[Senate Report 112-198]
[From the U.S. Government Publishing Office]
Calendar No. 488
112th Congress Report
SENATE
2d Session 112-198
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TO EXTEND THE FEDERAL RECOGNITION TO THE LITTLE SHELL TRIBE OF CHIPPEWA
INDIANS OF MONTANA, AND FOR OTHER PURPOSES
_______
August 2, 2012.--Ordered to be printed
_______
Mr. Akaka, from the Committee on Indian Affairs,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 546]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 546) to extend the Federal recognition to the Little
Shell Tribe of Chippewa Indians of Montana, and for other
purposes, having considered the same, reports favorably thereon
and recommends that the bill do pass.
PURPOSE
The purposes of S. 546 is to extend Federal recognition to
the Little Shell Tribe of Chippewa Indians of Montana, making
its members eligible for all services and benefits provided by
the United States to other federally recognized Indian tribes
and to effect a transfer of 200 acres of land which the
Secretary of the Interior shall acquire and place in trust for
the benefit of the tribe.
BACKGROUND AND HISTORY
History of recognizing Indian Tribes
The recognition of an Indian group as a federally
recognized Indian tribe is an important action. It is an
affirmation by the United States of a tribe's right to self-
government and the existence of a formal government-to-
government relationship between the United States and the
tribe. Once a tribe is federally recognized, the tribe and its
members have access to federal benefits and programs, and the
tribal government incurs a formal responsibility to its members
as the primary governing body of the community.
Before Congress ended the practice of treaty-making with
Indian tribes in 1871, treaties were the usual manner of
recognizing a government-to-government relationship between the
United States and an Indian tribe. Since the abolishment of
treaty-making, the United States has recognized Indian tribes
by executive order, legislation, and administrative decisions
by the Executive Branch. Additionally, federal courts may
clarify the status of an Indian group, though in many cases,
the courts defer to the Bureau of Indian Affairs at the
Department of the Interior.
In order to provide a uniform and consistent process in
which to recognize an Indian group, the Department of the
Interior developed an administrative process in 1978 through
which Indian groups could petition for acknowledgment of a
government-to-government relationship with the United States.
The standards for this process are set forth in Title 25 of the
Code of Federal Regulations, Part 83, ``Procedures for
Establishing That an American Indian Group Exists as an Indian
Tribe.''
The regulations establish seven mandatory criteria, each of
which must be met before a group can achieve status as a
federally recognized Indian tribe. The criteria are as follows:
(1) The petitioner has been identified as an American
Indian entity on a substantially continuous basis since
1900;
(2) A predominant portion of the petitioning group
comprises a distinct community and has existed as a
community from historical times until the present;
(3) The petitioner has maintained political influence
or authority over its members as an autonomous entity
from historical times until the present;
(4) The group must provide a copy of its present
governing documents and membership criteria;
(5) The petitioner's membership consists of
individuals who descend from a historical Indian tribe
or tribes, which combined and functioned as a single
autonomous political entity;
(6) The membership of the petitioning group is
composed principally of persons who are not members of
any acknowledged North American Indian tribe; and
(7) Neither the petitioner nor its members are the
subject of congressional legislation that has expressly
terminated or forbidden the federal relationship.
The regulations have remained essentially unchanged since
1978, with the exception of revisions clarifying the evidence
needed to support a recognition petition (1994), updated
guidelines on the process (1997), a notice regarding BIA's
internal processing of federal acknowledgment petitions (2000),
and a notice to provide guidance and direction to make the
process more streamlined and efficient (2008).\1\
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\1\73 Fed. Reg. 30146-48 (May 23, 2008).
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There have been numerous complaints about the process since
1978, but the primary complaints have been about the high cost
of gathering documentary evidence to meet the seven criteria
and the length of time it takes the Department to review a
petition. Since the Federal Acknowledgment Process (FAP)
regulations were adopted in 1978, the Department has issued 49
decisions under the process. Of that number, 17 petitioners
were acknowledged as Indian tribes, and 32 petitioners were
denied acknowledgment.
Due to the problems associated with the FAP, an increasing
number of tribal groups have asked Congress to recognize or
restore their status as federally-recognized Indian tribes.
Congress retains the authority to recognize tribal groups, as
Congress did with the Loyal Shawnee Tribe of Oklahoma and the
Graton Rancheria of California in 2000 as a part of the Omnibus
Indian Advancement Act.\2\ Since 1982, Congress has restored or
recognized 9 Indian tribes.\3\
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\2\See Pub. L. 106-568 (2000).
\3\http://www.bia.gov/cs/groups/xofa/documents/text/idc013624.pdf
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History of the Little Shell Tribe
The Little Shell Tribe of Chippewa Indians descends from
the Pembina Band of Chippewa Indians in North Dakota.\4\ The
Pembina Band was recognized by the United States in an 1863
treaty that was ratified by the Senate (Treaty of October 2,
1863, 13 Stat. 667).\5\ Many of the members of the Pembina Band
settled on reservations in Minnesota, but the ancestors of the
Little Shell Tribe moved westward, following the Buffalo herds.
By the late 1800s, the Little Shell Tribe had settled in
Montana and in the Turtle Mountains of North Dakota. In 1892, a
United States commission was formed to negotiate cession of
land from the Turtle Mountain Chippewa and provide for their
removal. Chief Little Shell and his followers refused to accept
the terms of the agreement and walked out on the negotiations.
He was followed by a group of supporters who would become known
as the ``Little Shell Band''.
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\4\S. 546, 112th Cong. Sec. 2(1) (2011)
\5\Id.
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The Little Shell Band has had numerous dealings with the
United States government. Congress began work on recognizing
the tribe in 1908 and had appropriated money that year and in
later years to buy a land base for the tribe.\6\ Unfortunately,
a land base was never acquired for the Little Shell Band with
the appropriated funds. In 1935, following the enactment of the
Indian Reorganization Act (IRA), the BIA attempted to aid the
Little Shell Tribe in forming a government and establishing a
relationship with the federal government. However, the BIA
required that tribes have a secured land base before
reorganizing under the IRA. Still lacking a land base, the
Little Shell Tribe was unable to gain federal recognition under
the IRA.\7\
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\6\Legislative Hearing on S. 636, A bill to provide the Quileute
Indian Tribe Tsunami and Flood Protection, and for other purposes; S.
703, the Helping Expedite and Advance Responsible Tribal Homeownership
Act of 2011; and S. 546, the Little Shell Tribe of Chippewa Indians
Restoration Act of 2011 Before the S. Comm. on Indian Affairs, 112th
Cong. (2011) (statement of John Sinclair, President, Little Shell Tribe
of Chippewa Indians of Montana).
\7\See S. 546, 112th Cong. Sec. 2 (7) (2011)
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Little Shell Tribe and the federal acknowledgment process
The Tribe continued its efforts to obtain federal
recognition through the Department of the Interior's FAP. In
1978, the year FAP was created, the Tribe filed a letter of
intent to petition for federal acknowledgment. After
approximately 14 years of documenting their petition for
acknowledgment, the Little Shell Tribe submitted their petition
in 1992. In 1995, the BIA declared the Tribe's petition was
ready for active consideration. In 2000, the BIA issued a
positive proposed finding on the Tribe's petition, stating that
the Tribe had met all seven mandatory criteria for federal
acknowledgment. However, the decision was opened for a period
of public comment and the Department's Office of Federal
Acknowledgement requested additional information from the
Tribe. In response to this request, the Little Shell Tribe
provided thousands of pages of additional material and no
letters or comments opposing the acknowledgement of the tribe
were received.
After spending over thirty years in the process, the
Department of the Interior issued a final determination not to
acknowledge the Little Shell Tribe in 2009,\8\ reversing its
proposed positive determination to a negative finding.\9\
Despite finding that 89 percent of their members descend from
the Pembina Band of Chippewa Indians, the final determination
stated that the Little Shell now met only four of the seven
mandatory criteria for federal acknowledgment. The Little Shell
Tribe has appealed its negative final determination to the
Interior Board of Indian Appeals.
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\8\Legislative Hearing on S. 636, A bill to provide the Quileute
Indian Tribe Tsunami and Flood Protection, and for other purposes; S.
703, the Helping Expedite and Advance Responsible Tribal Homeownership
Act of 2011; and S. 546, the Little Shell Tribe of Chippewa Indians
Restoration Act of 2011 before the S. Comm. on Indian Affairs, 112th
Cong. (2011) (statement of John Sinclair, President, Little Shell Tribe
of Chippewa Indians of Montana).
\9\Id.
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The State of Montana, local municipal governments, and area
tribes support the federal recognition of the Little Shell
Tribe.
LEGISLATIVE HISTORY
S. 546, the Little Shell Tribe of Chippewa Indians
Restoration Act of 2011, was introduced on March 10, 2011, by
Senators Tester and Baucus of Montana. On February 17, 2012,
Senator Inouye of Hawaii joined as a co-sponsor. The Senate
Committee on Indian Affairs held a legislative hearing on S.
546 on April 14, 2011 where the Administration testified that
it ``is not opposed to enactment of S. 546. We recognize that
Congress has the authority to recognize American Indian groups
as Indian tribes with a government-to-government relationship
with the United States.''
Senators Tester and Baucus introduced legislation to
recognize the Little Shell Tribe in the 110th Congress (S. 724)
and the 111th Congress (S. 1936). During the 110th Congress,
the Senate Committee on Indian Affairs held a hearing on the
Little Shell Tribe's legislation. At that time, the Little
Shell Tribe's petition for recognition was on active
consideration. The Administration testified in support of the
FAP for tribes to obtain acknowledgment.\10\
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\10\Legislative Hearing on H.R. 1294, S. 514, S. 724, S. 1058
Before the S. Comm. on Indian Affairs, 110th Cong. (2008).
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SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This section states that the short title of the bill is the
``Little Shell Tribe of Chippewa Indians Restoration Act of
2011.''
Section 2. Findings
This section provides the Congressional findings, including
that the Little Shell Tribe of Chippewa Indians is a political
successor to signatories of the Pembina Treaty of 1863; that
the Tribe had petitioned the federal government for
reorganization under the Indian Reorganization Act (25 U.S.C.
461 et seq.) throughout the 1930s and 1940s; and that in 1978
the Tribe submitted to the BIA a petition for federal
recognition.
Section 3. Definitions
This section sets forth definitions of ``member'' as an
individual enrolled in the Tribe pursuant to its membership
roll; ``Secretary'' as the Secretary of the Interior; and
``Tribe'' as the Little Shell Tribe of Chippewa Indians of
Montana.
Section 4. Federal recognition
This section formally extends federal recognition to the
Tribe, making applicable to it all federal laws (including
regulations) of general application to Indians and Indian
tribes.
Section 5. Federal services and benefits
This section states that beginning on the date of enactment
of this Act, the Tribe and each member shall be eligible for
all services and benefits provided by the United States to
Indians and federally recognized Indian tribes without regard
to either the existence of a reservation for the tribe or the
location of the residence of any member on or near an Indian
reservation. This section also establishes the Tribe's service
area as Blaine, Cascade, Glacier, and Hill Counties in the
State of Montana.
Section 6. Reaffirmation of rights
This section makes clear that nothing in this act
diminishes any right or privilege of the Tribe or any member
that existed before the date of enactment of this Act. The
section further states that legal or equitable claims of the
tribe to enforce any right or privilege reserved by, or granted
to, the Tribe that was wrongfully denied to, or taken from the
Tribe before the date of enactment of this Act is preserved.
Section 7. Membership roll
This section mandates, as a condition of receiving
recognition, services, and benefits pursuant to this Act, that
the Tribe submit, within 18 months of the Act's enactment, a
membership roll and maintain such a roll, and that Tribal
membership be determined in accordance with sections 1 through
3 of article 5 of the Tribe's constitution.
Section 8. Transfer of land
This section directs the Secretary of the Interior to
acquire trust title to 200 acres of land within the service
area of the Tribe which will be used as a tribal land base.
This section also states that the Secretary may also acquire
additional land for the benefit of the Tribe pursuant to the
Indian Reorganization Act.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
The Senate Committee on Indian Affairs addressed S. 546 in
a business meeting on July 28, 2011. The bill was ordered
reported favorably without amendment to the full Senate (en
bloc with S. 379 and S. 1218) by voice vote.
COST AND BUDGETARY CONSIDERATIONS
The following cost estimate, as provided by the
Congressional Budget Office, dated January 17, 2012, was
prepared for S. 546:
S. 546--Little Shell Tribe of Chippewa Indians Restoration Act of 2011
Summary: S. 546 would provide federal recognition to the
Little Shell Tribe of Chippewa Indians of Montana. Federal
recognition would make the tribe eligible to receive benefits
from various federal programs. CBO estimates that implementing
this legislation would cost $81 million over the 2012-2017
period, assuming appropriation of the necessary funds. Enacting
S. 546 would not affect direct spending or revenues; therefore,
pay-as-you-go procedures do not apply.
S. 546 would impose an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA) by exempting some
lands from taxation by state and local governments, but CBO
expects the cost of that mandate to be small and well below the
threshold established in that act ($73 million in 2012,
adjusted annually for inflation).
S. 546 contains no private-sector mandates as defined in
UMRA.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 546 is shown in the following table. The
costs of this legislation fall within budget functions 450
(community and regional development) and 550 (health).
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By fiscal year, in millions of dollars--
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2012 2013 2014 2015 2016 2017 2012-2017
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Bureau of Indian Affairs:
Estimated Authorization Level.............. 3 3 3 3 3 3 18
Estimated Outlays.......................... 2 3 3 3 3 3 17
Indian Health Service:
Estimated Authorization Level.............. 11 11 11 12 12 13 70
Estimated Outlays.......................... 5 11 11 12 12 13 64
Total Changes:
Estimated Authorization Level.......... 14 14 14 15 15 16 88
Estimated Outlays...................... 7 14 14 15 15 16 81
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Basis of estimate: For this estimate, CBO assumes that S.
546 will be enacted in fiscal year 2012 and that the amounts
necessary to implement the bill will be appropriated for each
year.
The bill would provide federal recognition to the Little
Shell Tribe of Chippewa Indians of Montana. Such recognition
would allow members of the tribe, totaling about 4,300 people,
to receive benefits from various programs administered by the
Bureau of Indian Affairs (BIA) and the Indian Health Service
(IHS). Based on the average per capita expenditures by those
agencies for other Indian tribes, CBO estimates that
implementing S. 546 would cost $81 million over the 2012-2017
period, assuming appropriation of the necessary funds.
Bureau of Indian Affairs
BIA provides funding to federally recognized tribes for
various purposes, including child welfare services, adult care,
community development, and general assistance. In total, CBO
estimates that providing BIA services would cost $17 million
over the 2012-2017 period, assuming appropriation of the
necessary funds. This estimate is based on per capita
expenditures for other federally recognized tribes located in
the central United States.
Indian Health Service
S. 546 also would make members of the tribes eligible to
receive health benefits from the IHS. Based on information from
the IHS, CBO estimates that about 55 percent of tribal
members--or about 2,400 people--would receive benefits each
year. CBO assumes that the cost to serve those individuals
would be similar to funding for current IHS beneficiaries--
about $3,500 per individual in 2011. Assuming appropriation of
the necessary funds and adjusting for anticipated inflation,
CBO estimates that IHS benefits for the tribes would cost $64
million over the 2012-2017 period.
Other Federal Agencies
In addition to BIA and IHS funding, certain Indian tribes
also receive support from other federal programs within the
Departments of Education, Housing and Urban Development, Labor,
and Agriculture. Based on their status as a tribe recognized by
the state of Montana, the tribe is already eligible to receive
funding from those departments. Thus, CBO estimates that
implementing S. 546 would not add to the costs of those
programs.
Pay-As-You-Go Considerations: None.
Estimated impact on state, local, and tribal governments:
S. 546 contains an intergovernmental mandate as defined in
UMRA. The bill would authorize the Secretary of the Interior to
acquire and take into trust 200 acres of land for the tribe.
Because that land would be exempt from state and local taxes,
the provision would impose an intergovernmental mandate. Given
the small amount of land to be taken into trust, CBO estimates
that the forgone tax revenue to state and local governments
would be small and well below the threshold established for
intergovernmental mandates ($73 million in 2012, adjusted
annually for inflation).
Estimated impact on the private sector: S. 546 contains no
private-sector mandates as defined in UMRA.
Estimate prepared by: Federal Costs: Martin von Gnechten--
Bureau of Indian Affairs; Robert Stewart--Indian Health
Service. Impact on State, Local, and Tribal Governments:
Melissa Merrell; Impact on the private sector: Marin Randall.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory and paperwork impact that would be
incurred in carrying out the bill. The Committee has concluded
that the regulatory and paperwork impacts of S. 546 should be
de minimis.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 546.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes to existing
law.
ADDITIONAL VIEWS OF VICE CHAIRMAN BARRASSO
I understand how important Federal recognition is for
tribal groups and how difficult and challenging the
administrative recognition process is for them. Nevertheless,
it is my view that legislative recognition--legislation that
deems a group or tribe to be federally recognized--is not the
right way to decide which groups should be recognized and which
groups should not be recognized. That is a function that can be
best performed by the Executive Branch of the Government
following the regulations that have been adopted for that
purpose. Federal recognition of a group as an Indian tribe may
have profound consequences for the group, its members, other
Indian tribes, the general public, and the Federal Government.
Just in terms of impact on the Federal Treasury alone, the
Congressional Budget Office estimates that implementing S. 546
will cost $81 million dollars over a 5-year period, assuming
appropriation of the necessary funds. Since most of that cost
would be in the form of programs and services available through
the BIA and IHS for which the Tribe and its members will become
eligible, even if that additional money is never appropriated,
recognition of the tribe will in and of itself place
significant additional stress on the limited resources of both
of these agencies, since they will not turn tribal members away
from programs and services for which they are eligible. So
tribal recognition is indeed a weighty decision, with real
consequences.
Testifying about an earlier version of this bill and three
other recognition bills at a hearing before this Committee
during the 110th Congress, the Director of the Office of
Federal Acknowledgement at the Department of the Interior
stated--
Legislation such as S. 514, S. 724, S. 1058, and H.R.
1294 would allow these groups to bypass this [the
Federal acknowledgement] process--allowing them to
avoid the scrutiny to which other groups have been
subjected. The Administration supports all groups going
through the Federal acknowledgment process under 25 CFR
Part 83.\1\
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\1\Testimony of R. Lee Fleming, Director, Office of Federal
Acknowledgment, U.S. Department of the Interior, before the Committee
on Indian Affairs, September 25, 2008.
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The Department's witness went on to point out that, in
light of the importance and implications of recognition
decisions, the Department adopted its Federal acknowledgment
regulations at 25 CFR Part 83 in 1978 in recognition of ``the
need to end ad hoc decision-making and adopt uniform
regulations for Federal acknowledgment.''\2\
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\2\Id.
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This bill represents a step away from a process that
applies uniform, established acknowledgment criteria to the
history of the group and in the direction of ``ad hoc''
recognition decisions. That seems especially true in this case,
where the Department has issued a decision in the
administrative process denying the tribe's petition for
recognition, a decision when I believe is still pending on
appeal within the Department. I do not think that Congress is
in a good position to undertake the detailed historical,
cultural, political and ethnographic analysis that should go
into a recognition decision--much less second guess the
Department's analysis and conclusions.
If a particular group has some unique historical or other
barriers so that it cannot fairly access the administrative
process, then perhaps it would be appropriate for Congress to
consider whether those barriers should be removed or modified
so that the group can have fair access to that process.
However, I do not feel it is appropriate for Congress to simply
deem a group to be a recognized Indian tribe.
John Barrasso.