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S. HRG. 109–91

FEDERAL RECOGNITION

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

OVERSIGHT HEARING ON FEDERAL RECOGNITION OF INDIAN TRIBES

MAY 11, 2005

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

JOHN McCAIN, Arizona, Chairman

BYRON L. DORGAN, North Dakota, Vice Chairman

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

MICHAEL D. CRAPO, Idaho

RICHARD BURR, North Carolina

TOM COBURN, M.D., Oklahoma

DANIEL K. INOUYE, Hawaii

KENT CONRAD, North Dakota

DANIEL K. AKAKA, Hawaii

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

JEANNE BUMPUS, Majority Staff Director

SARA G. GARLAND, Minority Staff Director

(II)
(III)

C O N T E N T S

Page

Statements:

Adkins, Stephen R., chief, Chickahominy Indian Tribe ................................ 26

Barnett, John, chairman, Cowlitz Indian Tribe ............................................. 28

Bragdon, Kathleen J., professor, Department of Anthropology, College

of William and Mary ..................................................................................... 30

Cooper, Kenneth F., president, Town Action to Save Kent .......................... 32

Crapo, Michael D., U.S. Senator from Idaho .................................................. 2

Dodd, Christopher, U.S. Senator from Connecticut ....................................... 3

Dorgan, Hon Byron L., U.S. Senator from North Dakota, vice chairman,

Committee on Indian Affairs ....................................................................... 2

Fleming, Lee, director, Federal acknowledgment, Office of Indian Affairs,

Department of the Interior ........................................................................... 18

Inouye, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 2

Johnson, Hon. Nancy, U.S. Representative from Connecticut ...................... 8

Kendall, Mary L., deputy inspector general, Department of the Interior ... 15

Lieberman, Joseph, U.S. Senator from Connecticut ...................................... 7

McCain, Hon. John, U.S. Senator from Arizona, chairman, Committee

on Indian Affairs ........................................................................................... 1

Rell, M. Jodi, Governor, Connecticut .............................................................. 13

Shays, Hon. Christopher, U.S. Representative from Connecticut ................ 10

Velky, Richard L., chief, Schaghticoke Tribal Nation ................................... 24

APPENDIX

Prepared statements:

Adkins, Stephen R. (with attachment) ........................................................... 41

Allen, Hon. George, U.S. Senator from Virginia ............................................ 37

Barnett, John (with attachment) .................................................................... 73

Blumenthal, Richard, attorney general, Connecticut .................................... 89

Boughton, Mark D., mayor, Danbury, CT ...................................................... 38

Bragdon, Kathleen J. (with attachment) ........................................................ 97

Coburn, M.D., Hon. Tom A., U.S. Senator from Oklahoma .......................... 40

Congdon, Robert, Towns of Ledyard, North Stonington, and Preston, Connecticut .......................................................................................................... 102

Cooper, Kenneth F. (with attachment) ........................................................... 111

Gumbs, Lance, former chairman, Shinnecock Indian Nation ....................... 121

Johnson, Hon. Nancy, U.S. Representative from Connecticut ...................... 133

Kendall, Mary L. .............................................................................................. 127

Lieberman, Joseph, U.S. Senator from Connecticut ...................................... 138

Mendenhall, Susan, Towns of Ledyard, North Stonington, and Preston,

Connecticut .................................................................................................... 102

Mullane, II, Nicholas H., Towns of Ledyard, North Stonington, and Preston, Connecticut ............................................................................................ 102

Rell, M. Jodi (with attachment) ...................................................................... 143

Rose, Calvin R., Strawberry Valley Rancheria, California ........................... 176

Simmons, Hon. Robert, U.S. Representative from Connecticut ................... 180

Sinclair, John, president, Little Shell Tribe of Chippewa Indians, Montana ................................................................................................................ 184

Smith, Chad, principal chief, Cherokee Nation ............................................. 188

Velky, Richard L. (with attachment) .............................................................. 193

Additional material submitted for the record:

Anderson, Michael, Monteau and Peebles (letter) ......................................... 283

Malick, Elida, director, No Casino In Plymouth (letter) ............................... 286

Peters, Paula, Mashpee Wampanoag (letter) ................................................. 289

(1)

FEDERAL RECOGNITION

WEDNESDAY, MAY 11, 2005

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC.

The committee met, pursuant to notice, at 9:35 a.m. in room 485,

Senate Russell Building, Hon. John McCain (chairman of the committee) presiding.

Present: Senators McCain, Burr, Crapo, Dorgan, and Inouye.

STATEMENT OF HON. JOHN MCCAIN, U.S. SENATOR FROM

ARIZONA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. Good morning.

In 1978, after years of ad-hoc decisions, the Department of the

Interior promulgated regulations intended to ensure a fair, timely

and rigorous process for the administrative recognition of Indian

tribes.

Since that time, this committee has held numerous oversight

hearings on that process. What those hearings have shown us is

that from the beginning this process, though well intentioned, has

been criticized as too slow, too costly and too opaque. Congressional

recognition, on the other hand, has been criticized for being too

summary and too unfair.

Events in recent years have raised the specter of improper conduct by Federal officials, including well-reported accounts of paperwork being signed through car windows by departing officials, and

officials resigning Federal employ to immediately work with tribes

they recently recognized.

The role that gaming and its non-tribal backers have played in

the recognition process has increased perceptions that it is unfair,

if not corrupt. The solemnity of Federal recognition, which establishes a government-to-government relationship between the

United States and an Indian tribe, demands not only a fair and

transparent process, but a process that is above reproach.

While the relationship established is Federal, the impacts are

felt locally as well, as has been reported to this committee by states

attorneys general and local communities. Congress retains the ultimate authority and responsibility to recognize and deal with Indian

tribes, including oversight of the Federal agencies also charged

with those responsibilities.

Therefore, it is Congress’ responsibility to ensure that administrative agency action is conducted in a transparent fashion, in

keeping with good governance. The committee will hear from a va-
2

riety of witnesses today, including colleagues from the Senate and

House. I anticipate that informed by this and past hearings, this

committee will begin looking at ways to fix the process.

Vice Chairman Dorgan.

STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM

NORTH DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN

AFFAIRS

Senator DORGAN. Senator McCain, thank you very much, and

thanks to those of you have who come to present testimony at this

hearing.

As Senator McCain indicated, this is a complicated issue. The

recognition process is most often lengthy and costly. It requires a

huge amount of research and documentation. We have many witnesses today. Let me just say that I share your interest in this

issue.

Number one, the recognition process is very important. We have

a process at this point that was begun in 1978 through regulation

in the Department of the Interior. There are critics of that process

from virtually every direction. The stakes are fairly large in many

areas of the country with respect to tribal recognition. I think that

this hearing is a very important discussion on a timely basis of

something that needs to be considered by this committee.

So thank you for the leadership on this hearing, Mr. Chairman.

The CHAIRMAN. Senator Crapo.

STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR

FROM IDAHO

Senator CRAPO. Thank you very much, Mr. Chairman.

I, too, appreciate your attention to this issue. As has already

been indicated, the stakes are very high as we evaluate the Federal

recognition process. I look forward to the testimony of the witnesses today.

Thank you very much.

The CHAIRMAN. Senator Inouye.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII

Senator INOUYE. Thank you, Mr. Chairman.

Clearly, we have before us today a very distinguished panel of

our colleagues and others who are interested in the subject of this

hearing. I will make my remarks brief because there will be sufficient time for all the witnesses.

Mr. Chairman, I have reviewed the statements that have been

submitted to the committee before we closed up business last

evening. It is clear that while this hearing is on the Federal recognition process, a number of witnesses are actually more concerned about tribal gaming. Accordingly, I think it is important

that we note in the record a few facts.

The Director of the Office of Acknowledgment will present testimony this morning and I would guess that he can more thoroughly

document the facts that we discussed at our last hearing on this

matter. One of those facts that I recall is that the larger number

of petitions for acknowledgment that are now pending in that office
3

were filed long before the advent of the Indian Gaming Regulatory

Act or the Supreme Court’s decision on Cabazon.

I think it is important because there are some who have suggested that tribal groups have petitioned for Federal recognition for

the sole purpose of conducting gaming. However, if this were so, we

would have to attribute to many of the petitioning tribal groups a

clairvoyance that they knew that one day in the distant future

there was going to be a Supreme Court decision and thereafter the

Congress was going to enact a law authorizing and regulating the

conduct of gaming, so they decided that they would file a letter of

intent to begin the process of seeking Federal recognition.

Those that believe that the process is too slow, too expensive and

too cumbersome, in that latter group I would suggest are many if

not most of the tribal petitioning groups. Should the fact that a

State has recognized a tribe for over 200 years be a factor for consideration in the acknowledgment process? I would say definitely

yes. How could it be otherwise? Don’t most, if not all, of our States

want the Federal Government to recognize the official actions of a

State Government, when most of our States want the Federal Government to defer to the sovereign decisions and actions of those

States over the course of their history? I think the answer to that

question would be decidedly in the affirmative.

So let’s be clear about one thing. The Federal acknowledgment

process is all about the recognition of the sovereignty of native nations that were here long before immigrants came to America’s

shores. It is not about gaming. The fact that pursuant to a law enacted hundreds of years later, in 1988 to be precise, affords the

tribal governments the option of conducting gaming as one tool in

developing their economies, and does not mean that every native

government will in fact exercise that option.

In fact, most native governments have elected not to pursue gaming. Let us not lose sight of the realities in a rush to judgment on

the viability of a process that is clearly distinct from the issues of

gaming.

I thank you very much, Mr. Chairman.

The CHAIRMAN. Thank you, Senator Inouye.

The State of Connecticut is well represented here this morning.

I would like to thank all of my friends from the House, as well as

my colleagues from the Senate, for being here. I would like to mention that the attorney general of the State of Connecticut had requested to appear here today as well. We did not receive his request until late. We received written testimony from him. We will

have a series of hearings on this issue, and we will invite him in

the future.

We usually begin not only by seniority, but by age. And so Senator Dodd, I think you qualify in both categories. We welcome you

to the committee.

Senator LIEBERMAN. Thank you, Mr. Chairman, a very astute observation. [Laughter.]

STATEMENT OF HON. CHRISTOPHER DODD, U.S. SENATOR

FROM CONNECTICUT

Senator DODD. You know, they say there are lies, then there are

statistics. [Laughter.]
4

Anyway, thank you, Mr. Chairman, and let me express my gratitude to you and to the members of the committee for giving us an

opportunity this morning to testify before you. Obviously, the work

that you and Senator Dorgan are doing in holding this hearing is

extremely important. No committee in my view has done more than

in the Senate, in fact the whole Congress, to advance the cause of

improving America’s understanding of native peoples and native

cultures than Chairman McCain and Vice Chairman Dorgan, along

with their predecessors Senator Ben Nighthorse Campbell, who is

retired from the Senate, and of course the distinguished Senator

from Hawaii, Senator Inouye, have worked tirelessly to enable

America to better understand her native peoples and to protect

their sovereign States.

I would like to acknowledge, Mr. Chairman, if I could, the presence of our Governor from Connecticut, Governor Rell; my colleagues from Connecticut, Senator Lieberman you have mentioned

already, and Congresswoman Johnson, Congressman Shays and

Congressman Simmons all are here to be heard this morning.

We would also like to acknowledge the presence of two other witnesses, Chief Richard Velky of the Schaghticoke Tribe and Ken

Cooper of the town of Kent Connecticut.

At this time, I would also ask unanimous consent if I could, Mr.

Chairman, that the testimony of the attorney general that you

mentioned has been submitted to the committee would be included

in the record, if we could here, as well as the testimony of the First

Selectman of Kent, Connecticut, which is one of the Connecticut

communities most directly affected by one of the decisions; and also

the statement of Dolores Schiesel be inserted in the record as well,

if we could.

The CHAIRMAN. Without objection.

Senator DODD. Thank you, Mr. Chairman.

Mr. Chairman, as all of my colleagues know, Congress has the

authority and the duty to respect, honor and to protect the rights

of the sovereign Indian nations that reside within the borders of

the United States. The Federal Government has a unique legal relationship with each tribal government that represents peoples

whose ancestors were here even before people from the rest of the

world joined them in calling America their home.

For several years now, the recognition process administered by

the BIA has come under scrutiny. The General Accounting Office

in its study released in November 2001 concluded, and I quote, ‘‘because of weaknesses in the recognition process, the basis for BIA’s

tribal recognition decisions is not always clear and the length and

time involved can be substantial,’’ end of quote.

These findings are reminiscent of the testimony offered by Kevin

Gover who until January 2000 was the assistant secretary for Indian Affairs. In May 2000, Assistant Secretary Gover told this committee in fact, and I quote him here, ‘‘I am troubled’’ he said, ‘‘by

the money backing certain petitions and I do think it is time that

Congress should consider an alternative to the existing process.

Otherwise, we are more likely to recognize someone that might not

deserve it’’ end of quote.

Mr. Gover went on, Mr. Chairman, to say that ‘‘the more contentious and nasty things become, the less we feel we are able to do
5

it. I know it is unusual for an agency to give up responsibility like

this, but this one has outgrown us’’ he went on to say. ‘‘It needs

more expertise and resources than we have available.’’

Furthermore, Mr. Chairman, the chairwoman of the Duwamish

Tribe of Washington State testified that she and her people, and

I quote, ‘‘have known and felt the effects of 20 years of administrative inaccuracies, delays and a blase approach’’ I am quoting her

now, ‘‘in handling and processing the Duwamish petitions’’ end of

quote.

Taken together, Mr. Chairman, these statements speak to a startling admission. I would suggest that anytime an assistant secretary says in effect that his or her agency is incapable of grappling

with one of its fundamental responsibilities, that person is issuing

a cry for help and we should not ignore it.

I am not here to criticize the civil servants at the BIA. They are

doing their very best under extremely difficult circumstances and

with very little financial assistance. In fact, I recognize that the

BIA has begun to address some of the concerns outlined by the

GAO report. Most notably, Mr. Chairman, the Bureau has taken

steps to improve its records management, a system on recognition,

a decisions technical assistance materials, and the Interior Board

of Indian Appeals decisions.

These steps will hopefully bring greater accountability and transparency to the work undertaken by the BIA.

Nevertheless, Mr. Chairman, much more work needs, in my

view, to be done if we are going to achieve our goal of making the

tribal recognition process as open, fair and transparent as possible.

Administrative irregularities, accusations of influence-peddling,

and a process that is generally perceived as exceedingly arcane and

opaque have given rise to profound doubts about the viability of the

decisions being rendered by the Bureau. This is no way for a Federal Government to determine the legal status of tribal groups and

to set the conditions for how those groups will interact with State

Governments, municipalities and other Federal agencies.

As Senator Inouye said 21⁄2 years ago on the floor of the U.S.

Senate during an amendment that Senator Lieberman and I offered at that time dealing with the recognition process, the process

for conferring Federal recognition on our Indian tribes, and I quote

our friend from Hawaii, ‘‘is a scandal that should be changed,’’ end

of quote.

Those tribes deserve better, and so do others who look to their

Government to act fairly and expeditiously. I believe we have an

obligation to restore public confidence in the recognition process.

Toward this end, Senator Lieberman and I have reintroduced

two bills designed to ensure that the recognition process will yield

decisions that are beyond reproach. The Tribal Recognition Indian

Bureau Enforcement, or TRIBE Act, would improve the recognition

process in several ways. First, it would require that a petitioner

meets each of the seven mandatory criteria for Federal recognition

spelled out in the current Code of Federal Regulations.

It is by now well known that several decisions by the BIA apply

all seven criteria to some tribes, but not to others. This is patently

unfair to these tribes subjected to a higher level of scrutiny by the
6

BIA than other tribes. It runs contrary to our Nation’s sense of fair

play, in my view.

Second, the TRIBE Act would provide for improved notice of a

petition to keep parties who may have an interest in a petition, including the Governor and the attorney general of the State where

the tribe seeks recognition, other tribes and elected leaders of the

municipalities that are adjacent to the land of a tribe seeking recognition.

Third, it would require that a decision on a petition be published

in the Federal Register, and include a detailed explanation of the

findings of fact and of law with respect to each of the seven mandatory criteria for recognition. And last, the TRIBE Act would authorize an additional $10 million per year to better enable the Bureau of Indian Affairs to consider petitions in a thorough, fair and timely manner.

Mr. Chairman, I would suggest obviously these things could be

modified, but they are ideas we would like to put in place to try

and get some predictability, some consistency to the process. I want

to emphasize, Mr. Chairman, what this legislation would not do. It

would not in any way alter the sovereign status of tribes whose petitions for Federal recognition have already been granted. It also

would not restrict in any way the existing prerogatives and privileges of such tribes. Tribes would retain the right of self-determination, consistent with their sovereign status.

Finally, and perhaps most importantly, the TRIBE Act would not

dictate outcomes, nor would it tie the hands of the BIA. It would

simply create a uniform recognition process that is equal and fair

to all.

The second bill, very briefly, Mr. Chairman, would provide grants

to allow poorer tribes and municipalities an opportunity to participate fully in important decisionmaking processes pertaining to recognition. Consequently, these grants would enable these communities to provide the BIA more relevant information and the resources from which to make a fair, fully informed decision on tribal

recognition. When the Federal Government through the BIA makes

decisions that will have an enormous impact on a variety of communities, both tribal and non-tribal, it is only right that the Government should provide a meaningful opportunity to those communities to be heard.

I believe, Mr. Chairman, very strongly that every tribe that is

entitled to Federal recognition ought to be recognized and ought to

be recognized in an appropriately speedy process. At the same

time, Mr. Chairman, we must make sure that the BIA’s decisions

are accurate and fair.

Every recognition decision carries with it legal significance that

should endure forever. Each recognition decision made by the BIA

is a foundation upon which the relationships between tribes and

States, tribes and municipalities, Indians and non-Indians will be

built for generations to come. We need to make sure that that foundation upon which these lasting decisions are built is sound and

will withstand the test of time. We cannot afford to build relationships between sovereigns on the shifting sands of a broken bureaucratic procedure.

I thank you for listening.
7

The CHAIRMAN. Thank you very much, Senator Dodd.

Senator Lieberman.

STATEMENT OF HON. JOSEPH LIEBERMAN, U.S. SENATOR

FROM CONNECTICUT

Senator LIEBERMAN. Thanks, Mr. Chairman, thanks to you and

Senator Dorgan and members of the committee for holding this

hearing. I welcome our Governor, members of the congressional

delegation, the Chief from the Schaghticoke Nation, and Mr. Cooper from Kent.

Mr. Chairman, I believe this is the first time our Governor has

testified for a congressional committee, and therefore I am encouraged that you will greet her with your normal charm and grace.

She is ready.

Mr. Chairman, I am going to put my statement in the record

based on Senator Dodd’s statement which is quite comprehensive

and with which I totally agree, and what I know my colleagues will

say following. I just want to say a few words.

We are not here on an anti-Indian mission. The fact is, and I believe I speak for everybody, in saying that the tribal recognition

process is the law’s way of trying to in some small way create a

path for justice and recognition for Native American tribes, and to

acknowledge thereby the dark parts of our history in which the

tribes were treated, Native Americans were treated so miserably.

The tribal recognition process was obviously altered, as Senator

Inouye has indicated, by the advent of Indian gaming and the

stakes involved are clearly much higher and questions about propriety are thick in the air, particularly in regard to the revolving

door behavior that you cited, Mr. Chairman, in your opening statement.

So it becomes critically important to achieve the historic purpose

for which the tribal recognition process was created, a purpose of

justice, recognizing that now the more contemporary reason that

tribal recognition often tends to become the way to gaming as well.

In our State, we have two major gaming operations operated by

the Mashantucket Pequots and the Mohegans. I would say that

these tribes have contributed enormously to the State’s economy.

They employ thousands of our people. They contribute hundreds of

millions of dollars to our State Government every year.

They also bring with them the natural social dislocation of enormous enterprises, some things as basic as traffic congestion or suburban sprawl or a challenge to social values. It is that kind of effect

of gaming that makes people in our State and in other States

around the country worry about whether there are limits to the

amount of gaming that can affect any one State.

But that is secondary. The point here, just a way of saying what

is on the line here, the main point here is that the process of tribal

recognition in my opinion has become dysfunctional; that we are

asking an existing agency office to do, with the demands on it,

what it does not have the resources to do, based on the increased

demands and the increased significance of every decision they

make.

This is a circumstance that cries out for the kind of leadership

that this committee is uniquely capable under the leadership of the
8

two of you to perform. What do I mean? Nobody would ever say

that this is a committee that was anti-Native American. It is very

important to proceed from that basis.

But this is a situation that cries out for reform in everybody’s interest, so decisions will be credible. They will be legitimate and

they will be reached in a timely fashion.

Senator Inouye said it. There are some applicants for tribal recognition who have been waiting an enormous number of years.

That is another kind of injustice that the current process does.

So Mr. Chairman, I thank you for holding the hearing, for being

willing to give it the time that this large number of witnesses requires of yourself and Senator Dorgan and the committee, and for

giving me, in this case, the opportunity to appeal to you to take the

leadership in bringing about the reform that everybody desperately

needs.

Thank you very much.

[Prepared statement of Senator Lieberman appears in appendix.]

The CHAIRMAN. Thank you very much, Senator Lieberman.

I am aware that you and Senator Dodd have other obligations

this morning, and I thank you for coming this morning.

Congresswoman Johnson, welcome. It is very nice to see you

again.

STATEMENT OF HON. NANCY JOHNSON, U.S.

REPRESENTATIVE FROM CONNECTICUT

Ms. JOHNSON. Thank you very much, Mr. Chairman, and thank

you to the committee members for inviting us to testify this morning, my colleagues and I, our Governor and others, on the need to

reform the Bureau of Indian Affairs’ Federal tribal recognition

process, and the need to pass legislation reversing the recognition

of the Schaghticoke Indians.

I urge you not only to look at reforming the recognition process,

but re-thinking how it works in the densely populated eastern seaboard where the history of citizen-tribal relations have been so extremely different, and where the western expansion history does

not exist. So it really needs to be re-thought in regard to the Northeast, as well as reformed.

Mr. Chairman, the BIA’s tribal recognition process has failed the

people of Connecticut because it resulted in a decision that is simply unlawful, a decision to acknowledge the Schaghticoke Tribal

Nation of Kent, unlawful because it ignored evidence and overturned longstanding precedent. My bill lines this out in detail

using material from the Bureau itself.

As the committee knows, the BIA is permitted to recognize a

tribe only if it satisfies each of the seven mandatory criteria laid

out in Federal regulations, including the key criteria that a tribe

demonstrate it has exercised political authority over a community

throughout its history.

The reason for these strict mandatory criteria are clear. The establishment of a federally recognized tribe has significant and irreversible affects on States and communities in which they are located. Federally recognized tribes are exempt from local taxation,

local zoning and other areas of local and State law. They furthermore are allowed to pursue land claims over very broad areas and
9

these land claims paralyze communities because they prevent the

transfer of property, undermine the value of local property, and in

general provide leverage for a tribe to negotiate to get a plot of

land appropriate for a casino and the right to establish a casino.

Casinos, then, impose on small towns, and particularly the surrounding towns, extraordinary burdens. These are towns with volunteer fire departments. These are towns that depend for public

safety on State troopers. These are towns run primarily by volunteers on small budgets. They simply cannot survive the impact on

infrastructure, the impact on tax base, the impact on the local laws

of casino operations on surrounding and nearby Indian territories.

In densely populated New England, the impact of recognition

falls heavily on all citizens and has a truly lasting and profound

impact.

Mr. Chairman, the evidence convincingly shows that the

Schaghticoke petition did not satisfy each of the seven mandatory

criteria, yet in January 2004, the BIA reversed its own preliminary

findings, ignored evidence, manipulated Federal regulations, and

overturned existing agency precedent in order to grant Federal status.

We know this because the BIA has told us so. Its now infamous

briefing paper prepared by BIA staff 2 weeks before it granted recognition, in that paper was outlined the strategy for BIA officials

to overturn existing agency precedent and ignore Federal regulations in order to find in the Schaghticokes’ favor. In the briefing

paper, BIA staff informed their superiors that key evidence of political authority, evidence necessary to grant recognition, was, quote,

‘‘absent or insufficient for two substantial historical periods,’’ close

quote.

Furthermore, the briefing paper freely admits that declining to

acknowledge the Schaghticoke, quote, ‘‘maintains the current interpretations of the regulations and established precedents on how

continuous tribal existence is demonstrated.’’

Faced with the evidence and the law that demanded a negative

result, the BIA ignored the evidence, cast aside precedent and reinterpreted the law. This is not how the people of America expect

their government to operate.

Last December, the Interior Department’s Office of the Solicitor

advised the Interior Department that the BIA used an unprecedented methodology and made material mathematical errors in calculating tribal marriage rates. Without these mistakes and unprecedented methodologies, the Schaghticoke petition would not have

satisfied key criteria and should not be recognized.

Even the Office of the Solicitor advises the Interior Board of Indian Appeals, where the case is now being appealed, that the BIA’s

decision, quote, ‘‘should not be affirmed on these grounds absent

explanation or new evidence,’’ unquote.

Given the grave consequences of the BIA’s unlawful decisions, I

recently introduced the Schaghticoke Acknowledgment Repeal Act

of 2005 in the House of Representatives. This bill overturns the

BIA’s erroneous decision to grant Federal recognition. This legislation recognizes the fact that Congress cannot allow the result of an

unlawful Federal recognition process to stand. I respectfully urge
10

this Committee to review it and consider it as you move forward

with your work.

The committee is rightly examining the recognition process writ

large. I wholeheartedly support this effort and I support legislation

introduced by my colleagues to make the process fair, objective and

accountable to the public. But I would remind the committee that

prospective reforms to the recognition process will not fix the BIA’s

erroneous and unlawful decision in regard to the Schaghticoke

Tribe. It may not prevent the financial interests backing this petition from moving forward to their goal, a Las Vegas-style casino in

an area of Connecticut that does not want one and cannot support

one.

Mr. Chairman, members of the committee, the BIA has failed the

people of Connecticut and I believe the United States. I respectfully

urge this committee not only to look toward reforming the BIA recognition process, but also correcting its past failures as in its decision regarding the Schaghticoke case. The reasons for moving forward with strong reform are plentiful. The reasons for accepting

the status quo are nonexistent. I believe that the public’s trust in

good and responsible government requires action by this committee

and this Congress.

I thank you for making this opportunity available for us this

morning.

The CHAIRMAN. Thank you very much, Congresswoman Johnson.

Thank you for taking the time to be with us today.

Congressman Shays.

STATEMENT OF HON. CHRISTOPHER SHAYS, U.S.

REPRESENTATIVE FROM CONNECTICUT

Mr. SHAYS. Thank you, Senator McCain, Senator Dorgan, Senator Crapo, and Mr. Inouye for his statement. This is a privilege

to be before you and a privilege to welcome our Governor as well.

The bottomline for me is the recognition process is corrupt and

has been for years. Regretfully, Indian recognition is too often not

about recognizing true Indian tribes, but it is about Indian gaming

and the license to print money. In the State of Connecticut, we are

talking literally about billions of dollars. Senator Inouye is right.

Applications had been in the process for a long period of time, but

they were dormant and not actively pursued by the tribes. But

when Indian gaming came along, all of a sudden you saw huge financial backers.

I defy anyone to suggest that huge financial backers are going

to back Indian tribes if it is not about Indian gaming. The problem

is, we have a process that has been totally ignored. First, it was

ignored by the Congress just passing legislation every month recognizing tribes, bypassing the BIA. I became very active in this

process in the late 1980’s when the Golden Hill Paugussett Tribe

came to me after making land claims on a good chunk of the

Fourth Congressional District and said, they go away; they go away

simply, Congressman, by you doing what you need to do, and that

is to put a bill in and give us recognition through Congress, like

had been done for the Ledger Tribe.

I said I would not do it. They then said, well, it is happening

every month. I watched this process. It was happening through
11

suspension, two-thirds vote, no amendments allowed, two members

on the floor, no one asking for a roll-call vote. So I made it my mission, along with Frank Wolf, in the early 1990’s to go and kill every

bill that came before the Congress, thinking then that we had

solved the problem. It would go before the BIA and the BIA, of

course, would do it right. They would follow the process of the

seven criteria; show economic, social and political continuity, precolonial times.

And we found it started to be ignored. I had staff of the BIA say,

we write our reports and the political appointees are ignoring

them. In fact, what they did in one case that was described to me,

they took the worst part out of each of the three people who had

written the report, and then compiled their own report, coming to

a totally different conclusion than all three had said. All three had

said this is not an Indian tribe, but in the end the political appointees said it was.

I particularly have focused on the Golden Hill Paugussetts because the Secretary who was appointed to the BIA, and this deals

with the revolving door issue, said, ‘‘I will not rule on the Golden

Hill Paugussetts. I will not rule on it.’’ And then what he did,

though, was he ignored the criteria on another tribe and said State

recognition is important. If you are a State tribe, you must be a

Federal tribe. But the State does not recognize continuity. What

the State of Connecticut does is recognize reservations. There may

be no one on the reservation. They may not have met for years. But

I can tell you now, they are meeting now with the credible incentive to be able to print money and make billions of dollars.

You have a revolving door process because what did this gentleman do who recognized another tribe? He helped his own former

client. His own former client is a State tribe. He said he would not

get involved, but he set a precedent that a State tribe would be a

Federal tribe, even though it was not of the criteria.

Let me just conclude by saying to you, the BIA is understaffed

and it is underfunded. That is clear. You have a very real problem

that you are continually getting more applications. I would suggest

the following. One is codify the law to make sure that the seven

criteria is the law and that you do not have people in the revolving

door process who change it. Deal with the revolving door issue. And

the third thing I would suggest is that you require all applicants

to apply by a certain time. Let’s understand how many tribes are

out there. Let’s not wonder if 10 years from now you are going to

have another application. Say, if you are a Federal tribe now, by

a certain date apply. And then we can know the universe and you

can know how to fund.

I will end by saying I think you need to have the codification by

law of the seven criteria. I think you need to deal with the revolving door issue. I think you need to require all potential tribes to

file at a certain time so you know the universe. And I think you

need to undo what was illegal action by the BIA under Ms. Johnson’s request for law.

Thank you very much.

The CHAIRMAN. Thank you very much.

Congressman Simmons.
12

STATEMENT OF HON. ROBERT SIMMONS, U.S.

REPRESENTATIVE FROM CONNECTICUT

Mr. SIMMONS. Thank you, Mr. Chairman, Vice Chairman Dorgan, for having this very important hearing.

You have heard many of the things that I would have said. I

would ask that my full statement be inserted into the record.

The CHAIRMAN. Without objection.

Mr. SIMMONS. I appreciate that.

Let me focus on a comment by Senator Inouye. He made the

comment that some tribes have petitioned for recognition prior to

the passage of the National Indian Gaming Act. That is correct.

But the fact of the National Indian Gaming Act has changed the

conditions and circumstances of petitioning groups in Connecticut

because very wealthy interests have now come into the process and

as a consequence have changed the process through the incredible

influence of money. That is why we are calling for transparency in

the process and for reform of the process.

Mr. Donald Trump has been backing one of the petitioning

tribes. He was previously. My guess is he is not backing them because he is interested in achieving sovereignty for that group. My

guess is he is backing them because he wants to get on the gaming

train. That is his career. That is his life.

My guess is that is the motivation of the other millionaires and

billionaires who are involved in supporting petitioning groups from

Connecticut, because they have seen that the Foxwoods Casino and

the Mohegan Sun Casino can generate literally billions of dollars

because of their location in a small densely populated State in New

England between Boston and New York. It is a perfect market. And

that is what is happening here. That is a fact and that is the reality. My colleagues, Mrs. Johnson, Mr. Shays, have provided the

documentary evidence some of which is coming out of the BIA itself

that proves these points.

We thank you, Mr. Chairman, for your consideration of these reforms. Point 1, the regulatory requirements should be in statute.

It is just that simple. Senator Inouye suggests that State recognition should be a good reason for Federal recognition. That is not

in the regulatory requirements. Those seven requirements should

be made statutory, and that is what our legislation does.

Point 2, political appointees and other employees of the Bureau

of Indian Affairs should not be subject to the revolving door exemption. We have clear-cut examples of where these individuals have

made decisions on 1 day, have left office and have gone to work for

gambling interests or tribes with gambling interests the next day.

That is simply wrong, and yet it has happened. And given the large

amounts of money involved in this process, it is reasonable that it

will happen again.

Senator DORGAN. Congressman Simmons, would you submit examples of that? You indicated there is evidence of that. Would you

submit them to the committee?

Mr. SIMMONS. Absolutely.

Again in closing, Mr. Chairman, Mr. Vice Chairman, we thank

you for holding this hearing and we appreciate your listening to

our concerns.
13

[Prepared statement of Representative Simmons appears in appendix.]

The CHAIRMAN. Thank you very much. I thank you all for coming

today, and thank you for your valuable input. I can assure you we

will certainly include them in our deliberations as we seek to address this very serious issue.

Ms. JOHNSON. Mr. Chairman, I assume my whole statement will

be included in the record. I forgot to mention that.

The CHAIRMAN. No; thank you very much. [Laughter.]

Thank you all.

Now, we would like to welcome the distinguished Governor of the

State of Connecticut, Jodi Rell. Governor, thank you for your patience this morning and thank you for coming down to visit us and

give us the benefit of your experience on this issue and your recommendations. Thank you very much.

STATEMENT OF M. JODI RELL, GOVERNOR, STATE OF

CONNECTICUT

Mr. RELL. Thank you, Senator. I actually should say thank you

for your patience this morning. I know that sitting and listening

to testimony sometimes you think you have heard it all before. In

a way, I am sitting here thinking I have already heard my colleagues earlier.

I have a few new things to offer, but truly we appreciate your

patience and thank you for actually having this public hearing, and

Vice Chairman Dorgan for being here as well. It is a pleasure to

be here.

As you have heard, my name is Jodi Rell, and I serve as Governor of the great State of Connecticut. I truly appreciate the fact

that you have scheduled this hearing, and for inviting me to be

here today.

I want to say right now, I thank the Connecticut delegation for

their unrelenting efforts to address the weaknesses and the failings

of the tribal recognition process. As you heard from one of our illustrious Senators earlier, I appear before you today giving my first

congressional testimony as Governor. I do that because this is a

critical issue to our State. Simply put, I believe that a number of

profound problems exist within the recognition process and that reform is long overdue.

My concerns go to the issue of integrity and transparency, not to

any particular tribe or to their right to seek and receive recognition. My State’s history is inextricably intertwined with Native

American history. We embrace our heritage and have solid relationships with the Mohegan and Mashantucket Pequot Nations,

both of which are located in our State.

The process of recognition is lengthy and arduous, and for good

reason. A successful petition will dramatically change the landscape of an entire community, an entire region, or a State. You

have heard it this morning. Connecticut is a small State. It is as

old as our Nation itself and densely populated. We have few expanses of open or undeveloped land. Historical reservation lands no

longer exist. They are now cities and towns filled with family

homes, churches and schools.
14

Our experience is that tribes file land claims within the State as

they are seeking and pursuing Federal recognition. These claims

place a cloud on the property titles of residents, resulting in many

hardships and a lot of uncertainty. They de-stabilize the housing

market and they compromise the ability of people to sell their property free and clear in terms of title.

This issue was very real to hundreds of thousands of Connecticut

residents who lived under the threat of land claims by the Golden

Hill Paugussetts. We fought this recognition based on its inadequacies in the law, and we prevailed. But the BIA has shown an increasing willingness to be flexible, to be permissive, and to set

aside the dictates of law in favor of granting recognition at all

costs.

If a tribe cannot meet the criteria of law, it should not be granted

recognition, and yet it has on two occasions in Connecticut. I cannot help but conclude that the process by which recognition is

made is broken. It is fatally flawed. It is inconsistent and often illogical. It is replete with conflicts of interest and disdain for the

letter and the spirit of the law. It has resulted in immeasurable

loss of public confidence and an immeasurable lack of administrative integrity.

The two recent decisions impacting Connecticut show the BIA’s

recognition system is in need of a wholesale restructuring. In the

case of the Eastern Pequot and Pawcatuck Eastern Pequot petitions, the BIA miraculously achieved what neither petitioner could

or wanted to do. The BIA found that both tribes were a single historical entity, even though the tribes themselves could not agree on

this, and in fact did not seek joint designation. Recognition could

not have been achieved individually, so the BIA said let’s merge

them together, and they merged the petitions and the tribes in

order to grant recognition.

More recently, the decision to recognize the Schaghticoke demonstrates what many have long suspected. The BIA is awarding

Federal recognition to tribes regardless of the evidence to the contrary. In 2002, the BIA issued a proposed finding that the tribe did

not meet all of the seven criteria for recognition. And yet a little

more than 1 year later, the BIA reversed itself and recognition was

granted. An investigation of this astonishing reversal revealed a

memo written by BIA staff just 2 weeks before the final determination, in which the staff admitted that the BIA had full knowledge

that the tribe had not met that seven mandatory criteria for recognition.

These situations raise troubling questions and the very integrity

of the administration.

The CHAIRMAN. Will you submit that memorandum for the record

please?

Mr. RELL. I did.

[Referenced document appears in appendix.]

Mr. RELL. They demonstrate that there must be more control

over the recognition process.

I recommend the following, and some you have already heard

from our Congressmen and -woman this morning. Codify in statute

the seven mandatory criteria. It is imperative that we do so. Impose an immediate moratorium on all BIA acknowledgment deci-
15

sions pending a comprehensive review of the process. You have

heard about eliminating the Federal revolving door exemption. Examine how the process is usurping the powers of State and local

governments. Prohibit the ability of tribes to place liens on property. And finally, invalidate the Schaghticoke decision.

In conclusion, the BIA is a bureaucracy run amok. Legitimate

tribes should have legitimate opportunities to seek Federal recognition, but the criteria and the laws in granting recognition must be

clearly and stringently adhered to. Rules should not be changed in

order to achieve a desired result.

Mr. Chairman, thank you for your time this morning. Thank you

on behalf of the people of Connecticut. I ask you to please consider

the current unrestrained process and what effect it has on our

State and on others.

Thank you, Mr. Chairman.

[Prepared statement of Governor Rell appears in appendix.]

The CHAIRMAN. Thank you very much, Governor. Are both those

tribes that you referred to, are there plans to engage in gaming?

Mr. RELL. It is our belief that that is exactly what they plan to

do.

The CHAIRMAN. Senator Dorgan.

Senator DORGAN. Governor, let me thank you. As you indicated,

there has been a rather consistent message from the Connecticut

congressional delegation and from you, and I think you are raising

important issues, and your contribution to the discussion we will

have on the committee is very significant.

Thank you for being here.

Mr. RELL. Thank you very much.

The CHAIRMAN. Thank you very much, Governor Rell.

Our next panel is Mary Kendall, the deputy inspector general,

Department of the Interior; and Lee Fleming, director, Federal Acknowledgment, Office of Indian Affairs.

Good morning and welcome. We will begin with you, Ms. Kendall.

STATEMENT OF MARY L. KENDALL, DEPUTY INSPECTOR

GENERAL, DEPARTMENT OF THE INTERIOR

Ms. KENDALL. Good morning, Mr. Chairman, Mr. Vice Chairman.

I am pleased to be here representing the Office of Inspector General for the Department of the Interior and to testify about my office’s oversight activities concerning the Federal acknowledgment

process administered by the Department of the Interior.

As you know, the Office of Inspector General has oversight responsibility for all programs and operations at the Department.

However, because the Inspector General Act specifically precludes

my office from exercising any programmatic responsibility, we cannot and do not substitute our judgment for substantive decisions or

actions taken by the Department of its Bureaus.

Given our vast oversight responsibilities, the OIG does not have

subject-matter experts in all of the program areas in which we conduct our audits, investigations and evaluations. This is especially

true in the area of Federal acknowledgment, which typically involves the review and evaluation of evidence by professional historians, genealogists and cultural anthropologists.
16

When my office undertakes to address concerns about the operation or management of a DOI program, we first look at the established process by which decisions or actions in that particular program take place and the controls over that process. Once we determine what the established process is to address the issue at hand,

we then look to see whether there has been any deviation from that

process. If we determine that deviation has occurred, we will go on

to attempt to determine the impact of that deviation on the resulting decision or action, and whether any inappropriate behavior was

involved by either Department employees and/or external participants.

This is how we have conducted investigations of matters related

to Federal acknowledgment process since Inspector General

Devaney assumed his position in 1999. As you know and have

heard here today, the Federal acknowledgment process at the Department is governed by regulations. These regulations set forth

the process by which petitions from groups seeking Federal acknowledgment as Indian tribes are considered.

While this process has been harshly criticized for its lack of

transparency, based on my office’s experience it is relatively speaking one of the more transparent processes at DOI. The process follows the requirements of the Administrative Procedures Act, which

include notice and opportunity to comment, and an appeal or review mechanism. When we conduct any kind of inquiry, my office

is always advantaged if a program has the backdrop of a well-established process with documented requirements and guidelines.

When conducting an investigation of a program such as Federal

acknowledgment, we also attempt to identify all key participants

and endeavor to strategically interview as many of these individuals as possible. This includes not only DOI personnel, but other

interested parties outside of the Department.

In Federal acknowledgment matters, this may include other parties identified by the Office of Federal Acknowledgment or parties

who have expressly signaled an interest in the acknowledgment

process. Accordingly, when we conduct interviews in a given Federal acknowledgment process, we typically begin with those Office

of Federal Acknowledgment research team members who are

charged with the petition review process. By beginning at this

level, we have some historical success at discovering irregularities

at the very heart of the process.

For example, in our 2001 investigation of six petitions for Federal acknowledgment, some of which have been mentioned here

today, we discovered that pressure had been exerted by political decision-makers on the Office of Federal Acknowledgment team members who were responsible for making the Federal acknowledgment

recommendations. The OFA research team members who reported

this pressure to us were at the time courageous in their coming forward, since my office had not yet established its now well-known

whistleblower protection program.

At that time, we had to assure each individual who came forward

that we would do everything necessary to protect them from reprisal. Today, however, we have a recognized program in place

which publicly assures DOI employees that we will assure their

protection.
17

In other cases, we have had considerable success in obtaining

candid information from DOI employees intent on telling my office

about their concerns. Therefore, given OFA employees’ track record

in our 2001 investigation, and the protections of our now almost 2-

year-old whistleblower protection program, we feel confident that if

any inappropriate pressure is being applied, we will hear from the

members of the OFA team.

In 2001, we did find that there were some rather disturbing deviations from the established process during the previous Administration. At that time, several Federal acknowledgment decisions

had been made by the Acting Assistant Secretary for Indian Affairs, which were contrary to the recommendations of the OFA research team.

In several instances, the OFA team felt so strongly that they

issued memoranda of non-concurrence at some risk to their own careers. Although any Assistant Secretary for Indian Affairs has the

authority to issue his or her decision even if it is contrary to OFA’s

recommendation, we found in those particular instances that significant pressure had been placed on the research team to issue

predetermined recommendations; that the decisions were hastened

to occur prior to the change in Administration; and that all decision

documents had not been properly signed. As you noted, Mr. Chairman, we even found that one of those decision documents had been

signed by the former Acting Assistant Secretary after leaving office.

When we reported our findings in February 2002, the new Assistant Secretary for Indian Affairs undertook an independent review

of the petitions. This action alleviated many of our concerns about

the procedural irregularities we identified in our report.

More recently, in March 2004, we were asked by Senator Dodd

to investigate the Schaghticoke Tribal Nation acknowledgment decision. Subsequent to Senator Dodd’s request, the Secretary of the

Interior specifically requested that my office give this matter high

priority. In conducting this investigation, we interviewed OFA

staff, research team members and senior Department officials to

determine if undue pressure may have been exerted. We also spoke

to the Connecticut Attorney General and members of his staff, as

well as affected citizens to ascertain their concerns. In this case, as

we have in all other such investigations, we were also looking for

any inappropriate lobbying pressure that may have attempted to

influence a decision one way or the other.

In the end, we found that although the Schaghticoke Tribal Nation acknowledgment decision was highly controversial, OFA and

the Principal Deputy Assistant Secretary for Indian Affairs conducted themselves in keeping with the requirements of the administrative process. Their decisionmaking process was made transparent by the administrative record, and those parties aggrieved by

the decision sought relief in the appropriate administrative forum.

Each, as it should be.

If I may, I would like to comment briefly on outside influences

that impact Federal acknowledgment process in Indian gaming. As

this committee recently demonstrated, greater care must be exercised by gaming tribes when they are approached by unsavory Indian gaming lobbyists promising imperceptible services for astonishing fees. We know of no statutory or regulatory safeguard pro-
18

tections against such lobbying efforts, or the often questionable financial backing of the Federal acknowledgment process.

That being said, however, given the spate of media attention of

alleged improper influences relating to Indian programs, our office

now includes in its scope of investigation an inquiry into any lobbying or other financial influences that might bear on the issue or

program at hand, with a view toward targeting improper lobbying

access and/or influence in the Department of the Interior.

The transparency that attaches itself to the Federal acknowledgment process is often obscured when it comes to those who would

use this process as an instant opportunity for opening a casino.

Last year in a prosecution stemming from one of our investigations,

the U.S. Attorney’s office for the Northern District of New York secured a guilty plea by an individual who had submitted fraudulent

documents in an effort to obtain Federal acknowledgment for a

group known as the Western Mohegan Tribe and Nation of New

York. Throughout trial, the prosecution contended that the fraudulent application was made in the hope of initiating gaming and casino operations in Upstate New York.

We are hopeful that this conviction has sent a clear message to

others who would attempt to corrupt the Federal acknowledgment

process, particularly when motivated by gaming interests. This

process is clearly fraught with the potential for abuse, including inappropriate lobbying activities and unsavory characters attempting

to gain an illicit foothold in Indian gaming operations.

We will continue to aggressively investigate allegations of fraud

or impropriety in the Federal acknowledgment process. We are

presently conducting an exhaustive investigation into the genesis of

questionable documents that were submitted into the record for a

group known as the Webster/Dudley Nipmuc Band pending before

the Interior Board of Indian Appeals.

In addition, as the Inspector General testified before this committee as recently as last month, our office has been reviewing our

audit and investigative authorities in Indian country to determine

whether we can establish an even more vigorous presence in the

gaming arena.

Mr. Chairman, Mr. Vice Chairman, this concludes my formal remarks today and I would be happy to answer any questions you

might have.

[Prepared statement of Ms. Kendall appears in appendix.]

The CHAIRMAN. Thank you very much.

Mr. Fleming.

STATEMENT OF LEE FLEMING, DIRECTOR OF FEDERAL ACKNOWLEDGMENT, OFFICE OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Mr. FLEMING. Good morning, Mr. Chairman, and members of the

committee. My name is Lee Fleming, director of the Office of Federal Acknowledgment within the Office of the Assistant Secretary

at the Department of the Interior.

I am also a member and a former tribal registrar of the Cherokee

Nation, the second-largest Indian tribe in the United States, next

to the Navajo. As tribal registrar, I directed a staff that processed

applications of individuals seeking formal recognition as members
19

or citizens of the Cherokee Nation under Cherokee law. I am here

today to provide the Administration’s testimony regarding the process that groups follow when seeking Federal acknowledgment as an

Indian tribe under Part 83 of Title 25 of the Code of Federal Regulations.

The Federal acknowledgment regulations govern the Department’s administrative process for determining which groups are Indian tribes within the meaning of Federal law. The Department’s

regulations are intended to apply to groups that can establish a

substantially continuous tribal existence and that have functioned

as autonomous entities throughout history until the present. When

the Department acknowledges an Indian tribe, it is acknowledging

that an inherent sovereign continues to exist.

Under the Department’s regulations, petitioning groups must

demonstrate that they meet each of seven mandatory criteria. The

petition must, first, demonstrate that it has been identified as an

American Indian entity on a substantially continuous basis since

1900; second, show that a predominant portion of the petitioning

group comprises a distinct community and has existed as a community from historical times until the present; third, demonstrate that

it has maintained political influence or authority over its members

as an autonomous entity from historical times to the present;

fourth, provide a copy of the group’s present governing document,

including its membership criteria; fifth, demonstrate that its membership consists of individuals who descend from the historical

tribe and provide a current membership list; sixth, show that the

membership of the petitioning group is composed principally of persons who are not members of any federally recognized Indian tribe;

and last, seventh, demonstrate that neither the petitioner nor its

members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship.

A criterion is considered met if the available evidence establishes

a reasonable likelihood of the validity of the facts relating to that

criterion. The Federal acknowledgment process is implemented by

the Office of Federal Acknowledgment. This Office is authorized to

be staffed with a director, a secretary, three anthropologists, three

genealogists and three historians, who are all hardworking civil

servants. The current workload consists of seven petitions on active

consideration and 12 fully documented petitions that are ready

waiting for active consideration.

The administrative records for some completed petitions have

been in excess of 30,000 pages. We have 220 groups who have only

submitted letters of intent or partial documentation. These groups

are not ready for evaluation. We have five final determinations representing four petitioners who are under review at the Interior

Board of Indian Appeals.

In addition, there are pending lawsuits related to the Federal acknowledgment process. In November 2001, the General Accounting

Office, now the General Accountability Office, issued a report entitled Indian Issues: Improvements needed in the Federal Recognition Process. The GAO made two primary findings in this report.

First, the Federal acknowledgment decisionmaking process is not

sufficiently transparent; and second, it is unequipped to respond in

a timely manner.
20

In response to the GAO report, the Assistant Secretary for Indian Affairs implemented a strategic plan to provide strategies to

communicate a clearer understanding of the basis of Federal acknowledgment decisions and to improve the timeliness of the acknowledgment process. I shall describe now many of the strategic

plan elements that have been implemented and completed.

One, all proposed findings, final determinations and reconsidered

determinations were electronically scanned and indexed and are

now available on a CD–ROM. I might say this is the hottest item

that groups are now asking for, as well as interested parties. Immediate and user-friendly access to all prior decisions enhances

both transparency and consistency in the decisionmaking-process.

Two, OFA filled two professional staff vacancies, resulting in the

formation of three functioning teams composed of one professional

from each of the three disciplines. With three teams, the OFA has

increased its ability to review petitions and their accompanying

documentation in a timely manner. I am pleased to announce that

the Department is taking steps to add a fourth team with associated administrative support.

OFA also has hired two sets of independent contractors to assist

with the administrative functions of processing FOIA, Freedom of

Information Act requests, and two, the work with a computer database system known as FAIR. FAIR stands for the Federal Acknowledgment Information Resource system. It is a computer database

that provides on-screen access to all the documents in the administrative record of a case and has made a significant positive impact

on the efficiency of the office.

We anticipate that the next generation of scanning for FAIR will

allow electronic redaction of privacy information from the documents which will save the Department a tremendous amount of

time otherwise spent photocopying cases for interested parties and

responding to FOIA requests.

Another significant improvement made to the Federal acknowledgment process was the realignment of the office, now within the

Office of the Assistant Secretary. This realignment eliminated two

layers of review and now provides more direct and efficient policy

guidance.

Due to the improvements just mentioned, the office was able to

assist the Department in completing 17 major Federal acknowledgment decisions since January 2001. These 17 decisions include 9

proposed findings, 6 final determinations, and 2 reconsidered final

determinations. On April 1, 2004, Secretary Norton requested that

the Indian Affairs review the strategic plan and ensure that all the

appropriate steps were being taken to implement the strategies developed in the plan. As discussed, the Department has completed

many of the action items identified in the strategic plan. We have

nearly completed all the remaining tasks that are within the control of the Department. Some tasks will take longer to implement

because they may require congressional action, regulatory amendments or access to the Internet.

In addition, on March 31, 2005, we formalized an already-internal policy of the Assistant Secretary’s office that prohibits Federal

acknowledgment decision-makers from having contact and communications with a petitioner or interested party within 60 days of an
21

acknowledgment decision. The Department published notice in the

Federal Register of this policy which will help ensure that all parties are made aware of the 60-day period and that the integrity of

the process is protected.

Thank you for the opportunity to testify about the Federal acknowledgment process. I will be happy to answer any questions you

may have.

The CHAIRMAN. Thank you very much, Mr. Fleming.

Ms. Kendall, you find nothing wrong with casino interests providing financial backing for tribes seeking recognition. Is that what

you testified to?

Ms. KENDALL. Not exactly, Mr. Chairman. We are concerned

about the financial backing issues and the lobbying access to the

Department. What we did not find anything wrong with was the

actual process by which the acknowledgment was rendered.

The CHAIRMAN. Well, let’s look at a situation in the State of

North Dakota. There is an entity seeking recognition and they are

in a sparsely populated area, probably not a good place for a casino

to be located. It would probably be pretty difficult for Mr. Trump

to come in in his zeal and advocacy for Native Americans to probably go in there. Yet, you have an entity in the Northeast that is

seeking recognition, as was testified by Congressman Shays, that

gaming interests come in and provide the financial backing for

them.

Isn’t there something wrong with that picture?

Ms. KENDALL. I do not disagree with you, Mr. Chairman. I think

there is something wrong with that picture. Our concern is that

there is no statutory or regulatory mechanism presently in place

that would regulate or control that access.

The CHAIRMAN. You know, at one time the Inspector General

called the recognition process permissive and inherently flexible.

Do you think that some of the changes that have been made since

then probably would make for a different description?

Ms. KENDALL. I am not familiar with that description, Mr. Chairman.

The CHAIRMAN. Do you believe that that is the case today?

Ms. KENDALL. I am not sure that I could say that I believe it is

the case. I believe, as both a lawyer and a career civil servant, that

the administrative process that governs the tribal acknowledgment

process should ferret out that kind of problem if it is not founded

in law or regulation.

The CHAIRMAN. I think you obviously agree that we should have

the same revolving door provisions for employees of the BIA as we

have for other branches of government.

Ms. KENDALL. I believe Mr. Devaney testified last month when

he appeared before this committee that he, and I agree with him,

believes that the revolving door provision that allows people to

leave the Department and immediately represent tribes is a provision that has outlived its purpose, yes.

The CHAIRMAN. You testified that an investigation in 2001 revealed that there were improprieties.

Ms. KENDALL. Yes, sir.

The CHAIRMAN. Who were the individuals who acted improperly?
22

Ms. KENDALL. Our finding in that investigation specifically was

the acting assistant secretary at the time, who

The CHAIRMAN. Whose name is?

Ms. KENDALL. I believe it was Michael Anderson, Mr. Chairman.

The CHAIRMAN. Do you know what Mr. Anderson does today?

Ms. KENDALL. I believe he is with a law firm.

The CHAIRMAN. That represents Native Americans?

Ms. KENDALL. That is my understanding, yes, sir.

The CHAIRMAN. But there were never any charges brought

against Mr. Anderson.

Ms. KENDALL. At the time, our investigation concluded, and actually at the time he signed the documents, he was no longer an employee of the Department.

The CHAIRMAN. So he is no longer an employee, so therefore he

did not fall under any Federal regulations or law.

Ms. KENDALL. He did not fall under our jurisdiction, Mr. Chairman. And as a former employee, the Department had no authority

to take any administrative action against him.

The CHAIRMAN. I understand.

Mr. Fleming, how many new letters of intent, approximately,

have you received since 1988, the passage of the Indian Gaming

Regulatory Act?

Mr. FLEMING. I would have to quantify that for you, but I can

give you an idea of the number of petitioners that were received

before and after 1988. As an example, in 1980, we received 10 petitioning group letters of intent; in 1981, seven; in 1982, five; in

1983, seven; in 1984, seven; in 1985, five; in 1986, zero; in 1987,

two.

In 1988, we received five; in 1989; six; in 1990, seven; in 1991,

five; in 1992, eight; in 1993, seven; in 1994, nine; and then in 1995,

we received 17; in 1996, 12; in 1997, nine; in 1998, 21; in 1999, 17;

in 2000, 15; in 2001, 13; in 2002, 19; in 2003, 12; and in 2004, nine.

The CHAIRMAN. Thank you very much.

How many final decisions do you anticipate making over the next

several years, roughly?

Mr. FLEMING. Roughly, we have seven groups that are on active

consideration that are awaiting final actions. They are in various

stages, either during a public comment period, response period, or

the development of final determinations.

The CHAIRMAN. In your written testimony, you said on the issue

of other improvements to the Federal acknowledgment process, you

say some tasks will take longer to implement because they may require congressional action, regulatory amendments or access to the

Internet. What are these congressional actions that you think may

need to be taken?

Mr. FLEMING. We have discussed the congressional assistance

with dealing with our Freedom of Information Act requests. We

have discussed and provided testimony in the past that the Department does support sunset rules so that we would know a finite

number of petitioning groups yet to address, and those are some of

the aspects that would need congressional action.

The CHAIRMAN. Thank you very much.

Senator Dorgan.
23

Senator DORGAN. Mr. Fleming, let me just try to run through

what I think is your workload. You say 7 petitions on active status;

12 petitions on ready status, as I understand it. Is that correct?

Mr. FLEMING. That is correct.

Senator DORGAN. Let me just for my own interest, of the seven

petitions on active status, what would be the length of time that

those petitions have been moving around this process? How old

would some of the older petitions be in those seven?

Mr. FLEMING. Some of the petitioning groups in this category

have been on active consideration for some time, but there are circumstances that are involved. They ask for a request for reconsideration or extensions to public comment periods, et cetera.

I can provide the office with some statistics that the GAO did in

its review, where it analyzed what time was expended by the petitioner in developing the petition; and then the times that were expended in the various phases of the regulatory time frames. I can

provide that to the committee.

Senator DORGAN. That would be helpful. The numbers that you

read of petitions, or rather letters of intent, for example, by year

seem to suggest an increasing number of letters yearly, or at least

the trend line would look like it is up in recent years. You have,

as I see it on my sheet, 220 either incomplete petitions or letters

of intent to petition, something in that neighborhood. Is that correct?

Mr. FLEMING. Right. A good number of those petitions not ready

for evaluation have only submitted letters of intent.

Senator DORGAN. Yes; there have been 15 petitions that are

through the acknowledgment process and have been acknowledged,

and 19 denied. Since the advent of regulations, there have been

roughly 34 disposed of, either positively or negatively, 15 approved,

19 disapproved. Is that correct?

Mr. FLEMING. That is correct.

Senator DORGAN. If you will send us, I would be interested in the

process, how long it takes and so on. I think all of that would be

helpful to us. I appreciate the testimony.

One just quick question, because you are dealing with a regulation here, or administrative determination in rule or regulation,

rather than a law, is there any advantage to incorporating these

requirements in law as opposed to having them in a regulatory

framework?

Mr. FLEMING. I believe in past oversight hearings, the Department had testified that it would support statutory establishment of

the process.

Senator DORGAN. I was asking whether there is any inherent advantage to that, that you can think of, you or Ms. Kendall.

Ms. KENDALL. Mr. Vice Chairman, my feeling is a personal feeling. I think if the process is working as it ought, and we believe

it is, that there would be no inherent benefit to putting this into

statute as opposed to regulation. I think both have the power and

effect of law.

Senator DORGAN. Right. If there had been successful challenges

of the regulation in certain areas, then obviously legislation would

be preferable.

Thank you both for your testimony. I appreciate your being here.
24

Ms. KENDALL. Thank you.

The CHAIRMAN. Thank you very much.

Our next panel is Richard Velky, chief, Schaghticoke Tribal Nation; Stephen Adkins, chief, Chickahominy Indian Tribe; John

Barnett, chairman, Cowlitz Indian Tribe; Kathleen Bragdon, professor, Department of Anthropology, College of William and Mary;

and Ken Cooper, president, Town Action to Save Kent, South Kent,

CT.

I would like to welcome the witnesses and we will begin with the

Honorable Richard Velky. Welcome.

STATEMENT OF RICHARD L. VELKY, CHIEF, SCHAGHTICOKE

TRIBAL NATION

Mr. VELKY. Thank you. Good morning, Mr. Chairman.

The CHAIRMAN. Good morning. Could I just mention that the

written testimony of all witnesses will be made a part of the

record, and if we could, we would like to see 5-minute opening

statements. Thank you.

Mr. VELKY. Thank you, Mr. Chairman.

My name is Richard Velky. I am the chief of the Schaghticoke

Tribal Nation. If I could, I would like to recognize the vice chairman, Michael Pane, who made the trip also with me and a few

tribal members here in the audience, if they would please stand.

The CHAIRMAN. Welcome.

Mr. VELKY. And also Chairman Brown from the Mohegans I see

has also joined us in the audience here. I would like to recognize

him, too.

Mr. Chairman, I appreciate this opportunity and the 5 minutes

to explain who the Schaghticoke Tribal Nation is and what we

went about. It is very brief, and I appreciate being able to submit

the written testimony.

I will tell you what the Schaghticoke Tribal Nation has gone

through in order to achieve the status of recognition. In 1981, the

tribe made a decision to go for Federal recognition. What we did

by that is submit a letter of intent to the Branch of Acknowledgment and Research. Upon receipt of that letter, we were told that

we needed to achieve seven criteria in order to be recognized for

the Federal recognition status. So we started out fulfilling those

seven criteria.

It was not until 1994 until we submitted our petition to the

branch of Acknowledgment and Research. When we did this, we

took the time and the courtesy to knock on the doors of the Senators who testified in front of us today and some of the congressional leaders to let them know the intentions of the Schaghticoke

Tribal Nation; that we looked to achieve our Federal recognition

status and to stand among our brothers and sisters in the eastern

part of the State.

They made it very clear to us, stay within the rules; do not try

a legislative move to achieve your Federal recognition; we will do

everything we can to stop you. We understood where they were

coming from, although it was not too appreciated. We knew we had

a long road ahead of us. From 1994 until the present time, we have

submitted three volumes of documentation, probably some 2,500

pages of information on the Schaghticoke Nation. Believe it or not,
25

in 1994 we probably had our best chance then to achieve the recognition status because things were not the way they are today in

Connecticut.

However, we needed full accountability of our tribe and we proceeded to fill out our documentation and today we have some

30,000 pages of information. We are a small tribe in the northwest

corner of the State of Connecticut. At that time, in the 1700’s we

had some 2,000 acres. Today, we are left with only about 400 acres

of a rocky hillside. That was our reason and our determination to

save our sovereignty, our heritage and our culture for our generations to come.

We were successful. The preliminary findings that you spoke of

that were negative and the reversed them into a positive decision

is a process that we all go through. At first when we submit our

information, we are given an obvious deficiency. We take this information; we conduct it into what is needed; and we submit it to see

how we stand in the standing of the seven criteria. When the tribe

feels they are completely eligible to reach the seven criteria, they

let the BAR know. Today, it is OFA.

We felt that position after our preliminary finding. We submitted

more documentation 9 months later and informed them that we

were eligible to go on for our Federal recognition. That is what we

did and we were successful.

To say today that the system does not work; it is corrupt; corruptive influences there; are just statements coming out of our legislation. We, the Schaghticokes, are not just going through the system.

We are also in a Federal court order. If any of these allegations

that were made today or any other time have any evidence of proof

to it, I encourage them to take it in front of the Federal court,

Judge Peter Dorsey, and submit it to their testimony and I am sure

we will be called in to answer to that.

Our fight for Federal recognition has not been an easy road. It

took us a quarter of a century to get here. We ask this committee

here to take a look at the recognition process. If there are changes

that need to be made and reforms that need to be made, it needs

to be made in favor of the Native Americans seeking the Federal

recognition and not the States fighting us.

Financial investors come into this area to play a part. We understand that. But it is unfortunate that there are no funds there for

these tribes, and us included, to get the money needed to achieve

the fact of a recognition status; 30,000 pages of information is not

light to come by. To fight off the State of Connecticut, we need a

team of attorneys ourselves. Never in my lifetime did I think I

would spend so much time with attorneys, but today I see I might

be becoming one of them.

It is a hard role that the tribes need to focus on. It is not easy

to sustain. We only ask that when we finally get to this end of the

road, that the committee take a serious attempt at the BIA and

any other process that the States or our opposition would attempt

to stop the tribes from achieving their recognition, to stand down

and move aside because we already made it through the process.

I thank you for your time this morning.

[Prepared statement of Mr. Velky appears in appendix.]

The CHAIRMAN. Thank you for being here today.
26

Chief Adkins, welcome.

STATEMENT OF STEPHEN R. ADKINS, CHIEF, CHICKAHOMINY

INDIAN TRIBE

Mr. ADKINS. Thank you, Chairman McCain and Vice Chairman

Dorgan for inviting me here today to speak on S. 480. Senator

George Allen introduced this bill.

A hearing on our prior Federal recognition bill, S. 2694, was held

by this committee on October 9, 2002. On behalf of the six tribes

named in S. 480, the Eastern Chickahominy, the Monacan, the

Nansemond, the Upper Mattponi, the Rappahannock and my tribe,

the Chickahominy, I am requesting that the evidence from that

hearing be submitted into today’s record. That evidence included a

strong letter of support from our current Governor Mark Warner.

Beside me today is Professor Danielle Moretti-Langholtz from the

College of William and Mary who worked on the petitions we filed

with the BIA. She is prepared to assist with any questions you may

have about our history. I also have here with me today Ken Adams,

chief of the Upper Mattaponi, and members of the other Virginia

tribes, I would ask them to please stand.

I would like to share with you that well-known story of Chief

Powhatan and his daughter Pocahontas, her picture being in this

very Capitol Building with her English husband John Rolfe. I often

say this country is here today because of the kindness and hospitality of my forebears in helping the colonists at Jamestown gain

a foothold in a new and strange environment. But what do you

know, what does mainstream America know about what happened

in those years between the 17th century and today?

The fact that we were so prominent in early history and then so

callously denied our Indian heritage is a story that most do not

want to remember or recognize. I and those chiefs here with me

here today stand on the shoulders of Paspahegh, who were led by

Chief Wowinchopunk, whose wife was captured and taken to

Jamestown Fort and run through with a sword; whose children

were tossed overboard and then their brains were shot out. With

this horrific action in August 1610, a whole nation was annihilated,

a nation that befriended strangers and ultimately died at the

hands of those same strangers.

We are seeking recognition through an act of Congress rather

than the BIA because of actions taken by the Commonwealth of

Virginia during the 20th century that sought to erase the existence

of my people through statutes and legislation that have the administrative process nearly impossible. The destruction of documents

regarding our existence during the Civil War and other periods of

early history pales in comparison to the State sanctioned indignities heaped upon my people under the hand of Walter Ashby

Plecker, a rabid separatist who ruled over the Bureau of Vital Statistics for 34 years from 1912 to 1946.

Although socially unacceptable to kill Indians outright, Virginia

Indians became fair game to Plecker as he led efforts to eradicate

all references to Indians on vital records. A practice that was supported by the State’s establishment when the eugenics movement

was endorsed by leading State universities and when the State’s

legislature enacted the Racial Integrity Act of 1924. That was a law
27

that stayed in effect until 1967 and caused my parents to have to

travel to Washington, DC on February 20, 1935 in order to be married as Indians. This vile law forced all segments of the population

to be registered at birth in one of two categories, white or colored,

thus legitimizing cultural genocide for Virginia’s indigenous people.

Sadly, this tells only part of the story. The effect of this period

on the racial policies of the State meant that Indian people were

targeted. It was feared that they would care to try to claim their

heritage and seek extra protection outside the State or with the

Federal Government. The policies established by Plecker made it illegal to designate Indian on a birth certificate or to give an Indian

child a traditional Indian name. Violations put doctors and midwives at risk of up to one year in jail.

Our anthropologist says there is no other State that attacked Indian identity as directly as that attack by those laws passed during

that period of time in Virginia. No other ethnic community’s heritage was denied in this way. Our State, by law, declared that there

were no Indians in the State in 1924, and if you dared to say differently, you went to jail or worse. That law stayed in effect half

of my life.

We are seeking recognition through Congress because this history prevented us from believing that we could fit into a petitioning

process that would either understand or reconcile this State action

with our heritage. We feared the process would not be able to see

beyond the corrupted documentation that was legally mandated to

deny our Indian heritage.

My father and his peers lived the Plecker years and they carried

those scars to their graves.

Chairman McCain, the story I just recounted you is very painful

and I do not like to tell that story. Many of my people will not discuss what I have shared with you, but I felt you needed to understand recent history opposite the romanticized, inaccurate accounts

of 17th century history.

The six tribes that I am talking about gained State recognition

in the Commonwealth of Virginia between 1983 and 1989. Subsequent to State recognition, then the Governor George Allen, who is

now Senator George Allen, heard and learned our story. In 1997,

he passed the statute that acknowledged the aforementioned discriminatory laws and allowed those with Indian heritage to correct

their records with costs to be borne by the Commonwealth. At that

juncture, we began to look ahead to Federal recognition. In 1999,

we were advised by the BAR that many of us would not live long

enough to see our petitions go through the administrative process.

Sir, that is a prophecy that has come true. We have buried four

Virginia Indian chiefs since then.

The six tribes referenced in S. 480 feel that our situation clearly

distinguishes us as candidates for congressional Federal recognition. As Chief of the Chickahominy Tribe, I have persevered in this

process for one reason. I do not want my family or my tribe to let

the legacy of Walter Plecker stand. I want the assistance of Congress to give the Indian communities in Virginia their freedom

from a history that denied their Indian identity. Without acknowledgment of our identity, the harm of racism is the dominant history. I want my children and the next generation to have their In-
28

dian heritage honored and to move past what I experienced and

what my parents experienced. We the leaders of these six Virginia

tribes are asking Congress to help us make history for the Indian

people in Virginia, a history that honors our ancestors that were

here at the beginning of this great country.

Sir, I want to end with a quote credit to Chief Powhatan. This

quote from Chief Powhatan to John Smith maybe has been forgotten, but ironically the message still has relevance today, and I

quote, ‘‘I wish that your love to us might not be less than outs to

you. Why should you take by force that which you can have from

us by love? Why should you destroy us who have provided you with

food? What can you get by war? In such circumstances, my men

must watch, and if a twig should break, all would cry, ‘Here comes

Captain Smith.’ And so in this miserable manner to end my miserable life. And, Captain Smith, this might soon be your fate, too. I

therefore exhort you to peaceable councils and above all I insist

that the guns and swords, the cause of all our jealousy and uneasiness, be removed and sent away.’’

Chairman McCain, our bill would give us this peace that Chief

Powhatan sought. It would honor the treaty our ancestors made

with the early colonists and the Crown, and it would show respect

for our heritage and our identity.

Chairman McCain, I thank you for allowing me the time to speak

before this committee.

[Prepared statement of Mr. Adkins appears in appendix.]

The CHAIRMAN. Thank you very much.

Mr. Barnett, Chairman Barnett.

STATEMENT OF JOHN BARNETT, CHAIRMAN, COWLITZ INDIAN

TRIBE

Mr. BARNETT. Chairman McCain, Vice Chairman Dorgan and

distinguished members of the Senate Committee on Indian Affairs.

I thank you for the opportunity to testify this morning. To our

friend, Senator Maria Cantwell, I bring you warm greetings from

your Cowlitz constituents home in Washington State.

My name is John Barnett and I am the chairman of the 3,200-

member Cowlitz Indian Tribe of Washington. I have served as

chairman of our tribe for 24 years. I have made it my personal objective to right the historical wrongs that have committed against

my people. By so doing, I hope to provide a brighter future for our

next generations.

The Cowlitz Tribe is a recognition success story. We were able

to make it through BIA’s Federal acknowledgment process using

only donations from hardworking tribal members to pay for the anthropological, genealogical and historical work necessary to show

that we met the Bureau’s seven criteria for recognition. It was the

commitment, cohesiveness and self-sacrifice of my people that got

us through the recognition process without the benefit of funds

from outside developers.

It has been out of my own pocket that I have traveled to Washington, DC more than 50 times to advocate on my tribe’s behalf

during the recognition process. Indeed, Mr. Chairman, I sat before

you in this committee at another recognition hearing in 1991, fully

11 years before we finally received Federal recognition in 2002.
29

I believe it is entirely appropriate that unrecognized tribes

should meet tough, objective standards before achieving Federal acknowledgment. To take a contrary position would undermine the

credibility of other federally recognized tribes and would fuel efforts of unscrupulous developers looking to create tribes for no

other reason than to create a new Indian gaming deal.

But let me also underscore that the recognition process is expensive and time-consuming, and that it has been made more so by the

efforts of gaming interests, Indian and non-Indian, which will spare

no expense to block a legitimate tribe’s efforts to achieve recognition in order to block a potential gaming competitor.

Gaming plays too great a role in the Federal recognition process.

That role is being played out on both sides, both for and against

applicant tribes. The only way to remove the unwanted influence

of gaming on Federal recognition is to give BIA enough resources

to provide the assistance tribes need so that they are not forced to

find outside sources of funding.

The acknowledgment process itself must be streamlined. We had

to wait more than three years between when we filed our notice of

intent and when it was published in the Federal Register. We had

to wait another 41⁄2 years from publication of the NOI until BIA

sent us our first technical assistance letter. We waited another 5

years after that until we got our second technical assistance letter.

And then we waited another 9 years after that before BAR issued

proposed findings of fact in 1997.

We did not receive a final determination until 2000, and then another tribe challenged the final determination, thereby delaying implementation of BIA’s decision until they reconsidered. Final determination was issued in 2002. From start to finish, a quarter of a

century.

Good Senators, I believe that you should be concerned that the

glacial pace at which recognition petitions are reviewed is contributing to other unrecognized tribes’ desperate need to find alternative funding sources. Because those of us who have survived the

Federal acknowledgment process emerge as landless tribes, the

controversial politics of Indian gaming continues to haunt us. Without access to Federal funding or economic development opportunities, and having spent whatever money we had on the recognition

process, we are financially destitute. Acquiring land costs money.

The substantial work needed to construct a fee-to-trust application also costs money. And now BIA is requiring tribes to pay for

the development an EIS as part of the trust application process.

The Cowlitz EIS is will cost more than $1 million. Where is a

newly recognized, landless tribe supposed to find that kind of

money?

Mr. Chairman, there is a world of difference between the greedy

marauding reservation shopping portrayed by the press and the

sincere, sometimes desperate efforts of newly recognized tribes to

find a piece of land on which to start rebuilding our futures. We

are trying to get back on our feet after 150 years of no-so-benign

neglect. We are trying to build homes, government buildings,

schools and health clinics. We are looking for access to the same

economic development opportunities already afforded to other

tribes lucky enough to have a land base on October 17, 1988.
30

The Cowlitz Tribe has strong historical and modern connections

to the land we would like to make our initial reservation. We have

found a partner to help us get on our feet and we are blessed that

we found that help within Indian country. We are proud to be

working with and learning from the Mohegan Tribe of Connecticut.

In 1994, the Mohegan Tribe also successfully emerged from the

Federal acknowledgment process as a newly recognized landless

tribe.

Chairman McCain, I believe you recently encouraged Mohegan

Chairman Mark Brown, who is with us this day over in the corner,

to reinvest in Indian country. The Mohegan Tribe has done that.

They are helping their Cowlitz cousins from across the continent

and for that we will forever be grateful.

I would also like to thank the State of Washington for its support

of the Federal acknowledgment process. The State traditionally has

declined to weigh in on the Federal question of whether a tribe

should be recognized, choosing instead to defer to those with specialized expertise to make such decisions. Once a tribe is recognized, however, the State is very quick to extend its hand to establish a government-to-government relationship with the newly recognized tribe. We appreciate the integrity of the State’s actions and

the respect the State has shown us.

In closing, I am here to ask you as a good and genuine friend

of Indian people for so many decades, to ensure that the public debate about Federal recognition not be driven by the convenient and

controversial politics of Indian gaming. I am asking that you help

frame Federal policy in a way that recognizes the real hardships

suffered by unrecognized and landless tribes, that honorably addresses the historical wrongs suffered by our people and that does

not deny deserving tribes Federal recognition or a reservation simply as a means of avoiding the hard politics of Indian gaming.

I thank you again for giving me an opportunity to speak to this

committee on these issues so vital to some of the first Americans.

One additional thought I would like to give to you people. Senator

McCain, there are those of us that have been in the process, went

through the process either acknowledged or denied. We have a

world of talent and ability to give you suggestions as to some of the

ways perhaps that can be used to streamline the process and get

to the tribes. For instance, over 100 tribes at 21⁄2 per year will

never see anything, waiting 50 more years.

Something has to be done. I think you people fully realize that.

And some of us, including myself and the Cowlitz people, are certainly willing to help.

[Prepared statement of Mr. Barnett appears in appendix.]

The CHAIRMAN. Thank you very much.

Dr. Bragdon.

STATEMENT OF KATHLEEN J. BRAGDON, PROFESSOR, DEPARTMENT OF ANTHROPOLOGY, COLLEGE OF WILLIAM AND

MARY

Ms. BRAGDON. Good morning, Chairman McCain and Vice Chairman Dorgan, and members of the committee. Thank you very much

for the opportunity to be here today.
31

My name is Kathleen Bragdon. I hold a doctorate in anthropology and I am currently a full professor at the College of William

and Mary. I have been writing about native people of Southern

New England and elsewhere and their languages for more than 25

years. During this time, I have been consistently impressed with

the persistence and creative adaptability of the Indian communities

of our region. I would like to thank the many native people with

whom I have worked over the years for the honor of learning from

them.

As you know, scholars, including historians, archaeologists, linguists and anthropologists have been involved in the Federal recognition process since its inception. In New England, the most influential practitioners have been those I affectionately call Dr. Jack

Campisi and his band of merry men, and women, all very competent and prolific anthropologists and ethnohistorians.

When they began their important work, because their expertise

was widely and rightly acknowledged, their evaluations were thoroughly documented, but much less extensive than would be required today. An adequate report 25 years ago was perhaps 100

pages long. Today, it would be several thousand.

It has also become necessary because of the increasing research

burdens of the recognition process, for scholars to document a

wider range of factors than was previously thought necessary. I

quote Sheldon Davis: ‘‘As anthropologists, our primary contribution

to the rights of indigenous peoples lies in independently and publicly documenting the social realities that these people face.’’

In New England, these social realities have included legislative

dispossession, detribalization, racial discrimination, poverty and

many kinds of social disruption. These conditions have made the

task of documenting their histories and continuity as Indian entities very challenging. In many cases, the haphazard way in which

Indian communities have been treated during the past 300 years

has resulted in major gaps in the evidence, so that petitioners are

faced with the impossible task of locating records that were never

created or which no longer exist.

The gaps in the official records can be filled by using other types

of historical documentation, but this material is scattered and requires a good deal of training to analyze, and the necessity for its

use because of increasingly demanding standards of documentation

required by the Bureau of Indian Affairs, has created a large cost

burden for most petitioners.

Another concern is privacy. The existing official records that document the relations of State and local governments and Indian peoples often include very sensitive information about family history,

information that Indian people are naturally very reluctant to have

made public. As the demands of documentation required by the Office of Federal Acknowledgment have become greater, however, Indian people feel they have little choice but to make these sensitive

records available. Added to this are their concerns about sacred

sites and knowledge, which make many people reluctant to share

information that might help their case.

Finally, Indian people see their histories differently than those of

the authorities who controlled the written records, and their views

have rarely been taken into account. My own experience has been
32

that it is in these alternative historical views, often expressed

through oral histories, folks tale and kitchen table talk that can be

found the most powerful pieces of evidence for community continuity and strength.

I wish to emphasize that I think the Federal recognition process

is vital to native interests in New England and elsewhere, and has

led to great benefits for many Indian communities. By benefits, I

mean increased opportunities for education, better health care, and

the support for cultural enrichment and language study programs

that are central to Indian identity and an important part of maintaining and celebrating their heritage.

Some communities have now been publicly affirmed and have

taken their rightful place as stakeholders in regional and national

debates. The difficulties I discussed briefly above, however, have

left other native communities out of the process, and this has been

an additional source of division and discouragement to many native

people. This is due in part to the difficulty of fitting all Indian communities presently and in the past into an agreed upon definition

of ‘‘tribe.’’

Another difficulty is the persistent belief that there are no longer

any real Indians left in the eastern parts of North America. A cursory survey of recent newspaper articles in prominent and local

newspapers in New England demonstrates the strength of his misconception, even among educated people. Non-Indians also misunderstand the historic relationship between the Federal Government and Indian peoples, and see Federal recognition as a kind of

undeserved entitlement.

Native people struggle against these attitudes and the added

burden of defending themselves against so-called ‘‘interested parties’’ who refuse to accept them as who they say they are, and further complicates and extends the recognition process.

The CHAIRMAN. Dr. Bragdon, I have been informed that we have

a vote starting in about 7 minutes, so if you would summarize as

much as possible so we can hear from Mr. Cooper. I thank you and

I apologize for our Senate procedures.

Ms. BRAGDON. Certainly.

In summary, the only defense against misinformation is a careful

research process. I think there is room for a measure of cooperation

with scholarly institutions such as what we have here at the College of William and Mary, and I fully support the present procedure.

Thank you for letting me have this opportunity to speak.

[Prepared statement of Ms. Bragdon appears in appendix.]

The CHAIRMAN. Thank you, Dr. Bragdon. Thank you for appearing today.

Mr. Cooper.

STATEMENT OF KEN COOPER, PRESIDENT, TOWN ACTION TO

SAVE KENT

Mr. COOPER. Thank you, Mr. Chairman and Mr. Vice Chairman.

It is an honor to appear before you to express my concern with the

Federal process that could have tragic consequences for my small

town.
33

I am from Kent, Connecticut. Kent traces its roots to the early

1700’s. Our population is approximately 3,000. We are located in

the scenic northwest corner of the State, and our industry is serving visitors, tourists, sightseers and weekenders. In many ways, we

are typical of small towns across the United States. Our local

boards and commissions, ambulance and fire departments, library

and historical societies are all run by volunteers.

Municipals budgets and ordinances are voted on as they have

been for over 300 years by open town meeting. We are rural America, but we are threatened. We have seen similar small towns in

Eastern Connecticut massively disrupted and irrevocably changed

from what they once were. The emergence of Las Vegas-style casinos has overwhelmed their infrastructure and destroyed their communal character that took 4 centuries to build. Their tax bases

have shrunk, crime has soared. Their schools are jammed and

sadly, the long-term residents have lost the ability to manage their

futures.

TASK was formed because of what we saw happening to our sister towns. We realized it could happen to us because of mismanagement within the BIA. Mr. Chairman, let me make one thing clear.

TASK does not oppose the recognition of authentic Indian tribes.

Our concern is the Federal acknowledgment process that allows the

recognition of persons whose claims are without merit; whose pursuit of sovereignty is opportunistically supported and driven by

gambling interests; and whose rules can be changed without due

process or notice to interested parties.

One such petition involves the Schaghticoke Tribal Nation, which

was organized by a group that claims Indian heritage and rights

to a State reservation in Kent. It is richly financed by non-Indian

businessmen. They are required by contract with their investors to

build a world-class casino, and from its revenues to compensate the

investors up to $1 billion.

Is it any wonder with that kind of money on the table, the influences are heavy, embarrassing behavior encouraged, and the system made weak?

While there is nothing wrong with raising resources required to

petition the government, given the risk such sums interject into the

system, financial disclosures have become a pillar of good government practice. No such requirement exists for BIA petitioners or

participants.

We are facing a crisis brought on, first, by gambling interests

that have taken over the process; by groups who do not meet the

criteria for recognition because of their economic location are able

to present their history with great finesse; and by the Federal

agency processes by which they are recognized.

The Inspector General, Mr. Devaney, in his letter noted that the

regulations as written are permissive and inherently flexible.

Mr. Chairman, Federal acknowledgment grants the petitioner extraordinary rights and in the densely populated east coast caused

disruption to thousands of innocent citizens and has the effect of

destroying our equally important culture. It is precisely because of

the impact of these decisions that the process not be permissive. It

must be dispassionate and disciplined. It must have absolute integrity and protect every party.
34

The BIA is a broken bureau. Interior acknowledges it. The General Accounting Office has identified it. You are holding hearings

on it and the press has reported upon it. Both petitioners and related parties have been victims of it. Legislation has been introduced

about it in both Houses.

TASK’s sole mission is to ask that the BIA process establish its

integrity for the benefit of all of its stakeholders and to retain the

confidence of the American public. This is not an anti-Indian request. It is about good government, plain and simple.

Mr. Chairman, Kent, Connecticut is a good citizen. We are willing to live with any BIA decision that is rendered equitably, openly

and honestly. We intend to live in complete harmony with those

who support any petition regardless of their ultimate success or

failure.

TASK thanks you, Mr. Chairman, and members of the committee, as well as our Governor, our House and Senate delegation, and

our attorney general for working in a true bipartisan manner on

this issue, and for permitting me the privilege of addressing you.

[Prepared statement of Mr. Cooper appears in appendix.]

The CHAIRMAN. Thank you very much, Mr. Cooper.

Chief Velky, do you intend to build a casino in Kent?

Mr. VELKY. No, Mr. Chairman; we do not.

The CHAIRMAN. Do you intend to start a gaming enterprise on

your tribal lands?

Mr. VELKY. As it stands today on our tribal lands, not in Kent,

no, sir.

The CHAIRMAN. Anywhere on your tribal lands?

Mr. VELKY. It is our intention in the future to have a gaming facility, yes, sir.

The CHAIRMAN. And you refuse to, during this process, to disclose

who your financial backers were?

Mr. VELKY. No; we did not, sir. That has been in the newspapers

back home continuously.

The CHAIRMAN. Who are your financial backers?

Mr. VELKY. It is Subway, Mr. Fred DeLuca is the main backer.

We are in dispute right now, however.

The CHAIRMAN. About what?

Mr. VELKY. Just about being able to get along. This process is

not an easy process, as I had outlined, Senator. It is unfortunate,

but when we have groups such as TASK that are willing to pay lobbyists some $2 million in order to fight the Schaghticoke Nation,

when the Schaghticoke Nation has to come and defend itself

against a whole delegation of the State of Connecticut, it is extremely costly for us to get through and it is unfortunate that the

tribes need to go out and borrow this money. But if the tribe is not

able to go out there and borrow the money, we will do some type

of a damage from borrowing the money, but if we do not meet our

recognition, sir, we will not be able to overcome that cost.

The CHAIRMAN. Thank you.

Chief Adkins, I take it from your testimony that you believe that

so many tribal documents and other historical records were destroyed that would be hard for you to achieve recognition through

the BIA process. Is that correct?
35

Mr. ADKINS. That is correct, but I would like to qualify it. We are

up against a situation where, and I would say I do not have a problem with the seven criteria. I have some problem with the process

because when I look at what happened in Virginia, the Racial Integrity Act of 1924, the Indian Reorganization Act of 1934, and

then in 1966 the Virginia Supreme Court upheld the 1924 laws,

which were overturned at the Federal level.

So coming out of Virginia, we have found success in the Federal

recourse. In 1982, Virginia did form a subcommittee that reported

on our State recognition efforts. The Virginia Commission on Indians was formed and State recognition was afforded. In 1997, thenGovernor Allen supported a statute or signed into statute.

The CHAIRMAN. I understand that. It was part of your testimony.

Mr. ADKINS. Okay. Right. So the point that I am making is the

process hurts us because of where we were in the State. It is the

20th century that caused us more concern than the historical portion.

The CHAIRMAN. Thank you.

Chief Barnett, if you would submit to us in writing the recommendations you have that could prevent, you went through a 23-

year process. Is that correct?

Mr. BARNETT. A 25-year process.

The CHAIRMAN. A 25-year process. If you could submit in writing

to us recommendations on how this process could be expedited and

be made more fair. And by the way, how much of that delay was

due to your efforts to collect documents and other evidence?

Mr. BARNETT. I would say that a considerable amount of time.

We would have to go back because of the obvious deficiency letters,

to gather the additional information.

The CHAIRMAN. So not all of it was just because of BIA inefficiency.

Mr. BARNETT. Yes; personally, I think the Cowlitz people, they

realized that the BIA and the Federal acknowledgment process is

a fair standard process that has to meet high bars. We were certainly willing to go to that level to do it. We do not at all feel compromised by the fact that it took as long as it did. However, I think

that those tribes coming behind us deserve a little bit more fair situation than what we went through.

The CHAIRMAN. Mr. Cooper, have you had discussions with the

tribe and tribal leaders about the issue of gaming in your city?

Mr. COOPER. No; we have not.

The CHAIRMAN. Have you attempted to?

Mr. COOPER. No; we have not, Mr. Chairman.

The CHAIRMAN. Why not?

Mr. COOPER. Because they are currently not a federally recognized tribe, and if we have discussions with them to make agreements. They are not bound by those discussions after the Federal

recognition process. And the second point, Mr. Chairman, is we are

a grassroots organization. The elected officials of the town of Kent

and the attorney general are really the appropriate authorities to

be conducting those discussions.

The CHAIRMAN. I thank you, Mr. Cooper, and I apologize to the

witnesses. I had many more questions, but I think we have a vote

on.
36

Senator Dorgan.

Senator DORGAN. Mr. Chairman, there is a vote that has started

about 5 minutes ago, so I will additionally submit questions.

Chairman Velky, when was your petition submitted originally?

Mr. VELKY. In 1994, sir.

Senator DORGAN. And prior to that time, how long was it being

considered for submission? When did you make a decision that you

wanted to petition?

Mr. VELKY. In 1981.

Senator DORGAN. In 1981?

Mr. VELKY. Yes, sir.

Senator DORGAN. Chairman Adkins, let me just say to you that

I think you do a service again by reminding all of us of what has

gone before. The story that you have described is replicated in

many ways in many other parts of the country of a series of governmental actions to try to either deny or destroy the cultural roots

of native people. So I appreciate very much your giving us again

the context and the history of all of this.

This panel, Mr. Chairman, has submitted some excellent testimony. I have a series of questions that I would like to submit for

the record because of the vote that is now occurring. I want to

thank all of them for coming and participating today.

The CHAIRMAN. I thank the witnesses, and I think this has been

very helpful to us. I appreciate it.

This hearing is adjourned.

[Whereupon, at 11:35 a.m., the committee was adjourned, to reconvene at the call of the Chair.]
(37)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. GEORGE ALLEN, U.S. SENATOR FROM VIRGINIA

Thank you Chairman McCain. I commend you for holding this hearing and considering the unique and extraordinary story of these six Virginia Indian tribes. As you

are no doubt aware, my legislation to provide the six Virginia tribes Federal recognition was reported out of this committee during the 108th Congress.

I have again introduced the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act to begin the process of Federal recognition for the Chickahominy, The Eastern Chickahominy, the Upper Mattaponi, the Rappahannock the Monacan and the Nansemond Tribes.

This legislation would provide a long overdue recognized status on a group of

Americans that have been a part of this country’s history from its inception. The

six tribes seeking Federal recognition have suffered humiliation and indignities that

have gone largely unnoticed by most Americans. Because many of these injustices

were not a result of any action they undertook, but rather due to government policies that sought to eliminate their culture and heritage, I believe the circumstances

of their situation warrants Congressional recognition.

I can understand the concern my colleagues express over granting Federal recognition without the investigative process used by the Department of the Interior.

However, if one closely examines the history of these Virginians, they will see why

this legislation has been introduced, and why my colleagues Senator Warner has cosponsored here in the Senate and why Congressman Jim Moran continues to push

for recognition on the House side.

The history of these six tribes begins well before the first Europeans landed on

this continent. History has shown their continuous inhabitance in Virginia. Through

the last 400 years they have undergone great hardship. However, they have maintained their traditions and heritage through those difficult centuries. To put the

long history of Virginia Indians in context, while many federally recognized tribes

have signed agreements with the U.S. Government, the Virginia Indian tribes hold

treaties with Kings of England, including the Treaty of 1677 between the tribes and

Charles the II.

Like the plight of many Indian tribes of America over the last four centuries, the

Virginia tribes were continually moved off of their land and forced to assimilate to

U.S. society. Even then, the Indians of Virginia were not extended the same rights

offered a U.S. citizen. The years of racial discrimination and coercive policies took

a tremendous toll on the population of Virginia Indians. Even while living under

such difficult circumstances and constant upheaval, the Virginia Indians were able

to maintain a consistent culture. During the turn of the 20th Century, members of

these six tribes suffered more injustice. New state mandates forced Virginia Indians

to renounce their Indian names and heritage. The passing of the Racial Integrity

Act of 1924 began a dark time in the history of the Commonwealth of Virginia. This

measure, enforced by a State official named Walter Plecker sought to destroy all

records of the Virginia Indians and recognize them as ‘‘colored.’’ People were threatened with imprisonment for noting ‘‘Indian’’ on a birth certificate; mothers were not
38

allowed to take their newborn children home if they were given an Indian name.

This policy, along with overzealous enforcement by Plecker, has left many Virginia

Indians searching for their true identity.

The Racial Integrity Act left the records of thousands of Virginia Indians inaccurate or deliberately misleading until 1997. As Governor, that year, I signed legislation that directed State agencies and officials to correct all State records related

to Virginia Indians, reclassifying them at Native American and not ‘‘colored.’’ My

administration championed this initiative after learning of the pain the racist policy

inflicted on many Virginia citizens. I also was briefed on the problems many Virginia Indians experienced when attempting to trace their ancestry or have records

of children or deceased corrected. To combat these injustices, we ensured that any

American Indian whose certified copy of a birth record contains an incorrect racial

designation were able to obtain a corrected birth certificate without paying a fee.

I could not imagine a greater insult than asking a citizen of Virginia to pay to have

their racial designation corrected after it was the State’s policy that caused the

wrong designation.

Because of the arrogant, manipulating policies of the Virginia Racial Integrity

Act, the Virginia Indian tribes have had a difficult time collecting and substantiating official documents necessary for Federal recognition. Through no fault of their

own, the records they need to meet the stringent and difficult requirements for Federal recognition are not available. I fear that unless my colleagues and I take action

legislatively, these six tribes will be faulted and denied Federal recognition for circumstances they truly had no control over.

The Virginia tribes have filed a petition with the Department of the Interior’s

Branch of Acknowledgement and Research. However I believe congressional action

is the appropriate path for Federal recognition. The six Indian tribes represented

today have faced discrimination and attacks on their culture that are unheard of

in most regions and States of the United States. I do not feel it is right for the Federal Government to force them to prove who they are, when previous State government policies forced them to give up their heritage, history and race.

Federal recognition brings numerous benefits, including access to education

grants housing assistance and healthcare services, which are available to most

Americans. Discrimination and a lack of educational opportunities have left many

Virginia Indians without healthcare and little prospects for continued employment.

Education grants would provide an avenue for these folks to improve their prospects

for employment and hopefully secure a job with substantial health benefits. The

benefits Federal recognition offers would not be restitution for the years of institutional racism and hostility, but it would provide new opportunities for the six tribes

some basic necessities for long-term success.

I can understand some of the concerns Members of Congress have with gambling

and property claims they relate to federally recognizing Indian tribes.

Many Members of Congress place the issue of gambling and casinos front and center when discussing Federal recognition for Indian tribes. While I do not doubt that

some States have experienced difficulties as a result of Indian tribes erecting casinos, I feel confident that gambling is not the goal for these six tribes. The tribes

have stated that they have no intention of seeking casino gambling licenses and do

not engage in bingo operations, even though they have permission to do so under

Virginia law. To ally any other fears regarding gambling, I worked with Congressman Moran to craft language in our respective bills that provides proper safeguards

under Virginia law and the Indian Gaming Regulatory Act. The concern that Federal recognition will result in gambling and casino problems in Virginia has been

sufficiently addressed.

I have spoken with the many of the members of these six tribes, and believe they

are not seeking Federal recognition for superficial gain; instead they seek recognition to reaffirm their place as American Indians, after that right had been stripped

for many decades.

Mr. Chairman, I have worked with these six tribes for the last 5 years. There circumstance is special and that is why I have introduced this legislation. I am hopeful

that the committee will objectively review their situation, and make the right decision to move this to the floor for full Senate consideration.

Thank you Mr. Chairman.

PREPARED STATEMENT OF MARK D. BOUGHTON, MAYOR, DANBURY, CT

Mr. Chairman, members of the committee, I would like to thank you for the opportunity to address a critical issue that is facing our Nation, the great state of Connecticut, and the city of Danbury.
39

In the past I have testified to the House Committee on Resources regarding the

issue of tribal recognition and the process that is laid out by the Bureau of Indian

Affairs [BIA]. I will tell you today, as I have said in the past, that the process is

broken. Let me be even clearer, the process does not work.

This process is not about recognizing a wrong that was perpetrated on a group

of people who have suffered at the hands of a Nation bent on repression and in some

cases genocide. The tribal recognition process regarding the Schaghticoke Tribal Nation, Golden Hill Paugussetts, and the Eastern Pequot’s is and always has been,

about Casino gambling and the high powered investors who drive the recognition

process. The key to recognition is that we must divorce the recognition process from

gambling and the special interests that seek to corrupt the process.

Why do I say this? Let’s take a look at the Schaghticoke Tribal Nation recognition. In this case, the preliminary finding of the BIA stated that the Schaghticokes

were not a tribe and did not meet the criteria for recognition. Specifically, the BIA

cited the lack of political authority for the tribe during several key times throughout

our history and the failure to exist as an intact social community from colonial

times to the present without any significant gap in time. This is a critical component of the process and in the past has been fatal to an acknowledgment petition.

I believe that the BIA was correct in making its finding. The BIA set its rules and

then applied those rules to the Schaghticoke application to see if it met the criteria.

The system appeared to work. As a mayor of a city that had been identified as a

potential location for a casino we were thrilled by the BIA’s ruling.

Then the shoe dropped. The recognition process allows a tribe to address the deficiencies that have been identified in an application before the final decision is made.

As a former teacher, this would be analogous to giving a test to a student, giving

back the test with a failing grade, give the student the answers, and then rescore

the test. If the student still did not pass, I would then go to my colleagues and say

‘‘read this essay, tell me how I can give a passing grade to this student’’ sounds absurd right? This is exactly what happened in the case of the Schaghticoke Tribal

Nation. How do we know this? Because of the internal memo that was drafted at

the request of The Office of Federal Acknowledgement [OFA]. In that memo, OFA

admits that it ‘‘can’t get there from here’’. In other words, the Schaghticoke application does not meet several critical parts of the steps necessary for recognition.

What prompted the sudden change of heart by the BIA? Why would an organization ignore the very rules that it has promulgated to arrive at a conclusion in its

final determination that is different than the one that was articulated in its preliminary determination? What is the point of having rules if the BIA itself does not follow them? One can only speculate at the forces that were at work at the BIA to

change the proposed finding to one of recognition for the Schaghticoke Tribal Nation.

As a result of these serious problems with the final determination, our city, along

with the State, other municipalities, and private parties whose property is being

threatened by the Scaghticoke land claim lawsuit, filed an appeal with the Interior

Board of Indian Appeals. At this stage, things got even worse. Our brief raised

many strong arguments, and a few months ago BIA admitted that we were right

on one of the key issues. This extraordinary admission of error on one of the major

findings that allowed BIA to issue a ruling in favor of Schaghticoke should have led

BIA to issue a clear statement that the decision was wrong and should be reversed.

Instead, BIA said nothing about its admitted error, and is proceeding as if nothing

is wrong. Once again, we are left to guess at the reasons for BIA’s actions.

The result of the process is that the rules are a constant moving target. As a municipality involved with the recognition process, we have no idea what to address

in an application because the BIA keeps changing the rules. A recent example is

a ‘‘directive’’ regarding acknowledgment procedures issued by BIA in March. This

directive changes the rules that are contained in a previous BIA directive issued in

2000. In neither case did BIA give advance notice, or ask for public comment, even

though our rights in the acknowledgement process were affected. This leads to a

process that is suspect at best and deeply flawed at its worst. Without strict guidelines, the decisionmaker in the recognition process is free to interpret the rules as

he or she sees fit, or at worst, ignores the regulations all together.

The impact of recognition of a tribe on Connecticut is profound. Recognition in

Connecticut is different than that of recognition of the tribes in the southwest and

the far west. The tribes of the west are descendents of a noble people who experienced suffering and exploitation at the hands of the Americans who were settling

on lands that had been lived on for thousands of years. In Connecticut, groups seeking recognition are backed by people like Fred Deluca owner of Subway Sandwich

Shops, Donald Trump of recent ‘‘The Apprentice’’ fame, and Thomas Wilmot a New

York mall developer. These gentleman are not bankrolling these groups because
40

they are concerned about the plight of Native Americans in Connecticut, they are

interested in only one thing. Opening a Casino in Connecticut. These gentlemen

have an unlimited amount of resources they bankroll the applications and wait for

their payday. As a mayor of a municipality that is still recovering from the fallout

of 9/11 and an economy that is still mending, opposing a prospective recognition is

one more costly problem. When the BIA continues to reinvent the rules of recognition, it is even more difficult. In my small State we currently have two tribes that

are recognized, two have received positive final determinations now on appeal, and

more applications are on the way. Because of our location between the metropolitan

centers of Boston and New York, we are an attractive place for casino development

and the investors know it.

The political influence of these entities is far and wide in our State. Soon, because

of the high stakes that are involved, it is my fear that Connecticut will be carved

up into four or five sovereign nations with gambling as the exclusive industry. This

scenario is a real possibility unless Congress takes action. Because of the immense

wealth available to the tribes with casinos, these tribes will dominate every aspect

of our lives. Our politics, our culture, our social fabric will be changed forever.

My city, located just seventy miles from New York City and home to a diverse

economic base ranging from pharmaceuticals to light manufacturing and corporate

development. A city that has one of the lowest unemployment rates in the country,

recently recognized as one of the safest cities in the United States of America, will

become a host to a casino that would service tens of thousands of visitors 24 hours

a day, 365 days a year.

Already, I have been notified by several of my CEO’s of our major corporations

that they will move if a casino is located in Danbury. This would be catastrophic

to our economic base and our identity as a community. The Schaghticoke Tribal Nation has already placed land claims on thousands of acres in Connecticut. This entity will reign over every aspect of life in western Connecticut.

The recognition process is the only vehicle we have as a municipality to participate in the casino issue in Connecticut. I ask that you consider the transparency

of this process. I ask that you level the field so that we can understand what the

rules are and how best to address them. I ask that you consider legislation to gain

control of the process and put in law the seven criteria necessary for recognition.

Thank you for your consideration of important changes needed in the tribal acknowledgement process.

PREPARED STATEMENT OF HON. TOM A. COBURN, M.D., U.S. SENATOR FROM

OKLAHOMA

Chairman McCain, Vice Chairman Dorgan, I thank you for holding this important

hearing this morning.

Given our most recent oversight hearing on Indian gaming, today’s hearing comes

at particularly welcome time. In my opinion, the undue influence that gambling interests have in Indian country is a direct threat to the long term success of American Indians, and frequently, to the communities where gambling facilities are built.

With this hearing, and our efforts on land-into-trust oversight in the months ahead,

it is my hope that we will begin to get a clearer glimpse of the powerful, and all

too often negative, impact that gambling is having on tribes and our communities.

Nowhere is this more apparent than in the State of Connecticut. I look forward

this morning to examining the testimony of my colleagues, Senator Lieberman and

Senator Dodd, and the rest of the Connecticut delegation. Their experience and expertise on this issue is one that we all have to gain from, and hopefully, will allow

this committee to build a consensus on the need for an immediate overhaul of the

Federal recognition process.

In addition to my concerns about the undue influence of gambling interests, I

have serious misgivings about the ability of the Office of Federal Acknowledgement

[OFA] to carry out the important mission of Federal recognition. While resource concerns can and will be examined by this committee, more fundamentally, I firmly believe that the OFA and the Department of the Interior have proven themselves incapable of handling these duties in a timely or fair manner. This is partly the fault

of the agency itself, but in my opinion, is reflective of a much larger failure on the

part of Congress to enact guidelines that clearly outline the mission of the OFA, or

to conduct serious oversight of this important process.

Based on the caliber of the witnesses before us this morning, and the commitment

of Chairman McCain, I am confident that today we will begin to get a much better

look at the problems facing OFA, tribal governments, and State and local officials.
41

The stakes are high—official Federal recognition brings with it important responsibilities on the part of the Federal Government and prospective tribal governments.

I applaud the Chairman and Vice Chairman for conducting this hearing. I am

committed to working with you to enact serious, long term reforms for the OFA and

the Department of the Interior. The process of tribal recognition, and the far reaching consequences of these important decisions, is far too important to allow further

delay.

PREPARED STATEMENT OF STEPHEN R. ADKINS, CHIEF, CHICKAHOMINY INDIAN TRIBE

Thank you Chairman McCain, Vice Chairman Dorgan and members of this committee for inviting me here today to speak on S. 480. Senator George Allen introduced the bill. A hearing on our prior Federal Recognition bill was held by this committee on October 9, 2002 [S. 2694]. On behalf of the six tribes named in S. 480,

Eastern, Chickahominy, the Monacan, the Nansemond, the Upper Mattapord, the

Rappahannock, and my tribe the Chickahominy, I am requesting that the evidence,

from that hearing be submitted into today’s record. That evidence included a strong

letter of support from our current Governor, Mark Warner. Beside me today is Professor Danielle Moretti-Langholtz from the College of William & Mary who worked

on the petitions we filed with the BIA. She is prepared to assist with any questions

you may have about our history.

Chairman McCain, I could tell you the much publicized story of the 17th Century

Virginia Indians, but you, like most Americans, know our first contact history. Well

known is the story of Chief Powhatan and his daughter Pocahontas, her picture

being in this very capitol building with her English husband John Rolfe. I often say

this country is here today because of the kindness and hospitality of my forebears

who helped the English Colonists at Jamestown gain a foothold in a new and

strange environment. But what do you know or what does mainstream America

know about what happened in those years between the 17th century and May 11,

2005. The fact that we were so prominent in early history and then so callously denied our Indian heritage, is the story that most don’t want to remember or recognize. I, and those chiefs here with me, stand on the shoulders of the Paspahegh led

by Chief, Wowinchopunk whose wife was captured and taken to Jamestown Fort

and ‘‘run through’’ with a sword, whose children were tossed overboard and then

their brains were ‘‘shot out’’ as they floundered in the water, and whose few remaining tribal members sought refuge with a nearby tribe, possibly the Chickahominy.

With this horrific action in August 1610, a whole nation was annihilated. A nation

that befriended strangers, and, ultimately died at the hands of those same strangers.

We are seeking recognition through an act of Congress rather than the BIA because actions taken by the Commonwealth of Virginia during the 20th Century that

sought to erase the existence of my people through statutes and legislation have

made the administrative process nearly impossible. The destruction of documents,

regarding our existence, during the Civil War and other periods of early history

pales in comparison to the State sanctioned indignities heaped upon my people

under the hand of Walter Ashby Plecker, a rabid separatist, who ruled over the Bureau of Vital Statistics for 34 years, from 1912 to 1946. Although socially unacceptable to kill Indians outright, Virginia Indians became fair game to Plecker as he

led efforts to eradicate all references to Indian on Vital Records. A practice that was

supported by the State’s establishment when the eugenics movement was endorsed

by leading State universities and when the State’s legislature enacted the Racial Integrity Act in 1924. A law that stayed in effect until 1967 and caused my parents

to have to travel to Washington DC on February 20, 1935 in order to be married

as Indians. This vile law forced all segments of the population to be registered at

birth in one of two categories, white or colored. Thus legitimizing cultural genocide

for Virginia’s Indigenous Peoples, Sadly this tells only a part of the story. The affect

of this period and the racial policies of the State, meant that Indian people were

targeted—it was feared that they would dare to try to claim their heritage and seek

extra protection outside the State or with the Federal Government. The policies established by Plecker made it illegal to designate Indian on a birth certificate or to

give an Indian child a traditional Indian name. Violations put doctors and midwives

at risk of up to 1 year in jail. Our anthropologist says there is no other State that

attacked Indian identity as directly as the laws passed during that period of time

in Virginia. No other ethnic communitys heritage was denied in this way. Our State,

by law, declared there were no Indians in the State in 1924, and if you dared to

say differently, you went to jail or worse. That law stayed in affect half of my life.
42

I have been asked why I do not have a traditional Indian name. Quite simply my

parents, as did many other native parents, weighed the risks and decided it was

not worth the risk of going to jail.

We are seeking recognition through Congress because this history, prevented us

from believing that we could fit into a petitioning process that would understand

or reconcile this State action with our heritage, we feared the process would not be

able to see beyond the corrupted documentation that was legally mandated to deny

our Indian heritage. Many of the elders in our community also feared, and for good

reason, the racial backlash if they tried.

My father and his peers lived the Plecker years and carried those scars to their

graves.

Chairman McCain, the story I just recounted to you is very painful and I do not

like to tell that story. Many of my people will not discuss what I have shared with

you but I felt you needed to understand recent history opposite the romanticized,

inaccurate accounts of 17th century history.

Let me tell you how we got here today. The six tribes on this bill gained State

Recognition in the Commonwealth of Virginia between 1983–89. Subsequent to

State recognition Senator George Allen, as Governor heard and learned our story.

In 1997 he passed the statute that acknowledged the aforementioned discriminatory

laws and allowed those with Indian heritage to correct their records with costs to

be borne by the Commonwealth. At that juncture we began to look ahead to Federal

recognition. In 1999, we were advised by the BAR or OFA today, that many of us

would not live long enough to see our petition go through the administrative process. A prophecy that has come true. We have buried four Virginia Indian chiefs

since then.

Given the realities of the OFA and the historical slights suffered by the Virginia

Indian tribes for the last 400 years, the six tribes referenced in S. 480 feel that our

situation clearly distinguishes us as candidates for Congressional Federal recognition.

As chief of my tribe, I have persevered in this process for one reason. I do not

want my family or my community to let the legacy of Walter Plecker stand. I want

the assistance of Congress to give the Indian tribes in Virginia their freedom from

a history, that denied their Indian identity. Without acknowledgment of our identity, the harm of racism is the dominant history. I want my children and the next

generation, to have their Indian Heritage honored and to move past what I experienced and my parents experienced. We the leaders of the these six Virginia tribes,

are asking Congress to help us make history for the Indian people of Virginia, a

history that honors our ancestors that were here at the beginning of this great country.

I want to end with a quote credited to Chief Powhatan. This quote, from Chief

Powhatan to John Smith, maybe has been forgotten but ironically the message still

has relevance today:

‘‘I wish that your love to us might not be less than ours to you. Why should you

take by force that which you can have from us by love? Why should you destroy

us who have provided you with food? What can you get by war?

In such circumstances, my men must watch, and if a twig should but break, all

would cry out, ‘‘Here comes Captain Smith.’’ And so, in this miserable manner to

end my miserable life. And, Captain Smith, this might soon be your fate too. I,

therefore, exhort you to peaceable councils, and above all I insist that the guns and

swords, the cause of all our jealousy and uneasiness, be removed and sent away.

Chairman McCain, our bill would give us this peace that Chief Powhatan sought,

it would honor the treaty our ancestors made with the early Colonists and the

Crown, and it would show respect for our heritage and Identity, that through jealously perhaps has never before been acknowledged.

Chairman McCain, I thank you for allowing me to testify before this committee.

PREPARED STATEMENT OF KENNETH ADAMS, CHIEF, UPPER MATTAPONI INDIAN TRIBE

Good morning, Mr. Chairman. I am Kenneth Adams, Chief of the Upper

Mattaponi Indian Tribe. With me today are Chief Adkins, Chief Bradby, Chief

Branham, Chief Bass, and Chief Richardson. We are the proud descendants of the

Keepers of this Great Land when the English Colonists arrived in 1607. The Peace

Treaty of 1677 established the Governing authority of the Pamunkey Queen and the

Monacan Chief over our ancestors. We are the direct descendants of those colonial

tribes. Today these nations have come together to ask the Congress of these United

States to acknowledge our one on one relationship with the government of this nation.
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Chief Justice John Marshall in 1832 stated, the Constitution, by declaring those

treaties already made, as well as those to be made, the Supreme Law of the land,

has adopted and sanctioned the previous treaties made with the Indian Nations.

Each of these great Chiefs carry in their hearts many burdens of our people. I

cannot express for them the sorrows they have endured. But I can express to you

a sample of what we have all endured. When I was a child growing up in King William County, Virginia, high school education for Indians in the state was almost nil.

Even before I entered grade school, my older brothers and sisters were being sent

off to Oklahoma and Michigan to complete high school. I was the first Indian to

graduate from King William High School in 1965. Myself in 1967 and my brother

in 1968 served in Vietnam. Shortly afterwards, I went to visit my brother. It was

almost like walking in the house of a stranger. Not because of our experiences in

Viet Nam. It was because of the policies of the State of Virginia. It was the policy

that forced him from home in order to seek a high school education. And what was

his response to that policy? His response was to put his life on the line for the

United States of America. I can surely tell you today, in these individual tribes,

there are many more stories like this one. I can say with 100 percent certainty,

when it comes to defending this homeland, Virginia Indians have spilt their blood.

You might ask us, why do you come now? We have an answer. For almost 400 years,

Virginia attempted to diminish our presence. After 1700 we were pushed onto increasingly smaller pieces of land and by the mid 1900’s Virginia was attempting to

document us out of existence. The fight to maintain our identity was a struggle our

Mothers and Fathers fought well, but they lacked education and resources. They

had been told on several occasions no help from the Federal Government was available. In 1946 one of Chiefs attempted to obtain high school educational resources

through the Office of Indian Affairs. The only help offered was in the form of education at a Federal boarding school. No help was available in Virginia.

If the State government was attempting to deny our existence and the Federal

Government provided little assistance, where could these people possibly go? That

is why it has taken us so long to get here.

Virginia has recognized its errors. Along with bill H.R. 2345 sponsored by

Congresspersons Moran and Davis, Senator Allen, with the support of Senator Warner, has introduced S. 2964 granting Federal Acknowledgment to these six tribes.

In 1999, the Virginia General Assembly passed a Resolution with over whelming

support asking for Congressional Recognition of these tribes. King William County,

Virginia, home of the Upper Mattaponi, also passed a resolution in favor of Federal

Acknowledgment. We have the support of the majority of the Virginia Congressmen

and Women. As you can see, we have overwhelming support from the Commonwealth of Virginia.

Now, the U.S. Congress has the opportunity to make a historical change. A positive change that would bring honor to you as well as honor to us.

We ask you to make the right decision and support this bill for Federal Acknowledgment of Virginia Indians.

PREPARED STATEMENT OF HON. JAMES P. MORAN, U.S. REPRESENTATIVE FROM

VIRGINIA

Good morning and thank you, Mr. Chairman.

I appreciate your willingness to hold this hearing and providing us with an opportunity to help tell the story of six of Virginia’s Native American tribes. The story

of these tribes is compelling, but I ask for more than your sympathetic ear. I also

ask for action on legislation [S. 2694] that Senators George Allen and John Warner

introduced, which is a companion to the bill Representative Jo Ann Davis and I

sponsored in the House, to grant these tribes Federal recognition.

I ask that the Federal Government, starting with this distinguished Committee

on Indian Affairs, recognize the Chickahominy, the Eastern Chickahominy, the

Monacan, the Nansemond, the Rappahannock and the Upper Mattaponi Tribes.

These tribes exist, they have existed on a substantially continuous basis since before

the first western European settlers stepped foot in America; and, they are here with

us today.

I know there is great resistance from Congress to grant any Native American

tribe Federal recognition. And, I can appreciate how the issue of gambling and its

economic and moral dimensions have influenced many Members’ perspectives on

tribal recognition issues.

I think the circumstances and situation these tribes have endured and the legacy

they still confront today, however, outweigh these concerns. Congress has the power
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to recognize these tribes. It has exercised this power in the past, and it should exercise this power again with respect to these six tribes.

Like much of our early history as a nation, the Virginia tribes were subdued,

pushed off their land, and, up through much of the 20th Century, denied full rights

as U.S. citizens. Despite their devastating loss of land and population, the Virginia

Indians successfully overcame years of racial discrimination that denied them equal

opportunities to pursue their education and preserve their cultural identity. That

story of survival doesn’t encompass decades, it spans centuries of racial hostility and

coercive State and State-sanctioned actions. Unlike most tribes that resisted encroachment and obtained Federal recognition when they signed peace treaties with

the Federal Government, Virginia’s six tribes signed their peace treaties with the

Kings of England. Most notable among these was the Treaty of 1677 between these

tribes and Charles II.

In more recent times, this racial hostility culminated with the enactment and brutal enforcement of Virginia’s Racial Integrity Act of 1924. This act empowered zealots, like Walter Plecker, a State official, to destroy records and reclassify in Orwellian fashion all non-whites as ‘‘colored.’’ To call yourself a ‘‘Native American’’ in Virginia was to risk a jail sentence of up to 1 year.

Imagine a married couple unable to obtain the release of their newborn child from

the hospital until they change their child’s ethnicity on the medical record to read

‘‘colored,’’ not ‘‘Native American.’’ Or, imagine being told that you have no right to

reclaim and bury your ancestors once you learn they were being stored in a museum

vault.

Or, imagine your frustration upon finding your legal efforts to appeal a local

water issue in Federal court because you’re told your suit has no standing since

your tribe doesn’t exist.

Or, imagine being told that the only reason you’re seeking Federal recognition is

to establish a gambling casino.

Or, imagine the Indian mission school that your grandparents and your parents

attended receiving Federal recognition as a historic landmark, but yet you and your

daughters and sons not recognized by the Federal Government as Native Americans.

Mr. Chairman, these are just a few of the examples of the indignities visited upon

the members of the six tribes present here today.

I mention these indignities because they are part of a shameful legacy experienced in our lifetime. Some are indignities that are still visited upon members of

the tribes today.

More to the point, this legacy has also complicated these tribes’ quest for Federal

recognition, making it difficult to furnish corroborating state and official documents.

It wasn’t until 1997 when then Governor George Allen signed legislation directing

state agencies to correct state records that had deliberately been altered to list Virginia Indians on official state documents as ‘‘colored.’’ In recent years, the Virginia

tribes have filed their petitions with the Bureau of Indian Affairs. They have no

deep pockets and lack the financial means to rigorously pursue the lengthy and resource intensive petition process. Even more discouraging, they have been told by

bureau officials not to expect to see any action on their petitions within their lifetime. The GAO study this committee reviewed earlier this year confirms this backlog.

Asking them to wait another 10 years or more is not what these tribes deserve.

Many of the members are elderly and in need of medical care and assistance. They

lack health insurance and pensions because past discrimination denied them opportunities for an advanced education and a steady job. Federal recognition would entitle them to receive health and housing assistance.

It would be one of the greatest of ironies and a further injustice to these tribes

if in our efforts to recognize the 400th anniversary of the first permanent European

settlement in North America, we had failed to recognize the direct descendants of

the Native Americans who met these settlers.

Before closing, let me touch upon one issue, the issue of gambling, that may be

at the forefront of some Members’ concerns. In response to such concerns, I have

worked with Rep. Jo Ann Davis and others in the Virginia congressional delegation

to close any potential legal loopholes in this legislation to ensure that the Commonwealth of Virginia could prevent casino-type gaming by the tribes. Having maintained a close relationship with many of the members of these tribes, I believe they

are sincere in their claims that gambling is inconsistent with their values. Many

of the tribes live in rural areas with conservative family and religious beliefs. All

six tribes have established non-profit organizations and are permitted under Virginia law to operate bingo games. Despite compelling financial needs that bingo revenues could help address, none of the tribes are engaged in bingo gambling.
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Mr. Chairman, the real issue for the tribes is one of acknowledgment and the long

overdue need for the Federal Government to affirm their identity as Native Americans. I urge you to proceed with action on this proposal.

Thank you again for arranging this hearing.
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