[House Report 108-788]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-788
======================================================================
TO REQUIRE THE PROMPT REVIEW BY THE SECRETARY OF THE INTERIOR OF THE
LONG-STANDING PETITIONS FOR FEDERAL RECOGNITION OF CERTAIN INDIAN
TRIBES, AND FOR OTHER PURPOSES
_______
November 19, 2004.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
[To accompany H.R. 5134]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 5134) to require the prompt review by the Secretary of
the Interior of the long-standing petitions for Federal
recognition of certain Indian tribes, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. PROMPT CONSIDERATION OF CERTAIN PETITIONS REQUESTING FEDERAL
RECOGNITION AS AN INDIAN TRIBE.
(a) Time Period for Proposed Finding.--Not later than 6 months after
the date of the enactment of this Act, the Secretary shall publish a
proposed finding with respect to the petition for Federal recognition
of each eligible tribe consistent with part 83 of title 25, Code of
Federal Regulations.
(b) Time Period for Final Determination.--Not later than one year
after the date of the enactment of this Act, the Secretary shall
publish a final determination with respect to the petition for Federal
recognition of each eligible tribe.
(c) Notification; Opt In.--
(1) Notification of tribes.--Not later than 45 days after the
date of the enactment of this Act, the Secretary shall notify,
in writing, all potentially eligible tribes that they may opt
into the expedited procedure for proposed findings and final
determinations under this Act and of the provisions of
paragraph (2).
(2) Opt in.--If, not later than 90 days after the date of the
enactment of this Act, a potentially eligible tribe notifies
the Secretary, in writing, that the potentially eligible tribe
elects to opt into the expedited procedures under this Act, the
potentially eligible tribe shall be considered an eligible
tribe for the purposes of this Act. Potentially eligible tribes
shall not be considered eligible tribes for the purposes of
this Act if notification is not made by the potentially
eligible tribe in accordance with this paragraph.
(d) Number of Members Not a Factor.--The number of persons listed on
the membership roll contained in a petition for Federal recognition of
an eligible tribe shall not be taken into account in considering the
petition, except that the Secretary may review the eligibility of
individual members or groups listed in a petition in accordance with
the provisions of part 83 of title 25, Code of Federal Regulations.
(e) Effect of Failure To Comply.--If the Secretary fails to publish a
proposed finding required by subsection (a) or a final determination
required by subsection (b) by the end of the time period required for
the proposed finding or final determination by such subsections, the
relevant eligible tribe may seek in the appropriate United States
district court a determination by the court of whether the eligible
tribe should be recognized as an Indian tribe in accordance with the
criteria specified in section 83.7 of title 25, Code of Federal
Regulations. In any such action, the court shall treat such failure by
the Secretary as final agency action.
(f) Review of Adverse Decision.--If the final determination required
by subsection (b) refuses to recognize the eligible tribe as an Indian
tribe, the eligible tribe may seek, during the one-year period
beginning on the date on which the final determination is published, a
review of the determination in the appropriate United States district
court, notwithstanding the availability of other administrative
remedies.
(g) Consideration of Other Petitions.--Until the Secretary has
published a proposed finding with respect to the petition of each
eligible tribe as required under subsection (a), no other petition for
recognition as an Indian tribe may be processed except those listed as
having a status of ``Active'' or ``In Post-Final Decision Appeal
Process'' by the Department of the Interior on July 1, 2004.
(h) No Change in Criteria.--Nothing in this Act shall be construed to
change the criteria established by the Department of the Interior to
determine whether or not a petitioner meets the requirements to be a
federally recognized tribe.
(i) Definitions.--For the purposes of this Act, the following
definitions apply:
(1) Eligible tribe.--The term ``eligible tribe'' means a
tribe that--
(A) has made an initial application for recognition
as an Indian tribe to the Department of the Interior
before October 17, 1988;
(B) is listed as having a status of ``Ready, Waiting
for Active Consideration'' by the Department of the
Interior on July 1, 2004; and
(C) not later than 90 days after the date of the
enactment of this Act, notifies the Secretary, in
writing, that it opts to have its petition for
recognition as an Indian tribe considered under the
expedited procedure for proposed findings and final
determinations under this Act.
(2) Potentially eligible tribe.--The term ``potentially
eligible tribe'' means a tribe that--
(A) has made an initial application for recognition
as an Indian tribe to the Department of the Interior
before October 17, 1988;
(B) is listed as having a status of ``Ready, Waiting
for Active Consideration'' by the Department of the
Interior on July 1, 2004; and
(C) has not notified the Secretary, in writing,
whether or not it opts to have its petition for
recognition as an Indian tribe considered under the
expedited procedure for proposed findings and final
determinations under this Act.
(3) Secretary.--The term ``Secretary'' means the Secretary of
the Interior, or a designee of the Secretary.
PURPOSE OF THE BILL
The purpose of H.R. 5134 is to require the prompt review by
the Secretary of the Interior of the long-standing petitions
for federal recognition of certain Indian tribes, and for other
purposes.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 5134 seeks to require the Department of the Interior
to give a more timely response to certain petitions for federal
recognition of Native American Indians as tribes. It
prioritizes Departmental resources for acknowledgment and
recognition to first be used to process long-standing petitions
that were submitted before the enactment of the Indian Gaming
Regulatory Act, and have yet to be processed. The bill in no
way changes the existing criteria that determine whether a
tribe qualifies to be federally recognized.
The decision by the United States government to grant
federal recognition to an Indian tribe is the cornerstone of
the government-to-government relationship between the federal
government and America's Indian Nation. Only federally-
recognized tribes have inherent sovereignty and a unique
government-to-government relationship with the United States,
as well as many other rights and benefits. It is a very
important and serious status.
When the process of acknowledgment and recognition was
established at the Department of the Interior, it was widely
believed that the process of verifying the accuracy of a
petition by a tribe for recognition and whether a tribe met
standards for federal recognition would be a thorough but
reasonably quick process. According to a January 9, 1977,
Department of the Interior memorandum prepared for the
Assistant Secretary of Indian Affairs by the Director of the
Office of Indian Services, the Department estimated the
completion time for an average petition at 195 days, with the
potential of reducing this period to 150 days with changes in
the regulations prior to finalization. The memo further
estimated that each staff member could handle four to six
petitions concurrently, and at maximum effort, the Department
could process 96 petitions a year.
Obviously these goals set forth by the Department in 1977
have come nowhere near being realized. Many petitioning tribes
have waited decades to go through the process, literally seeing
generations of elders pass away while still receiving no answer
to their petition. The current list of petitioners has tribes
that first applied back in the early 1970s, before the process
for recognition had even been finalized. Many of these
petitioners are still awaiting their answer. Even more
discouraging to them is the fact that other tribes who did not
even make their first application until the late 1990s have
already completed the process and have received decisions on
their recognition.
The Committee held a hearing on March 31, 2004, on the
tribal recognition process. At this hearing, the Director of
the Office of Federal Acknowledgment within the Office of the
Assistant Secretary of Indian Affairs testified that there were
currently 13 fully documented petitions that were ready and
awaiting active consideration by the Department. In the nearly
six months that have passed since that hearing, not a single
one of the groups that was deemed ready for consideration has
moved forward or received a determination. Thus, a tribe such
as the St. Francis Abenaki of Vermont, which first applied for
recognition on June 14, 1983, and was deemed ready for
consideration on January 17, 1996, continues to make no headway
towards receiving a determination on their petition. Other
witnesses testified how their tribes had waited decades for an
answer and had to resort to extraordinary tactics such as
litigation against the Department or seeking legislative
recognition to break out of the gridlock of the process.
As ordered favorably reported from the Committee on
Resources, H.R. 5134 will address the plight of these and other
applicants who have had long-standing completed petitions that
have yet to be processed by the Department. It will provide
that a tribe that made its initial application for recognition
prior to October 17, 1988, and whose petition was determined to
be ready and waiting consideration by the Department as of July
1, 2004, be eligible for expedited review. Using these
criteria, 10 of the 13 aforementioned tribes will be eligible
to finally get a ``yes'' or ``no'' decision. This expedited
review mandates that the Secretary must make a proposed finding
for each eligible petitioner no later than 6 months after
enactment, and a final determination no later than one year
after enactment. Failure by the Secretary to meet these
deadlines shall be deemed a negative final agency action and
shall allow the petitioner to seek in United States district
court a determination of whether they meet the Department's
criteria for recognition as an Indian tribe. Any eligible tribe
which chooses to participate in this review must opt in.
Furthermore, H.R. 5134 clarifies that nothing in the bill
modifies in any way the criteria by which a petitioner is
judged to qualify as a tribe.
COMMTTEE ACTION
H.R. 5134 was introduced on September 23, 2004, by
Resources Committee Chairman Richard Pombo (R-CA). The bill was
referred to the Committee on Resources. No hearing was held on
the bill. On September 29, 2004, the Full Resources Committee
met to consider the bill. Chairman Pombo offered an amendment
in the nature of a substitute. The amendment changed the
participation process of eligible tribes from an opt-out
process to an opt-in process. The time period for these
processes was extended to 45 days from enactment for the
Secretary to notify petitioners of their eligibility, and 90
days from enactment for the petitioners to opt in. The
amendment also deemed failure to act by the Secretary as final
agency action. It was adopted by voice vote. The bill as
amended was then ordered favorably reported to the House of
Representatives by voice vote.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. This bill does
not authorize funding and therefore, clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
apply.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 18, 2004.
Hon. Richard W. Pombo,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5134, a bill to
require the prompt review by the Secretary of the Interior of
the long-standing petitions for federal recognition of certain
Indian tribes, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mike Waters.
Sincerely,
Douglas Holtz-Eakin, Director.
Enclosure.
H.R. 5134--A bill to require the prompt review by the Secretary of the
Interior of the long-standing petitions for federal recognition
of certain Indian tribes, and for other purposes
Summary: H.R. 5134 would require the Department of the
Interior (DOI) to process and settle certain petitions for
official recognition of Indian groups by the federal
government. The bill would mandate that the department respond
to all 10 eligible petitions within one year of its enactment.
Based on information from the Office of Federal Acknowledgement
(OFA), CBO expects that current staff of this office is
insufficient to meet that deadline. Assuming that the
department hires enough new staff to respond to all eligible
petitions as rapidly as feasible, COB estimates that
implementing H.R. 5134 would cost $12 million over the 2005-
2009 period, subject to appropriation of the necessary amounts.
H.R. 5134 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5134 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level...................................... 2 5 5 0 0
Estimated Outlays.................................................. 2 5 5 0 0
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the beginning of 2005 and that DOI
would attempt to comply with the deadlines in the bill.
Indian tribes may currently be recognized by the federal
government through an act of Congress, DOI administrative
procedure, or a decision by a United States court. The usual
route to federal recognition is through DOI's administrative
process. Federal recognition of an Indian group entitles the
group to participate in programs operated for the benefit of
Indians mostly by the Bureau of Indian Affairs (BIA) within
DOI. It also creates a government-to-government relationship
between the tribe and the federal government.
Administrative federal recognition
Numerous tribes are currently at various stages in the
administrative process to petition for federal recognition. Ten
of those petitions would be covered by the provisions of this
bill and would each require both a proposed finding and a final
determination of the group's status.
Regulations governing the federal acknowledgment process
require a minimum comment period of at least eight months
following delivery of a proposed finding. After that, they
allow the department 60 days to issue a final determination.
Within BIA, OFA reviews and recommends findings on petitions by
interested Indian groups for federal recognition. The office
currently employs 11 staff members, including three teams of
petition researchers, and has recently issued finding at a rate
of roughly two proposed findings and three final determinations
per year.
H.R. would require DOI to complete all proposed findings
within six months of enactment and to complete all final
destinations within one year. Because the current regulations
require eight months between delivery of a proposed finding and
preparation of a final destination, CBO expects that the
department probably would be unable to comply with the
deadlines in the bill even with additional resources. In that
event, the affected tribes could pursue judicial recognition as
they may under current law.
To properly evaluate the 10 petitions as expeditiously as
possible, the department would need additional personnel. (Such
personnel might be a combination of federal and contractor
employees.) Based on information from DOI, CBO estimates that
OFA would need the equivalent of about 60 personnel for roughly
a two-year period to process all eligible petitions. CBO
estimates that the additional staff would cost $12 million over
the 2005-2007 period, subject to appropriation of the necessary
amounts.
Intergovernmental and private-sector impact: H.R. 5134
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Mike Waters. Impact on
State, Local, and Tribal Governments: Marjorie Miller. Impact
on the Private Sector: Selena Caldera.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.