to recognize Indian tribes is riddled with problems. And these 
problems exist in large part because the Congress itself has never by 
law established a process or criteria for the recognition of Indian 
tribes.
  First, the Bureau of Indian Affair'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 when most of these tribes lack the resources 
and necessary finances. I need not remind my colleagues that Native 
American Indians are still facing severe challenges to education, 
economic activity and social development, and this administrative 
process perpetuates an already embarrassing situation for this country.
  Madam Speaker, the courts have already acknowledged the unfair 
treatment of Indian groups because of the current federal recognition 
process. In 1996, in the case of Greene v. Babbitt, 943 F. Supp. 1278 
(W.Dist. Wash), the federal court found that the existing process is 
``marred by both lengthy delays and a pattern of serious procedural due 
process violations.'' Deciding on the recognition process for the 
Samish Tribe in the State of Washington, the court recognized that it 
took over 25 years for the Department to make a decision. Writing for 
the court, Judge Thomas Zilly opined that ``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). Moreover, certain procedures 
mandated in the Administrative Process Act (APA) and by the U.S. 
Constitution were glossed over during the acknowledgement process.
  Sadly though, 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.
  Fixing the recognition process was also noted by former President 
Clinton. In a 1996 letter to the Chinook Tribe of Washington, the 
President wrote, ``I agree that the current federal acknowledgment 
process must be improved.'' Despite some progress been made, President 
Clinton further added that ``much more must be done.''
  And the most recent action of this administrative acknowledgment 
process gives no hope to non-recognized tribes of a reasonable and 
timely process. The Bureau of Indian Affairs recently issued what it 
calls a proposed finding on the Brothertown of Wisconsin petition for 
federal acknowledgment. This tribe's petition was considered ready for 
consideration by the BIA in 1996--even so, the BIA did not take up the 
petition until 2008, 12 years later. In the proposed finding issued 
this August, the BIA proposed to turn down recognition of the tribe for 
several reasons. One of those reasons was a finding by the BIA that the 
tribe had been terminated by Congress in 1839. Now, a tribe that has 
been terminated by Congress cannot be recognized by the BIA. And yet, 
the BIA insists that this tribe complete this administrative process--
at the cost of thousands of dollars to the government and the tribe--
even though the BIA could not recognize the tribe even if it finds that 
the tribe meets the criteria for recognition. A process that requires 
such a thing makes no sense for the Federal Government or for tribes.
  Madam Speaker, the legislation I introduce today provides the vehicle 
to fix the recognition process for Indian groups. It embodies a 
framework to lessen the adverse impact and the unfortunate burden on 
Indian groups seeking federal recognition.
  Under this proposal, the administrative burden and responsibility for 
the federal recognition process is transferred from the Bureau of 
Indian Affairs, BIA, to an independent Commission on Recognition of 
Indian Tribes. The Commission shall consist of seven members appointed 
by the President with the consent of the Senate. This commission is 
tasked with reviewing and acting upon documented petitions submitted by 
Indian groups that apply for federal recognition.
  Under this legislation, clear and consistent standards of 
administrative review of documented petitions for federal recognition 
are provided for. Moreover, this bill clarifies and identifies clear 
evidentiary standards for administrative review and also helps expedite 
the process by providing adequate resources to process documented 
petition.
  Some have expressed concern that prior bills would 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 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 (IGRA); (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, 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 and 
sewer systems, schools, and housing.
  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.
  Madam Speaker, this bill is not perfect in every form, but it is the 
result of many hours of consultation and years of work. I want to thank 
Chairman Rahall and everyone involved in this endeavor. Many parties 
and stakeholders have come together for the purpose of making sound, 
careful changes which recognize the historical struggles the 
unrecognized tribes have gone through, yet retaining some of the 
framework the Bureau of Indian Affairs has developed diligently over 
the years.
  In conclusion Madam Speaker, I hope we can take final action and make 
much needed improvements to the Federal Indian Recognition process.

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