[House Report 109-694]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-694

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 TO REQUIRE THE PROMPT REVIEW BY THE SECRETARY OF THE INTERIOR OF THE 
   LONGSTANDING PETITIONS FOR FEDERAL RECOGNITION OF CERTAIN INDIAN 
                     TRIBES, AND FOR OTHER PURPOSES

                                _______
                                

 September 28, 2006.--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. 512]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Resources, to whom was referred the bill 
(H.R. 512) to require the prompt review by the Secretary of the 
Interior of the longstanding petitions for Federal recognition 
of certain Indian tribes, and for other purposes, having 
considered the same, report favorably thereon without amendment 
and recommend that the bill do pass.

                          PURPOSE OF THE BILL

    The purpose of H.R. 512 is to require the prompt review by 
the Secretary of the Interior of the longstanding petitions for 
Federal recognition of certain Indian tribes, and for other 
purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 512 expedites the evaluation of several longstanding 
petitions for federal acknowledgment and recognition filed by 
certain Indian groups. Because Article I, Section 8 of the 
Constitution delegates to Congress plenary authority over 
commerce with Indian tribes, the federal government's decision 
to recognize a group as an Indian tribe is a solemn 
responsibility.
    Historically, Indian tribes have been recognized through 
treaties, Acts of Congress, Executive Orders, rulings by 
federal courts, and administrative decisions. In 1978, the 
Bureau of Indian Affairs in the Department of the Interior 
established a process for acknowledging Indian tribes known as 
``Procedures for Establishing that an American Indian Group 
Exists as an Indian Tribe,'' found at 25 Code of Federal 
Regulations Part 83. In petitioning for recognition under these 
procedures, a group must establish a substantially continuous 
tribal existence and that it has functioned as an autonomous 
entity throughout history until the present. To meet this 
standard, a petitioner must meet seven mandatory criteria.
    While there is general agreement among experts that the 
seven mandatory criteria are basically sound, the process of 
managing and evaluating acknowledgment petitions is fraught 
with major delays and failure to establish deadlines. When the 
acknowledgment and recognition regulations were established in 
1978, it was widely believed that the process of verifying the 
accuracy of the petition and whether a tribe met standards for 
federal recognition would be thorough but reasonably quick. 
According to a January 9, 1977, Department of 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 4 to 6 petitions concurrently, and at maximum 
effort, the Department could process 96 petitions per 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 an 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.
    Both the Government Accountability Office and the 
Department acknowledge problems with timeliness in the process 
and have recommended improvements, such as the establishment of 
clear time frames and time sensitivity in considering 
petitions.
    No one should have to wait decades for the government to 
abide by its own regulations to render a decision on a 
petition. H.R. 512 addresses the lack of clear time frames for 
several tribes with longstanding, fully documented petitions. 
Specifically, H.R. 512 enables eligible tribes to obtain a 
final determination from the Secretary of the Interior on their 
petitions within one year, and failing that, to obtain a 
determination from a federal judge. To be eligible, a tribe 
must have filed its initial petition before October 17, 1988, 
and fully documented its petition by July 1, 2004. No eligible 
tribe is required to invoke its right to an expedited decision 
under this bill; opting in to the process is entirely voluntary 
on the part of the petitioner.
    Significantly, the bill does not change any criteria or 
standard of review for recognition under the 1978 regulations. 
Thus, the Secretary will not construe a requirement for 
rendering a speedy decision to influence the final decision on 
the merits of the petition.
    To ensure the Secretary can marshal the resources necessary 
to perform an expedited review of tribes who opt to invoke an 
expedited decision, subsection 1(g) of H.R. 512 puts incomplete 
and inactive petitions on hold until the Secretary acts on 
petitions of tribes eligible for an expedited review. It should 
be emphasized that under subsection 1(g), petitions listed as 
``Active'' or ``In Post-Final Decision Appeal Process'' should 
be processed promptly and fairly by the Department.\1\
---------------------------------------------------------------------------
    \1\ The terms ``Active'' and ``In Post-Final Decision Appeal 
Process'' used in subsection 1(g) refer to the tribes under the 
respective headings ``Active Status'' and ``In Post-Final Decision 
Appeal Process'' in the ``Status Summary of Acknowledgment Cases'' 
maintained by the Bureau of Indian Affairs.
---------------------------------------------------------------------------
    A hearing was held on H.R. 512 on February 10, 2005. 
Testimony was received from the acting Deputy Assistant 
Secretary for Indian Affairs of the Department of the Interior, 
the General Accountability Office, an expert on the recognition 
process, and a witness representing a petitioner seeking 
recognition.
    One issue that came to light in testimony submitted in this 
hearing is the fact that new petitions for recognition are 
still being filed by new groups to this day. At present, there 
are about 250 unresolved petitions on file at the Bureau of 
Indian Affairs (BIA). The vast majority were filed around the 
time the 1978 acknowledgment regulations were published in the 
Federal Register. After 1979, the number of petitions steeply 
declined, and then began to increase in 1998--the year Congress 
enacted the Indian Gaming Regulatory Act. And more are being 
filed today.
    According to the Department's testimony, 134 of these 250 
letters of petition had no documentation submitted in support 
of the petitioner's cause. Seventy-one petitions were 
incomplete because only partial documentation had been 
submitted. Ten groups were no longer in contact with BIA.
    These data indicate that a majority of the petitioners have 
not followed up with the submission of any documentation--even 
partial documentation--to demonstrate their claimed status of 
being an Indian tribe due all the benefits, privileges, 
services and responsibilities of federal recognized tribes. 
While no one expects a petitioner to fully document a petition 
within a short time frame or without a significant amount of 
resources, some of the petitions lacking any documentation were 
filed as long ago as 1976.
    In light of these facts, the Congress and the Secretary 
should consider how to deal with petitions that are effectively 
abandoned. Recognition reaffirms the continuous existence of a 
sovereign Indian Nation. World history is rife with examples of 
peoples impatient to declare themselves sovereign, autonomous 
nations. A measure of a real Indian Nation would be the 
persistence and pursuit demonstrated by the tribes that meet 
the criteria for a decision in H.R. 512. The credibility of the 
BIA is weakened by keeping so many completely inactive and 
possibly abandoned petitions alive. Petitioners have had 28 
years to get acquainted with the BIA process. The aim of H.R. 
512 is to expedite decisions on petitions that were filed in an 
era when information about the regulations was not well-known, 
and resources needed to begin the process were not readily 
available. It is reasonable to ask whether a time has arrived 
to phase out the Secretary's authority to recognize groups who 
file petitions after enactment of this bill. While it is 
unreasonable to suggest a petitioner must know how to fully 
document a petition, it is reasonable to require that a simple 
letter of intent to petition be filed by a time certain date.
    Holding the BIA process open on a permanent basis cheapens 
the process of being recognized. A number of petitioners are 
actively assembling documents, corresponding with the BIA, and 
earnestly seeking a determination of their status. No one 
wishes to hinder their efforts. In fact, in almost all of these 
cases, the initial letter to petition for recognition was sent 
in a time (which was not many years ago) when information about 
and knowledge of the process was hard to understand or to 
ascertain. These conditions hardly exist in this era, when a 
person has the capability of communicating around the globe at 
the speed of light.
    Although some might say that a sunset is fair to tribes who 
lack the resources to assemble a documented petition by a time 
certain date, it is perfectly reasonable to demand that a 
simple, undocumented letter of petition be sent by a time-
certain date.
    In any case, imposing a sunset on the authority of the 
Secretary of the Interior to acknowledge tribes who have not 
yet filed petitions for recognition has no effect on the 
ability of anyone to petition Congress. It is appropriate to 
note here that the regulations at 25 C.F.R. 83 are not 
specifically authorized by an Act of Congress, and that 
Congress has the final word on whether to continue this 
program.
    For these foregoing reasons, consideration of amending H.R. 
512 on the Floor to include a sunset provision on the 
Secretary's authority to recognize tribes filing petitions 
after enactment of the bill is warranted. While an amendment by 
the Chairman for this purpose was proposed during Committee 
consideration of the bill, he did not offer it in order to 
continue a discussion with dissenters of a sunset provision. In 
all other respects, the bill enjoyed strong bipartisan support.

                            COMMITTEE ACTION

    H.R. 512 was introduced on February 2, 2005, by Chairman 
Richard W. Pombo (R-CA). The bill was referred to the Committee 
on Resources. On February 10, 2005, the Full Resources 
Committee held a hearing on the bill. On June 21, 2006, the 
Full Resources Committee met to consider the bill. No 
amendments were offered and the bill was 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, clause 3 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:

H.R. 512--A bill to require the prompt review by the Secretary of the 
        Interior of the longstanding petitions for federal recognition 
        of certain Indian tribes, and for other purposes

    Summary: H.R. 512 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 eligible petitions within one year of its enactment. 
Based on information from DOI, CBO expects that current staff 
are insufficient to meet that deadline. Assuming that the 
department hires enough new staff to respond to all eligible 
petitions as rapidly as feasible, CBO estimates that 
implementing H.R. 512 would cost about $5 million over the 
2007-2011 period, subject to appropriation of the necessary 
amounts.
    H.R. 512 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. Enacting H.R. 512 would have no impact on direct 
spending or revenues.
    Eestimatd cost to the Federal Government: The estimated 
budgetary impact of H.R. 512 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--
                                                                    --------------------------------------------
                                                                       2007     2008     2009     2010     2011
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                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level......................................        1        2        2        0        0
Estimated Outlays..................................................        1        2        2        0        0
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted near the beginning of fiscal year 2007 and 
that the necessary amounts will be appropriated to allow DOI to 
comply with the deadlines in the bill to the extent possible.
    Indian tribes may be recognized by the federal government 
through an act of the 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 federal programs operated for the benefit of 
Indians. It also creates a government-to-government 
relationship between the tribe and the federal government.
    Within DOI, the Office of Federal Acknowledgment (OFA) 
reviews and recommends findings on petitions by interested 
Indian groups for federal recognition. Once a petitioning group 
has submitted their documentation and undergone a technical 
review, OFA lists the group as ready for active consideration. 
Following the delivery of a proposed finding, regulations 
governing the federal acknowledgment process require a minimum 
public comment period of at least 180 days. After that, the 
department has 60 days to issue a final determination.
    H.R. 512 would require DOI to begin active consideration of 
all petitions on the ``ready'' list filed prior to 1988. As of 
February 2006, nine petitions were listed as ready for 
consideration by DOI, and seven of those would be covered by 
the provisions of this bill. The bill would require the 
department to complete all proposed findings within six months 
of the bill's enactment and complete all final determinations 
within one year for these groups. Because the current 
regulations require at least eight months between delivery of a 
proposed finding and preparation of a final determination, CBO 
expects that DOI might 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 seven affected petitions as 
expeditiously as possible, in addition to eligible petitions 
currently under active consideration, the department would need 
additional research personnel. OFA currently employs four 
three-member research teams that each produce roughly one 
proposed finding and one final determination per year. CBO 
estimates that OFA would need to hire about 15 personnel for 
roughly a two-year period toprocess all eligible petitions 
under H.R. 512. CBO estimates that the additional staff would 
cost about $5 million for salaries and training over the 2007-
2009 period, subject to appropriation ofthe necessary amounts.
    Expediting the recognition process may also cause some 
groups to be eligible for programs operated for the benefit of 
Indians earlier than would otherwise have occurred in absence 
of the proposed legislation. CBO does not have enough 
information on the likelihood of recognition for the eligible 
petitions to estimate a cost for this effect. Any such 
additional costs would be subject to the availability of 
appropriated funds.
    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: Daniel Hoople. Impact 
on State, Local, and Tribal Governments: Marjorie Miller. 
Impact on the Private Sector: Tyler Kruzich.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                 COMPLIANCE WITH HOUSE RESOLUTION 1000

    This bill and report contains no provisions which require 
disclosure under this authority.

                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.

                                  
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