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BETTING ON TRANSPARENCY: TOWARD FAIRNESS

AND INTEGRITY IN THE INTERIOR DEPARTMENT’S TRIBAL RECOGNITION PROCESS

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

MAY 5, 2004

Serial No. 108–198

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

TIM MURPHY, Pennsylvania

MICHAEL R. TURNER, Ohio

JOHN R. CARTER, Texas

MARSHA BLACKBURN, Tennessee

PATRICK J. TIBERI, Ohio

KATHERINE HARRIS, Florida

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. ‘‘DUTCH’’ RUPPERSBERGER, Maryland

ELEANOR HOLMES NORTON, District of

Columbia

JIM COOPER, Tennessee

——— ———

———

BERNARD SANDERS, Vermont

(Independent)

MELISSA WOJCIAK, Staff Director

DAVID MARIN, Deputy Staff Director/Communications Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

(III)

C O N T E N T S

Page

Hearing held on May 5, 2004 ................................................................................. 1

Statement of:

Blumenthal, Richard, attorney general, State of Connecticut; Theresa

Rosier, counselor to the Assistant Secretary for Indian Affairs, Department of the Interior, accompanied by Lee Fleming, Director, Office

of Federal Acknowledgment, Bureau of Indian Affairs; and Earl E.

Devaney, inspector general, Department of the Interior ........................... 27

Boughton, Mark D., mayor, city of Danbury, CT; Rudy Marconi, first

selectman, town of Ridgefield, CT; Nicholas H. Mullane II, first selectman, town of North Stonington, CT; and Jeffrey R. Benedict, Connecticut Alliance Against Casino Expansion ...................................................... 94

Flowers, Marcia, chairwoman, Tribal Council, Historical Eastern Pequot

Tribal Nation, accompanied by Mark Sebastian, former chairman .......... 72

Letters, statements, etc., submitted for the record by:

Benedict, Jeffrey R., Connecticut Alliance Against Casino Expansion, prepared statement of ........................................................................................ 137

Blumenthal, Richard, attorney general, State of Connecticut, prepared

statement of ................................................................................................... 30

Boughton, Mark D., mayor, city of Danbury, CT, prepared statement

of ..................................................................................................................... 97

Davis, Chairman Tom, a Representative in Congress from the State of

Virginia, prepared statement of ................................................................... 4

Devaney, Earl E., inspector general, Department of the Interior, prepared

statement of ................................................................................................... 45

Flowers, Marcia, chairwoman, Tribal Council, Historical Eastern Pequot

Tribal Nation, prepared statement of ......................................................... 78

Marconi, Rudy, first selectman, town of Ridgefield, CT, prepared statement of ........................................................................................................... 103

Mullane, Nicholas H., II, first selectman, town of North Stonington, CT,

prepared statement of ................................................................................... 125

Ose, Hon. Doug, a Representative in Congress from the State of California, prepared statement of ........................................................................... 23

Rosier, Theresa, counselor to the Assistant Secretary for Indian Affairs,

Department of the Interior, prepared statement of ................................... 39

Sebastian, Mark, former chairman, information concerning a resolution ... 83

Shays, Hon. Christopher, a Representative in Congress from the State

of Connecticut, prepared statement of ........................................................ 9

Simmons, Hon. Rob, a Representative in Congress from the State of

Connecticut, prepared statement of ............................................................ 18

(1)

BETTING ON TRANSPARENCY: TOWARD FAIRNESS AND INTEGRITY IN THE INTERIOR

DEPARTMENT’S TRIBAL RECOGNITION

PROCESS

WEDNESDAY, MAY 5, 2004

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 10:04 a.m., in room

2154, Rayburn House Office Building, Hon. Tom Davis of Virginia

(chairman of the committee) presiding.

Present: Representatives Tom Davis of Virginia, Shays, Ose,

Duncan, Maloney, Cummings, Kucinich, Watson, and Norton.

Also present: Representatives Johnson of Connecticut, Simmons,

and Wolf.

Staff present: David Marin, deputy staff director/director of communications; Keith Ausbrook, chief counsel; John Hunter, counsel;

Robert Borden, counsel/parliamentarian; Drew Crockett, deputy director of communications; Teresa Austin, chief clerk; Brien Beattie,

deputy clerk; Shalley Kim, professional staff member; Robert

White, press secretary; Michael Yeager, minority deputy chief counsel; Earley Green, minority chief clerk; and Jean Gosa, minority assistant clerk.

Chairman TOM DAVIS. Good morning. The quorum will come to

order, and I want to welcome everybody to today’s hearing on the

process for recognition by the Federal Government of American Indian tribes as sovereign Indian nations. The committee will focus

on the integrity, transparency, and accountability of tribal recognition decisions made by the Interior Department’s Bureau of Indian

Affairs.

Federal recognition of a particular Indian tribe can have a profound effect on the tribe, the surrounding communities, the State,

and the Federal Government. For example, recognition is a prerequisite for a tribe to receive Federal assistance and obtain other

rights. Recognized tribes receive exclusive Federal funding for

health, education, and other social programs. Also, tribal lands are

eligible to be taken into trust for a tribe or its members by the Federal Government. Today, over 45 million acres nationwide are held

in trust, basically creating a nation within a nation.

This is particularly critical because tribal lands held in trust are

exempt from most State and local laws, such as sales tax and gambling regulations. A tribe must meet additional requirements before it can exercise other rights. For instance, before a recognized

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tribe can operate a casino on tribal land held in trust, the tribe

must comply with the requirements set forth in the Indian Gaming

Regulatory Act of 1988.

Today, the Secretary of the Interior has authority to recognize

American Indian tribes under regulations administered by the BIA.

Congress may also recognize a tribe through legislation. Congress

terminated recognition by treaty in 1871.

Until 1978, the Interior Department made tribal recognition decisions on a case-by-case basis. Then, Interior established a formal

regulatory process for recognizing tribes and adopted seven criteria

that a petitioning tribe must meet to receive Federal recognition.

Before Interior implemented the current recognition regulations in

1978, BIA received 40 petitions from groups seeking formal tribal

recognition. Since 1978, BIA has received an additional 254 petitions. As of February 2004, a total of 57 petitions have been resolved, 13 petitions are ready for dispensation, 9 petitions are in

active status, 2 are in post-final decision appeals, 1 is in litigation,

and 213 are not ready yet for evaluation.

The Connecticut congressional delegation recently brought to my

attention two BIA recognition petitions filed by Connecticut tribes

and asked the committee to hold a hearing to explore questions

about the objectivity and transparency of the BIA recognition process in connection with the decisions to recognize the Historical

Eastern Pequot and the Schaghticoke tribes.

I readily agreed to hold this hearing because I think it is imperative that the integrity of the BIA process be preserved. Interested

parties and the public have a right to be assured that a critical procedure such as this one administered by an agency of the Federal

Government is completely fair, unbiased, transparent and in accordance with the law. That mission fits squarely within the jurisdiction of this committee.

Both the Schaghticoke and the Historical Eastern Pequot decisions are being challenged on various grounds by the Connecticut

attorney general, municipalities subject to Indian land claims, and

other interested parties. In both cases, final recognition was granted by the Assistant Secretary for Indian Affairs despite proposed

findings by BIA that the tribes did not meet one or more of the

seven mandatory criteria for status as a sovereign Indian nation.

Our goal today is to look at these decisions as a case study of

the overall recognition process. Are these cases unique, or are they

symptomatic of a larger problem that calls into question the integrity and fairness of the process? Do these cases demonstrate that

the ground rules underlying the process are ever changing?

The committee will hear from witnesses who can help us evaluate the fairness and efficiency of the BIA recognition process, both

generally and in the context of the two Connecticut tribal recognition decisions. We will hear from the Office of the Assistant Secretary for Indian Affairs of the Department of the Interior about

the recognition process, as well as from the Interior inspector general. The committee will also hear from the Connecticut attorney

general, several Connecticut municipalities affected by the decisions, and the Historic Eastern Pequot Tribal Nation. We invited

the Schaghticoke Tribal Nation to testify, but they declined the

committee’s invitation. Other witnesses will discuss their assessVerDate 11-MAY-2000 12:42 Oct 20, 2004 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 D:\DOCS\95868.TXT HGOVREF1 PsN: HGOVREF1
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ment of and recommendations to improve the BIA recognition process.

I want to thank all of our witnesses for appearing before the

committee, and I look forward to your testimony.

I also would ask unanimous consent that Nancy Johnson and

Rob Simmons from Connecticut, and Frank Wolf from Virginia be

allowed to join today’s hearing. Without objection, so ordered. And

I welcome them to the committee this morning and invite them to

participate in today’s hearing.

I now yield to the vice chairman of the committee, Mr. Shays, for

an opening statement.

[The prepared statement of Chairman Tom Davis follows:]

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Mr. SHAYS. Thank you. And thank you, Chairman Davis, on behalf of the Connecticut delegation, for agreeing to hold this hearing.

While the need to reform American Indian tribal recognition procedures at the Department of the Interior is acutely felt in our

State today, the flawed system has a truly national impact, affecting the sovereignty, social policy, and fiscal health of every State.

What was once a purely historical, anthropological, and genealogical inquiry has been transformed by the lure of casino revenues

into a high-stakes, winner-take-all political campaign to possess a

Federal gaming franchise. An academic investigation designed to

acknowledge cultural continuity and restore political sovereignty is

being overwhelmed and too often overturned by the intense pressures and voluminous submissions of tribal petitioners and their

wealthy backers.

Two years ago, this committee’s Regulatory Affairs Subcommittee

examined tribal recognition standards and procedures. At that

time, the General Accounting Office [GAO] found serious weaknesses in the process, including a lack of clear guidance on critical

aspects of the mandatory recognition criteria. Even on the quality

and quantity of evidence needed to demonstrate continuous existence, the criteria at the heart of tribal sovereignty, GAO found a

lack of consistency and clarity.

About the same time, the Interior Department inspector general

discovered inconsistencies and a determination by decisionmakers

to recognize certain petitioners despite expert conclusions they did

not meet mandatory criteria.

Today we know the procedural irregularities and murky standards that the Bureau of Indian Affairs [BIA] survive from administration to administration, Republican and Democrat, as the potent

power of undisclosed gaming investors drives the process to a predetermined outcome.

Just how far the BIA had strayed from legal and factual reality

was made starkly obvious last January. In an internal briefing on

recognition of the Schaghticoke Tribal Nation of Connecticut, the

staff offered guidance on how to recognize the tribe ‘‘even though

evidence of political influence and authority is absent or insufficient for two substantial historical periods of time.’’ The options

presented: recognize the tribe anyway by using State law recognition as an unprecedented surrogate for required evidence, or decline to recognize based on the regulations and BIA precedent, or

acknowledge the Schaghticokes outside of the regulations.

That the BIA even considered the first or third option is a scandal. That they chose the first proves the process is irreparably

skewed, adrift in a sea of guilt, paternalism, and greed. Substituting indirect evidence, such as State recognition, for one or more of

the mandatory criteria means the process is utterly without objective standards. Arbitrary, outcome-driven sophistry injected into

final decisions puts BIA procedures beyond the view of interested

parties and communities whose rights hinge on the opportunity to

participate meaningfully in a transparent, fair process.

Any lack of transparency denies the public the fundamental right

to know with whom their government is really doing business. As

we will hear in testimony today, casino backers have spent many

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millions of dollars on experts and lobbyists to gain Federal recognition and the substantial rights and privileges that come with it,

but neither the BIA nor the Indian Gaming Regulatory Commission has any power to compel disclosure of the real parties at interest before them until it is too late to detect improper or corrupting

influences.

We look forward to our witnesses’ recommendations on how to

ensure the integrity, objectivity, transparency, and timeliness of

the tribal recognition process. They are here today because they believe in the value of open discussion and honest dialog, and we appreciate their being here. For reasons of their own, some other invited witnesses declined our invitation to testify.

I ask unanimous consent to insert into the record letters from

Mr. Thomas C. Wilmot, Sr., who is reported to have spent $10 million supporting a tribal recognition application; Attorney Robert

Reardon, Jr., representing Mr. Donald Trump in litigation to recover more than $9 million from a tribe and its new backers; and

Chief Richard Velky of the Schaghticoke Tribal Nation, who initially agreed to attend but withdrew only late yesterday.

If the committee concludes these individuals have information essential to oversight, I know they will be invited or, if necessary,

compelled to provide that evidence in the future.

Thank you, Mr. Chairman. I appreciate this hearing.

[The prepared statement of Hon. Christopher Shays follows:]

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Chairman TOM DAVIS. Well, thank you very much. That is the

correct statement, and I agree with it. Thank you very much, Mr.

Shays.

Ms. Watson, any opening statement?

All right, Mr. Simmons.

Mr. SIMMONS. Thank you, Mr. Chairman, and in particular for

the courtesy of including me. And on the basis of that courtesy, I

will ask that my full statement be entered into the record, and I

will make a brief summary, if that is OK.

First of all, I notice on the panel and in the audience friends and

constituents from Connecticut, Attorney General Richard

Blumenthal, who has been working these issues for many years. I

first started working with Dick on these issues when I was a State

representative, and it is good to see you here today. We look forward to your testimony.

I also see Nick Mullane, first selectman from the town of North

Stonington, who is my constituent as a State representative and as

a Member of Congress, and as somebody who has been very involved in the impacts of Indian casinos on our small municipalities.

Mark Boughton, who is the mayor of Danbury. We served together in the legislature. I see Marcia Flowers, who is a friend and

a constituent, who will be part of, I think, the second or the third

panel. And I also see Jeff Benedict, who is a constituent and a

friend, and who wrote a book called ‘‘Without Reservation,’’ which

is a very complete summary of these issues.

Among these friends and neighbors there will be disagreement,

but I think we all agree that the issue is very significant and has

great impact on the State of Connecticut. The advent of Indian casinos to Connecticut comes as a mixed blessing. We have two of the

largest casinos in the world in my district. Two of the largest casinos in the world. And they bring revenue to the State, they provide

jobs, especially at a time when defense contracting and other types

of manufacturing are in decline. And members of tribes have been

personally generous in the community and in the State, and we

welcome that.

At the same time, there is considerable negative impact. Local

municipalities have no taxing authority, they have no zoning authority. State and town roads which are used to provide transportation to these facilities are maintained at the cost of the local municipalities. Emergency services, in many cases provided by volunteers, are overwhelmed and in some cases have closed. So these are

very real municipal impacts that we face.

And the process itself, I believe, is corrupt and unfair: corrupt in

the sense of broken; unfair in the sense that it does not deliver a

fair product either to the petitioners or to those who have to deal

with the impacts of the petitions. And I think probably the reason

for that is because the promise of money that comes with a Federal

recognition and a casino is what has distorted the process.

As a member of the Connecticut delegation, I met recently with

the Secretary of Interior and reiterated again to her my concern

that the seven mandatory regulatory criteria for recognition be

placed in statute, something that the delegation has been trying to

do for several years. Her response to us at the time was ‘‘she had

no immediate objection to it.’’ No immediate objection to it.

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I also expressed my concern about the revolving door, which

means officials of the Bureau of Indian Affairs can make decisions

that affect tribes, petitioning tribes, and then leave the Bureau of

Indian Affairs and, with no cooling off period, go to work to represent or be employed by some of those very same people who are

affected by those decisions.

Both of those recommendations have been placed in a piece of

legislation that I introduced with the full delegation a few weeks

ago. We want more control over the process. We want more transparency in the process. And we want relief provided to our localities for what can be a very expensive battle on a very uneven playing field.

And for those members who are not familiar with the political organization of Connecticut, we do not have county government in

Connecticut. We have 169 small towns, and then we have the

State, and those small towns are not equipped and are not

resourced to deal with the lengthy legal battles that often occur

when the petitioning groups have multimillionaires supporting

them and the towns simply have the working citizens and a small

tax base.

It is time for Congress to step in and solve this problem by reforming the system by statute and closing the revolving door.

And with that, Mr. Chairman, I thank you again and look forward to hearing from the witnesses. I will conclude by saying that

I do have a bill on the floor today, probably around 11, the Alternative Minimum Tax. So I apologize if I have to leave in the middle

of the testimony.

[The prepared statement of Hon. Rob Simmons follows:]

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Chairman TOM DAVIS. It is an important bill, we understand,

and thank you again for helping call this issue to the committee’s

attention.

Any other members wish to make opening statements?

Mr. CUMMINGS. Just a very brief statement, Mr. Chairman.

Chairman TOM DAVIS. Yes, Mr. Cummings.

Mr. CUMMINGS. Mr. Chairman, I want to also thank you for holding this hearing to assess the legal sufficiency and procedural fairness of the American Indian tribal recognition process administered by the Interior Department’s Bureau of Indian Affairs. Recognized tribes receive exclusive Federal Government funding for

health, education, and other social programs. As such, tribal lands

are eligible to be taken into trust by the Federal Government. The

integrity of the BIA process is very important.

Recently, the Assistant Secretary for Indian Affairs acted on acknowledgment petitions filed by two Connecticut tribes, the Eastern Pequot and the Schaghticoke tribes. These actions raise questions about the tribal recognition process, since, under BIA findings, these tribes did not meet any of the mandatory criteria for

status as a sovereign Indian nation. The Assistant Secretary of Indian Affairs granted final recognition to the tribes.

Federal recognition of an Indian tribe acknowledges that the

tribe is a sovereign entity which establishes a government-to-government with the United States and makes the tribe eligible for

Federal programs through the Interior Department’s Bureau of Indian Affairs and the Indian Health Service. More importantly, it allows gaming on Indian lands under the Indian Gaming Regulatory

Act.

Mr. Speaker, the potential for profit through gaming is extremely high. In fact, Indian gaming is a $15 billion a year business, and,

as such, many existing Indian tribes, as well as would-be tribes,

are spending millions of dollars on political campaigns, lobbying,

and State ballot initiatives to preserve the tax-free status of casinos, expand gaming operations, and protect their sovereign immunity. Two-thirds of the groups currently awaiting determinations

on their applications are reportedly financed by outside casino investors.

In order to maintain the accuracy and legitimacy of the tribal

recognition process, there must be a clear basis for determining

tribal status. The potential for exploitation of the BIA process or

tribal communities that might be linked to the gaming industry

must be avoided.

And with that, Mr. Speaker, I look forward to hearing from all

of our witnesses today, and, Mr. Chairman, I yield back.

Chairman TOM DAVIS. Thank you very much.

We have a distinguished panel today.

Mr. OSE. Mr. Chairman?

Chairman TOM DAVIS. Mr. Ose, you want to make a statement?

Mr. OSE. Yes, please.

Chairman TOM DAVIS. The gentleman is recognized.

Mr. OSE. Thank you, Mr. Chairman. First of all, let me thank

you for calling this hearing. We have been struggling with this

issue of tribal recognition for many decades. It has been brought

to my attention in previous Congresses by Mr. Shays. We had a

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number of hearings on that. We are faced with a diverse array of

existing tribes numbering over 550, I believe, already federally recognized tribes, and the task of acknowledging a new group as a

sovereign entity remains one of our most difficult and complicated

tasks.

As you heard from the other Members here, the recognition of a

tribe has a significant effect not only the tribe, but on the surrounding communities. In my district, we have had some very successful recognitions in which the tribes have gone on to significant

progress. We have also had some difficulty in terms of tribes or

groups of folks who have filed for recognition who have been unsuccessful in getting that.

We have a process in place that has seven tests for identifying

groups who would otherwise quality as tribes. It is not an easy test

or an easy series of tests to accomplish. I do think it is important

that we review that periodically. I am hopeful that this hearing

will eventually lead to that.

In California, one of the overwhelming aspects that is on the

table, so to speak, from tribal recognition is the issue of gaming

and how many tribes wish to use that as the economic vehicle for

progress. It has had remarkably positive effects for many tribes.

There are many communities in which the tribes are located which

might otherwise suggest that the ancillary impacts of that gaming

have not been all that positive.

In that context, Mr. Chairman, I am pleased that you called this

hearing to examine this issue, and look forward to the testimony

of the witnesses.

[The prepared statement of Hon. Doug Ose follows:]

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Chairman TOM DAVIS. Thank you very much.

We are now ready for our first panel. We are very pleased to

have a very distinguished panel. We start with the Honorable Richard Blumenthal, who is the attorney general of the State of Connecticut; the Honorable Theresa Rosier, who is the Counselor to the

Assistant Secretary for Indian Affairs at the Department of the Interior. I understand you are accompanied by Lee Fleming, so we

will swear Lee in, who is the Director of the Office of Federal Acknowledgment, Bureau of Indian Affairs; and the Honorable Earl

E. Devaney, the inspector general for the Department of the Interior.

Thank you all for being here. It is the policy of this committee

that we swear all witnesses, so if you would rise with me and raise

your right hands.

[Witnesses sworn.]

Chairman TOM DAVIS. Thank you very much.

We have lights in front. Your total statements are in the record.

After 4 minutes the light will turn from green to orange; in 5 minutes it will turn red. If you could try to move to summary as soon

as it turns red, we can move ahead to questions.

Before we start, Mr. Shays?

Mr. SHAYS. Thank you, Mr. Chairman. I should have mentioned

this in my opening statement, and I appreciate your indulgence. I

just, first, wanted to welcome the attorney general. I served with

him in the State House and while he was in the Senate, and he

has truly been a leader in this effort and just has been both very

strong, but very bipartisan and, frankly, nonpartisan on this issue.

He has confronted the previous administration in a very real way,

and so I just have immense respect for him. And I do want to

thank the Department of the Interior and welcome our witness

there and acknowledge, as well, the good work of the Inspector

General’s Office.

I also want to say to our second panelists, that I have tremendous respect for Marcia Flowers, the chairwoman, and want her to

know, as she hears these strong statements, that we understand

your role and will be very respectful of that.

And also Mark Sebastian, welcome. You have a wonderful reputation. You are both wonderful people, terrific people, and we

thank you for coming to testify.

And let me just conclude by saying that we will have three mayors, really, a mayor and two first selectmen. They are all distinguished leaders in their community, and particularly those nearest

my community, Mr. Boughton, the mayor, as well as First Selectman Marconi. They have bipartisan support, overwhelming support

in their communities because they have done wonderful jobs, and

it is very important that they participate, and I thank them.

And just end by saying that Jeffrey Benedict has been extraordinarily informed and has been leading this effort. We will learn

a lot from him.

So we have a wonderful three panels, and thank you for giving

me the opportunity just to express my appreciation to all of them.

Chairman TOM DAVIS. Thank you. And before I start, Mr. Wolf

just came in. He has been a leader in terms of the gaming issue

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in the Congress. I just want to allow him to make a statement, and

then, General Blumenthal, we will move to you.

Mr. WOLF. Thank you, Chairman Davis. I spent some time last

night putting this together, and I appreciate your giving me this

opportunity. And I want to thank you and Mr. Shays for having

this hearing. I feel very strongly about this, and I just want to get

this on the record.

As the author of the legislation which created the National Gambling Impact Study, I have long had serious concerns about the

harmful effects of gambling on society and on Native American

tribes. If you look at a snapshot of what is happening today, 80

percent of Native Americans live in poverty, poor schools, inadequate infrastructure, and abysmal health care, and the Congress

and the administration can and should do more to help Native

Americans.

Consider the snapshot: a broken—it is so broken—broken tribal

recognition process subject to severe abuses, wealthy investors and

lobbyists, and this town is becoming full of lobbyists in a way that

is fundamentally corrupt, and yet nobody seems to do anything

about it; making money from exploiting Native Americans while

trying to get them recognized and eventually engaged in gambling,

and no one says anything about it. Have the standards changed in

this town and in this Congress and in society? Money being made

at the expense of Native American tribes while few Native Americans ever, ever see a dime from gambling and continue to suffer

in poor conditions.

This is the state of tribal recognition and Native American gambling today. And I thank Mr. Davis for having this opportunity

where people can say something. The tribal recognition process is

broken. If this administration doesn’t realize it, then there ought

to be changes at Interior where they are willing to allow these

things to exist. Congress and the administration should take steps

in light of the mounting evidence.

When Time Magazine published a two-part cover story about the

many problems, no action was taken. Two parts, feature, cover

story, Time Magazine; Interior takes no action. Nothing was done.

There are countless news reports. My goodness, just look at the

news reports. Day after day of questions and unethical, immoral,

and maybe fundamental illegal activity is taking place.

With all the evidence there is about the problems with Native

American gambling, Congress and the administration has to take

some proper steps. This process is supposed to be marked by integrity—and I worked at Interior under Secretary Roger C.B. Morton

for 5 years when there was integrity there. Now the Congress and

the administration are not using the opportunity to institute the

needed reforms.

I have written the administration time after time after time, and

you almost never get a response from the Department of the Interior. When there is a response it is not adequate. This is a bipartisan failure. Both the Clinton administration and the Bush administration and their respective Secretaries of the Interior, Bruce Babbitt and Gail Norton, have stood by and allowed Native Americans

to continue to be exploited by gambling interests.

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Nearly 80 percent of Native Americans receive nothing from

gambling. Most tribes remain mired in poverty. Just go onto the

Indian reservations, and many are in areas whereby they cannot

take advantage of gambling because people are not going to go to

those areas to gamble, and tribes that are questionable are reaping

all the benefits, and the Native American community in this country, 80 percent are living in abject poverty.

Congress has to act to turn around the tribal recognition process.

It is filled with abuses. They are stunning. In the last administration, the Clinton administration, two officials reversed the opinions

of Interior Department staffers to recognize three groups as Indian

tribes, allowing them to open casinos. The decision was made in

the last days in office, against the recommendation of the professional staff. Then the two officials who decided to recognize the

tribes took positions representing Indian tribes. Clearly the seven

criteria that BIA applies to recognize tribes are being skirted, and

those making the decisions impacting tribes can leave the Interior

Department through a revolving door and then represent tribes in

the private sector. And, frankly, some of these law firms that hire

these people, these were law firms that were distinguished firms,

and now to be involved in this type of activity is shocking.

In March, a Connecticut newspaper reported that Bureau of Indian Affairs documents revealed that the BIA knew—knew—that

the tribe didn’t meet the BIA rules for recognition, but the staff in

the BIA Office of Federal Acknowledgment wrote a memo to the

agency’s director showing how to recognize the tribe anyway.

Lobbyists and investors have exploited Native Americans in

order to use them. Frankly, those who may be with those law

firms, those of you who may have left the administration at different times, how can you live with yourselves knowing the exploitation that is taking place with regard to the poverty on the Indian

reservations?

The Government has walked away from its obligation to Native

Americans and, instead, relied on gambling as the panacea for the

problems. In fact, almost every administration in Congress has

said, well, if there is a problem, let them have gambling. That is

why you have seen the BIA budget has not been increased and the

programs for Indians have not been increased. This approach has

resulted in a Federal recognition process with standards that are

unevenly and unpredictably applied, influenced by big money and

harmful to the tribes and those petitioning for recognition.

I am not going to get into the Connecticut situation, you have

Connecticut Members, but imagine if you lived in a community in

your State, in your region that was going through what some of

these Connecticut towns are going through. To all of the big lobbyists out there, let us put a tribal operation where you live and see

how you would respond if you saw the corruption and the abuse

that was taking place.

Today, Mr. Chairman, I think there ought to be a moratorium.

The representatives of the Interior Department ought to announce

today they are going to have a moratorium. The Bush administration ought to say we are going to have a 1-year moratorium on the

recognition process so there is time for the Congress—because now

there is enough information—and the administration to review and

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fix the many problems. You have to get the money interests out of

the picture, do what is right for the Native Americans, and really

change, change this process.

I will end by just quoting a 2002 GAO report: ‘‘Weakness in the

process have created uncertainty about the basis for recognition decisions, calling into question the objectivity of the process.’’ And for

anyone who wonders about it, the National Indian Gaming Commission, where there are 330 Indian gambling tribes, reported at

the end of fiscal year 2002 in 28 States with revenue of $14.5 billion and 67 people at the National Indian Gaming Commission to

carry out Federal oversight, 67 people; and that may have changed,

maybe there is 69, maybe there is 75. But in Atlantic City, for 12

casinos, they have over 700 with oversight.

I have much more I would say. I will just submit the full statement for the record. I appreciate the chairman having this hearing.

I don’t know who from the administration is there, but you all

have to change this. If you don’t change it, there will be major corruption scandals on this, and it will come back to wash up on the

shores. I implore this administration. Frankly, the Clinton administration did nothing. They watched things go on that were horrible. I happen to be a Republican who supports this administration. I call on this administration. I call on Secretary Gail Norton

to do the right thing. They should say how they feel if this were

taking place in their own community.

And, last, to the administration, you should be more aggressive

in representing the interests of the Native Americans. You think

you are helping the Native Americans by doing this. You are allowing them to be exploited by powerful money interests and lobbyists

in this town, and, frankly, this administration is failing on that

issue.

With that, Mr. Chairman, I yield back the balance of my time.

Chairman TOM DAVIS. Thank you very much.

Mr. Blumenthal, thank you very much for your statement and

your continued interest in this. Your reputation precedes you. We

are honored to have you here today. Thank you very much for

being with us.

STATEMENTS OF RICHARD BLUMENTHAL, ATTORNEY GENERAL, STATE OF CONNECTICUT; THERESA ROSIER, COUNSELOR TO THE ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY

LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL ACKNOWLEDGMENT, BUREAU OF INDIAN AFFAIRS; AND EARL E.

DEVANEY, INSPECTOR GENERAL, DEPARTMENT OF THE INTERIOR

Mr. BLUMENTHAL. Thank you very much. Thank you, Mr. Chairman. I am honored to be back with you. Thank you for the invitation, and I want to thank you for your leadership, most especially

Representative Shays for his continuing courage and conviction on

this issue, and Representative Simmons, who has shown great determination and vision, as well as other members of the panel who

will probably be joining us.

And I want to join in thanking you for the Department of the Interior being here, most especially Inspector General Devaney,

28

whose staff has recently visited Connecticut and is doing excellent

work; and the local officials who are joining us today from Connecticut, as well as Chairman Flowers, because she has shown

great determination to be here as well, and I thank her for her

leadership.

I am not going to give in depth or detail my testimony, I assume

it will be in the record, but the comments—very eloquent and articulate comments—made so far lead me to say that we are at a

historic turning point. I sense from the comments that have been

made so far this morning that there is a clear recognition that reform is vital, that we have a unique and historic opportunity, and

really a window of opportunity to make these changes before we do

further damage to my State and to the Nation, and not just in specific decisions that may be incorrect or illegal, but further damage

to the credibility and trust of the entire recognition process.

Reform is no longer a luxury, it is a necessity, and Vice Chairman Shays used a word, scandal, to describe the present process.

That is exactly the word that Senator Daniel Inouye used to describe this process. Senator Ben Nighthorse Campbell said that it

is driven by money and politics. There is a bipartisan consensus

now that we need fundamental, far-reaching reform.

I have described this agency as being lawless. I did so most recently before the U.S. Court of Appeals for the Second Circuit when

I argued last week. It is an agency that is lawless, out of control,

arbitrary, capricious, and we need to impose standards that assure

the rule of law. In the Schaghticoke decision, for example, my view

is that the outcome is as unprincipled as it is unprecedented. Never

before has the BIA recognized a tribe that is admitted by the agency itself to completely lack evidence on two key required standards

over decades, seven decades for one of them. Never before has the

BIA combined in this way two such hostile factions, neither accepting the other’s legitimacy. And never before has the BIA so twisted

and distorted State recognition to cover its deliberate disregard for

absent evidence.

I must say, Mr. Chairman, that I am also very, very deeply troubled by an order that was issued literally within the past few days

by the Secretary of the Interior that completely delegates authority

over all recognition and gaming decisions within the BIA to the

principal deputy, delegates that decisionmaking power from the Assistant Secretary, who was confirmed by the U.S. Senate to fulfill

these responsibilities, and who has recused himself, apparently,

from all decisionmaking relating to recognition or gaming activities. In my view, that across-the-board general, complete delegation, not a specific recusal on a case-by-case basis where there may

be a conflict of interest based on the facts, but a complete delegation raises very, very profound and serious questions of law. For

example, the over-breadth of delegation, the lack of oversight and

accountability to the U.S. Congress which confirmed this official to

fulfill those responsibilities I think merits immediate and urgent

scrutiny, and I intend to give it, and I know Members of Congress

will be interested in these issues as well.

I agree that there ought to be a moratorium on Bureau of Indian

Affairs tribal acknowledgment decisions or appeals affecting Connecticut, and probably the United States, and there ought to be a

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full and far-reaching investigation, perhaps by this committee, but

at the very least by the U.S. Congress, of the BIA’s actions. And

I would join Congressman Shays in urging that certain of the parties be invited again to appear. If they are unable or unwilling to

do so, they ought to be subpoenaed to appear. We have used the

subpoena as attorneys general, as have other law enforcement

agencies. This issue raises profound issues of integrity and lawfulness that I think go to the heart of the credibility and integrity of

the process.

I have proposed a number of reforms, and I will just repeat them

very briefly. I believe that one of those fundamental reforms has

to be creating an independent agency that is insulated from politics

and lobbying and personal agendas to make these tribal recognition

decisions, out of respect, a profound respect that I share, for the

sovereignty of tribes that are recognized. The tribal groups that

meet the criteria, and they are sound criteria, in the law now ought

to be recognized. Those that fail to meet those criteria should not

be accorded this sovereign status. And an independent agency

much like, perhaps, the Federal Communications Commission or

the Federal Trade Commission, should be appointed to exercise

those powers.

Those criteria ought to be embodied in statute so there is no

question about how rigorously and faithfully they should be applied, and resources ought to be provided to interested parties,

towns, cities, States, as well as the tribes themselves, so that they

can participate meaningfully in this process.

And may I just summarize by saying that this issue really is one

that is bipartisan. It is not about party, it is not about geography,

or about interest group allegiance one way or the other; it is about

a common interest, which is the public interest, and most importantly a public trust in the integrity of these decisions that affect

our Nation so vitally and so irreversibly once they are made. And

I believe, again, that we are at a turning point when we can save

ourselves from going into a thicket of irreversible and mistaken decisions that ultimately harm the Nation. We still have time to turn

from that thicket and avoid continued mistakes.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Blumenthal follows:]

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Chairman TOM DAVIS. Thank you very much, Mr. Blumenthal.

Ms. Rosier, thanks for being with us.

Ms. ROSIER. Good morning, Mr. Chairman and members of the

committee. My name is Theresa Rosier, and I am Counselor to the

Assistant Secretary for Indian Affairs. I would like to submit my

full testimony for the record, but will abbreviate my statement here

today. In addition, I would like to recognize Lee Fleming, who is

the Director of the Office of Federal Acknowledgment, who is here

with me today.

I am pleased to be here on behalf of the Department of the Interior to discuss the Federal acknowledgment process, recent improvements to this process and proposed potential improvements to

provide a more transparent, clear, and efficient acknowledgment

process. I understand this issue is of importance to this committee,

as Vice Chairman Shays and others who are here today cosponsored H.R. 4213, which is a bill that codifies the criteria established at 25 C.F.R. Part 83, and which also repeals certain exemptions for formal Federal officials and employees representing Indian tribes.

Although the Department supports it’s current Federal acknowledgment process, we do recognize that improvements can be made.

The Department is generally supportive of legislation that maintains the criteria at 25 C.F.R. Part 83, but that also promotes increased transparency, integrity, and time sensitivity to the process.

When the current administration came into office, Federal acknowledgment quickly became a high priority. In November 2001,

the General Accounting Office issued a report entitled ‘‘Indian

Issues: Improvements Needed in the Federal Recognition Process.’’

The two primary findings of this report was that the process was

not timely and that the decisionmaking was not transparent to others.

In response to this GAO report, the Assistant Secretary developed and implemented a strategic plan to provide strategies to

communicate more clearly the acknowledgment decisionmaking

process and also to improve the timeliness of this process. Today

I would like to discuss some of the accomplishments the Department has made in implementing its strategic plan.

First, to provide for more increased clarity and transparency in

the process, all technical assistance review letters, proposed findings, final determinations, and reconsider petitions have been put

on a CD-ROM such as this. The CD-ROM has been made available

to the general public and to interested parties. We are hopeful that

this information will be available on the Internet once the BIA is

able to access the Internet.

No. 2, to increase the ability of the Office of Federal Acknowledgment in reviewing petitions and accompanying documentation in a

more time-sensitive manner, resources have been provided to fill

two professional staff vacancies. These additional staff members

have resulted in the formation of three professional research

teams. As you know, each team has a member that represents who

can talk about the history, the genealogy, and the anthropology behind each petition.

Third, to increase the productivity of the office, we have hired

two sets of independent contractors. The first set of contractors are

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two Freedom of Information Act specialists. As you can tell from

our two petitions I brought today, many of our records are quite

voluminous, and FOIA requests often tie down our staff, so we

have hired independent contractors to help us with our FOIA requests. The second set of contractors helps with our FAIR system,

which I will discuss in a minute, which is a computer data base

system which scans and indexes documents. Having the FAIR system has helped expedite the process as petitioners and interested

parties may access the information on CD-ROM.

Let me talk a little bit more about our FAIR system. The BIA

has implemented the Federal Acknowledgment Information Resource system. This is a computer data base system which provides

on-screen access to all documents in the administrative record. The

system allows researchers to have immediate access to the records

and also allows petitioning groups, interested parties such as State

and local governments, to have the entire administrative record on

CD-ROM. In addition, all data entries made by our researchers are

included on the FAIR system.

Another significant improvement made to the Federal acknowledgment process was in the realignment of the Bureau of Indian

Affairs. The former branch of Acknowledgment and Research has

been entitled now the Office of Federal Acknowledgment, which

now reports directly to the Principal Deputy Assistant Secretary for

Indian Affairs.

Due to the above-mentioned improvements to the Federal recognition process, the Office of Federal Acknowledgment has completed 14 major decisions since January 2001. We have completed

six proposed findings, six final determinations, and two reconsidered final determinations.

On April 1, 2004, Secretary Norton requested Indian Affairs to

review our strategic plan and ensure that all appropriate steps are

being taken to implement the plan. As we have discussed, the Department has completed many of these action items; however, we

have some more long-term action items which are underway. We

plan on completing most tasks by the fall of this year; however,

there are some items that may require statutory or regulatory

amendments or access to the Internet, which may not be done or

accomplished by this fall.

In addition, we are also planning to formalize an already internal

policy of the Assistant Secretary’s office that prohibits the Federal

acknowledgment decisionmaker from having contact or communications with a petitioner or interested party within 60 days of an acknowledgment decision. Formalization of this process will ensure

that all parties are aware of the 60-day period and protect the integrity of the process.

In conclusion, the Department believes that the acknowledgment

and existence of an Indian tribe is a serious decision for the Federal Government. When the Government acknowledges a tribe, it

recognizes that an inherent sovereign has continued to exist from

historical times until present. These decisions have significant impacts on the surrounding community; therefore, these decisions

should be made with a thorough evaluation of the evidence in an

open, transparent, and timely manner.

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I thank you for the opportunity to be here today. I will answer

any questions you have.

[The prepared statement of Ms. Rosier follows:]

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Chairman TOM DAVIS. Thank you.

Mr. Devaney, thanks for being with us.

Mr. DEVANEY. Mr. Chairman and members of the committee, I

want to thank you for the opportunity to address the committee

this morning on issues——

Chairman TOM DAVIS. Is your mic on?

Mr. DEVANEY [continuing]. On issues attendant to the tribal recognition process. I have submitted my full statement for the record

and would now like to make some brief remarks and then answer

any questions the committee has for me today.

Mr. Chairman, I am here today to testify about my office’s oversight activities concerning the tribal recognition process administered by the Department of the Interior. As you know, tribal recognition, or the acknowledgment process of the Department, has

been severely criticized by GAO and others for its lack of transparency. I don’t disagree with that criticism, and I am an advocate

for more of it. However, relatively speaking, it is actually one of the

more transparent processes at the Interior, especially after the recent changes noted earlier. As a point of fact, the process generally

follows the due process requirements of the Administrative Procedures Act, which includes giving notice, providing an opportunity

to comment, and an appeal mechanism.

When conducting an investigation of a program such as tribal

recognition, we naturally identify all the key players and then

interview them. This includes not only DOI personnel, but individuals outside of the Department. In tribal recognition matters, this

may include individuals identified by our own investigators, by the

Office of Federal Acknowledgment, or simply parties who have specifically signaled an interest in the acknowledgment process, such

as a State attorney general. Accordingly, when we conduct interviews in a given tribal recognition matter, we always begin with

those OFA team members who are charged with the petition review process. Based on our experience, these are the most likely

sources to provide evidence of any inappropriate influence of the

process.

In our 2001 investigation, which included the Eastern Pequot Indian petition, we quickly heard from these folks about some rather

disturbing deviations from the established processes that occurred

at the end of the previous administration. Several recognition decisions, including the Eastern Pequot petition, had been made by the

acting Assistant Secretary for Indian Affairs which were contrary

to the recommendations of the acknowledgment review team. In

fact, we even found one of these decisions was signed and backdated by the former acting Assistant Secretary after he had left office.

Mr. SHAYS. Who was that?

Mr. DEVANEY. I believe that was Mr. Anderson.

We were only recently asked to investigate the Schaghticoke tribal acknowledgment decision. Unfortunately, our investigation of the

Schaghticoke decision is not yet complete; therefore, I can’t comment on its outcome. I can, however, assure you that we are conducting a thorough investigation to determine whether there was

any deviation from the established process in the consideration of

this petition. We are, of course, interviewing OFA staff, acknowlVerDate 11-MAY-2000 12:42 Oct 20, 2004 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 D:\DOCS\95868.TXT HGOVREF1 PsN: HGOVREF1
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edgment review team members, and senior Department officials to

determine if any undue pressure may have been exerted. We have

also spoken to Attorney General Blumenthal and members of his

staff, as well as tribal representatives and officials from the Town

of Kent to better understand their concerns. Their perspective is

very important to us, and several investigative leads were developed out of those discussions.

Given the recent media reports of alleged improper lobbying influences relating to Indian gaming, my office now routinely includes in its scope of investigation inquiries into any lobbying influences that might bear on a particular Indian issue or program with

a view toward targeting improper lobbying influences on any employee of the Department. In the end, I am confident that we will

be able to present a thorough and complete report regarding the

way this petition was acknowledged.

Finally, Mr. Chairman, I recently sent Congressman Wolf a list

of issues which we consider to be impediments to good oversight

and enforcement. One of those issues is the statute which permits

recently departed DOI employees to go out and immediately represent recognized Indian tribes in connection with matters pending

before the Federal Government. This exemption was created in

part because Indian tribes, at the time of its enactment in 1975,

had little or no access to persons with expertise in Indian matters.

Today, that dynamic has obviously changed. We simply believe that

this statute has outlived its original intent and that this exemption

now perpetuates the proverbial revolving door. Without this exception to the normal cooling-off period that all other departing executive branch employees must adhere to, this would obviously be a

violation of the criminal conflict of interest laws.

Recently, in a prosecution stemming from one of our investigations, the U.S. Attorney’s Office in the Northern District of New

York secured a guilty plea by an individual who had submitted

fraudulent documents in an effort to obtain Federal recognition for

the Western Mohegan tribe and nation. Evidence presented at trial

demonstrated that this fraudulent application was made in the

hope of initiating gaming and casino operations in upstate New

York. We are hopeful that this conviction will send a clear message

to others who would attempt to corrupt the tribal acknowledgment

process.

Finally, Mr. Chairman, we have recently increased our investigative efforts and have now joined forces with the FBI in several matters to leverage our limited mutual resources. In some cases we are

operating in a task force setting where one of our agents is always

paired up with one of theirs. Coupled with a strong commitment

recently made to us by the 26 U.S. attorneys who prosecute cases

in Indian Country, I am confident that you will begin to see the

results of our labors in the near future.

Mr. Chairman and members of the committee, this concludes my

remarks, and I would be happy to answer any questions.

[The prepared statement of Mr. Devaney follows:]

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Chairman TOM DAVIS. Thank you all very much.

Let me start with a question. This will not be our last hearing

on this, and we probably will issue some subpoenas, particularly

the unwillingness of one of the tribes to come forward today, I

think, raises some additional issues for us. Do you know if legislatively or administratively there is a way to decertify a tribe if

something was amiss in the original certification, if fraud could be

proved and the like? Does anybody have any thoughts on that?

Ms. ROSIER. Congress has the authority to terminate Indian

tribes, and they did that during the termination era, so Congress

could do that.

Chairman TOM DAVIS. We could do it by act? Could you do it administratively?

Ms. ROSIER. Well, at this point, if they are at the IBIA, once the

decision is issued by the IBIA, then it becomes a final agency action, and then it goes to Federal District Court.

Mr. BLUMENTHAL. If I may supplement and agree with the statement that has just been made. Recognition, in effect, is an act of

Congress, and one of the points that I have made in challenging

a number of the decisions on recognition is that right now that delegation is over-broad. And I have urged that Congress, in effect, reassume or take back some of the authority that it seems to have

delegated, and I agree that Congress could reverse a decision to

recognize a tribe because, ultimately, the authority stays with Congress.

Administratively, these decisions are irreversible, and that is one

of the very profoundly important facts here. And if I may just again

draw the analogy, you know, when the U.S. Government makes a

decision to issue a broadcast license or approve a corporate merger

or permit a stock offering, it goes to an independent agency that

has rules and standards. The same is not true of recognition decisions whose consequences are even more profoundly far-reaching

and important to the Nation.

Chairman TOM DAVIS. One of the things that is most disturbing

to me as an outsider, somebody who represents the Washington

suburbs where this has not been an issue, is the vast amounts of

money that go into these things, money spread across the political

spectrum in a bipartisan way, huge money to lobbyist insiders,

very disturbing, and it raises just a host of issues that I think

somebody needs to pursue. This committee has that authority; we

are the major investigative arm. We don’t have the legislative authority of the Resources Committee on some of these other Indian

matters, but we do have broad investigative authorities and subpoena power. Maybe that is where it needs to begin, because everyone else has kind of walked away from this gingerly, and yet Members come up to me on the floor and express concerns about some

of the money they see changing hands on this and the like. So we

intend to pursue this. I just want to make that clear.

I appreciate everybody being here.

Mr. BLUMENTHAL. And if I may just add, the financial stakes

here and the money involved is the elephant in the room that no

one wants to acknowledge. It is driving the process, and the reason

is quite simply that the stakes have become so enormous. It is the

reason that the financial backer of the Schaghticokes, Fred

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DeLuca, has acknowledged he has already spent $10 million. The

amounts of money for other tribes, each of them $10 million or

more, acknowledged and on the record, and they are not even nearly complete with the process. So I think that the presence of gambling interests and the stakes involved have enormously raised the

stakes in the lobbying game as well, Mr. Chairman.

Chairman TOM DAVIS. Well, when you take a look at the membership of some of these tribes and the revenue, it doesn’t pass the

smell test to a lot of us. I think we just need to understand it a

little better, and nobody has gone beyond the first or second layer

of questions to delve down. That is why we are interested in what

the IG comes forward with in terms of some of the procedures, but

we intend to ask more.

I appreciate your leadership, too, Mr. Blumenthal, on this.

Mr. BLUMENTHAL. Thank you.

Chairman TOM DAVIS. Ms. Rosier, let me ask you. Most of the

improvements to the Federal acknowledgment process you discussed are procedural, but major criticisms of the current process

concern lack of objectivity or susceptibility to undue influence.

What measures are being taken to overcome those criticisms?

Ms. ROSIER. Well, for example, in my testimony I stated that we

have imposed an informal 60-day period that when a petition is either going for the proposed finding or a final determination, that

the decisionmaker does not speak to interested parties or to the petitioning group. We are going to formalize that policy. I can say

that in every Federal recognition decision that I have been involved

in at the Department, I have not seen the type of impropriety that

has been alleged here. I have seen a collaborative process where

the staff has come with recommendations, the solicitor’s office has

talked to us about the law and the spirit and intent of the law, we

have made decisions that we found to be good public policy.

Chairman TOM DAVIS. You know, if I were to write a letter to

the FCC on behalf of an application for somebody in my district,

every letter, every phone call from the administration is all logged

in at the FCC. Does that happen at Interior? If somebody else in

the administration calls over, if somebody calls from the White

House or somebody says this is important, is that logged in? Is that

transparent for the public? And do your regulations and informal

procedures take that into account?

Ms. ROSIER. That is not in our regulations at this time.

Chairman TOM DAVIS. I would submit that is where a lot of this

occurs. And it is not transparent. None of these procedure touch

that, and yet a lot of times, when you are doing political influence,

it usually doesn’t go to the Deputy Secretary level or sometimes

even to the decisionmaker. It goes above them, and the pressure

comes down. If someone wants to make a recommendation that a

status be granted, that is fine. People are free to do that; they are

free to state their opinion. But there ought to be a record of that

and we ought to know where it is coming from, because some of

the decisions that have come out here don’t seem to meet the criteria, at least the way the testimony before us today has shown

and from the information that this committee has.

Why were they granted? I think there were clearly communications in this case that were not appropriately logged, and any kind

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of procedure that you have ought to take those into account. We

have those in other Federal agencies, and I hope you will consider

this.

Let me ask this. How do you explain the Assistant Secretary’s reversal of the Branch of Acknowledgment’s recommendation to deny

both of these tribes’ recognition applications consistent with BIA

procedural requirements?

Ms. ROSIER. We have actually in the past, I think, with the

Wampanoag Gay Head Band, and I think it was in the 1980’s, we

had actually had a proposed finding that was a negative and the

final determination was a positive. Also, in the Mohegan situation

in Connecticut, the proposed finding was also a negative and the

final determination was a positive.

The proposed finding is simply like a draft environmental impact

statement, it is a chance to point out deficiencies and the petitioners have an opportunity to cure those deficiencies. And in both

these situations the petitioners cured the deficiencies?

Chairman TOM DAVIS. But my questions don’t go to those two

tribes. My question goes in this case to the other tribes.

Ms. ROSIER. Schaghticoke and Eastern Historical Pequot?

Chairman TOM DAVIS. Correct, the two Connecticut tribes.

Ms. ROSIER. Although I can’t talk about the specifics of those situations, since they are both at IBIA appeal and Schaghticoke is

under an inspector general investigation, I can talk to the generalities. We feel that our petitions speak for themselves, and that the

proposed finding gave them an opportunity to cure their deficiencies, and they did that.

Chairman TOM DAVIS. So, in your opinion, they cured the deficiencies.

Ms. ROSIER. The staff’s recommendation was that they cured

those deficiencies, and that was the decision that was made.

Chairman TOM DAVIS. And that was driven completely by the

staff?

Ms. ROSIER. It was driven by the anthropological history and

genealogical research that was done by my staff.

Chairman TOM DAVIS. Mr. Blumenthal, you proposed several

specific proposals for reforming the recognition process, including

the creation of an independent agency adopting recognition criteria,

providing assistance for municipalities. That is what you propose?

Let me just ask Mr. Devaney, do you have any reaction to those

proposals?

Mr. DEVANEY. Could I address one of the questions you asked

earlier about lobbyists registering?

Chairman TOM DAVIS. Yes, please.

Mr. DEVANEY. I think that is a terrific idea for a number of reasons. First of all, it obviously adds to the transparency. To have

somebody that wants to come in and get involved in this process

to be in the administrative record of having done so. It also protects people that work at the Department from unfounded allegations later on. And, finally, it is obviously a good starting point for

us when we do one of these investigations that comes our way, either by our own volition or maybe a congressional request. So I

think that would have an enormous benefit.

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Chairman TOM DAVIS. Mr. Devaney, you stated that you found

some rather disturbing deviation from the established process of

processing Indian recognition decisions that were made in the previous administration. When the inspector general finds a serious

violation that was committed by a government official who is no

longer in his or her position, what authority do you have at that

point?

Mr. DEVANEY. Well, we have authority there, and we took that

to the U.S. Attorney’s Office, and they declined prosecution.

Chairman TOM DAVIS. All right. This committee has authority, of

course, too.

Mr. DEVANEY. Yes.

Chairman TOM DAVIS. We have subpoena power as well.

Mr. DEVANEY. Yes.

Chairman TOM DAVIS. OK. Thank you very much.

Mr. Shays.

Mr. SHAYS. Thank you, Mr. Chairman. With your indulgence, I

would like to defer and let Mr. Simmons ask questions, and I will

follow.

Chairman TOM DAVIS. Great. He has to get over to the floor on

an important bill, so, Mr. Simmons, you are recognized.

Mr. SIMMONS. I thank the distinguished gentleman from Connecticut’s Fourth District.

Two questions. First to Mr. Devaney. Pages 4 and 5 of your testimony refer to the revolving door and the fact that the revolving

door at the Bureau of Indian Affairs derives from a decision that

was made in the mid-1970’s. And I gather from your testimony that

you now feel that this exemption is no longer a good exemption, it

should be changed. You stated that the statute has outlived its

original intent and the exemption now perpetuates a revolving

door.

Am I to understand, then, that the official position of the Department of the Interior is to support the elimination of the revolving

door provision for BIA officials?

Mr. DEVANEY. Congressman, I don’t speak for the Department.

Inspector generals are independent entities. Yes, we work for the

administration. We also work for Congress. We also work for you.

That is my personal view, and I think it would be enormously helpful to the process if that became enacted, but I don’t speak for the

Department.

Mr. SIMMONS. Well, I guess earlier today the chairman swore you

and others have testimony here in your name as inspector general

of the Department of the Interior which states very clearly that you

believe this revolving door exemption has outlived its original intent, and that without the exemption of the normal cooling-off period that all other departing executive branch employees must adhere to, this would be a violation of the criminal conflict of interest

laws that apply. That is a pretty strong statement. And one of the

problems that we have had over the last several years, and I have

to say it is very frustrating, is we hear the nice words and we hear

the nice intentions, and then nothing is done.

We have had legislation over the last 3 years to try to close the

revolving door, which is such an obvious thing to do, and yet that

legislation goes nowhere. And as far as I can tell, the administraVerDate 11-MAY-2000 12:42 Oct 20, 2004 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 D:\DOCS\95868.TXT HGOVREF1 PsN: HGOVREF1
54

tion, the Department of the Interior takes no ownership of that sort

of thing. It is such a simple thing. And even the Secretary of Interior says that she has concerns about it, it has troubled her, and

yet we cannot seem to get a concrete statement out of the Department of the Interior even on something this simple.

You testify that it is your personal view.

That is not good enough, Mr. Chairman. We swear witnesses, we

ask for written testimony, we try to assess what they are saying

in the context of what other people are concerned about, and it

can’t be personal anymore; it has to be the position of the administration, it has to be the position of the Department. So my question

really I guess is going to go unanswered. We are not getting a solid

answer, a policy answer from the Department of the Interior, and

it is so frustrating.

But let me just stop and shift my focus.

Mr. DEVANEY. Can I try one more time?

Mr. SHAYS [presiding]. Let me just interrupt a second.

When it comes to the inspector general and the GAO, they are

going beyond, I think, their requirements to express an opinion

about a law. So we want you to do findings and then we will evaluate. So I think the Chair cuts you a little slack on that.

Mr. DEVANEY. Thank you.

Mr. SHAYS. Not so true of the Department of the Interior, however.

Ms. ROSIER. Would you like me to answer the question?

Mr. SIMMONS. Yes.

Ms. ROSIER. I cannot give the official position on your legislation

here today, but I can say, as my testimony did, that we would be

supportive and would be willing to work with you on this situation.

Mr. SIMMONS. I thank you for that.

Now I have a second question regarding the first page of your

testimony. You refer to the seven mandatory criteria. Mandatory

conveys to me that they are required, that they must be done, they

must be followed. There are seven. All seven must be followed. And

yet there is factual evidence and we have received testimony even

this morning that there is evidence that they are not being followed

in a mandatory way, that people adjudicating these decisions can

pick or choose. That is why the Connecticut delegation has sponsored legislation to place the seven mandatory criteria in statute.

What is your understanding of what these mandatory criteria

are? Must they all be followed? And, two, does the Department of

the Interior support placing them in statute?

Ms. ROSIER. I will answer the latter half first. As my testimony

stated, although I cannot give an official position on H.R. 4219, I

believe, we would be supportive of legislation that was consistent

with 25 C.F.R. Part 83 and that kept our seven mandatory criteria.

In the Schaghticoke decision—and I know we are going to disagree

on this—we believe that the seven mandatory criteria were fulfilled. That was our recommendation.

Mr. SIMMONS. Is there any case that has come to the attention

of any of the witnesses, Mr. Blumenthal, where you feel that the

seven mandatory criteria were not met?

Mr. BLUMENTHAL. With all due respect, I know you may have to

leave shortly. In the Schaghticoke decision, as well as the Eastern

55

Pequot decision, those seven criteria have not been met, very clearly and unequivocally by the admission of the BIA itself. And it uses

evidence that is clearly improper about State dealings to compensate for the acknowledged lack of evidence on those seven criteria. For example, it admits a seven decade gap, 1801 to 1875, on

the existence of political authority, which is one of the key criteria,

a gap that simply cannot be overcome by supposed State recognition that was not begun until 1973, even if it were proper to use

that fact, which we contend it is not.

And I just want to say, in response to your point, which I think

is a very, very central one, where is the Department of the Interior

today? Why are they not here? Without any disrespect to the two

representatives, where is the Assistant Secretary for Indian Affairs

today? And why is he not speaking for the Department of the Interior on the two core questions that he was confirmed by the U.S.

Congress to decide and deliberate and, presumably in the public interest, speak to the U.S. Congress and the American people? I don’t

mean any disrespect to Ms. Rosier or Mr. Devaney; their roles are

limited. But this Congress deserves answers from the Assistant

Secretary for Indian Affairs on these central questions.

Mr. SIMMONS. Mr. Chairman, let me extend my apologies to the

two witnesses if I got a little hot. I am Irish. But I will tell you,

as the attorney general and others know, I have been punching

this pillow for a decade, and as the attorney general has pointed

out, whenever it comes time to get concrete answers on the record,

it just doesn’t come to pass. So it is very frustrating.

Mr. SHAYS. I thank the gentleman. We are going to have some

votes. I know that Mr. Wolf just wants to make a comment, and

then I am going to recognize Mr. Duncan.

Mr. WOLF. Thank you, Mr. Chairman. I am not going to have

any questions. I appreciate Attorney General Blumenthal’s comments. I want to thank Mr. Davis and you, Mr. Shays, and Mr.

Simmons.

To the Department, having worked there for 5 years under Secretary Roger C.B. Morton, if he could see what you are doing, all

previous Secretaries, you would be held in disgrace. I ask you as

a Republican Member of the Congress who supports this administration on most issues, go back and clean up your house. As the

attorney general said, it is the elephant in the room. This whole

town, and now the whole country, knows about the corrupt process

with regard to money. You have an opportunity, and I ask you to

one, have a 1-year moratorium and two, follow—and I want to commend the IG, he has done nice work, and I understand you can’t

be making policy, but follow the recommendation of your IG. Listen

to Attorney General Blumenthal. Be for Mr. Shays’ and Mr. Simmons’ bill. Show us over the next couple of months that you can—

you know, maybe you missed it. We all make mistakes. But now

that the whole world knows, this is your opportunity. And, at a

minimum, you really need a 1-year moratorium whereby this Congress and this committee and others can come back and make a

difference. Otherwise, as the attorney general said, this is a key

time. If we fail now, the fault will lie at the steps of Secretary Gail

Norton and this administration.

With that, Mr. Speaker, I yield.

56

Mr. SHAYS. Mr. Duncan, you have time, and I am going to hold

the panel in recess afterwards, because I have about 15 minutes of

questions.

Mr. DUNCAN. Well, just let me say I agree with Mr. Wolf. You

know, I will go back to Mr. Blumenthal’s comment about people not

being willing to acknowledge the elephant in the room. I can tell

you it is obvious to everybody that this is all about money. This is

all about big money. And the most interesting thing is in the briefing memorandum that we were given, it says prior to the implementation of the current recognition regulations in 1978, BIA had

received 40 petitions from groups seeking formal tribal recognition.

Since 1978, BIA has received an additional 254 petitions. I mean,

it is obvious.

So I ask when was the first Indian casino opened? And they told

me in 1979 the Seminole Tribe opened a high-stakes bingo parlor.

If this isn’t all about gambling and big money, then ask these

tribes that are seeking recognition will they sign a waiver of their

right to open up a casino. I think it is also, in addition, to some

extent about all the benefits they receive from the BIA and the Indian Health Service, because there are billions involved in that too.

But it is all about the gambling, and I think everybody has been

shocked by the huge, huge, huge money that has been spent on the

lobbying. And then we have been given this book, ‘‘Without Reservation’’ by Jeff Benedict, who is on the third panel, and it says

in 1973 an old American Indian woman dies with nothing left of

her tribe but a 214 acre tract of abandoned forest. And it seems

to be about the end of the tribe, but it is just the beginning, and

then it exploded because of the gambling.

I mean, this is getting totally out of hand, it is getting ridiculous.

I am from Knoxville, TN. I even had a man who came to see me

in my office, a couple men who came to see me in my office in 1990

in Knoxville because they wanted to get involved in the casino

business up in Connecticut with this tribe. I mean, this is getting

totally out of hand.

And I appreciate the interest of Mr. Shays in calling this hearing, and I agree with the comment that was just made that there

needs to be a moratorium. And once again I will say if it is not

about gambling and it is not about big money, ask them will they

sign a waiver and give up their right to open up a casino in return

for recognition, and I think you will see how fast this is all about

big money and all about gambling.

Thank you, Mr. Chairman.

Mr. SHAYS. I thank the gentleman.

We will be in a brief recess, just, I think, one vote, and then we

will be right back. Thank you.

[Recess.]

Mr. SHAYS. We are back on the record.

I will start by asking Department of the Interior the reason why

Gail Norton’s secretary, Gail Norton of Interior, wrote on April

12th, ‘‘As you requested I have completed the attached order delegating authority for gaming-related matters to Principal Deputy

Assistant Secretary Aurene Martin. Thank you for initiating this

action to avoid any appearance of conflict.’’ And then there is the

order.

57

I would like an explanation of this.

Ms. ROSIER. The recusal of Mr. Anderson, Assistant Secretary for

Indian Affairs, off of gaming, Federal recognition, and land into

trust for gaming is very personal to his background before he became Assistant Secretary for Indian Affairs, and he wanted to

avoid any appearances of impropriety and just asked to recuse himself from those issues.

Mr. SHAYS. But he didn’t ask to recuse himself from one particular tribal application. He is basically asking for a blanket exemption from ruling on any Indian gaming?

Ms. ROSIER. It is a blanket recusal to avoid appearance of impropriety.

Mr. SHAYS. And he is in charge of the Bureau of Indian Affairs?

Ms. ROSIER. Yes. He is Assistant Secretary.

Mr. SHAYS. So we have the Assistant Secretary for Indian Affairs

saying that he wants to have no responsibility for the very job he

was assigned to do. Doesn’t that strike you as being a little

strange?

Ms. ROSIER. Actually, we have a responsibility on a number of

matters, not just gaming and Federal recognition and land into

trust. We have land into trust that is non-gaming related. Half of

our employees and half of our budget is for our Bureau of Indian

Affairs school system.

Mr. SHAYS. So he can do part of his job; he just can’t do all of

his job.

Ms. ROSIER. He can do a vast majority of his job. He has just

recused himself from three issues.

Mr. SHAYS. That involve the recognition of Indian tribes, which

is a huge, essential part of the Department. Wouldn’t you agree

this is an important element?

Ms. ROSIER. It is a very serious responsibility.

Mr. SHAYS. Now, this delegation of power, was it delegated to

someone that has to come before Congress, the Senate?

Ms. ROSIER. No. It was delegated to our Principal Deputy Assistant Secretary. She is not Senate confirmed.

Mr. SHAYS. So you have taken a Senate confirmed person and

you have delegated that power to someone who is not Senate confirmed. Does that seem appropriate to you?

Ms. ROSIER. It has been reviewed within the Department, and

the Department, before the Secretary signed it, it has been reviewed.

Mr. SHAYS. I would invite the inspector general to maybe respond about this, and then I will ask the attorney general.

Mr. DEVANEY. Well, I really don’t know the circumstances under

which the Assistant Secretary made his recusals. My understanding is the same as just stated, that he needed to recuse himself

from three issues principally because he used to be in the gaming

business.

Mr. SHAYS. Which makes me question whether he should have

ever gotten the appointment, if you can’t do a significant part of

your job. But that is obviously we will talk to the Secretary about.

Mr. Blumenthal.

Mr. BLUMENTHAL. Yes. Mr. Chairman, as I have stated, my office

discovered this fact when we were reviewing testimony that the

58

Principal Deputy, Aurene Martin, offered to one of the congressional committees that was reported off-handedly, well down in a

story, on the substantive testimony. And we followed up, we pursued it with the Secretary of the Interior’s Office and, in fact, I

have with me and I have submitted to this committee a copy of the

order which is unprecedented, I believe. It is the equivalent of appointing the administrator of the Food and Drug Administration

and then saying that administrator will have nothing to do with

drugs, period, and instead will delegate those decisions to deputies

who are not confirmed by the U.S. Senate and are not accountable

to the U.S. Congress for powers that this body delegates to that official.

The issue of accountability is front and center, and the lack of

accountability is certainly profoundly troubling, if not illegal. In

fact, I think there are very great legal questions raised by this delegation and also by the testimony that was offered by Assistant

Secretary Dave Anderson during his confirmation proceedings

when he said that he would recuse himself only on specific decisions, as I understand it.

So I think that there are lots of different analogies that could be

drawn, but fundamentally this subject matter is at the core of the

responsibility of the Assistant Secretary for Indian Affairs and cannot ethically and legally be delegated in this way.

Mr. SHAYS. We, the Connecticut delegation, Nancy Johnson, Rob

Simmons, and myself, as well as Frank Wolf, met with the Secretary. We also then, as a full delegation from Connecticut, met

with the Secretary. I don’t recall this issue coming up for discussion. Do you have any information that this was provided to us?

Who was notified about this?

Ms. ROSIER. I am sorry, I was not at the meeting.

Mr. SHAYS. Let me go through a number of different questions,

but I am unclear as to the Department’s position on moratorium.

Ms. ROSIER. I can take that recommendation back to the Department.

Mr. SHAYS. And our recommendation is, obviously, that there be

a 1-year moratorium, in part for this very fact here. You basically

have someone who has a responsibility dealing with tribal recognition who basically can’t fulfill his statutory responsibility.

I am unclear as to the Department’s position on the legislation

that Mr. Simmons and Mrs. Johnson and others are promoting. As

my daughter would say, one time when I agreed with her position

and she kept trying to convince me about it, and I started to say,

sweetie, you know, when you have made a sale, you don’t have to

keep making the sale; and she said to me, but, dad, you don’t believe passionately enough.

And I don’t feel your passion. And ‘‘working with’’ does not describe to me the position of the administration on this. Do you support this proposal or are you going to simply work with us?

Ms. ROSIER. Because this is not a legislative hearing and this is

an oversight hearing, I am unable to give the official position of the

Department on the legislation. I think our written testimony and

my oral testimony has alluded that we would like to work with you

on this.

Mr. SHAYS. Thank you.

59

I am going to go through a series of questions.

Mrs. Johnson, do you have a little bit of time to stay or would

you like to be recognized next?

I am going to go through a few and then turn to Mrs. Johnson

to ask some questions. And we have written these down because

I want to make sure we cover them. And these are to you, Mr.

Blumenthal.

With regard to both Pequot and Schaghticoke petitions, the BIA

staff issued proposed findings that the tribes had failed to demonstrate they met one or more of the mandatory regulatory criteria

for recognition. Is this correct?

Mr. BLUMENTHAL. Correct.

Mr. SHAYS. In the case of the Pequots, what new evidence was

submitted and reviewed by all interested parties that justified the

final determination of Federal tribal status?

Mr. BLUMENTHAL. In our view, there was insufficient evidence on

two key criteria: continuous community existence and continuous

political authority. There were gaps during critical periods of time

that were admitted by the BIA. Instead of the evidence that was

required, the BIA submitted that recognition should be granted because of State dealings with the supposed tribe. The nature of the

dealings was with individuals, if any. They may have been individuals who were decendents of tribal members. But the key question

is whether a tribe existed continuously as a community and with

political authority, and there was insufficient evidence, in fact, key

gaps of evidence, that was not corrected in the final recognition either as to the Eastern Pequots or the Paucatuck Easterns or the

Schaghticokes.

In the case of the Schaghticokes, the Department did one other

thing that I think is unprecedented and ought to be brought to the

committee’s attention. It combined two groups, as it did with the

Eastern Pequots and the Paucatuck Easterns, but did not consider

the petition of one of those groups. So that if you go down this

slope, and it is an extraordinarily slippery slope, at some point the

BIA could simply bring into a petitioning group anyone that it

wanted to do and say that those individuals or that petitioning

group, regardless of its merits, should be made part of the petitioning group.

And so I think on that score and many others we have appealed.

The appeal is a very lengthy and voluminous one, and I don’t want

to exhaust the time or the patience of this committee.

Mr. SHAYS. In your testimony you say that the BIA has changed

its view on the significance of State recognition four times in the

past 2 years. Would you describe for the committee how the BIA

has assessed the evidentiary weight of tribal designation and reservation lands under State law?

Mr. BLUMENTHAL. The existence of reservations under State law

has been one of the factors that the BIA considered in applying

State recognition to overcome the gaps of evidence. The fact is, as

you well know, Mr. Chairman, State recognition of a reservation

and Federal recognition of a tribe are like apples and oranges; all

they have in common is the use of the word recognition; and the

meaning of definition for those two purposes is completely different.

60

So the answer is that State recognition has been morphed in the

BIA’s use of it over this period of years to overcome gaps of evidence, in some cases to apply to the recognition of a reservation,

in other cases to benefits that are provided to individuals who live

on the reservation, in other cases to the fact that overseers had

dealings with members or decendents of the tribe over some period

of time. The State recognition factor has been a moving target.

Mr. SHAYS. Let me say that a previous administrator of BIA secretary, Mr. Gover, he had a close relationship with the Golden Hill

Paugussetts, who was a petitioning tribe in the fourth congressional district. They also have huge land claims. Those land claims

become more valid if they are federally recognized. That is a concern that we have. Maybe not valid enough, but more valid. And

he said he would not in any way decide on the Golden Hill

Paugussetts, but he made a decision in another State that State

recognition would be a factor in Federal recognition.

Now, let me just tell you the impact of what that decision had

on the Golden Hill Paugussetts, and then I want a comment from

you. They are State recognized, but the State recognizes a reservation. There may be a house on that reservation, there may be some

residents, or there may not be. They still recognize that State

tribe’s reservation. And what Mr. Gover basically did was give a

huge benefit to a tribe that he was recognizing, because, in fact,

they could be State recognized, have no political, social, or economic continuity pre-colonial times, and then that is the back door

in which they then get Federal recognition.

Is there anything that I have said that you would disagree with?

Mr. BLUMENTHAL. I don’t disagree at all with the point that you

are making, and I think it is a very, very important and valid one,

that the use of State recognition in a case that seems to be unrelated may establish a precedent that then can be expanded, and it

has been vastly expanded, in other cases. And I think that point

is very well taken.

You know, part of the problem here, Mr. Chairman, is that this

agency is legally rudderless. And I respect the suggestions that

have been made or the changes that have been made and enumerated for the committee in some of the procedures, but they are a

little bit like rearranging the chairs on the deck when the ship

needs to be reconstructed. And Mr. Devaney makes a very important point which I think comes back to the one you have just made,

and that is that this agency does not have the basic rules that the

FCC or the FTC or the SEC would have and would rigorously follow: the logging of contacts, the transparency of correspondence,

the registration of lobbyists, the prohibition against revolving door

employment.

Those kinds of requirements are a first basic minimal tier of requirements that are necessary for integrity in the decisionmaking

process. There is a second tier which deals with the standards and

the criteria that should be statutory. But your point comes back to

the sort of ad hoc, make it up as we go along, let us make a deal,

nature of many of the decisions that are made without anticipating

what the long-run precedent-making consequences will be.

Mr. SHAYS. Thank you.

61

I have three more questions, Mrs. Johnson, and then I am going

to recognize you.

I would like, Ms. Rosier, to ask you the following question. Do

you believe that it is an absolute requirement that a Indian tribe

demonstrate social and economic and political continuity pre-colonial times, in other words, they never stopped? Do you believe that

is a requirement in recognition?

Ms. ROSIER. I believe the requirement and recommendation as

outlined in 25 C.F.R. Part 83 is that all seven mandatory criteria

must be met, and the burden of proof is that it is the reasonable

likelihood of the validity of the facts. That is my job and the staff’s

job, to ensure that of those seven criteria, this burden of proof has

been met.

Mr. SHAYS. So in this room, if I turned out the light switch for

a little bit of time and then turned it back on, even though you saw

the lights on, that wouldn’t be good enough, correct? The light has

to be on the whole time.

Ms. ROSIER. What we are recognizing at the Department of the

Interior is a continuous political entity as a tribe, and we look at

the community and we look at——

Mr. SHAYS. Without interruption, correct?

Ms. ROSIER. We are looking at continuity.

Mr. SHAYS. Continuity means without interruption, correct?

Ms. ROSIER. We are looking at a continuous relationship.

Mr. SHAYS. Continuous relationship means it never stopped.

Ms. ROSIER. A continuous relationship that meets the seven

mandatory criteria.

Mr. SHAYS. Well, I don’t want you to be evasive here. You are

here to testify before the committee, and the bottom line is doesn’t

the tribe have to prove that they were always a tribe, socially, politically, economically, and that they never stopped being a tribe?

Isn’t that correct?

Ms. ROSIER. Yes, that is correct.

Mr. SHAYS. OK. And do you understand that in the State of Connecticut we can recognize a State tribe where they actually had

interruption? Are you aware of that?

Ms. ROSIER. Not specifically, no.

Mr. SHAYS. Well, it is a fact. The fact is that State tribes in Connecticut don’t have to show continuity.

Ms. ROSIER. Congress can do that also, too. Congress can recognize a tribe too.

Mr. SHAYS. I understand that, but we are not talking about Congress recognizing a tribe. I am just trying to have you understand

something, because I am under the impression you want to do the

right thing, and the right thing requires that there be continuity.

Mr. Gover made a huge decision that is impacting improperly, and

you heard the testimony from Mr. Blumenthal. The bottom line is

we are telling you in the State of Connecticut we may recognize a

State tribe that doesn’t exist except in land. They may not have political, social, or economic continuity. There may just be one person

living on that reservation. That doesn’t meet the Federal standard,

but it meets the State standard. And that is what is so outrageous

about Mr. Gover and this Department continuing with the process

of State recognition.

62

Just three more questions to you, Mr. Blumenthal.

Would you explain the legal and political significance of Indian

land claims in this process?

Mr. BLUMENTHAL. Well, the legal significance is that various of

the tribal groups have made land claims. We are in litigation right

now with the Schaghticokes over 2,100 acres in the Kent area. The

first selectwoman of Kent is here today, and her town is one of the

defendants. So is the Kent School, one of our major utilities, Northeast Utilities, and the State of Connecticut. So we have litigated

with the tribes against land claims that we believe are unfounded,

especially when they have made them against individual property

owners, as the Golden Hill Paugussetts did some years ago, and we

were successful in dismissing them, the State was, in representing

the interests of the landowners when they were brought at that

time.

Certainly, as you have said, those land claims have additional

force and credibility when they are accompanied by recognition or

when they are made by a federally recognized tribe. And in Federal

court, under Federal law, they can have additional legal force because of the impact of the Non-Intercourse Act on the litigation.

This area is enormously complex, and I apologize to the committee that I am not able to summarize it in a couple of sentences, but

the answer is these land claims are a big deal, and they become

bigger when there is Federal recognition.

Mr. SHAYS. You could have a circumstance when a tribe is federally recognized, that it gives more credence to the land claims, and

even though the State of Connecticut has passed legislation no

longer allowing charity gambling, if they are then given Federal

recognition and they have land claims that are valid under the eyes

of the court, then the only recourse to the community is to settle;

and the settlement is clear: they will want land for an Indian gaming facility.

Why did the U.S. District Court in Connecticut enter an order requiring notice of all interested parties before the Schaghticokes or

any other non-Federal party could contact the Department of the

Interior?

Mr. BLUMENTHAL. Well, I am grateful for that question. The reason is very simply that we sued the Department of the Interior.

The State of Connecticut sued the Department of the Interior because we were denied documents—basic materials like the petition

itself—submitted by the Eastern Pequot and Paucatuck Eastern

petitioning groups, and we claimed that there were ex parte contacts, secret meetings, and other correspondence that was being

kept out of the public realm.

Mr. SHAYS. By the Department of the Interior?

Mr. BLUMENTHAL. Correct.

Mr. SHAYS. Why is that happening?

Ms. ROSIER. Actually, in the Schaghticoke situation, we worked

quite well with Mr. Blumenthal, and the interested parties in that

situation were treated almost similar to the petitioners; everybody

had equal access, petitioners and interested parties shared documents directly with one another.

I was not at the Department at that time, but I know right now,

and we continue, and the regulations have always had the attorney

63

general and the Governor as interested parties, so that is how we

operate.

Mr. SHAYS. Has the cooperation gotten better, Mr. Blumenthal?

Mr. BLUMENTHAL. In fairness to Ms. Rosier, the court orders entered in the Schaghticoke and Eastern Pequot cases followed our

legal action. She may not have been there when we took that action to compel the kinds of scheduling orders and other cooperation, which has proceeded now; we are interested parties.

Mr. SHAYS. So your bottom line is that has been corrected, but

it took a court order to do it, and it preceded your time, I gather.

Mr. BLUMENTHAL. And it goes back, I think, to the point that Mr.

Devaney was making about the APA process. We have been obliged

to go to court to enforce the APA process. We sought these documents under the Freedom of Information Act. The sovereign State

of Connecticut had to go to court under the Freedom of Information

Act to obtain petitions so that we would be adequately informed

about what would happen within our own boundaries.

Mr. SHAYS. Let me just take the last question, and that is what

would be the significance of putting the recognition criteria into

statute, as opposed to leaving them as purely regulatory standards?

I will ask both of you.

Ms. Rosier, what would be the significance of that?

Ms. ROSIER. Without seeing language right in front of me, I don’t

think that there would be much change in how we continue to do

Federal recognition.

Mr. SHAYS. Basically, what we are trying to do is codify.

And, Mr. Blumenthal, what would be the value of that?

Mr. BLUMENTHAL. Well, let me state the obvious. It would give

those criterion standards the full force of congressional support. It

would define them clearly, unequivocally, and irrevocably, so that,

for example, the Department of the Interior could not disregard

them, as it does now in many instances, skirt or subvert them; and

it would also eliminate any possibility of rulemaking changes in

those regulations, which emanate, by the way, from 30 years of

precedent beginning with U.S. Supreme Court cases that first articulated them.

So we would contend that right now they have the force of law,

but it would make sure that legal action brought based on them

would have even greater force than it does now when we are

obliged to do so. And so I think it would send a very strong and

important message.

Mr. SHAYS. Thank you.

Mrs. Johnson, thank you for your patience. And let me say that

the chairman welcomed you to this hearing and has asked unanimous consent, so you are a full participant. Welcome. It is wonderful to have you here.

Mrs. JOHNSON. Thank you very much, Mr. Chairman. And thank

you very much for the thoroughness of your questions and, to Mr.

Blumenthal, for the thoroughness of his testimony. And I thank the

Department for being with us today too. This is an extremely important matter. If Mr. Blumenthal’s comments about being in litigation over 2,100 acres doesn’t grab your attention, let me tell you

that many of the people who live on those acres have tilled those

acres for more than 150 years, and they are being told now by your

64

decision that they belong to someone else, who may or may not

have tilled them before or after, where there is no continuity of existence. This is an extremely serious matter in the part of the country that is far older in its settlement roots than any other part of

the country. So the implications of recognition decisions in New

England, and particularly in Connecticut, are far different from the

implications of those decisions in the West, a younger part of the

country, a more open part of the country, and a part of the country

where reservations became part of the very early history of those

States.

So I want to ask you a couple of sets of questions. First of all,

the Department of the Interior is responsible for our most important programs that encourage historic preservation, are you not?

The historic preservation tax credit and things like that.

Ms. ROSIER. We have historic preservation activities at the Department.

Mrs. JOHNSON. Yes. And I have worked through your Department and got many very important buildings and areas preserved

through working with your Department. The criteria for historic

preservation is that a building or a site must be of historic significance. For instance, you have helped us preserve the early iron

mines out in this very part of the State, one Beckley furnace right

in Connecticut. So you have been, as an agency, interested in the

preservation of the history of America through the homes of famous

people and the sites of historic importance economically and politically in terms of wars and battlegrounds and so on.

The definition of historic preservation and the criteria for what

is worthy of historic preservation is entirely different than the criteria for tribal recognition, would you not agree with that?

Ms. ROSIER. Yes, it is entirely different.

Mrs. JOHNSON. The State reservation criteria is a historic preservation criteria, it is not a tribal recognition criteria.

Ms. ROSIER. For tribal recognition, actually, for the first element,

83.7(a), State recognition is explicitly stated for evidence.

Mrs. JOHNSON. Right. But what I am saying is that the existence

of a reservation is a historic preservation type decision, it is not a

tribal recognition decision, and it doesn’t meet tribal recognition

criteria, and that is why you are using that now, when you can’t

demonstrate continuous political continuity and you can’t meet the

other important criteria that are associated with continuity of tribal existence and continuity of influence, is a real travesty of both

the concept of historic preservation and of the underlying demand

of the recognition process.

I just wanted to point that out and put that clearly on the record.

The Department of the Interior knows the difference and they are

mixing that difference in the tribal recognition process, and that

mixing is going to have an extraordinary impact on the lives of millions of citizens in the district that I represent and other members

of the congressional delegation from both parties represent, and

that is why our attorney general is so extremely concerned with

your actions.

The tribes are not allowed to take land once they have been recognized, but they lien property. Are you familiar with that process?

65

Ms. ROSIER. I don’t know what you mean by tribes are not allowed to take land once they are recognized.

Mrs. JOHNSON. Well, I am told that they can’t just take land,

they have to buy it. Then they can take it into their reservation.

That they can’t just expand their reservation arbitrarily.

Ms. ROSIER. When a tribe acquires new land in a trust——

Mrs. JOHNSON. But they have to buy it, correct?

Ms. ROSIER. Well, it is fee to trust, yes.

Mrs. JOHNSON. That is right. And so I was assured, don’t worry

about this recognition; they would have to buy any land they want

to expand. You don’t understand. They put a lien on it because

they claim it. You can’t sell the property. The town can’t fund its

schools, because our schools are funded through local property

taxes, primarily. Elderly people can’t sell their property and use

the money to support themselves. Small businesses can’t sell their

property and move to a larger site. So it paralyzes the life of the

community and the economic base necessary to support public education, the repair of roads and bridges, and all the other things

that local governments do.

So this isn’t just about the one decision. It is about the fallout,

it is about the power. The attorney general has talked about the

impact on the suits around the 2,100—was it 1,000 acres or 100

acres?

Mr. BLUMENTHAL. 2,100.

Mrs. JOHNSON. So the Department needs to look at this liening

issue. And you need to begin to make some very clear rules about

that kind of activity. If we give recognition, we have to be clear

about what it is for and we have to be clear about prohibiting practices that are the equivalent of forcing purchase because they paralyze a community. And that is our obligation if we are going to recognize. So there are some additional issues that the Department of

the Interior needs to look at and needs to take a stand on, and if

we need to clarify the law, we will do that. I am told we don’t need

to clarify the law, but I don’t see exactly how that is true. I hope

you will begin to take into account the unique consequences of recognition in the densely populated eastern States of the country,

and to understand how using a teeny tiny web to get to that definition is not right.

Now, I understand that there are two petitioning groups, and

you responded to the petition of one but not the petition of the

other. Are you aware that now one group of Schaghticokes is suing

the other group of Schaghticokes?

Ms. ROSIER. Well, they have appealed the decision to the Interior

Board of Indian Appeals.

Mrs. JOHNSON. No. This is in addition. They are suing the other

part of the tribe for not recognizing the tribe’s interest and for taking the interests of others, that is, the big money-backers, to undermine the tribe’s interest. Are you aware of that?

Ms. ROSIER. I was not aware of that.

Mrs. JOHNSON. Well, I will send you those materials, and I want

your experts to notice that. I want them to stop papering over this

disagreement amongst the ‘‘members of the tribe,’’ because it is by

overwriting those disagreements, by ignoring what people are saying about the tribe, or who are the tribal members or its continuity,

66

that you can override your own criteria about continuity. So one

subversion or distortion of a piece of evidence is leading to a ladder

of distortion that is leading to a decision that is extremely destructive of the public interest.

You will hear in the testimony of the panel that follows the extremely negative consequences that will follow from this recognition, because this isn’t a recognition about tribal history. This is

about casinos; it is about big, big money; it is about gambling. It

is a David and Goliath battle, and David is losing. Big money is

winning. And you are not looking at your system to see whether

that is true.

And I appreciate the hard work of our attorney general and of

the local people. I am very glad that Lori Shishel is here, I didn’t

realize she was going to be down here. Oh, there she is. She has

come down before to testify on this issue. It has taken us a long

time to get attention to it. Our Senators in the Senate, where you

have a little different set of rules, have brought it to the floor to

get more attention to it. We will continue to do that, but you have

a variety of first selectmen and mayors and others today who for

years at the local level have studied this, and I hope you will listen

to the facts that they have and make sure that in the review, as

you respond to the appeal, that you have an open mind for what

your top people in Washington did not pay attention to, because,

in the end, the law is about all of us.

So I appreciate your being here, and I appreciate the time of the

attorney general and his leadership on this issue, and the acumen

with which he and his staff have pursued every avenue, and I particularly appreciate the local first selectmen, selectwomen, and

mayors for the testimony they are going to give; and I am not going

to try to summarize it because it will be very fresh from their

mouths, but it is very powerful. And I think the Department has

to look at this issue of liening, because it completely undermines

and circumvents aspects of our laws and of our concept of recognition in a modern world. So thank you very much. I look forward

to working with you on this issue.

And thank you, Mr. Chairman, for your indulgence.

Mr. SHAYS. Thank you.

I am going to have two questions after you, Mr. Ose, to the IG,

and then we will get to the next panel. But you have the floor.

Mr. OSE. Thank you, Mr. Chairman.

I want to followup on something that Congresswoman Johnson

brought up. I am not familiar with this and, Ms. Rosier, I guess

it would be directed at you. If a tribe is established, they have trust

lands, then they seek to add to their holdings, they can go out and

buy in fee property adjacent thereto and then apply to have that

property taken into trust status, is that correct?

Ms. ROSIER. Yes, they can apply to have that property taken into

trust status.

Mr. OSE. The aspect that Mrs. Johnson mentioned that intrigues

me is this issue of placing a lien on properties that a tribe may

wish to take into trust. Does that happen?

Ms. ROSIER. I am a little unfamiliar with that, and I would have

to——

Mr. OSE. A little or completely?

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Ms. ROSIER. I am unfamiliar with that. I would have to get back

to you on that matter.

Mr. OSE. Mr. Blumenthal, do you know anything about that?

Mr. BLUMENTHAL. Could you repeat the question, please?

Mr. OSE. The question relates to a tribe’s interest in taking land

into trust prior to fee ownership. Mrs. Johnson indicated that they

were placing liens, perhaps, on adjacent properties, thereby encumbering those properties in terms of the interests of the adjacent

landowner. Does that occur under current BIA regulation or law?

Mr. BLUMENTHAL. Well, it has occurred in the State of Connecticut, I suspect elsewhere in the country too, done by petitioning

groups at various stages of the recognition process. For

example——

Mr. OSE. That is what I want to examine. Let us say I own a

piece of property in Sacramento, CA, and a tribe seeks to establish

aboriginal claim to a certain piece of property right next door. They

can establish their claim, perfect it through the BIA, establish their

reservation, then turn around and file a petition saying that the

property next door is also aboriginal in nature and thereby encumber my property?

Mr. BLUMENTHAL. I am not sure that they could simply take the

property. They would need to present evidence that it was in fact

aboriginal. Under some circumstances if they were recognized as a

tribe and could meet the criteria under a Federal law called the

Non-Intercourse Act, they could take title to that property. The

Non-Intercourse Act, as you may know, says essentially that a federally recognized tribe can’t sell or divest itself or transfer property

without the approval of the Federal Government, and so if there

were no Federal approval and there had been a transfer at some

point, and that fact could be established, the answer to your question, I believe, is yes, that it could take title to that property. And,

at the very least, what many of these groups have done is to encumber, place liens on property, and thereby interfere with the normal lives of landowners in the way that Congresswoman Johnson

has described.

Mr. OSE. This is what I want to come at, because a fundamental

piece of our history is respect for private property rights. Are you

telling me that the law, as written today, allows a third party, in

this case Indians, to waltz down to the county recorder and put a

lien on my property without anything more than a claim, somebody’s oral history?

Mr. BLUMENTHAL. Well, if I may answer the question this way,

sir. Claims can be asserted in court by anyone. The courthouse

doors are open, and liens may be placed and encumbrances by anyone with an interest. We went to court back in the mid-1990’s

when those claims were placed on property and succeeded in having them dismissed. So claims can be made, but obviously they can

be refuted and they can be dismissed, whether they are made by

petitioning tribes or a tradesman who has a claim for work that he

says he has done on your property, which is typically how a lot of

them result.

Mr. OSE. That one I understand. I can figure that part out. But

it is just the distant third-party waltzes down to the county reVerDate 11-MAY-2000 12:42 Oct 20, 2004 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 D:\DOCS\95868.TXT HGOVREF1 PsN: HGOVREF1
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corder and slaps a lien on my property, I have to tell you I react

very negatively to that, having come out of the real estate business.

Mrs. JOHNSON. If the gentleman would yield.

Mr. OSE. I would be happy to yield.

Mrs. JOHNSON. The very first time this tribe came to see me,

which was many years ago, I can’t quite remember how many, but

they showed a map. And it may be that the first selectwoman of

Kent can clarify this more than my memory over that many years.

They laid claim to all the land in five towns. Now, in this part of

the State these are rather large land-mass towns because Connecticut eliminated our counties’ government many years ago and

merged a lot of little towns into big towns, so this is a lot of land

mass. And they said that is really what we are entitled to, but we

aren’t going to exert all those claims.

Well, in another part of the State they did try to lien all the

properties in that area to put pressure on the recognition process,

and we had to go to court. Now they are starting to do that, and

it has had a very chilling effect on the real estate market; values

have already suffered an impact. And others know more about that

than I. I only know it from anecdotal evidence of people walking

up to me and say, you know, I was going to sell my house for this,

and as soon as the recognition process took place, this happened,

and now this is happening.

So whether they stand up in court isn’t the whole issue. It is true

we have worked hard not to allow them to stand up. Whether this

group we would be able to step back on it or not, I don’t know; each

one is a different case. But, in the meantime, what it does to the

ability of that town to raise the resources they need to educate

their children, which is the biggest cost in these town budgets, or

maintain their roads, or do anything else—they are very interested

in land preservation, these towns—all those things, it cripples

them; and it is not fair from the point of view of individual property rights.

So we need to clean up our act here in Washington. We need to

do all those things Attorney General Blumenthal mentioned about

transparency and cleaning up the process, but then we need to

have criteria everybody knows, understands, and agrees to.

Mr. SHAYS. Let me make sure Mr. Ose gets his time back. We

need to move the panel.

Mr. OSE. We have individuals coming forward, seeking tribal status. I understand that. I understand that same group coming forward, saying this is our aboriginal territory, and we want to establish trust lands here. But in that process, if the group comes forward and says this is our aboriginal territory, and we want to establish trust grounds somewhere in that, does the existing law

allow the filing of a recordable lien on every single piece within

that aboriginal range? I have to tell you, if that is the case, if that

is the law, we are going to have a second revolution, because you

are not coming to my house or my property and taking it on the

basis of some speculative aboriginal claim. Now, you need to tell

me whether or not that is the way the law is written today.

Mr. Blumenthal, you are an AG, you tell me.

Mr. BLUMENTHAL. Well, I will give you my answer as the attorney general of the State of Connecticut. We have actively opposed

69

those claims. We believe they are unfounded. We have successfully

defeated them, and we believe that the law is on our side and factually we have the merits. But the claims are made, and the claims

themselves can often be extraordinarily damaging. I just want to

emphasize here, to finish the answer, the point that both Congressman Johnson and Congressman Shays made. In many instances,

innocent property owners have been taken hostage to bring pressure to bear on you, on them, on other elected officials, and the

pressure simply hasn’t worked; the tactics have failed, but the law

is there. And any of these groups have rights, and those rights

have to be respected. The problem is the misuse of the process by

certain groups.

Mr. OSE. So, Ms. Rosier, what does Interior or the Assistant Secretary for Indian Affairs do to prevent the types of situations that

Mrs. Johnson has highlighted occurring in her district and which

I can tell you if ever occur in my district will cause a problem?

Ms. ROSIER. We try to work with entities, State and local governments, with tribes and petitioners; we try to bring parties together.

Connecticut, for whatever reason, just has been an example of

where State and recognized tribes and petitioners have not worked

well together. We have other situations where we have been able

to bring groups together and try to bring parties who don’t normally see eye-to-eye, try to bring them together and work together.

Mr. SHAYS. If the gentleman would yield, I can explain why that

happens.

Mr. OSE. Yes.

Mr. SHAYS. This is a real-life story for me. I live in Bridgeport,

CT. I represent that district. In the early 1990’s, the Golden Hill

Paugussetts took a claim against all the property in Ridgefield, in

Fairfield, and so on. I live in a house that is claimed by the Golden

Hill Paugussetts, and I think it is still a decision pending. Judge

Dorsey wants to know if you all are going to recognize them as a

Federal tribe.

Is that correct, Mr. Blumenthal?

Mr. BLUMENTHAL. That is correct, Congressman Shays. Although

we succeeded in State court in having those claims dismissed, they

are still pending in Federal court. The Federal claims do involve,

I think, 20 acres in Downtown Bridgeport. I was unaware that it

included your house. But certainly the claim is a wise one because

your house is a beautiful one and they have obviously exercised

sound judgment.

Mr. SHAYS. Well, it may have been it was just the State, but

what they did do, though, is they came to my office and said we

will have these claims disappear; all you have to do is submit a bill

before Congress giving us Federal recognition. That is what they

did. And then when that chief left, his brother came and did the

same thing; and then when he was done, the financial backer came

and said the claims—and at that time I didn’t own the property in

Bridgeport, but I represented the district. So it is one mess.

Mr. BLUMENTHAL. Can I just interrupt? And I really apologize,

Mr. Chairman, but I want to make clear whom we are talking

about here, because we are not talking about the Eastern Pequots

and we are not talking about the Schaghticokes. I believe that you

are referring to the Golden Hill Paugussetts.

70

Mr. SHAYS. Correct.

Mr. BLUMENTHAL. And I want to just correct one point that Ms.

Rosier made, because she said there is a history of hostility or conflict, whatever word you used; I apologize, I don’t remember exactly. We actually have very cooperative and good relationships

with the tribes, two of them, that have been federally recognized.

I want to emphasize—and this point may be one of the most important that I make all morning—we never opposed the Mohegan recognition in the way that we have the Schaghticokes or the Eastern

Pequots. We never appealed that recognition decision, because it

was right on the merits, on the law and the facts. And there is not

a necessity for this kind of disagreement. I think it has to do with

the way this process has been broken and shows how it needs to

be fixed. I think it is a disservice to the relationship between

States and tribes because it aggravates those disagreements.

Mr. SHAYS. Let me just quickly ask two questions to the inspector general.

On page 2 of your testimony you say you found pressure had

been exerted by political decisionmakers in the OFA—Office of Federal Acknowledgment—team members responsible for making the

acknowledgment recommendations on the Connecticut Eastern

Pequot petition. What kind of pressure?

Mr. BLUMENTHAL. Congressman, as I recall, there was an awful

lot of harassment going on at the end of the administration. Some

of these team members were being told they had to do certain

things they weren’t comfortable doing. The delegations were being

rushed to judgment at the end of the administration. This was perhaps a week before inauguration. So there was an awful lot of pressure being put on these OFA team members.

And I might say these are, for the most part, very honorable people that work in this office. From my perspective, they seem to be

caught in this sort of perfect storm of emotion, politics, and big

money. And I think they do a good job, but there is an awful lot

swirling around them.

Mr. SHAYS. Well, it is important that be made part of the record.

Would you describe the elements and operation of your whistleblower protection program? Why didn’t the Department of the Interior have such a program before?

Mr. BLUMENTHAL. That is my office’s program. I don’t know why

the inspector general before me didn’t have it, but I certainly believe that people who come forward and want to tell the inspector

general something should be free from reprisal. And I do my very

best in each and every case. If I hear that, I step forward and address that with the Assistant Secretary or, if I have to, go right to

the Secretary about it.

Mr. SHAYS. Just two questions for you, Ms. Rosier. And I apologize, I have been calling you Rossier, and it is Rosier, correct?

Ms. ROSIER. It’s Rosier.

Mr. SHAYS. Rosier? OK.

How do you respond to the argument that the Department faces

an inherent conflict of interest and the BIA helps petitioners meet

recognition criteria through technical assistance and other means,

sits as the judge of what amounts to its own work produce, then

acts as a regulator of the tribes?

71

Ms. ROSIER. One example of how the Federal family has tried to

separate that conflict of interest is potential petitioners who are

seeking Federal funding for putting together petitions, they go to

the administration for Native Americans, which is outside of the

Department of the Interior. So we don’t provide any funding for the

petitions; we give them research, technical assistance.

Mr. SHAYS. But you are basically telling them how they can become a tribe through helping them, and then you basically are

passing judgment on whether they meet the criteria. Isn’t that a

bit of a conflict? It is nothing you established, but isn’t that process

a conflict?

Ms. ROSIER. I think our process is very rigorous and thorough.

Since we have had this process, we have acknowledged 15 groups.

Mr. SHAYS. That is not what I am really asking, though. If you

care not to respond to it, that is fine. But I am asking whether this

process, where you are actually helping them become a tribe

through assistance, and then you are passing judgment on whether

they meet the standard, is that not a potential conflict of interest?

Ms. ROSIER. We provide technical assistance to tribes every single day on a number of matters.

Mr. SHAYS. But the difference is you are giving them something

that in Connecticut makes them a billion dollar operation: you are

giving them sovereignty, you are passing judgment on whether

they meet the test, and you are helping them meet the test.

So, Mr. Blumenthal, how would you respond to that?

Mr. BLUMENTHAL. Well, as I have said in my testimony, I do believe there is an inherent conflict of interest. It is not the result

of some purposeful individual corruption, but it is inherent in the

assignment of two conflicting tasks to a single agency, and then

having that agency be beyond the normal rules of accountability

and transparency that would apply to an independent agency.

Mr. SHAYS. We wrote the law. You didn’t write the law, but it

strikes me as a tremendous conflict.

This is the last question, Ms. Rosier. How and when do you find

what financial interests are supporting recognition petitioners?

Would you like to know sooner? Would you like to be able to compel disclosure of all financial interests behind a petition?

Ms. ROSIER. Currently, right now, financial disclosure is not part

of the Federal recognition process. As I have discussed, it is an anthropological history and genealogical look at the entity. So, as of

right now we do not look at financial information unless it has

been voluntarily disclosed.

As for in the future, whether we would seek language or we

could be supportive of language that asks for financial disclosure,

I could not give official comment on that, but I will take that back

to the Department.

Mr. SHAYS. Thank you.

Is there anything that you all maybe spent last night thinking

about that we needed to ask that you want to put on the record?

Is there anything you don’t want to put on the record that we

should have asked?

Mr. BLUMENTHAL. If I may take that invitation, Mr. Chairman.

I didn’t start thinking about this last night, I have thought about

it for a long time, as you have too. But it follows the question that

72

you just raised. If this committee does nothing more than impose

rules of disclosure, it will have made a tremendous contribution.

And those rules of disclosure wouldn’t be novel or unprecedented.

They would simply require the kinds of information that are absolutely mandatory when dealing with other independent agencies

showing the kinds of financial details that are elemental and profoundly significant to this process.

You will hear, later, testimony about numbers of dollars that

have been invested by individual financial backers. That information comes from disclosures they have made themselves, not required by any government agency. And it doesn’t indicate second

and third and fourth levels of information about where they obtained that money, including other financial investors, and it

doesn’t relate to lobbyists. And so going back to Mr. Devaney’s

point, I think there, at the very least, ought to be clear, irrefutable

consensus that this kind of information, whether you call it registration or disclosure, clearly should be required.

Mr. SHAYS. Mr. Delaney, anything we need to put on the record

that isn’t put on the record? Anything you need to point out before

we go to our next panel?

Mr. DELANEY. No, sir.

Mr. SHAYS. Ms. Rosier, any comments?

Ms. ROSIER. No, sir.

Mr. SHAYS. We thank all three panelists for their cooperation. It

has been a longer morning, but I think we have learned a lot.

Thank you so much.

At this time, we will call Ms. Marcia Flowers, invite her to come

and testify. I would also invite Mark Sebastian to come and be

sworn in, as well, in case you want to respond to any question,

even though you don’t have a statement. I think that might make

sense, if you would like to.

If you would both stand, we will swear you in. And welcome to

both of you.

[Witnesses sworn.]

Mr. SHAYS. I will note for the record that both of our witnesses

have responded in the affirmative.

We may not have as many questions. I want you to feel, Chairman Flowers—and, Mr. Sebastian, you were former chairman, is

that correct? We are going to allow you to make your testimony,

and feel free to go over the 5-minute limit. I want to make sure

that you put on the record everything you want to put on the

record. And let us just see how that mic picks you up. If you would

lower it a little bit. Just tap it, I just want to see if it is on. No,

it is not on. OK.

Welcome. Thank you for being here. I want to say, again, you are

here, and we invited another tribe who decided not to be here. I

wish they followed your good example.

STATEMENT OF MARCIA FLOWERS, CHAIRWOMAN, TRIBAL

COUNCIL, HISTORICAL EASTERN PEQUOT TRIBAL NATION,

ACCOMPANIED BY MARK SEBASTIAN, FORMER CHAIRMAN

Ms. FLOWERS. Thank you. Thank you, Mr. Chairman, members

of the committee, and especially our Congressman from ConnectiVerDate 11-MAY-2000 12:42 Oct 20, 2004 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6633 D:\DOCS\95868.TXT HGOVREF1 PsN: HGOVREF1
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cut, Chris Shays, for inviting us to testify today on behalf of our

tribe, the Eastern Pequot Tribal Nation.

Before I begin, I would like to just, for the record, the Eastern

Pequot Tribal Nation has never filed a land claim. Another issue

that I have to bring up before I begin, the attorney general for the

State of Connecticut made a comment that the State did not appeal

the Mohegan decision. I have to point out, and I and Chairman

Brown speak of this often, the Mohegan tribe was detribalized in

the 1700’s, and when the tribes came back together in the 1970’s

under the Connecticut Indian Affairs Commission, all the five

tribes were in the five State recognized tribes. And I have to make

that point because the Eastern Pequot tribe never was detribalized.

And thank you for that statement.

I am here today to tell you about one tribe’s experience with the

recognition process. Our opponents try to keep the focus on casinos

and their impact, but my tribe is suffering a different impact: the

impact of unwarranted delays in the process. I don’t think anyone

here will claim the recognition process is working properly. When

the regulations were implemented in 1978, the process was to operate within 3 to 5 years. The Eastern Pequot Tribal Nation filed its

original letter of intent to seek recognition in 1978, 26 years ago.

We have traveled the path to recognition through five Presidential

administrations, seven Secretaries of the Interior, nine Assistant

Secretaries of the Interior for Indian Affairs, four State Governors,

and four State attorneys general. We have followed every step prescribed by the regulations, and we are still not done yet.

In your invitation to me to address this committee, you asked

about transparency. This process could not have been more transparent. Just look at our procedural history. After 3 years of active

review by the Bureau of Acknowledgment and Research, in March

2000, our petition received a positive preliminary finding.

Mr. Chairman, I must note, to clear for the record, that on the

Web site the tribe noticed that it was noted that we received a negative preliminary finding. This is incorrect. The Eastern Pequots’

petition received a preliminary positive and a positive on final, and

we would like that corrected. Thank you.

Mr. SHAYS. On the Web page of? I may have missed it. You said

on the Web page. On the committee’s Web page?

Ms. FLOWERS. Noted for this hearing on the resource.

Mr. SHAYS. OK. Thank you.

Ms. FLOWERS. Yes.

And I brought a copy of the Federal Register of our final determination. It does go over that. And I think Mark has a copy.

In a detailed 152-page decision of over 500 pages of exhibits,

BAR provided its analysis of our petition strengths and weaknesses. The regulations allow for a comment period for tribes and

all interested parties to respond to the preliminary finding. In our

case, the usual 6-month period was extended to 18 months. That

was because of a request filed by the Connecticut attorney general

and his demands through a Freedom of Information Act lawsuit.

During the comment period, the States and towns had open access

to the BAR staff and participated in a 2-day marathon technical assistance hearing. They grilled the staff about the process, our evidence, the BAR’s view of the evidence, and the grounds for the preVerDate 11-MAY-2000 12:42 Oct 20, 2004 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6633 D:\DOCS\95868.TXT HGOVREF1 PsN: HGOVREF1
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liminary decision. Without exception, they received every document

they requested. Nothing has been hidden.

The tribe ultimately submitted 566 pages of additional material

and nine boxes of exhibits in response to BAR’s comments. The attorney general and towns submitted a total of 879 pages of material.

After months of analyzing this information, BAR issued a positive final determination in 2002. We are the only tribe to receive

a positive preliminary and a positive final decision in the State of

Connecticut. As allowed by the regulations, the Connecticut attorney general appealed to the Interior Board of Indian Appeals. All

briefs in the appeal were completed in March 2003, and after 13

months we are still waiting for a judge to be assigned to our case.

You asked about integrity. Our opponents claim we have used inappropriate political influence in the recognition process. The Eastern Pequot Tribal Nation employs one lobbying firm in Washington, DC, whose principal role is to track legislation that might affect us. We pay our lobbyist $120,000 per year. We began our relationship with this firm during the Clinton administration, and it

continues today under the Bush administration. At no time have

we ever asked any lobbyist to try to influence the outcome of any

decision regarding recognition, and at no time has any lobbyist represented to us that they have any ability to do so.

We have met approximately once each year with the Connecticut

delegation and other leaders in Washington, such as Senator

Inouye and Campbell. These meetings have been arranged well in

advance and appear in public records. The only meeting we have

had with any Department of the Interior official in the past 2 years

was with then Assistant Secretary McCaleb, at his invitation, not

ours. At no time during any of these meetings have we asked any

elected or appointed official to influence the outcome of any recognition decision.

Political influence is at work here, but it is not being exercised

by our tribe. Rather, incredible influence is being brought to bear

by a small group of people whose real goal is to stop Indian gaming

in Connecticut. Mr. Benedict, for example, is representing a group

called Connecticut Alliance Against Casino Expansion. He has

raised millions of dollars and stages frequent public rallies against

casinos. In fact, Mr. Benedict himself, I believe, is a registered lobbyist. Elected officials in our State, paid by taxpayers’ dollars, have

appeared regularly at his rallies, claiming they oppose recognition

of our tribe, but really what they oppose is gaming. Elected officials

here in Washington have used their political influence and taxpayers’ dollars to introduce legislation that would halt recognition

decisions and stop us, even though we have faithfully followed the

regulations for 26 years. A recent example is the Connecticut attorney general’s unscheduled ex parte meeting with the Secretary of

the Interior on March 17th, where he specifically asked her to stop

recognizing tribes.

Our opponents have tried to delay us every step of the way. They

attack our recognition decision, most often using three arguments:

the so-called merger of two tribes, the claim that the Assistant Secretary overruled his staff’s recommendation, and the supposed reliVerDate 11-MAY-2000 12:42 Oct 20, 2004 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 D:\DOCS\95868.TXT HGOVREF1 PsN: HGOVREF1
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ance on State recognition used by the BAR in reaching our decision.

On the first issue, this is what the final determination actually

said, ‘‘This determination does not merge two tribes, but determines that a single tribe exists which is represented by two petitioners.’’

Regarding the second issue, the staff at the BAR simply has no

decisionmaking authority in this process. The Assistant Secretary

makes the decisions to issue a positive preliminary decision. In our

case, Mr. Gover’s decision in the Clinton administration was ultimately confirmed in the positive final determination in the Bush

administration. I am sure each of you has on occasion disagreed

with your staff.

Third, again quoting from the decision: ‘‘The continuous State

recognition is not a substitute for direct evidence. Instead, this

longstanding State relationship and reservation are additional evidence which, when added to the existing evidence’’—and I will

stress that, the existing evidence, which we submitted—‘‘demonstrates that the criteria are met at specific periods in time.’’

You asked about accountability. We have had to account for

every day of our history since 1614, to the BIA and the interested

parties. We have provided tens of thousands of pages of information documenting our petition. Many of these documents came right

out of the State archives and files. The interested parties received

each piece of our evidence and had the right to comment on them.

All that material, including the comments, has been reviewed and

analyzed by a team of highly qualified professionals to reach a final

decision of almost 200 pages detailing the evidence that demonstrates our tribe meets the seven criteria. We have been accountable for every professional we have hired and every source of information we have used. The very nature of the recognition process

mandates accountability, especially for tribes whose first contact

dates back into the 1600’s.

Unlike many of the western tribes, the eastern tribes never entered into treaties with the United States, so they do not have

automatic access to Federal programs. Instead, they had relationships with the colonies before this country was even formed. The

colony of Connecticut established the Eastern Pequot Reservation

in 1683, and it remains one of the oldest continuously occupied reservations in the country. The State took over the relationship with

our tribe in 1784, and that protected relationship continues to

today. The recognition process adopted in 1978 was designed to

give tribes like ours the opportunity to gain access to Federal, social, health, and educational programs that were established for

our benefit.

When we started this process in 1978, there was no Indian gaming. The Indian Gaming Regulatory Act was not passed until 1988.

Mr. SHAYS. I am going to let you finish your statement, even

though we are going on. But I want you to read a little faster.

Ms. FLOWERS. OK.

Mr. SHAYS. I don’t usually do that; I usually tell people to slow

down. I want your entire statement. You want to deliver it; I want

it delivered. I want it quicker. Just read a little more quickly.

Ms. FLOWERS. OK.

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The Indian Gaming Regulatory Act was not passed until 1988,

10 years after we first applied for recognition. In 1978, our tribe

had no money, no expertise, and no access to the professionals who

could help us. We did the work ourselves, holding bake sales, car

washes, and selling our crafts to scrape together the money to file

our first petition. We learned quickly that we needed substantial

professional assistance to get through the process.

With the introduction of Indian gaming in Connecticut, and the

opening of the first casino in 1993, the landscape changed completely. IGRA allowed an investor to get a realistic return on the

very high-risk funds tribes need to hire a team of professionals to

help them with the recognition process. Whether we wanted a casino or not, we had no other way to find the funding to hire the

best historians, genealogists, anthropologists, and lawyers.

You asked about the cost. Beginning in 1993, our tribe entered

into a series of arrangements with investors who agreed to finance

our recognition efforts in return for future casino management fees

as provided by IGRA. Through 2000, this financing totaled approximately $5 million. In 2000, we entered into our current development agreement with Eastern Capital Development of Southport,

CT, a group of private investors, none of whom have any ties to the

gaming industry.

Mr. SHAYS. But just happen to live in my district.

Ms. FLOWERS. I confirm to you that they do not employ any other

lobbying firms.

To date, they have loaned our tribe about $11 million. Approximately 70 percent went directly to our effort to meet the recognition criteria. The professional team includes a set of lawyers to coordinate the research on our petition and ensure regulatory compliance, other lawyers to represent us in court suits filed by the attorney general, and a third group of lawyers to coordinate the attorney general’s IBIA appeal. The team that helped us compile our petition includes six senior researchers in anthropology, history, and

law—four Ph.D.s, two LLDs—two research assistants, two genealogists, and an archivist. This team has worked continually since

1997 to meet the challenges, requirements, and scope of the recognition process and accounts for most of the expense.

In all this time, with all their rhetoric, our opponents have not

submitted one shred of evidence that disproves our right to recognition. Without such evidence to stop our recognition, those who want

to stop us from building a casino have no tactics left other than

delays, confusion, and distortion. Years ago, our opponents received

one piece of advice from their lawyers that they have taken to

heart: the best way to stop a casino and land claims is to stop a

tribe’s recognition; and the best way to stop recognition is to derail

the process. Recognition does not automatically create a casino.

There are many steps along the way where the State’s and towns’

concerns about gaming will be properly addressed. We have to go

through a rigorous approval process before we can even dream

about a casino. We must take land into trust and negotiate a gaming compact, which in our State requires the ratification of the full

legislature. Both of these also mandate extensive public participation.

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I don’t think a wholesale restructuring of the process needs to

take place. The process is thorough, transparent, and has provisions for adequate accountability. What must happen is that the

BIA must be given additional funding to increase its staff so they

can deal with the tremendous backlog of recognition decisions. The

IBIA needs similar resources to help them deal with the many complicated cases they review.

This committee should not confuse opposition to gaming with the

need to improve the recognition process. Congress should not take

away any tribe’s right to Federal programs to satisfy a small group

of people fundamentally opposed to gaming. After all, the two casinos in Connecticut employ over 20,000 people and pay the State

over $400 million per year.

Many people have complained that this process is not fair. Please

focus on these statistics: since September 2002, when the Connecticut attorney general filed the appeal against our final determination, 154 decisions have been issued by the Interior Board of Indian

Appeals. Of those 154 cases, 95 were filed after ours. Once again,

95 of the 154 decisions were for cases filed after ours. And we are

still waiting.

Again, thank you for giving me the opportunity to speak to you

today, and I would be happy to answer your questions.

[The prepared statement of Ms. Flowers follows:]

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Chairman TOM DAVIS. I want to thank you. Your statement is

pretty comprehensive. I think you make a very strong argument for

your case. I might disagree with a number of points. I do want to

say, though, that I think you have put on the record what you

wanted to put on the record. Is there anything else before we go

to the other panel that we have?

Is there anything, Mr. Sebastian, that you would like to just say

for the record? Not a statement, but any general comments? A

statement would be fine, but not a long statement.

Mr. SEBASTIAN. We have some documents we would like to submit for the record, a resolution from the National Congress of

American Indians in support of the Eastern Pequot Tribal Nation

and a State of Connecticut General Assembly report from David

Leff, a senior attorney to Honorable John Thompson in regard to

the dispute between the tribe and the ruling that the State of Connecticut General Assembly that there was one tribe in 1989.

Mr. SHAYS. Well, we will put those in the record, if you would

like. Any other document for the record?

Mr. SEBASTIAN. And just a list of the cases that were assigned

after our IBIA appeal and that have been resolved.

[The information referred to follows:]

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Mr. SHAYS. Let me just suggest this to you so we are fair to you

as well. We are going to go to the next panel, but if you would like

to, after they have testified, if you would like to come up and respond to something you have heard, then we can question you

about that particular issue. So I don’t want you to interpret our

lack of questions as being a lack of respect. We want you to participate in our process. You said you would like to testify separately,

and we respected that. So what I will do is I will swear in the next

panel. If there is something, after they have made their statements

and we have asked questions, that you want to insert or respond

to what you have heard, then we will question you about that. Does

that seem to fit your need as well?

Ms. FLOWERS. That will be fine.

Mr. SHAYS. That will be our need, because we are going to have

a vote at 2, and we are going to really try to get to this next panel.

Ms. FLOWERS. OK, thank you.

Mr. SHAYS. Thank you so much.

At this time, the Chair would recognize our next panel. It is the

Honorable Mark Boughton, mayor, city of Danbury, CT; the Honorable Rudy Marconi, first selectman, town of Ridgefield, CT; the

Honorable Nicholas H. Mullane II, first selectman, town of North

Stonington, CT; and Mr. Jeffrey R. Benedict, Connecticut Alliance

Against Casino Expansion.

Gentleman, we will invite you to stay standing and I would like

to swear you in. Raise your right hands.

[Witnesses sworn.]

Mr. SHAYS. Note for the record our witnesses have responded in

the affirmative.

First Selectman, is it Mullane? I want to make sure I am pronouncing your name correctly. Is it Mullane?

Mr. MULLANE. Mullane.

Mr. SHAYS. Mullane. And I want to say to you that we have had

many contacts, and I introduced and spoke well of the two elected

officials closest to the Fourth Congressional District, but I do need

to put on the record you are probably the most knowledgeable of

anyone at the table about these issues; you have been fighting

them for so many years, as I think both Mark and Rudy would

agree. And so you do honor the committee as well, and I should

have certainly recognized your incredible contribution over so many

years. You have been fighting a long and lonely battle, and I think

our two mayors on your right are hoping they don’t have to go

through the same process.

So, with that, Mayor Boughton, welcome.

I am going to ask that your testimonies be 5 minutes. If you trip

over a little bit, we can live with that, but it would be nice if we

could stay within the 5-minute area. Thank you.

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STATEMENTS OF MARK D. BOUGHTON, MAYOR, CITY OF DANBURY, CT; RUDY MARCONI, FIRST SELECTMAN, TOWN OF

RIDGEFIELD, CT; NICHOLAS H. MULLANE II, FIRST SELECTMAN, TOWN OF NORTH STONINGTON, CT; AND JEFFREY R.

BENEDICT, CONNECTICUT ALLIANCE AGAINST CASINO EXPANSION

Mayor BOUGHTON. Thank you, Mr. Chairman. Let me just thank

you for inviting us down here to testify today on a very important

issue, and, on a personal note, we have often talked and I don’t

know if you remember that I was your intern, when I was in high

school, in the legislature. You did a great job then; you are doing

a great job down here.

Mr. SHAYS. Well, you did a great job then and you are doing a

great job now.

Mayor BOUGHTON. I learned from the master.

Mr. OSE. Is this for the record?

Mr. SHAYS. This is definitely for the record. He is under oath.

Mayor BOUGHTON. That is right.

In addition, Congressman Simmons and I have worked together

closely when I was in the legislature as well in Connecticut, and

it is ironic that, today, the closing day of the legislature, we are no

longer having this debate regarding Indian recognition in Hartford,

we are now having it here in Washington, DC.

I want to just address one quick comment that Ms. Rosier made

when she was here. It is unfortunate she couldn’t stay, but she

made the comment about how, in other communities in other

States, the Native American tribes and the States and the local

municipalities are working together to address some of those

issues, and I think that really is the underlying fundamental flaw

of this process. It really underscores the challenge that we face, because, in Connecticut, we are a geographically small region, and

because of that the recognition of a tribe has a much greater impact when you have more tribes in a small region. So we are not

talking about the west or the southwest, where there are literally

hundreds of thousands of acres in various States and it is not a big

deal. In Connecticut it is a big deal because this State, my State

is rapidly approaching the point where we will be four or five sovereign nations in a very tight geographical area that will ultimately run every aspect of our lives: our culture, our politics, our

industry, ultimately our sense of identity of who we are as a community. And that is really the problem for us, is how do we juxtapose the right of the Native American peoples to right a wrong

that they have had over history, along with the huge forces that

are engaged here in the gaming and gambling industry, and, of

course, that is your problem that you have to deal with here.

Briefly, I want to mention just two issues. My testimony is on

the record and everybody has had an opportunity to read it, but

two issues that strike me as being somewhat challenging for all of

us. The first is the issue of curing the deficiencies mentioned again

by Ms. Rosier when she was here earlier in the day. This, to me,

is mind-boggling and baffling the way the process works. And being

an ex-history teacher and somebody who taught high school, the

only way I can really look at this is that it is analogous to giving

a test to a student, in this case recognition. You get back the test

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with a failing grade, you say you didn’t make it, you failed. You

then go give the tribe the answers to the test. They turn the test

back in and they fail again. Then you go to your colleagues, your

fellow teachers and you say, hey, how do I give these people a passing grade? Tell me how to get there from here.

And that is ultimately what happened within the BIA. And we

know that because of that internal memo that was circulated

throughout the State and ultimately down here. They admit, the

BIA admits this tribe does not meet the seven criteria. And in

other cases of recognition, not meeting those two standards has

been fatal to an application process. Those tribes were not recognized. And so for us to now turn around and do a 180 and say now

you do become a tribe clearly is troubling for all of us. So the process in itself is absurd, and this issue of being able to cure the deficiencies, in my estimation, is absurd as well.

I think the other issue that we have to look at is what prompted

the sudden change of heart by the BIA. Why would an organization

ignore the very rules that has promulgated to arrive at a conclusion in its final determination that was different than one that was

articulated in the preliminary determination? And for municipalities, we have to ask the question what is the point of having rules

if we are not going to follow them? The rules become a moving target. We have talked about transparency today. There is no transparency because we have nothing to look at because the rules

change every time we try to address them. So for my municipality

and other municipalities dealing with this issue, the challenge for

us is that, amongst all the other things we have to deal with, we

now have to deal with a process that is undefined, open-ended, and

in some cases has been in unchartered territories.

The other issue I think that merits discussion a little bit today

is the post-recognition period. In the case of the Eastern Pequots,

we are in a twilight zone, as a previous speaker has mentioned. We

are not quite sure where we are because nobody has ever appealed

the recognition of a tribe before. But the post-recognition of a tribe

that proceeds to open a casino is really where the dollars are generated. Once the gaming operations have begun, as I mentioned in

my opening comments, that is when life changes as we know it.

And, in Connecticut, because, again, of our small geographic region,

there will be a totally different way of life throughout the State of

Connecticut if these tribes are allowed to go forward and open casinos. So I think it is critical that discussion happen.

I know it is important to talk about people like Fred DeLuca of

Subway Sandwich Shops, or Donald Trump of the recent Apprentice fame, or Thomas Wilmot, a New York mall developer who has

bankrolled these tribes, but ultimately it is the fallout of the tribes

that we have to deal with in our municipality; and what do we do

with issues like annexation, that we talked about earlier.

So those are some things that I think we should be discussing

today, and I ask that you consider legislation that would gain control of this process. We mentioned some thoughts already today.

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Take the seven criteria, make them Federal law so that we don’t

have a moving target any longer, and then certainly ask to help us

participate in the recognition process by making these changes.

Thank you.

[The prepared statement of Mr. Boughton follows:]

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Mr. SHAYS. Thank you.

The Chair would now recognize the first selectman of Ridgefield,

Rudy Marconi, who happens to be one of my 600,000 bosses.

Mr. MARCONI. And we represent a lot of people here today collectively. And thank you, Mr. Chairman, for inviting me here today

to submit the following testimony on the Bureau of Indian Affairs

Federal recognition process.

As the first selectman of Ridgefield, CT, a town of 24,000 people,

I sit here today to ask you to consider a reform to the Federal recognition process. Over the past 2 years, our municipality, along

with many others in the State of Connecticut, has spent considerable amounts of money in an effort to be heard in an otherwise broken process. I ask all of you why? Why isn’t a city or a town notified and asked to participate in what I thought was an open and

honest process, especially a decision that can have as serious and

as long-term consequences as the BIA’s recognition of the

Schaghticoke Tribal Nation.

State and local governments work diligently to solve problems

such as traffic, housing, education, and other quality of life issues

that seriously impact our budgets. In one unjustified, ill-advised

decision, the BIA has laid the foundation to destroy the quality of

life that we have worked every day to preserve, without even asking for our thoughts. How can this system be permitted to continue

without a serious overhaul?

In Chairman Davis’ cover letter, he asked that I focus my comments on the integrity, transparency, and accountability of the recognition determinations. On integrity, there is no integrity in the

system. Call it what you want, unimpaired, sound, honest, moral,

trustworthy. It just doesn’t exist. When the decision was made to

recognize the Schaghticoke Tribal Nation, even though, ‘‘evidence

of political influence and authority is absent or insufficient,’’ and

even though a substantial and important part of its present day social and political community are not on the current membership

list, the decision lacks integrity.

On transparency, under no circumstances can anyone believe the

Schaghticoke decision to be clear, obvious, or easily understood. At

no time did the petitioner satisfy in total the seven mandatory criteria for recognition that should be enforced and relied on in the

process. Instead, the decision was made to be, ‘‘consistent with the

intent of the acknowledgment regulations.’’ However, the regulations provide that a petitioner shall be denied if there is insufficient evidence that it meets one or more of the criteria. As a result,

one must conclude that this decision is fraught with confusion and

contradictions.

Accountability, a word that has been used by all of us during

campaigns and promises to the people who elect us. The BIA must

be held accountable for their decisions. As it exists now, they are

accountable to no one. We now, as interested parties, must spend

precious taxpayer dollars to protect our rights and to protect our

quality of life. We must exhaust every appeal and whatever other

legal remedy may exist to prevent the occurrence of another casino

in Connecticut.

In previous testimony, an internal BIA memo has been cited, ‘‘acknowledged the Schaghticoke under the regulations, despite the

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two historical periods with little or no political evidence.’’ Ladies

and gentlemen, this is exactly what has been done, and I ask you

who will be held accountable for this decision, an action that is in

direct violation of the regulations and can set a precedent for future petitions. The people who elect us expect and, in fact, demand

that we, as elected officials, place integrity foremost in our responsibilities to them. They ask that we at all times be honest and clear

with our decisions and open to the public. And, finally, we are required to be accountable to them, the residents and the taxpayers,

so why is it unusual to expect this of any other government agency? Thank you.

[The prepared statement of Mr. Marconi follows:]

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Chairman TOM DAVIS. Thank you very much. You ask some very

important questions that we need answers for.

First Selectman Mullane, thank you.

Mr. MULLANE. Thank you for having me here today. I really appreciate this opportunity. Mr. Shays, I want to thank you, Rob

Simmons. Mr. Ose, I want to thank you. I made a few comments

in front of your hearing 2 years ago, and I appreciate the effort you

are making today to hear a subject that is very important to all of

us.

There is talk about casinos, there is talk about impacts. My first

issue with this subject is in regard to creating a tribe and a sovereign nation and granting land claims. There is nothing more important and significant to me and my town than that.

I testify also today on behalf of Susan Mendenhall, mayor of

Ledyard, and Bob Congdon, first selectman of Preston.

I am going to try to jump around and not repeat some of the

things that have already been said, and I want to talk about the

tribal recognition that is under appeal, the Historic Pequot Tribe.

And of yesterday there was an appeal filed for the Schaghticoke.

The historic eastern acknowledgment is a combination of petitioners from two groups, both of whom are longstanding rivals of

each other. This is an unprecedented and unwarranted acknowledgment. If I look at the decision, I have to go back to comments

that were made in the Department of the Interior Office of Inspector General, and this is some comments by Mr. Gover. The relationship between Gover and the BAR staff was strained from the

beginning. Shortly after being appointed, Gover held a meeting

with the BAR staff in which he said acknowledgment decisions are

political. Our staff considered this an indication of how the Assistant Secretary would rule on findings. BAR and the solicitor who

advises them were convinced that Gover did not like the regulatory

process set forth and, as a result, would base his acknowledgment

decisions on his personal interpretation of the regulations.

When Gover did issue his decisions regarding the Eastern

Pequot, the Paucatuck Eastern Pequot, the Little Shell Chinook,

contrary to the recommendations of BAR, the BAR staff issued a

memoranda of nonconcurrence for each of the four decisions. BAR

had never before documented its disagreement with an Assistant

Secretary.

His additional comments, I will skip those, but what I want to

do is go on and say how do we fix it. True reform must be more

meaningful than streamlining. This committee is considering a series of measures, some of which have been introduced by members

of the Connecticut delegation to address the shortcomings in the

process. Few doubt the need for reform, but the details of actual

reform remain in doubt. As a result, we offer five principles of reform to the acknowledgment process.

First, it is our position that Congress alone has the power to acknowledge tribes. It has never been delegated that power to the executive branch, the BIA, nor has it set standards for the BIA to

apply in carrying out that power. If Congress must decide who

should make these decisions, they have to set rigorous standards,

ones that are strict, that cannot be violated, manipulated, moved,

or changed.

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Second, the acknowledgment process has to be procedures which

have been invented by the BIA do not provide an adequate role for

interested parties, nor do they ensure objective results.

Third, the acknowledgment criteria must be rigorously applied.

Fourth, if Congress is to delegate the power of acknowledgment

to the executive branch, it should not delegate that authority to

BIA. The BIA process has evolved into a result-oriented system, at

the minimum, which is subject to bias inherent by having the same

agency charged with advocating the interest of Indian tribes, also

make acknowledgment decisions. The process is also subject to political manipulation. An independent commission created for this

purpose would have the same shortcomings unless checks and balances are imposed to ensure objectivity, fairness, full participation

by all interested parties and the absence of all political manipulation.

Fifth, because of the foregoing problems, it is clear that a moratorium is needed to be able to establish a proper process. There

was a bill, S. 1392, which was a good start. There was another one,

1393, which contains some essentials. Still, I believe that there has

to be an ongoing dialog between the towns, the State, the Federal

Government that ultimately result in a fair and objective and, most

important, a credible system.

I want to comment on one aspect, which is the procedure itself.

I frequently hear the complaint, and I heard it today, raised by the

petitioners over how long it takes to achieve a final decision and

how much it costs. My town has spent $545,000 over an 8-year period of time. The time and cost of government procedures is a legitimate concern; however, I must note that the time problem is

less than that of the Federal Government and more that of the petitioners themselves. These petitioners groups take years to develop their argument. For example, the Eastern Pequots spent 17

years developing for their case of acknowledgment; the

Schaghticokes took 19. To a large extent, this appears to have been

the result of millions of dollars spent on researchers, attorneys, lobbying, media consultants, and so forth, who are searching high and

low for every available means to make a deficient tribal acknowledgment claim and establish the basis for positive results.

With the massive infusion of money and resources from petitioners’ side, voluminous records are produced that are almost impossible for other parties to deal with or, for that matter, BIA. The petitioners’ comments are it’s all there, you just don’t understand. Although I am not a defender of BIA and its approach to tribal acknowledgment, we must all recognize that a significant part of the

problem comes from the petitioners. And what is most frustrating

is the supposedly last piece of necessary evidence to complete an

application is submitted in the last petitioner’s comment period,

when no one else can challenge the credibility of that evidence.

[The prepared statement of Mr. Mullane follows:]

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Chairman TOM DAVIS. Thank you very much. I know there is a

lot more you can say; you have such a wealth of experience and

knowledge. Thank you.

Mr. Benedict, you are the closer here. Then we will get to questions, and we will start with Mr. Ose when you are done.

Mr. BENEDICT. Mr. Chairman, thank you. I appreciate the opportunity to be here today, to be under oath, and to be part of this

panel. I want to say at the outset that I also have submitted written testimony, and ask that it be added to the record. And, Mr.

Chairman, I also request the opportunity to submit an addendum

to that, which would be some source notes to go along with it.

Mr. SHAYS. We welcome those.

Mr. BENEDICT. I have asked for some easels. Is it possible to

have those?

Mr. SHAYS. Sure.

Mr. BENEDICT. Thank you.

Let me just say at the outset that I am an author and a lawyer,

and I am the head of the Connecticut Alliance Against Casino Expansion, which is a nonprofit that was created in Connecticut less

than 2 years ago. To clarify for the record, we have not raised millions of dollars. I wish we had. We are nowhere near that. It is

public record that we have raised about $250,000 in a little less

than 2 years.

However, there are some people in this room that have raised

millions of dollars, and that is going to be largely the subject of my

testimony today.

I have a statement that I prepared last night to read today,

which I am going to set aside, having made some observations in

the room today that I think may be more pertinent than the remarks that I prepared.

Mr. SHAYS. Your statement will be part of the record. And it

makes sense, you have been here, so why don’t you comment on

what you have seen and heard?

Mr. BENEDICT. I appreciate that.

Observation No. 1 is who is not here today, which I think is perhaps more profound than anything that has been said here today,

which is that, No. 1, there are no investors in tribal recognition

present. Some were invited; they declined. There are many more

that could have been invited and weren’t.

No. 2, there are no lobbyists working on behalf of those petitioning for tribal acknowledgment present. I was glad to hear, at the

outset of the hearing today by Chairman Davis, that this is the beginning, and not the end, of this committee’s work, because I think

the groundwork has been laid here today, and really the answers

that ultimately we need to get to are in the hearts, minds, and wallets of those who are not present today.

Observation No. 2 is that there has been little or no mention

today of the Indian Gaming Regulatory Act [IGRA]. There has been

a lot of discussion about tribal acknowledgment. IGRA and tribal

acknowledgment are joined at the hip, they are inseparable at this

point, and it is somewhat wasteful to discuss reforming the acknowledgment process without also discussing the need to reform

the Indian Gaming Regulatory Act. And I would like to sort of

move in that direction rather rapidly.

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The Indian Gaming Regulatory Act was passed in 1988, as we all

know. At that time there were two States in the country that had

State-sanctioned casinos, they were Nevada and New Jersey. The

premise of the Indian Gaming Act was twofold: No. 1, it was designed to clarify and set standards for gambling on Indian lands,

simply put; and No. 2 was the premise that tribes that existed in

States that permit gambling should be provided the same opportunity on their lands if they are in those States. You could assume

from that if you were a tribe that lived in Nevada at that time, you

would be able to have the full gauntlet of gambling offered on your

reservation under IGRA. You could also presume from that, if you

were a tribe in Utah at that time, you would be allowed to do no

gambling, from bingo to lottery to casinos, because none is permitted under State law.

IGRA has become a runaway train. It is the law of unintended

consequences. It arguably is the worst piece of legislation to come

out of this Congress in 20 years because its drafting has been so

vague and created such gaping holes that have been left to the

courts to interpret that we have seen a country go from two States

with legalized casinos in 1988 to a country with 31 States with

over 300 casinos now in operation. California alone, as Mr. Ose

probably well knows, has had over 50 casinos go up since IGRA

was put into law. The State of Connecticut has two casinos that

draw over $3 billion a year. There is no coincidence that California

and Connecticut lead the way in tribal recognition petitions per

capita. Those are the two most lucrative gambling markets in the

United States today; Wall Street says it and the evidence is therein

the outcome of those casinos. And now there are over 50 petitioners

in California and a dozen in Connecticut seeking the right for recognition, which now carries with it the right to build a casino.

Let me just move to these charts very briefly. I see how much

time is left, and I don’t want to use it up.

These charts point to four names. They are well known, particularly in our State, but nationally. Donald Trump, who we know is

a casino mogul. In court papers he has confirmed that he has invested $9 million in backing the Paucatuck Eastern Pequots. The

Subway Sandwich founder, Fred DeLuca, has admitted publicly

that he has invested $10 million in the Schaghticoke petition. Developer Thomas Wilmot has said he has spent $10 million backing

the Golden Hill Paugussetts; and now a new person, Lyle Berman,

who is the CEO of Lakes Gaming, Inc., a publicly traded company

on Wall Street, has said just in the last couple years he has spent

$4 million.

This is a grand sum of $33 million invested in the tribal recognition process, just four cases. We have heard evidence today that

there are close to 300 petitions pending, two-thirds of which are

backed or bankrolled by gambling interests. This is not designed to

just say $33 million is a big deal. This is to give you a snapshot

of just four cases in our State.

The chairman asked at the outset what can be done, and let me

close with just a couple of suggestions on reform.

No. 1, and I don’t mean to be glib when I say this, but it is time

for Congress to tell Donald Trump you are fired from the Indian

gaming process.

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Mr. SHAYS. You are a writer, aren’t you?

Mr. BENEDICT. I am a writer.

This guy has been busy in more than Connecticut influencing

this process, and let us recall what he told the U.S. Senate in this

town just a few years ago. He got up and testified and said something about the Mashantucket Pequots not being true Indians and

operating a very profitable casino. There is one thing he and I

agree on in this world, and that is that the Mashantuckets are not

a legitimate tribe. But the rest of what he has done since then is

adopt an ‘‘if we can’t beat them, join them’’ approach. He pumps

$9 million into the State of Connecticut hoping to get a casino license that he can’t get any other way. His lawsuit filed in New

London County makes very clear there is a deal struck between

him and the Paucatucks that he would be the developer of this casino and he would advance, front the money in hopes of getting

that opportunity.

Second, it is, I think, incumbent that we also look at IGRA and

the need to tighten up this legislation. It is time that we look at

what was the original intent of this law. Was it designed to create

a vacuum for guys like Donald Trump and Fred DeLuca and Thomas Wilmot to jump into? No. It was designed to create an equal

footing for the existing Indian tribes that were in America in 1988.

What we have seen is a gold rush literally of applicants and of investors getting behind them.

Third, it is essential that we know more. There are a lot of bright

lights here today, and I will tell you quite seriously I am glad we

are in the light right now. And I mean that very candidly. We need

lobbyists in the light. I would like to know what justifies paying

someone like Ronald Kaufman $600,000-plus to lobby for the

Pequots. I would like to know what Mr. Paul Manafort has been

doing. He has not registered a lobbying report that I am aware of

that shows what he has been doing for the Schaghticokes. It is

time that this committee ask those questions. Why does it take $9

million? And don’t tell me that it takes $9 million to do research.

The State of Connecticut has been doing it on a dime for 10 years.

It doesn’t take $10 million to hire researchers. But it does take $10

million to hire real estate searchers and lawyers and lobbyists, and

those who work influence. And I think we will not have real reform

until those men are brought in here, raise their arm to the square

and under oath ask and answer some very serious questions about

what they have been doing with their money, where it has come

from, and what it has been used for.

Thank you very much.

[The prepared statement of Mr. Benedict follows:]

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Chairman TOM DAVIS. Thank you all very much.

And with that, I will recognize Mr. Ose for as much time as he

would like to consume.

Mr. OSE. Thank you, Mr. Chairman.

Mr. Marconi, your testimony on page—I don’t remember what

page it is, but you have a couple comments in there. You say the

system is not sound, it is impaired, it lacks integrity.

Mr. MARCONI. Yes.

Mr. OSE. What exactly do you mean?

Mr. MARCONI. The way in which the decision was arrived at, the

fact that despite the fact that the seven criteria were not met, that,

in fact, a rationale was used to substitute for these recognitions.

That is what I mean.

Mr. OSE. And the examples you are citing related to the approvals granted at the end of the previous administration or have there

been other examples you are referring to?

Mr. MARCONI. What I am referring to is the internal memo from

the OFA that we received a copy of.

Mr. OSE. Dealing with the recognition process?

Mr. MARCONI. Dealing with the recognition process of the

Schaghticoke Tribal Nation.

Mr. OSE. OK. So STN’s application, is that one of those that was

approved in the waning days of the previous administration?

Mr. MARCONI. Can you repeat that, please, it was approved

when?

Mr. OSE. Is that one of the applications that was approved in the

waning days of the previous administration?

Mr. MARCONI. No.

Mr. OSE. So this is a problem that is not——

Mr. MARCONI. Today.

Mr. OSE [continuing]. Administration-based from past history,

this is something that did exist, it exists now, according to your

testimony.

Mr. MARCONI. That is my testimony.

Mr. OSE. So something that is with us now.

Mr. MARCONI. Yes.

Mr. OSE. All right.

Mr. Benedict, someone whispered in my ear in your testimony

you mentioned these four individuals and the legions of lobbyists,

registered and otherwise, that they use to implement their plans.

Are you a registered lobbyist?

Mr. BENEDICT. I sure am. I am registered under State law in

Connecticut. In our State, that filing is done with the State Ethics

Commission. I am the head of a 501(c)(4). We are authorized to

lobby in our State. And as the only full-time paid employee of the

organization, I am registered. I am also registered here as of just

recently.

Mr. OSE. I would be asking these questions of legions of representatives of these people. The name of your 501(c)(4) is?

Mr. BENEDICT. The Connecticut Alliance Against Casino Expansion, Inc.

Mr. OSE. The contributors to the Connecticut Alliance

Against——

Mr. BENEDICT. Casino Expansion.

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Mr. OSE. Gaming Expansion?

Mr. BENEDICT. Casino Expansion.

Mr. OSE. Casino Expansion. The financial contributors to that

are whom?

Mr. BENEDICT. Excuse me?

Mr. OSE. Who are the financial contributors to your 501(c)(4)?

Mr. BENEDICT. Sure. It is fairly easy to distinguish who they are.

No. 1, we are funded by SAICA, the Southeast Area Industry and

Commerce Association, in Stanford, CT. We have received funding

from a large number of citizens of Connecticut, in the hundreds.

Those donations range from $5 to the largest was $10,000. We have

also received a limited number of contributions from chambers of

commerce and some other civic organizations in the State of Connecticut, the largest being $10,000.

Mr. OSE. Your annual budget for the 501(c)(4) is what, how

much?

Mr. BENEDICT. The annual budget? We have only been in existence for 18 months, and we have raised a total of $250,000, give

or take a few, in that 18-month period. Our opening year budget,

we didn’t hit it, not even close, but we were hoping to raise and

utilize roughly $250,000 in that first year. We didn’t raise that

much and we didn’t spend that much because we didn’t have it.

Mr. OSE. This organization you referred to as SOICIA.

Mr. BENEDICT. SAICIA, S-A-I-C-A.

Mr. OSE. S——

Mr. BENEDICT. A-I-C-I-A.

Mr. OSE. Southwest Area——

Mr. BENEDICT. Commerce and Industry Association.

Mr. OSE. Now, that is a Connecticut-based organization?

Mr. BENEDICT. It is.

Mr. OSE. OK. The $250,000 budget over the past 18 months, how

much of that has come from SAICIA?

Mr. BENEDICT. We received an initial installment, a total of my

memory is $60,000, and those were made in monthly increments,

I think 10,000 a month. We have recently received an additional

installment from SAICIA within the last 2 to 3 months, and I think

that total, I would have to check, but I think it was $25,000.

Mr. OSE. I want to compliment you on your willingness to put

that on the record in this environment. We have a serious problem

in getting people to disclose who their financial backers are, and

I can guarantee you, as we pursue this, I am going to be asking

the same questions of the other parties, and it will be interesting

to see, at that time, whether or not they are as forthcoming as you

have just been.

Mr. BENEDICT. Well, thank you. And I will go one step further.

I would be happy to supply this committee with our budget and the

documents that you want about our organization. We would be

happy to provide that.

Mr. OSE. I think, Mr. Chairman, that would be an interesting

standard to lay down on the table for everybody else to comport

with.

So with the chairman’s concurrence, we will accept your offer.

Mr. BENEDICT. Thank you.

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Mr. OSE. Now, you mentioned two names. You mentioned a Randall Kaufman and a Paul——

Mr. BENEDICT. Manafort.

Mr. OSE. How do you spell that?

Mr. BENEDICT. M-A-N-A-F-O-R-T.

Mr. OSE. Manafort. Is that Charles Manafort? Are Kaufman and

Manafort lobbyists?

Mr. BENEDICT. That is a word you could use, but——

Mr. OSE. Well, what word would you use?

Mr. BENEDICT. Power brokers.

Mr. OSE. Based here in Washington?

Mr. BENEDICT. Based here in Washington.

Mr. OSE. OK. Now, they are power brokers in what sense?

Mr. BENEDICT. Well, I guess in the crudest sense. There are reasons that one individual can attract a fee of $600,000 to monitor

legislation. That is a lot of money to look at what is in the pipeline.

I do that for our organization, and I get paid $75,000 a year, and

have many other things. And I think what is going on here, Representative Ose, and let us be clear, this is not new to this administration.

Mr. SHAYS. Could the gentleman just suspend a second?

But we are really talking about something more than just legislation. You are talking about lobbying the administration, in other

words, what do they do for that money.

Mr. BENEDICT. That is right. You know, there has been the specter raised here today and prior to today that there is influence

being brought to bear to influence the outcome of these decisions,

and I don’t dispute that; I am one of the ones who has been saying

that the most. But I also think in this town there doesn’t always

have to be the overt arm-twisting and influence-peddling to get a

message across, and there are times, and we saw this in the prior

administration, in the Clinton administration.

I wrote an entire book about this, which largely looked at the

Clinton administration and the massive sums of money that were

contributed to the Clinton administration by the Mashantucket

Pequot Tribe, the owners of Foxwoods. There was no evidence that

that tribe or the money that they contributed led to a direct quid

pro quo, yet it was very obvious that the Bureau of Indian Affairs

was churning out decisions on your question: Can a tribe attempt

to attach land to its reservation? And the administration did it

without any reason to do it. And this tribe had given enormous

sums of money to the Clinton administration. There was a tradeoff.

I think when you are giving that much money, when you have

that name, you don’t necessarily need to call somebody up and tell

them what to do; they get the message because the money is big

enough.

Mr. OSE. I want to continue my line of questioning, if I might.

So is it your testimony, without sharing or presenting empirical

evidence, that decisions are being unduly influenced in this process

by virtue of activities of the lobbying corps in this city?

Mr. BENEDICT. My testimony would be, Mr. Ose, that I don’t see

how lobbyists like that could not have an influence in the process.

Do we have direct evidence that they have made improper contacts? No. But I think that is one of the biggest problems here, is

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we need to ask what are you doing as a lobbyist. Or in Mr.

Manafort’s case, where he doesn’t claim to be a lobbyist, well, why

was he retained? What is it that he is doing specifically for the

money he is being paid.

Mr. OSE. Refresh my memory. Who is it that retained Mr. Kaufman?

Mr. BENEDICT. Mr. Kaufman works for, well it is not called the

Historic Pequot Tribe, but initially the Eastern Pequot Tribe,

which is a faction that Mr. Coke and Mr. Rossau are the backers

of.

Mr. OSE. Is that the——

Mr. SHAYS. Would the gentleman mind suspending one more

time?

Mr. OSE. Certainly.

Mr. SHAYS. What I would like, Ms. Flowers, I am not going to

have you come up here and have a debate. I think that is very unfair. But when this panel is done, I would like to just ask you, and

so I thought I would give you time to think about it, what does Mr.

Kaufman do for the $500,000 to $600,000 that you feel what is his

deliverable. And that would be helpful to put on the record, I think.

So if you would just think about that.

I thank the gentleman.

Mr. OSE. As usual, the chairman is way ahead of me; he jumps

right to my own question.

Mr. SHAYS. I am sorry.

Mr. OSE. I am going to have to yield back to the chairman until

I construct my next series of questions.

Mr. SHAYS. Well, I would be happy to take the floor, but your

line of questioning is very important, and it was a question that

we were going to ask Chairman Flowers, but I thought we should

get to this panel. And so I would like that on the record, because

it is an important thing.

You basically have Mr. Manafort and you have Mr. Kaufman,

and they are both very powerful political operatives. I know Mr.

Kaufman well, and I like him a lot, but he is doing his job; I am

going to do my job. So we need to get that on the record.

I will say that I am a card-carrying member, I think, of your organization. I think you got $50 from me.

Mr. BENEDICT. You did.

Mr. SHAYS. It may have been more if I was trying to impress you.

Mr. BENEDICT. It was $50.

Mr. SHAYS. It was only $50.

Mr. BENEDICT. It was $50.

Mr. SHAYS. Well, I am a card-carrying member, and it is one of

the best investments I have made.

Mr. BENEDICT. I photocopied your check, Chris.

Mr. SHAYS. At any rate, one of the things I have no problem accepting is if you are a petitioning State tribe, whatever, seeking to

be a Federal tribe, you need to document some pretty significant

stuff, so you are going to want financial help there. I have no challenge at all give me a good financial backer and help me document

that we did have continuity and that we do meet all the seven

tests. Help me fund the people that can do that. Where I have a

big disconnect is why you spend hundreds of thousands of dollars

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for someone who is not doing that, but just trying to influence the

decision.

Would you all agree that you could understand a tribe would

want to do that, or would you even take issue with that?

Mayor BOUGHTON. Well, you know, obviously, coming from the

legislature and serving in all different types of government, that is

fairly common, where you would have somebody to represent your

interests, whether it was the oil interests, whether it was commercial interests.

Mr. SHAYS. I am not talking about representing your interests.

I am asking about do you agree or disagree that tribes will want

to have financial backers who will want to help them document,

the historians that they have to hire, all of that. It seems to me

that we would be pretty hypocritical to say prove that you are a

tribe, but then not give them the resource or allow them to have

the resource to prove they are a tribe. Isn’t the dispute here not

whether they should have a right to prove they are a tribe, but

what they do to influence the decision? And there are good things

they should do and there are bad things. I mean, comment and let

us go right down the line.

Mayor BOUGHTON. Well, getting back to my original point, I don’t

have a problem with a financial backer helping a tribe access information to help prove their validity. I think that is fine. And I don’t

have a problem with a tribe engaging in a lobbyist to represent

their interests, be it here or in the legislature. I think that is fine

as well. Where it crosses the line is when you have somebody who

doesn’t report the kind of activities they engage in, who is not covered by any of the State ethic laws or by the Federal ethics laws,

and just sort of out there in that twilight zone doing the little

things that they do to manipulate the situation to get the outcome

they want. That bothers me. And in this case, with Mr. Manafort,

that is extremely troubling in the case of the Schaghticoke Tribe.

And so if you want to hire somebody to do the research, if you

want to get a financial backer to do the research, perfectly acceptable. You want to hire a lobbyist to represent your interests here?

Perfectly acceptable. Do you want to take that next leap to be able

to engage somebody who knows somebody to get the outcome that

you want? Then it is completely unacceptable. And I think that is

really the distinction you are trying to draw.

Mr. SHAYS. I think you need to take a look at the chart again,

and I concur entirely with Mr. Benedict’s testimony. When you look

at the amount of money, $9 million, $10 million, $10 million, $4,

$33 million in total, it doesn’t cost that much to do the research,

as he stated. We have been doing it, the State of Connecticut, Attorney General Blumenthal has been working on that with a much,

much smaller budget. The fact is the money is going somewhere,

and as Mr. Ose has said, maybe we should set a standard with this

committee and ask everyone who comes before you to divulge

where have these millions of dollars gone.

Mr. MULLANE. Let us go back——

Mr. SHAYS. Let me just say to you, in triggering that, we will

write a letter to all of these parties and ask for a complete breakdown, whether or not they testify before the committee or not. We

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are not just going to do the one that had the willingness to come

forward, we will ask all of them. It is a very important point.

Mr. MULLANE. Let us go back to the basics. If the tribe has maintained community, political continuity, and have their genealogical

records, I am at a loss as to why it would be that difficult. OK?

So I do not also deny that somebody needs help. The problem has

been that BIA is a lobbyist for the group. Their scenario or routine

is to deny them on the preliminary determination, lay out a road

map for what they have to achieve, and then help them get there

and, if they have to, fabricate it along the way. But we also have

to understand that we do need professional people to package, to

put it in some sequence, in some order. That is one of the problems.

BIA has seven criteria but doesn’t tell you how you have to respond. They could very easily set standards that say provide your

genealogical in this format, provide your tribal community in this

manner, provide this political continuity and who has been your

leader.

So, yes, professional help is needed; yes, you have to package it;

but let us take a look at the problems that have happened with the

change of rules and how people have revised, altered, or BIA has

facilitated and broke their own rules. So they need help, but there

should be standards, and the standards should be easily understandable and the data should be readily available for everybody.

Mr. SHAYS. I was thinking, as you were talking, how much you

know about this issue. When you grew up as a kid, little did you

know that you would know so much about tribal recognition.

Mr. BENEDICT. Mr. Chairman, I think to simplify what could be

done on a reform basis, I think there is no place in this process for

lobbyists, period. Very simply, this is a situation where you have

an agency with a fiduciary responsibility to Indian tribes that has

also been entrusted with the massive responsibility of determining

tribal status for groups that have applied to the Bureau. They are

not making legislation. They are not deciding policy. They are deciding whether these applicants have the merits to deserve sovereign status. There is no role in that process for a lobbyist, none.

It just simply shouldn’t be there.

And then you say, well, then what do you do, you tell someone

like the Eastern Pequots, who are here today, who say their lobbyist is just employed to review pending legislation that might impact

us. Are you telling us they can’t have a lobbyist at all? I think that

is what takes us back to IGRA, and that is why IGRA becomes so

important. If we merely try to fix the acknowledgment process

without addressing IGRA, we are not going to get there. IGRA is

the twin to acknowledgment, and it is IGRA that has opened this

door for us. It is Pandora’s box that makes acknowledgment.

Whether any of us want to admit it or not, acknowledgment has

become contaminated by gambling, and that is why I think, under

IGRA, there is room to get the lobbyists out of this process and the

financiers, and the way to do that is to reclarify what IGRA originally was intended to be: a law that applied to tribes that existed

when it was passed in 1988. It has now become a law of exploitation by guys like Donald Trump and the lobbyists who work for

them.

Mr. SHAYS. Thank you.

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Let me just say that Mr. Ose is going to be chairing a committee

hearing in this room starting sometime around 2 p.m.

Do you want the floor back with this panel before?

Mr. OSE. Mr. Chairman, given your courtesy so far, I think I will

submit my questions for the record.

Mr. SHAYS. OK.

I would conclude with this panel by saying it is pretty clear,

based on panel one and panel two and panel three, that we have

some very clear recommendations from all of you: transparency, the

whole issue of conflict of interest. The one area that I am not as

clear about, I don’t want to spend a lot of time, but I gather you

accept the fact that if you are able to prove that you are an Indian

tribe and you meet all the standards, then you get what Indian

tribes get, sovereignty and everything else that comes with it. It

then strikes me that you are also saying if that happened, you

want the communities to have some say in what happens then. Is

that correct? I am seeing some nodding of heads.

Mayor BOUGHTON. Absolutely. I think that is really the fundamental problem that we are wrestling with here. You know, we

don’t deny the rights of Native Americans to seek recognition if

they so deserve. I will add an addendum to that, that in Connecticut, as Jeff has mentioned, we have reservations about these organizations that are calling themselves tribes to begin with, in the

sense of where exactly, how they are cobbling their heritage together to make a tribe, or that the BIA is doing it for them. And

that is really the challenge that we have locally.

Mr. SHAYS. Is there anything that any of you want to put on the

record before we just ask Chairman Flowers to just talk about?

Yes, Mr. Mullane.

Mr. MULLANE. I would like to answer that question also. And I

a little older than I look. Graduated from high school, went in the

Navy, worked for Defense Department for 37 years, been a selectman for 19 years. And there are two things that have always been

bread into me: one nation under God and all men are created

equal. Yes, there is an issue with the Native Americans, and I am

not going to answer that question. But I want you to look at where

we are today, what has happened in the last 12 years since the

Gaming Act was passed, and where we are going and how you can

envision resolving the problems that are being spread across the

United States; not just Connecticut, throughout the United States,

and how business is starting to have conflict. The latest one I saw

was an Indian group filed to be classified as an offshore bank. They

are already in telecommunications, they are in banking. So we

have to look at where we are going, and I beg you to have followup

on this and that we have some results. If you must have a process,

there must be reforms, it must be given to an independent agency,

and you cannot streamline it and fix it.

Mr. SHAYS. OK.

Mr. MULLANE. Thank you.

Mr. SHAYS. I am getting a little nervous staff here who are trying

to get us to move here. What I am going to do is ask Ms. Flowers

to submit in writing sometime by next week what your lobbyist

does for the money he gets, how much he gets and what your lobbyist does. We are going to be sending a letter to the other organiVerDate 11-MAY-2000 12:42 Oct 20, 2004 Jkt 000000 PO 00000 Frm 00161 Fmt 6633 Sfmt 6633 D:\DOCS\95868.TXT HGOVREF1 PsN: HGOVREF1
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zations as well to do that. And we will make that available to the

press.

Would you be able to get that to us by Wednesday of next week?

Do you want to do it now? If you want to do it now, we will do it

now, or you can do it in writing. OK, come on up, love.

Thank you all. Excuse me. Have you all put on the record everything you want to put on the record?

Mr. BENEDICT. I just wanted to say thank you to this committee

for starting this. I appreciate the opportunity to be here.

Mr. SHAYS. Good. Thank you both very much, all of you.

Mr. MULLANE. I also want to thank you.

Mr. SHAYS. You have been a wonderful panel and you have

added a lot to the work of this committee.

Thank you. We are going to be pretty quick on this, but I appreciate your wanting to do it now. That is great.

First on Ronald Kaufman.

Ms. FLOWERS. On Ron Kaufman, I had stated the tribe pays

$120,000 per year, but anything beyond what you need, what he

does for the tribe, we could submit that.

Mr. SHAYS. Well, he submitted information, I thought that he

made over——

Ms. FLOWERS. I believe he is registered lobbyist. But we will

send, to satisfy the committee, we will send that in.

Mr. SHAYS. Unfortunately, you have come in front of us now, so

I can’t be as casual as we are being here. I want to know specifically how much the tribe has paid him.

Ms. FLOWERS. We pay him $120,000 a year since 5 years.

Mr. SHAYS. OK, so it is over 5 years.

Ms. FLOWERS. Yes, 5 years.

Mr. SHAYS. So he has received about $600,000 plus over a 5-year

period.

Ms. FLOWERS. Yes.

Mr. SHAYS. OK. And what does he do for that?

Ms. FLOWERS. Monitors legislation down here in Washington;

monitors to make sure there are no riders on any appropriation

bills that could hurt the tribe; he advises the tribe on any kind of

political activity that we may not understand or not see; he arranges, usually once a year, for us to come down and hopefully get

to visit the Connecticut delegation.

Mr. SHAYS. Does he also provide entre into the administration?

Ms. FLOWERS. Never.

Mr. SHAYS. I want to be real clear, because you are under oath.

Ms. FLOWERS. Never.

Mr. SHAYS. Listen to the question first.

Ms. FLOWERS. OK.

Mr. SHAYS. I want to make sure that you are comfortable with

your answer. You are saying that Ron Kaufman—and I know him

pretty well, and he knows how to make entre. You are saying that

he has never provided an entre, not just for you, but for your tribe.

So you are saying that he has never contacted the White House,

never contacted the Bureau of Indian Affairs, never done those

things?

Ms. FLOWERS. Not to my knowledge. He has never been directed

to do that under our tribe.

159

Mr. SHAYS. That is not what my question is. That is not what

I am asking, though. We are going to be a little—I don’t want to

blind-side you here because I just know him too well. To suggest

that he has never contacted the administration would be almost an

impossibility for me to accept, and I want to protect you from that

question.

Ms. FLOWERS. I have never directed anyone, never.

Mr. SHAYS. We will leave it at that.

Mr. OSE. Mr. Chairman, if I might.

Mr. SHAYS. Yes.

Mr. OSE. Have any of Mr. Kaufman’s colleagues contacted the

BIA on your behalf?

Ms. FLOWERS. Not to my knowledge. Never been directed by our

tribe.

Mr. OSE. Thank you.

Chairman TOM DAVIS. How many tribal members are there?

Ms. FLOWERS. We have, not including those that have died within the last 2 years, 1,131. Almost half of those are children.

Chairman TOM DAVIS. Are they scattered? They are not all in

Connecticut, they are scattered all over?

Ms. FLOWERS. For the most part in Connecticut. And we had to

document that in the petition by 10-year increments, location of

where members are.

Chairman TOM DAVIS. Let me just say I appreciate your appearing here today voluntarily, and being able to sit here and answer

questions. The committee appreciates that very much.

Mr. SHAYS. Thank you, Mr. Chairman. Mr. Chairman, are we all

set?

We are all set. Is there anything else you want to put on the

record?

Ms. FLOWERS. My vice chair pointed out Ron Kaufman also helps

us write position papers and those kind of things that we are not

used to doing.

Mr. SEBASTIAN. And also review press releases and positions

also. Mr. Chairman, may I just add one more comment?

Mr. SHAYS. Yes. And I would say that what I had always assumed was that he had made $500,000 or $600,000 in a 1-year period, and you are saying it has been over a 5-year period.

Ms. FLOWERS. It has been over 5 years.

Mr. SHAYS. Yes, sir.

Mr. SEBASTIAN. We just want to make a brief comment in regard

to the rotating door, and it is twofold. It is a double-edged sword

because, as you know, it is alleged that the town of North

Stonington and their attorneys had hired Kay Davis, who directly

reviewed our petition, and Mr. Larson, the anthropologist, who directly worked for the Paucatuck, former Paucatuck Eastern Pequot

Tribe. So that rotating door is a double-edged sword, not just for

tribes, but for towns.

Mr. SHAYS. Would you agree that a rotating door, whichever direction it goes, is wrong? I am sorry, nodding of a head doesn’t do

it. Would you agree, Mr. Sebastian?

Mr. SEBASTIAN. Yes, absolutely.

Mr. SHAYS. Folks, I am sorry.

160

Madam Chairwoman, thank you very much. Thank you, Vice

Chair. I appreciate your taking the dais.

With that, we are going to adjourn this hearing.

[Whereupon, at 1:50 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

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