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92-827 PS 2004

FEDERAL RECOGNITION AND 

ACKNOWLEDGMENT PROCESS 

BY THE BUREAU OF INDIAN 

AFFAIRS

OVERSIGHT HEARING

BEFORE THE

COMMITTEE ON RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

Wednesday, March 31, 2004

Serial No. 108-89

Printed for the use of the Committee on Resources

(

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

or 

Committee address: http://resourcescommittee.house.gov 

(II)

COMMITTEE ON RESOURCES 

RICHARD W. POMBO, California, Chairman 

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska 

W.J. ‘‘Billy’’ Tauzin, Louisiana 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Ken Calvert, California 

Scott McInnis, Colorado 

Barbara Cubin, Wyoming 

George Radanovich, California 

Walter B. Jones, Jr., North Carolina 

Chris Cannon, Utah 

John E. Peterson, Pennsylvania 

Jim Gibbons, Nevada, 

Vice Chairman 

Mark E. Souder, Indiana 

Greg Walden, Oregon 

Thomas G. Tancredo, Colorado 

J.D. Hayworth, Arizona 

Tom Osborne, Nebraska 

Jeff Flake, Arizona 

Dennis R. Rehberg, Montana 

Rick Renzi, Arizona 

Tom Cole, Oklahoma 

Stevan Pearce, New Mexico 

Rob Bishop, Utah 

Devin Nunes, California 

Randy Neugebauer, Texas 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Calvin M. Dooley, California 

Donna M. Christensen, Virgin Islands 

Ron Kind, Wisconsin 

Jay Inslee, Washington 

Grace F. Napolitano, California 

Tom Udall, New Mexico 

Mark Udall, Colorado 

Anı ́bal Acevedo-Vila ́, Puerto Rico 

Brad Carson, Oklahoma 

Rau ́l M. Grijalva, Arizona 

Dennis A. Cardoza, California 

Madeleine Z. Bordallo, Guam 

George Miller, California 

Edward J. Markey, Massachusetts 

Rube ́n Hinojosa, Texas 

Ciro D. Rodriguez, Texas 

Joe Baca, California 

Betty McCollum, Minnesota

Steven J. Ding, Chief of Staff 

Lisa Pittman, Chief Counsel 

James H. Zoia, Democrat Staff Director 

Jeffrey P. Petrich, Democrat Chief Counsel 

(III)

C O N T E N T S 

Page

Hearing held on Wednesday, March 31, 2004 ....................................................... 1

Statement of Members: 

Johnson, Hon. Nancy, a Representative in Congress from the State of 

Connecticut .................................................................................................... 5

Prepared statement of ............................................................................... 7

Kildee, Hon. Dale E., a Representative in Congress from the State of 

Michigan, Prepared statement of ................................................................ 56

Pombo, Hon. Richard W., a Representative in Congress from the State 

of California ................................................................................................... 1

Prepared statement of ............................................................................... 2

Rahall, Hon. Nick J., II, a Representative in Congress from the State 

of West Virginia ........................................................................................... 3

Prepared statement of ............................................................................... 4

Statement of Witnesses: 

Cambra, Rosemary, Chairperson, Muwekma Ohlone Indian Tribe, San 

Francisco Bay Area, California .................................................................... 24

Prepared statement of ............................................................................... 26

Fleming, R. Lee, Director, Office of Federal Acknowledgment, Bureau 

of Indian Affairs, U.S. Department of the Interior .................................... 78

Prepared statement of ............................................................................... 80

Responses to questions submitted for the record ................................... 81

Gumbs, Lance, Tribal Trustee, Shinnecock Indian Nation ........................... 20

Prepared statement of ............................................................................... 22

Marshall, Glenn, President, Mashpee Wampanoag Tribe ............................. 15

Prepared statement of ............................................................................... 17

Martin, Tim, Poarch Band of Creek Indians, Nashville, Tennessee ............ 63

Prepared statement of ............................................................................... 65

Spilde, Katherine, Ph.D., Harvard Project on American Indian Economic 

Development .................................................................................................. 67

Prepared statement of ............................................................................... 69

Taylor, Wilford ‘‘Longhair,’’ Tribal Chief, MOWA Band of Choctaw 

Indians ........................................................................................................... 30

Prepared statement of ............................................................................... 32

Additional materials supplied: 

Benedict, Jeff, President, Connecticut Alliance Against Casino Expansion, 

Inc., Statement submitted for the record .................................................... 90

Blumenthal, Hon. Richard, Attorney General, State of Connecticut, 

Statement submitted for the record ............................................................ 95

Charley, Benjamin, Tribal Chairman, Dunlap Band of Mono Indians, 

Letter submitted for the record ................................................................... 98

Jones, Laura, Ph.D., Campus Archaeologist, Stanford University, Senior 

Scholar, The Carnegie Foundation, Letter submitted for the record ....... 100

Mullane, Nicholas H., First Selectman, Town of North Stonington, 

Connecticut, Statement submitted for the record ...................................... 101

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

of Connecticut, Statement submitted for the record .................................. 9

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

Connecticut, Statement submitted for the record ...................................... 10

Towns of Ledyard, North Stonington, and Preston, Connecticut, Letter 

submitted for the record ............................................................................... 105

(1)

OVERSIGHT HEARING ON THE FEDERAL RECOGNITION AND ACKNOWLEDGMENT PROCESS BY THE BUREAU OF INDIAN AFFAIRS 

Wednesday, March 31, 2004

U.S. House of Representatives 

Committee on Resources 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:05 a.m. in Room 

1324, Longworth House Office Building, Hon. Richard W. Pombo, 

[Chairman of the Committee] presiding. 

Members present: Representatives Pombo, Duncan‘, Jones, 

Tancredo, Hayworth, Osborne, Flake, Rehberg, Cole, Pearce, 

Rahall, Kildee, Pallone, Christensen, Inslee, and Baca. 

STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

The CHAIRMAN. The Committee on Resources will come to order. 

The Committee is meeting today to hear testimony on the Federal 

Recognition and Acknowledgment Process by the Bureau of Indian 

Affairs. 

Under Rule 4(g) of the Committee Rules, any oral opening statements at hearings are limited to the Chairman and the Ranking 

Minority Member. This will allow us to hear from our witnesses 

sooner and help Members keep to their schedules. Therefore, if 

other Members have statements, they can be included in the 

hearing record under unanimous consent. 

The purpose of today’s hearing is to examine the administrative 

process used by the Bureau of Indian Affairs to determine which 

groups are federally recognized tribes. This job is performed by the 

Office of Federal Acknowledgment, which used to be called the 

Branch of Acknowledgment and Research. 

The theme of today’s hearing is simple. Most everyone here 

thinks that the current system used to determine recognition is 

broken, so how do we fix it? This is an extremely important question because Federal recognition establishes a formal relationship 

between tribes and the United States which has major implications 

for the Federal Government, for the members of the recognized 

tribe, and for other tribes, states and communities. 

Prior to the adoption of the administrative process in 1978, the 

Department of Interior and Congress usually judged petitions for 

recognition on a case-by-case basis. And back in the 19th Century 

2

recognition was established through treaties and executive orders. 

While Congress retains its plenary power under the Constitution to 

recognize tribes, the BIA administrative process was established to 

provide an objective, uniform means of judging whether a group is 

really a tribe that has been in continuous existence since European 

settlers arrived. It was also created in order to process a large 

number of petitions that were pending and anticipated to be filed. 

Unfortunately, as today’s testimony will bear out, the system is 

fraught with major shortcomings. The acknowledgment process was 

supposed to resolve many petitions per year. In reality, less than 

two, on average, are completed per year. 

One of today’s witnesses represents a tribe that began its quest 

for recognition in the 1970s. In spite of having its record complete 

and ready, the tribe is being told it may have to wait 10 or more 

years for a decision. The tribe could wait a half century before obtaining a final determination. Regardless of whether the tribe’s petition should be approved or denied, there needs to be a conclusion 

to this. It costs valuable taxpayer dollars and denies justice. 

Another problem with the current system is how determinations 

are made. There is a set of criteria used to judge the merits of each 

petition for recognition but as the testimony of today’s witnesses 

will assert, the criteria are not always objectively applied. Whether 

or not this is caused by a weakness in the regulations or by a personnel problem in the Department remains to be seen. 

The Committee is searching for solutions, solutions that result in 

final determinations based on factual evidence, not on subjective 

whim, and final determinations made without undue delay. No one 

should wait three decades to process an application for anything. 

Many people’s home mortgages are paid in that time. 

Perhaps the solution is to transplant the work involved in the 

recognition process from the BIA into an independent commission. 

The final determination can still be made by the Secretary or another government official specifically assigned this duty by 

Congress. 

I look forward to today’s testimony and hearing from our witnesses and hope that we can find solutions to this serious problem. 

[The prepared statement of Mr. Pombo follows:]

Statement of The Honorable Richard W. Pombo, Chairman,

Committee on Resources 

The purpose of today’s hearing is to examine the administrative process used by 

the Bureau of Indian Affairs to determine which groups are federally recognized 

tribes. This job is performed by the Office of Federal Acknowledgment, which used 

to be called the Branch of Acknowledgment and Research. 

The theme of today’s hearing is simple: Most everyone here thinks the current 

system used to determine recognition is broken, so how do we fix it? 

This is an extremely important question because federal recognition establishes 

a formal relationship between tribes and the United States, which has major implications for the federal government, for the members of the recognized tribe, and for 

other tribes, states, and communities. 

Prior to the adoption of the administrative process in 1978, the Department of the 

Interior and Congress usually judged petitions for recognition on a case-by-case 

basis. And back in the 19th century, recognition was established through treaties 

and executive orders. 

While Congress retains its plenary power under the Constitution to recognize 

tribes, the BIA’s administrative process was established to provide an objective, uniform means of judging whether a group is really a tribe that has been in continuous 

3

existence since Europeans settlers arrived. It was also created in order to process 

a large number of petitions that were pending and anticipated to be filed. 

Unfortunately, as today’s testimony will bear out, the system is fraught with 

major shortcomings. The acknowledgment process was supposed to resolve many petitions per year. In reality, less than two on average are completed per year. 

One of today’s witnesses represents a tribe that began its quest for recognition 

in the 1970’s. In spite of having its record complete and ready, the tribe is being 

told it may have to wait 10 or more years for a decision. The tribe could wait a halfcentury before obtaining a final determination. Regardless of whether the tribe’s petition should be approved or denied, there needs to be a conclusion to this. It costs 

valuable taxpayer dollars, and denies justice. 

Another problem with the current system is how determinations are made. There 

is a set of criteria used to judge the merits of each petition for recognition, but as 

the testimony of today’s witnesses will assert, the criteria are not always objectively 

applied. Whether or not this is caused by a weakness in the regulations, or by a 

personnel problem in the Department remains to be seen. 

This Committee is searching for solutions, solutions that result in final determinations based on factual evidence, not on subjective whim. And final determinations 

made without undue delay. No one should wait three decades to process an application for anything. Many people’s home mortgages are paid in that time. 

Perhaps the solution is to transplant the work involved in the recognition process 

from the BIA into an independent commission. The final determination can still be 

made by the Secretary or another government official specifically assigned this duty 

by Congress. 

I look forward to the testimony of today’s witnesses and hope that we can find 

solutions to this serious problem. 

The CHAIRMAN. I would now like to recognize the Ranking Member, Mr. Rahall, for his opening statement. 

STATEMENT OF THE HON. NICK J. RAHALL, II, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST VIRGINIA 

Mr. RAHALL. Thank you, Mr. Chairman, and thank you for having this very important hearing today. 

As we consider the topic of the hearing, I believe that it should 

be put into its historical context. First the European settlers tried 

to exterminate all American Indians. Shortly after, the United 

States Government banished Indians to remote reservations and 

endeavored to abolish their documentation, culture and livelihood 

and established often unfair treaties and settlements. And in more 

modern times we set up a system where Indian tribes must prove 

to the same United States Government that made these often disreputable treaties that they are truly descendants of this country’s 

original inhabitants and can show the documentation to prove it. 

I do not think that this is what American Indians had in mind 

well over 100 years ago when they agreed to laying down arms and 

turn over to the Federal Government their land, including sacred 

burial grounds, places of worship, sources of livelihood. 

As it stands, that is the system in place and the fact of the matter is that Federal recognition carries with it a sovereign status 

that is essential to a tribe’s long-term survival, including control by 

Indians over their lands and decisions affecting the lifestyle of their 

members. 

Further, federally recognized tribes enjoy a unique governmentto-government status with the United States Government and are 

eligible to receive services and funding for better health care, housing, education, law enforcement, and transportation. Yet the descendants of those who agreed to lay down their arms and come to 

terms with the U.S. Government are now faced with a Federal 

4

recognition process that does not work in a fair or timely fashion 

and it has become too complicated and too costly. 

Since the Bureau of Indian Affairs was charged with the recognition process in 1978, only 16 applications have been approved and 

they were approved after a tribe has often had to wait up to 20 

years for a decision. 

Now I am by no means suggesting that every application is bona 

fide or that every single application has merit. At the same time, 

it does appear that the process is sorely in need of becoming more 

efficient. 

I look forward to today’s panel and again thank the Chairman 

for conducting these hearings. 

[The prepared statement of Mr. Rahall follows:]

Statement of The Honorable Nick J. Rahall, II, Ranking Democrat, 

Committee on Resources 

Mr. Chairman, as we consider the topic of this hearing, I believe that it should 

be put into its historical context. 

First, European settlers tried to exterminate all American Indians. Shortly after, 

the United States government banished Indians to remote reservations, endeavored 

to abolish their documentation, culture, and livelihood and established often unfair 

treaties and settlements. 

And in more modern times, we set up a system where Indian tribes must prove 

to the same United States government that made these often disreputable treaties 

that they are truly descendants of this country’s original inhabitants and can show 

the documentation to prove it. 

I do not think this is what the American Indian had in mind well over one hundred years ago when they began agreeing to lay down arms and turn over to the 

Federal government their land-including sacred burial grounds, places of worship, 

sources of livelihood. 

As it stands, that is the system in place and the fact of the matter is that Federal 

recognition carries with it a sovereign status that is essential to a tribe’s long-term 

survival including control by Indians over their lands and decisions affecting the 

lifestyle of their members. 

Further, Federally recognized tribes enjoy a unique government-to-government 

status with the United States government and are eligible to receive services and 

funding to better health care, housing, education, law enforcement and transportation. 

Yet, the descendants of those who agreed to lay down their arms and come to 

terms with the United States government are now faced with a federal recognition 

process that does not work in a fair or timely fashion and has become far too complicated and costly. 

Since the Bureau of Indian Affairs was charged with the recognition process in 

1978, only 16 applications have been approved. And they were approved after a 

tribe has often had to wait up to twenty years for a decision. 

I am by no means suggesting that every single application is bona fide, and that 

every single application has merit. At the same time, it does appear that the process 

is sorely in need of becoming more efficient. 

The CHAIRMAN. Thank you. 

I’d now like to introduce our first witness but before I do that 

I just wanted to announce to those of you that are in the audience 

today that Room 1334, which is right down the hallway, is open 

and you can hear the audio of the hearing if you would like to. So 

if anybody gets to the point that they’d like to sit down, the other 

hearing room is open and the audio is open down there. 

Our first witness today representing the 5th District of Connecticut, The Honorable Nancy Johnson. Let me take this time to 

remind all of today’s witnesses that under our Committee Rules 

5

oral statements are limited to 5 minutes. Your entire statement 

will appear in the record. 

Congresswoman Johnson, welcome to the Committee. It is nice to 

have you today and when you are ready, you can begin. 

STATEMENT OF THE HON. NANCY JOHNSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CONNECTICUT 

Ms. JOHNSON. Thank you very much. I am sorry that my voice 

is a little off today but I very much appreciate the opportunity to 

testify. I also respect the history of the tribal nations in our country but something has gone terribly wrong with the tribal recognition process. 

First of all, it has become driven by casino money, big, big bucks, 

and in my part of the country the people affected by that are small 

governments, governments of towns with 2,000, 3,000, 4,000 people. Those towns are heavily impacted by a tribal recognition decision made here. Local cities and towns already with tight budgets 

because in Connecticut those small town budgets fund the local 

schools, so there’s tremendous pressure on these local budgets, they 

also have to then deal with the traffic problems, the heavier road 

maintenance, the heavier traffic control, the heavier fire control, all 

of the things that you have to deal with if you’re adjacent to a reservation, and yet they aren’t being given any help to have the resources necessary to do the research that’s so essential to a balanced, fair tribal decision. 

When we faced this issue in the environmental area, and remember the Superfunds and the big companies were saying what the 

plan would be for cleaning up the site, we gave citizen groups 

grants so they would have the money to get the same scientific 

back-up, so they would know that the solution would be fair and 

balanced and in their interest, as well. 

We need to do that with these small towns. Their mill rates are 

skyrocketing just to fund the litigation and the research that’s necessary when there is a tribal determination going on in their area. 

It’s unbalanced. You’re letting casino dollars roll into areas where 

there weren’t tribal traditions and overwhelm the process in the 

local, state, and also down here. 

We cannot let big money just drive this. We have to balance that 

equation so the local people who know the history and also have 

resources locally that could give them information that would be 

relevant, so the balance is there, so the process is fair. 

I understand the importance of timeliness, absolutely, but there’s 

no way that the people down here can do the kind of research they 

need to counter the research coming in as a result of gambling 

money in the timeframes required. 

So we need to balance the inputs. We need to have a fairer process so that both sides can offer their information about the recognition of the tribe. 

And then the standards absolutely have to be clarified and adhered to. We have a terrible situation in Connecticut. A tribe in my 

district was recognized. The proposed recognition said it could not 

be recognized; then the final recognition completely reversed the 

decisions in the proposal and even acknowledged that there was 

not adequate information to make clear that for 60 years there was 

6

any political continuity. They completely reversed precedent on the 

issue of whether a state reservation indicated continuity and 

helped to meet the standards. In some of those years there was no 

functional entity on the land and while the states managed the 

lands like they do parks and things like that, they didn’t do it with 

Indian leadership. 

So while they have criteria and in their first proposed decision 

they said this application doesn’t meet the criteria, in their final 

decision, even though they recognized the additional information 

and said the additional information didn’t close all the holes, they 

went ahead and proposed recognition with all the consequences for 

the small towns and all the consequences for the absolutely catastrophically jammed interstates in Connecticut. 

There has to be clear standards. There has to be a fair process 

that is not arbitrary and is not controlled and run by high-paid lobbyists here in Washington. 

So I call on the Committee to invalidate the Schaghticoke decision, to impose a moratorium on BIA acknowledgment decisions 

pending a comprehensive review of BIA process and the issuance 

of recommendations for improvement, that you take steps to bring 

into public view the financial and gaming interests behind the Federal recognition petitions, that fourth, you examine how the Federal process usurps, usurps the traditional power of local governments to control economic development, implement long-term planning policies, and provide public safety and educational services, 

and fifth, that you prohibit the liening of property claimed by a 

tribe because while the Federal law does not allow them to take 

land that they claim—they have no eminent domain—the way they 

do it is they put liens everywhere. 

It brings the whole town to a standstill. Retired people cannot 

sell their property. Small businesses cannot sell their property. The 

value of the land declines. That means that the tax revenues of the 

town decline. The schools are still there. The kids are still there. 

The police still have to be paid. The roads still have to be repaired. 

They have brought whole sections of Connecticut to an absolute 

economic state of paralysis by liening property, so as I have been 

told, they should be held to the standard that they buy property 

like anyone else, and then the issue of bringing it into trust is 

something that the law governs through a process down here. Fine, 

but in that case do not allow the liening of land claimed in Connecticut they claim five, six towns. 

So what is happening is a handful of people backed by very big 

money are claiming lands that in some instances have been farmed 

by people for hundreds of years, same family. 

This is a serious issue. The process has to be looked at. It has 

to be rebalanced. I agree it should be timely, that the tribes have 

a right to be addressed in a timely fashion, but we cannot do that 

unless the process is rebalanced so all the information can come 

down to Washington together and the standards can be clear and 

transparent. 

Nothing less will do because these recognition decisions are taking people’s property in our country right and left. These recognition decisions are imposing on small local governments high costs 

7

that no local government can withstand for police, for fire, and it 

is wiping out public education in these towns. 

So we are facing an extremely serious situation. In the small 

State of Connecticut we have two big, established tribes but we 

have lots of little ones now looking to also imitate because of the 

casinos. In just 1 week each of our casinos on just the slots took 

in $60 million. That is what is driving this—big money. And that 

is just the only money we know about. 

So I do not begrudge the Indians economic opportunity and help 

and all those things, but their economic opportunity ought to be integrated with the economics of the region, as well, because the 

costs that are being imposed on small towns are absolutely crushing. 

So I wish you well in your work. I hope you will take seriously 

the need to put a moratorium on this process until we can figure 

out a more balanced, equitable and a process that moves more rapidly for all concerned, but a process that is more equitable and in 

which the standards are consistent and adhered to. 

Thank you for your time. I appreciate it. 

[The prepared statement of Ms. Johnson follows:]

Statement of The Honorable Nancy L. Johnson, a Representative in 

Congress from the State of Connecticut 

Mr. Chairman and members of the Committee, thank you for inviting me to testify today on the important subject of the Bureau of Indian Affairs’ federal recognition process. This subject is creating tremendous controversy in my home State of 

Connecticut. While this issue has stirred grave concerns in numerous other states 

dealing with the federal recognition process, I wish to focus on the substantial impact it is having on my constituents in Connecticut. 

Over the last two years, BIA has issued final determinations granting federal recognition to two groups in Connecticut: the ‘‘Historic Eastern Pequot’’ tribe, located 

in North Stonington, a town represented by my colleague Rep. Rob Simmons. The 

second was the Schaghticoke Tribal Nation, in the town of Kent in my district. The 

Schaghticokes have expressed interest in building a casino resort in Danbury or Waterbury in my district, or in Bridgeport, represented by my colleague Rep. Christopher Shays. 

In addition, BIA will also soon issue a final determination on the petition on the 

Golden Hill Paugussett group, located in Colchester and Bridgeport. 

It is an unfortunate reality that the tribal recognition process has become for 

many but a means to the end of profiting from casino gambling. Petitioning tribes 

make it publicly known that their ultimate interest is in casino gambling, and millions of dollars are flowing in from out-of-state gaming interests to fund recognition 

petitions. We cannot, as a matter of public policy, fail to understand this nor the 

extraordinary impact recognition—often on very slender threads of evidence—is having on local governments and local taxpayers. 

Casinos in Connecticut have far-reaching consequences. Our major highways are 

already choked during rush hour and would be completely overwhelmed with the 

24-hours-a-day, seven-days-a-week traffic of a new casino in Bridgeport, Danbury, 

or Waterbury. Local cities and towns, already facing budget crunches, would be 

forced to pay for far more frequent road repairs and construction, traffic control, and 

increased fire and police protection. In effect, local property taxpayers would be 

forced to support the economic development decisions of ‘‘sovereign’’ entities that do 

not have to pay all the costs of their decisions, nor the cost of public education, 

which is primarily funded through local property taxes in Connecticut. When asked 

recently about the benefits of the existing casino in Ledyard, Connecticut, to his 

community, the former Mayor of Ledyard said there have been none. Yet the costs 

have been great. 

The issue today, Mr. Chairman, is one of both ends and means. While Connecticut 

residents overwhelming oppose the goal of more casinos, they also now suspect the 

integrity of the recognition process. Their loss of trust in this process is a serious 

matter, and for good reason, they consider this process arbitrary at best, dishonest 

at worst. 

8

Problems within the BIA process are well-known and have been documented by 

well-respected, independent agencies. In 2001, the U.S. General Accounting Office 

reported that the recognition process is characterized by inconsistency, unfairness, 

and delay. A subsequent report by the Interior Department Inspector General about 

the recognition process cites troubling irregularities, the use of political influence in 

what should be an objective process, and the questionable practice of recently-departed BIA officials lobbying for petitioning tribal groups. 

Some of these problems are brought into stark relief in the case of the recognition 

of the Schaghticoke tribal group. In December 2002, the BIA issued a proposed finding that the recognition of the Schaghticoke group did not meet all seven criteria 

for federal recognition, and that its tenuous relationship with the State of Connecticut did not add evidentiary weight to the group’s claim. On January 29, 2004, 

however, the BIA reversed itself and issued a final determination that the 

Schaghticoke tribe had satisfied the seven federal criteria for recognition. In reaching this conclusion, BIA contradicted its own reasoning in its proposed finding by 

determining that the tribal group’s relationship with the state did, in fact, bolster 

their petition. In addition, the BIA argued in its final determination that the tribe 

had satisfied a previously unmet criterion while admitting insufficient evidence had 

been provided to justify it. This reversal left many of us in Connecticut bewildered 

and eager for answers. Since then, my colleagues in Connecticut and I have written 

to the GAO, to Interior Secretary Gale Norton, and to the Interior Department’s Inspector General requesting an investigation and answers to the questions raised by 

this inexplicable reversal. 

Shockingly, we received answers to some of our questions in the form of a disturbing decision memorandum, written by BIA staff two weeks before its final determination was handed down and only revealed this month. In it, BIA staff admit 

that the Schaghticoke group did not meet the criterion for continuous political influence for two periods encompassing 64 years of its history, an admission also reflected in the final determination. The memorandum says plainly, ‘‘The petitioner 

has little or no direct evidence to demonstrate that criterion 83.7(c),’’ the political 

influence criterion, ‘‘has been met between 1820 and 1840 and between approximately 1892 and 1936.’’ The memorandum also admits that BIA precedent holds 

that the state’s relationship with the group, which has essentially been a symbolic 

function, does not add evidentiary weight to the group’s claim. 

Rather than deny the Schaghticoke petition in the final determination, as it had 

in the proposed finding and as the regulations and precedent would suggest, the 

BIA memorandum lays out a strategy to overturn existing precedent and abrogate 

federal regulations. The memorandum admits that BIA knew the petition did not 

meet the standards outlined in the ‘‘regulations and existing precedent,’’ and that 

they would have to be ignored or reevaluated in order to approve the petition. Indeed, the memorandum reads, recognition ‘‘would require a change in how continuous state recognition with a reservation was treated as evidence.’’ Two weeks after 

that memorandum was written, the BIA issued a final determination recognizing 

the Schaghticoke and opening the door to casino gambling in Western Connecticut. 

My constituents in Connecticut, as well as many Americans across the country, 

are strongly opposed to further casino gambling in their area. But they also strongly 

object to the clearly faulty, unfair, and arbitrary process that seems to respond more 

to the millions spent by casino interests than to the law. The relatively paltry sums 

small towns can spend with local property taxes as their sole sources of financing 

are simply no match for the big money behind the big business of casino gambling. 

I believe immediate action is necessary to restore the credibility, predictability, 

and integrity of the overall tribal recognition process and address what is, in my 

view, a flawed and illogical decision regarding the Schaghticoke tribal group. Specifically, I recommend the Department of the Interior do the following: 

1. Invalidate the Schaghticoke decision and issue a new final determination that 

is consistent with federal recognition regulations and existing precedent; 

2. Impose an immediate moratorium on all BIA acknowledgment decisions pending a comprehensive review of BIA processes and the issuance of recommendations for improvement; 

3. Take steps to bring into public view the financial and gaming interests behind 

federal recognition petitions; 

4. Examine how the federal process usurps the traditional power of local governments to control economic development, implement long-term planning policies, 

and provide public safety and education services; and 

5. Prohibit the liening of property claimed by a tribe as it dramatically undermines property values and paralyzes home and land sales throughout the 

affected region. 

9

In conclusion, it is widely-held and well-documented that the BIA recognition 

process is faulty. Certainly, Connecticut residents have lost faith in that process and 

worry that it will result in new casinos in areas that neither want them nor can 

support them. 

The question before this Committee and this Congress is what to do to address 

this problem. Congress can no longer put off its responsibility to address questions 

of credibility, competency, and fairness within an agency under its jurisdiction. Only 

through clear, concrete and effective action can Congress right this ship; restore 

credibility to the process; and ensure that federal recognition petitions are dealt 

with objectively, consistently, and fairly for both petitioning groups and local communities. 

Thank you for considering my testimony today. 

The CHAIRMAN. Thank you. I know that you are very passionate 

about this. We have had the opportunity to discuss this in great 

detail in the past and the Committee does take this issue extremely seriously and it is part of the jurisdiction of this Committee that we will work through on a bipartisan basis to deal with 

this problem. 

Ms. JOHNSON. Thank you, Mr. Chairman. I also meant to mention that Mr. Shays and Mr. Simmons would like to submit their 

written testimony. 

The CHAIRMAN. Without objection, it will be included in the 

record. 

[The prepared statements of Messrs. Shays and Simmons follow:]

Statement of The Honorable Christopher Shays, a Representative in 

Congress from the State of Connecticut 

Mr. Chairman and members of the Committee, thank you for allowing me to submit testimony on the Bureau of Indian Affairs’ (BIA) federal recognition process. 

It has become clear that the recognition process is neither transparent nor accountable and needs to be significantly reformed. 

I have long said we must live with the BIA’s decisions on federal recognition, as 

long as they are made using the proper gauges. In recent weeks, however, evidence 

has surfaced that even petitioning tribes that fail to meet the seven established criteria for federal recognition may be recognized in spite of rather significant shortcomings in their petitions. 

The fact is, the federal recognition process creates sovereign nations and, in doing 

so, has far-reaching social, political and economic consequences—even more so when 

casinos are involved, which is becoming more and more often the case. Without 

transparency and accountability in the process, the integrity of the BIA, and by extension the federal government, is eroded. 

On January 29, 2003, the BIA announced its decision to recognize the 

Schaghticoke Tribal Nation of Kent, Connecticut, as a federal tribe, even though it 

seemed clear they did not meet the BIA criteria for proving continuity from pre-colonial times. 

Then, on March 12, The Hartford Courant made public a memo circulated within 

the Department of Interior two weeks before the Schaghticokes were federally recognized indicating that the Schaghticokes were granted recognition without having 

met the established criteria. 

The memo demonstrated the agency knew the tribe lacked political continuity for 

a period of 64 years in the 19th and 20th centuries. The memo also raised questions 

about whether several people whose names were on the petition were ever actually 

members of the tribe. 

Even more disturbing, the memo provided BIA directions for recognizing the tribe 

in spite of these facts. 

The unfortunate reality highlighted by this example is that the BIA quite clearly 

did not decide this case on its merits—and I fear this instance was not an anomaly. 

Indian gaming is a $23 billion industry, and its expansion hinges on the federal 

recognition process. 

Private investors and powerful casino developers stand to make fortunes when a 

tribe is recognized. And all too often they have encouraged tribes to petition, even 

10

when they might not otherwise have united to do so because they do not meet established recognition criteria. 

Our nation has a responsibility to uphold certain unbreakable obligations to the 

continent’s native peoples, but I believe the process has been corrupted by big 

money gaming interests that have literally started assembling tribes with the hopes 

that they can eventually reap huge profits from an Indian casino. 

In this way, a process designed to afford due rights and privileges to legitimate 

petitioners has almost become an administrative vehicle to print money. 

Furthermore, legitimate tribal interests are finding themselves in a process where 

they cannot hope to gain recognition without being able to spend lavish sums of 

money on lobbying—an obfuscation, if not a mockery, of the original intent of the 

federal recognition process. Simultaneously, a shadow has unfairly been cast over 

all of the tribes that have met the criteria and achieved due recognition. 

The bottom line is, granting federal recognition is a very serious decision that requires a thoughtful and transparent process, but back in 2001, the General Accounting Office found the BIA’s process for doing so to be inconsistent, slow and unfair. 

The Department of Interior’s Inspector General also found political influence and 

pervasive irregularities have corrupted the recognition process. 

These factors combine to project a resounding message: a full-scale reform of the 

federal recognition process with the objective of restoring transparency and accountability to a system that has become quite corrupt is long overdue. 

In her testimony before your Committee today, Congresswoman Nancy Johnson 

made several recommendations for ways to restore the credibility, predictability and 

integrity this broken system has come to lack. 

Specifically, she recommended reevaluating the Schaghticoke decision, this time 

applying all established criteria to determine the validity of the petition; imposing 

a moratorium on future recognition decisions pending a review of the BIA process; 

and making public the financial forces that support petitioning tribes. 

I wholeheartedly support my distinguished colleague’s suggestions and hope they 

will be adopted by the Department of Interior. 

Thank you for considering my testimony. 

Statement of The Honorable Rob Simmons, a Representative in Congress 

from the State of Connecticut 

Mr. Chairman and members of the Committee, thank you for holding this hearing, and for allowing Rep. Nancy Johnson, the dean of the Connecticut congressional 

delegation, to testify on behalf of our home state. She has worked tirelessly on this 

issue and I appreciate her bringing this issue to the forefront. 

Mr. Chairman, my home State of Connecticut has been, and continues to be, affected by our federal Indian recognition process. My district, Connecticut’s Second 

Congressional District, is host to two of the world’s largest casinos: Foxwoods Resort 

Casino, run by the Mashantucket Pequot Tribe, and Mohegan Sun, run by the Mohegan Tribe. 

Connecticut has seen both the benefits and the adverse effects of tribal recognition. One benefit is that Indian gaming has produced jobs at a time when defense 

contracting and manufacturing have been on the decline. Foxwoods Resort and Mohegan Sun purchase goods and services, and contribute upwards of $300 million a 

year into the state budget. Tribal members have also been personally generous with 

their wealth, supporting numerous community projects and charities. 

But there is also a considerable negative impact. In Connecticut, recognition 

means the right to operate a casino and that places pressure on local municipalities 

who have no right to tax, zone or plan for these facilities. Small rural roads are 

overburdened with traffic, understaffed local police departments are routinely working overtime, and volunteer fire and ambulance services are overwhelmed with 

emergency calls. The small towns that host and neighbor these casinos are simply 

overwhelmed by this strain. 

In year’s prior, many in Connecticut questioned the presence of tribal casinos because they wondered whether the federal process was fair. The people of Connecticut no longer wonder. They know the federal system is broken. 

BIA’s recent actions involving groups in Connecticut seeking status as Indian 

tribes under federal law demonstrate that the acknowledgment process is unfair and 

corrupt. This, of course, is not the fault of the petitioning groups, some of whom 

I have considered friends and neighbors for many years. It is the fault of the federal 

government. Congress must act promptly to correct these problems. 

Over the last two years, BIA has issued final determinations that would grant 

federal tribal status to two groups in Connecticut. The first of these was the 

11

‘‘Historic Eastern Pequot’’ tribe, located in the town of North Stonington in my congressional district. The second was the Schaghticoke Tribal Nation, in the town of 

Kent in the congressional district of Ms. Johnson. 

The BIA also will soon issue decisions for the Golden Hill Paugussett group, located in Colchester and Bridgeport, and the two Nipmuc groups, located in Massachusetts, but targeting land in northeastern Connecticut. 

With such significant decisions pending before a federal body, it is our duty in 

Congress to ensure that a fair and objective procedure is used to make these decisions. Tribes need to be granted the federal status they deserve and accorded their 

sovereign rights, but the determination to acknowledge such tribes cannot be made 

under false pretenses and without regard for the overall economic, social and political consequences that will result. Unfortunately, that is exactly what is happening 

under the flawed and biased BIA system. 

Nowhere are these problems with BIA’s acknowledgment procedure more apparent than in Connecticut. The record is clear that BIA is breaking its own rules to 

reach their own desired outcome and that of petitioning groups and their wealthy 

financial backers. The recent Schaghticoke decision is a case in point. BIA specifically admits in an internal agency memorandum that the Schaghticoke group does 

not satisfy the acknowledgment criteria. Nonetheless, BIA violated its own regulations to reverse a previous ruling and find in favor of the Schaghticoke group. 

It did so by creating a presumption in favor of acknowledgment for petitioner 

groups in Connecticut based simply on the fact that the State has held land for 

Indians. BIA equated this simple act by the State undertaken primarily as a welfare 

function with the existence of a continued political relationship between the State 

and the Indian beneficiaries of the land. BIA admits in its own internal decision 

document that such a result is not allowed under its regulations, but nevertheless 

proceeded to rule in favor of the Schaghticoke petition. Just as egregious, the memorandum went on to specifically lay out potential avenues under which regulations 

could be averted and final recognition could be conferred. 

BIA followed a similar pattern in the Eastern Pequot decision in 2002. In that 

case, BIA went so far as to forcibly combine two petitioner groups who openly opposed each other. Only by doing so was BIA able to issue a favorable decision. BIA 

also invoked the mistaken assumption that the simple existence of a state reservation was sufficient grounds for the two Pequot petitioner groups to meet the acknowledgment criteria. 

Most recently, the New York Times detailed in a front-page story the ties between 

powerful money interests and petitioner groups. Included in this article was a troubling reference to the business relationship between the current head of BIA, David 

Anderson, and the primary backer of the Massachusetts and Connecticut Nipmuc 

groups, Lyle Berman. Mr. Anderson and Mr. Berman were founding partners of 

what is now Mr. Berman’s casino development company, Lakes Entertainment. 

Lakes Entertainment has provided nearly $4 million to the Nipmucs in their effort 

to obtain federal recognition. 

There is a laundry list of other problems and abuses arising from the acknowledgment process in recent years. These include actions under the previous Administration such as changing the acknowledgment procedures without notice or public comment, discriminating against interested parties opposed to acknowledgment by not 

revealing critical evidentiary deadlines, issuing incomplete proposed rulings so as to 

prevent comment on key findings, and even signing post-dated favorable determinations after the change in Administrations. 

How could so many serious problems arise? The answer starts with the most basic 

principle of our system of government. Congress is vested with the power to recognize tribes. That power has never been delegated to the Executive Branch. 

In addition, Congress has never taken the constitutionally necessary step of defining and placing in statute the standards under which BIA could rule on tribal acknowledgment petitions. Absent this statutory guidance from Congress, BIA has 

simply made up its own rules. It administers those rules as it sees fit, even ignoring 

them when necessary to reach a desired result. The system is out of control. 

For many years, the acknowledgment process has been criticized for being too 

slow, too expensive and too academic. While those are valid concerns, the bigger 

problem is that BIA’s acknowledgment process also has lost its credibility. Decisions 

of such importance can no longer be left to this agency. 

Strong and immediate action is necessary to address those problems. In my conversations with numerous citizens throughout the State of Connecticut, including 

leaders like Nick Mullane, Connecticut’s State Attorney General Richard 

Blumenthal, Bob Congdon, Wes Johnson, Susan Mendenhall, and others, I’ve heard 

the following recommendations: 

• Impose a moratorium on all BIA acknowledgment decisions; 

12

• Enact a law that establishes an independent, objective process for making findings of fact regarding tribal acknowledgment requests; 

• Define and place in law the acknowledgment standards that will be used in this 

process; 

• As part of that process, require all petitioners to identify the sources of their 

funding, the contractual arrangements with financial backers, and the amount 

of money spent; 

• Prohibit all ex-parte contacts between parties to an acknowledgment process 

and the entity responsible for review; 

• Require all recommended decisions on acknowledgment petitions to be acted 

upon by Congress; and 

• Establish a funding mechanism that assists interested party state and local 

governments in participating in such reviews. 

In conclusion, Federal recognition policies are turning the ‘‘Constitution State’’ 

into the ‘‘casino state.’’ We want more control over the process. We want to close 

the loopholes. We want relief provided to our localities for what can be a very expensive battle on a very uneven playing field. 

The victims of the situation include all parties to the acknowledgment process—

petitioning groups, states, local communities, and the public. It is time for Congress 

to step in and solve this problem by reforming the system by statute. This is the 

only way to ensure fair, objective and credible decisions. 

Thank you for considering this testimony. 

The CHAIRMAN. Mr. Rahall? 

Mr. RAHALL. Thank you, Mr. Chairman. 

I thank the gentlelady from Connecticut for her testimony, as 

well. She brings a great deal of empathy and understanding of the 

issue here. 

I can understand the cutbacks that many state, local and city 

governments are facing today. We are certainly experiencing that 

in my area of the country, as well, with the cutbacks coming from 

Washington and with the tax breaks emanating from this city, it 

makes it very hard for the state and local governments to make 

ends meet these days and we are putting additional burdens upon 

them. There is no doubt about it. 

Ms. JOHNSON. I thank you. You know, this is so difficult that the 

Indians living on the reservation did not support the petition because they are afraid of what it is going to mean for their reservation, their way of life, the traditions they are trying to preserve. 

So we are not getting a fair record into Washington and we need 

to make sure we do that because we are overriding very fundamental rights granted in our Constitution to citizens of this country 

and that should not be. Thank you very much? 

The CHAIRMAN. Mr. Pallone? 

Mr. PALLONE. I respect the gentlewoman’s opinion but I have to 

take issue, both on a theoretical level as well as a practical level, 

about what she said, and then I did have a question, Mr. Chairman. 

On the theoretical level, I have a real problem with the way you 

have addressed this because I believe that the issue of sovereignty 

predates states, predates local governments. The bottom line is the 

Constitution recognizes Indian tribes as sovereign nations and that 

really has nothing to do with the status of states or the status of 

local governments. 

So I have a real problem with our government at the Federal 

level providing funding, if you will, to local units of government or 

to states to help them make a case against sovereignty once the 

BIA has made that decision or that preliminary decision, primarily 

13

because the issue of sovereignty is a Federal issue. It is not a state 

issue. The Federal government should decide essentially on its own 

whether or not a tribe is sovereign. 

And the problem with most of these cases is that state and local 

governments over the years and the Federal Government, as well, 

have done their best to try to terminate the rights of American 

Indians and to eliminate their sovereignty and for us to sit here 

and say that somehow the states or the local government should 

have some input or should be able to influence in some way the decision the BIA makes about whether a nation is sovereign and 

should be recognized as such I think is wrong and I think essentially violates the Constitution. 

Now that is the theoretical problem. The practical problem is 

that I think the way the gentlewoman portrays tribes as somehow 

wealthy and able to have all this money to make their case is essentially just the opposite. If I could use the Eastern Pequots, and 

I do not know whether or not she opposes their recognition, but I 

know that when I visited them what I found essentially was a 

handful of people who had very little resources and ability to influence what goes on. 

Now for all I know they may have some casino money or somebody who has promised them money that they can hire but they 

had a small land area historically, they have clear indications with 

the graves on the site and the fact that they have existed as a tribe 

and they are entitled to sovereign and recognition, but they had a 

very difficult time over the 20 or 30 years when they have been trying to get their recognition in getting the resources and being able 

to hire people to make the case. 

So this idea that the tribes are somehow with all this money and 

all this power and all this ability and the local municipalities have 

nothing, I think it is just the opposite. I do not think it makes any 

sense for us to give money to towns to be able to make that case 

because we do not give the money to the tribes to be able to appeal 

decisions or make those cases. 

So I think that theoretically I do not agree with the gentlewoman 

in terms of the state or the local role in this decision. I do not think 

there should be one. I think this is a Federal issue. 

Second, practically speaking, I think it is just the opposite. Many 

of these tribes have a hard time making their case and getting the 

money to be able to make the record straight. 

I just wanted to ask a question which sort of relates to the practical aspect. We know that the BIA does not have a lot of resources. 

Why is it appropriate for the Department of the Interior to foot the 

bill for municipal appeals, which is what I think the gentlelady is 

saying in her bill, but not for tribes who appeal unfavorable decisions? Would the gentlewoman who now advocates that the towns 

get money to take the appeal, would she have a problem with the 

tribes getting money in the same way to make their appeal from 

the government? 

Ms. JOHNSON. You misunderstand me from the beginning, so let 

me back up a little bit. 

I certainly am not challenging the concept of sovereignty. I am 

saying that in a part of the country where we are recognizing 

tribes for the first time in hundreds of years you have to look at 

14

the facts to see if they meet the criteria. So you want advocates of 

recognition and opponents of recognition to be able to get their 

facts on the table so the Federal Government can make an honest 

decision about whether there is a tribe that meets the criteria to 

be recognized. 

So I would not object to Indians being given the resources and 

the town being given the resources but if you accept public resources, you then would have to not accept additional resources. 

My goal is to try to balance this so that when the Federal Government looks at the tribal recognition issue it looks at it with its 

experience but it also looks at it with local knowledge of the history 

and life of the people because the criteria demands some continuity 

of existence. So if you do not have equal resources, you are not getting equal facts. 

Now I am not knowledgeable about this process in the West so 

much but in the East, it was not an issue until gambling made 

such a big hit. Now we have two big casinos, two big recognized 

tribes. I am not challenging that. The reason I am challenging the 

recognition of the Schaghticokes is because the process has been an 

absolute travesty. In my written statement I went through this in 

a far more orderly fashion than I did in my summary but for instance, there was a memorandum from staff in the BIA to the decisionmakers about how it did not meet the criteria but if you still 

wanted to recognize them, this is how you could do it. They say, 

for instance, ‘‘The petitioner has little or no direct evidence to demonstrate that criteria 83.7(c), the political influence criteria, has 

been met between 1820 and 1840 or between 1892 and 1936,’’ and 

that is a long time. The memorandum also admits that the BIA 

precedent holds that the state’s relationship with a group, which 

has essentially been a symbolic function, ‘‘does not add evidentiary 

weight to the group’s claim.’’

So you have this proposed decision, then you have the final decision, and in between you have this memorandum that says they do 

not meet the criteria but if you still want to do it, this is how you 

do it. 

Now to put people’s property rights at risk, to put the viability 

of local government services at risk, is simply an outrage in the 

face of that kind of a memo. That is why I say you need a moratorium because you need to look back at this process. One possible 

component of the solution would be in every case to make sure that 

the sides have the resources they need to bring forward the information. If you did that you would want to ban outside money, I 

guess, so everybody had the same. 

But you have to recognize that gambling has changed this because it is big, big money and the take is so large, they do not care 

how much money they invest in the recognition process. So they 

not only——

The CHAIRMAN. The gentleman’s time has expired. 

Ms. JOHNSON. You get it. 

The CHAIRMAN. Are there further questions of the witness? 

Well, thank you, Mrs. Johnson. 

Ms. JOHNSON. Thank you for the opportunity. I do appreciate it. 

The CHAIRMAN. Thank you for your testimony. 

15

Ms. JOHNSON. I know our perspective from the Northeast is different but the impact is going to be very, very different. It is all 

right if they are tribes that truly meet the criteria but not if they 

are tribes that do not. Thank you. 

The CHAIRMAN. Thank you. 

I would like at this time to call up our second panel consisting 

of Glenn Marshall, President of the Mashpee Wampanoag Tribe, 

Lance Gumbs, Tribal Trustee of the Shinnecock Indian Nation, 

Rosemary Cambra, Chairperson of the Muwekma Ohlone Indian 

Tribe, and Wilford ‘‘Longhair’’ Taylor, Tribal Chief of the MOWA 

Band of Choctaw Indians. I should note that these witnesses are 

members of tribes that are seeking or have sought recognition but 

have not yet received it. 

The Committee has a practice of swearing in all witnesses, so if 

I could ask you to please stand and raise your right hand. 

[The witnesses were duly sworn.] 

The CHAIRMAN. Thank you very much. Let the record show that 

they all answered in the affirmative. 

Mr. Marshall, we are going to begin with you. I again remind our 

witnesses that your entire written statement will be included in 

the record but if you could try and keep your oral testimony to 5 

minutes it will help us a great deal to stay on schedule. So Mr. 

Marshall, thank you. 

STATEMENT OF GLENN MARSHALL, PRESIDENT,

MASHPEE WAMPANOAG TRIBE 

Mr. MARSHALL. Thank you, Mr. Chairman, members of the Committee. I appreciate the opportunity to testify today. My name is 

Glenn Marshall and I am the President of the Mashpee 

Wampanoags. 

Our tribal offices are located on Cape Cod in Massachusetts in 

a town that bears our name. Most of our 1,468 members live in 

close proximity to our ancestral lands. Our history is rich and 

closely intertwined with the history of America. Our local villages 

have existed for 5,000 years and we are best known for having 

greeted the Pilgrims at that best known spot in Plymouth. Despite 

what you might think, we do not regret opening our arms to those 

settlers, although I have joked in the past that we loaned the Pilgrims the moorings to land their boats and we have been paying 

for it ever since. 

Seriously, we are proud of our participation in that historic event 

and our prominent role in American history did not end there. Our 

tribe has answered the call to defend America, fighting in every 

conflict starting with the fight for independence and the war on 

terrorism. The first casualty of the Revolutionary War was Crispus 

Attucks, a Mashpee. I am joined today in the audience by my 

Chief, Vernon Lopez, who fought at D-Day. I myself am a survivor 

of the Surge of Khe Sanh and many incursions into Vietnam. 

Mr. Chairman, hundreds of the Mashpees have given their country their fullest measure of devotion in battle and we have shared 

our land and blood and served our nation with distinction and 

pride. We have also been good neighbors in our local community. 

We maintain the oldest Christian church building on Cape Cod, the 

Old Indian Meeting House. 

16

I have with me here today a book that dates prior to the Commonwealth of Massachusetts that tells us we have had a continuum of presence in the Commonwealth of Massachusetts and 

this great country since the beginning of time. I could have brought 

an older book that dates to the 1600s—it has our genealogy, it has 

our governance of our tribe here—but it was too fragile to travel. 

It makes me angry that we are not able to bring these books and 

show the members of Congress and the people within the BIA. 

Because of that church, we are known as the praying Indians. 

We use this facility for special services now only. Most of our services are done in Algonquin and in dialect. 

It has taken me a long time to understand the workings of the 

government. I am sorry that we could not bring more evidence, but 

I knew that our time would be short. 

We are here for one simple reason. Twenty-nine years ago the 

Mashpees asked the Federal Government to confirm in law what 

everybody knows to be true, that we are a tribe, and 29 years later 

we are still waiting. When we filed our letter stating our intention 

to seek Federal recognition in 1975 the BIA’s response was prompt, 

stating that Mashpee would be among the first to be considered. 

Only 14 others had filed prior to that time. Three years later the 

BIA finalized their recognition rules and regulations and we certainly never expected it would take more than 30 years. We immediately initiated our formal petition and it was not complete until 

1990. We spent years trying to navigate through the confusing regulations, unresponsive bureaucracies of the BIA and further, just 

knocking on doors everywhere and getting the same answer. Looking back, it is not surprising that our tribe, with few resources and 

even fewer academics, struggled to understand the nuances of the 

process. 

Since 1996 when our petition went on active, we have watched 

it stay dormant. We have watched other tribes who were lower on 

the consideration list leapfrog over us and get determinations from 

the BIA. We followed the rules and regulations set forth by the 

BIA, still with no decision. 

Finally, we abandoned that and we took our case to court. We 

started well. In 2001 a Federal judge ordered that we would have 

a final decision December 21, 2002. The bureau pushed. The Court 

of Appeals reversed that decision and directed the court to find a 

new and fresh evaluation as to whether the delay had been unreasonable. Our litigation continues and they say that we will not be 

recognized or have a decision for seven to 14 more years within the 

bureau process. 

Mr. Chairman, we have no desire to be in court. We would have 

settled this out many, many times over in the last 4 years, since 

1996, since 1975. 

The system needs to be fixed. There are several ways that we 

can do it. I have some ideas. I would love to share them with you. 

But the time-consuming, costly litigation helps no one. It absolutely 

helps no one. It does not help the tribe. It does not help the community. It does not help the Commonwealth of Massachusetts and 

it certainly does not help the United States of America. 

When I look at the Lady of Liberty I see a black eye underneath 

the right eye and it says Mashpee Wampanoag for the travesty this 

17

country has permitted to happen to us. Mr. Chairman, I beg you 

for your help and there are situations here that we can fix. 

There are only 27 tribes left that filed for recognition prior to 

1988. I say that those tribes should be the ones that are looked at 

first. Anyone that filed after 1988, let us go through the queue. Let 

us make them stand up to their regulations or let us find some outside independent folks that can do some of the legwork that they 

do, academics. We have some of the most wonderful colleges with 

academic archives for colonial history; it would not take long. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Mr. Marshall follows:]

Statement of Glenn Marshall, President, Mashpee Wampanoag Tribe 

Mr. Chairman, members of the committee, I thank you for the opportunity to offer 

these remarks today. I am President of the Mashpee Wampanoags, the largest tribe 

in the Commonwealth of Massachusetts. Our tribal offices are located on Cape Cod, 

Massachusetts, in the town which bears our name. We are a tribe of 1,468 members, 

most of whom live in close proximity to our ancestral lands. I present myself today 

on their behalf in order to share our story. I hope my remarks will not only narrate 

the historical significance of the Mashpee and our record of service to the United 

States, but will also demonstrate the compelling factual case for federal recognition. 

It is my hope that these remarks help present a more clear picture of our tribe’s 

experiences, and, in turn, a clear picture of the reality of the federal recognition 

process. 

The vision of the Pilgrim forefathers disembarking from the Mayflower at Plymouth Rock is the starting point for many people’s idea of significant history in the 

New World. More exactly, it is a pivotal point in American history. It started a new 

chapter, but it is only a brief moment in a much longer narrative of life on this continent. That story is one of men and women whom have lived for thousands of years 

prior to the arrival of Europeans. Archeologists have discovered evidence to support 

the claim that local Mashpee villages have existed for 5,000 years with an unbroken 

continuum of habitation to the present. Our extensive history, therefore, is not 

predicated on the single instance in which our ancestors greeted the Pilgrims as 

they landed upon the shores of America. Rather, this moment enriched the history 

of the Mashpee as a community tied to the land on which we have existed for thousands of years. We are proud to have been part of this historically significant event 

and many since. 

Since that meeting, our history has been shared with the European settlers. However, our experience has not always lived up to the promise of that first meeting 

in Plymouth. In fact, our experience with the Bureau of Indian Affairs has only intensified the lingering taste of past oppression. But our commitment to this, our 

great country, has been and remains steadfast. We are proud to be Americans. We 

are proud of our country. We have not always been treated with fairness and equality. But, we know ourselves to be a significant tribe tied to the long history of this 

nation, and we remain firm in our faith in its commitment to justice. 

The fight for freedom and development of democracy has been a tumultuous one, 

often calling for men and women to fight in order to secure liberty. The first casualty of the Revolutionary War, Crispus Attucks, was a member of the Mashpee. 

Another distinguished Mashpee, Massasoit, stands point on the state seal and flag 

of the Commonwealth. In fact, the Mashpee have consistently answered the call to 

arms, fighting in every American conflict beginning with the fight for independence 

from England: 21 in the Spanish American War, 145 in World War I, 5 in the Haitian Insurrection, 6 in the Philippine Insurrection, 80 in World War II (including 

44 at D-Day), 61 in the Korean War, 30 during the Cuban blockade, 50 in the Vietnam War, 6 at Grenada, 11 in Panama, 13 in Desert Storm and 17 in Afghanistan 

and the War on Terror. I am joined today by our Chief, Vernon Lopez, who was 

among the Mashpee fighting at D-Day; I, am a survivor of the siege of Khe Sanh, 

in Vietnam. Our ties to our community at home compliment our record of service 

and sacrifice to the country. 

Currently, sixty percent of our tribal members live in close proximity to the town 

of Mashpee. We maintain the oldest Christian church building on the Cape, the Old 

Indian Meeting House, established in 1673 by John Eliot. Our devotion to the 

church has earned us the name ‘‘Praying Indians,’’ and presently we use this facility 

for special occasions of worship. Our services are performed in Algonquin, the 

18

1 Jedidah Morse, A Report to the Secretary of War of the United States on Indian Affairs (New 

Haven 1822). 2 Joint Resolution Offered by State Representative Matthew C. Patrick, Representative Eric 

Turkington, Senator Robert O’Leary and Senator Therese Murray. 

official Wampanoag language. Moreover, we assist other tribes in maintaining their 

traditional languages and customs. Meticulous care is given to preserving the nuances of our cultural traditions with hope of enculturation for subsequent generations. Nevertheless, the lack of a defined tribal land makes preservation of our traditions and cultural identity very difficult to maintain. Our frustration is intensified 

in the light of our progressive social and legislative history in the Commonwealth 

of Massachusetts and prior relationship with the federal government. 

The significance of Mashpee history in Massachusetts is confirmed in historical 

texts dating back hundreds of years. As population swelled in states, the idea of 

westward expansion became a reality. The United States government explored the 

removal of Indians from eastern states through the endowment of tribal lands in 

the west in places such as Oklahoma. The shortsighted and thoughtless nature of 

such proposals aside, such a consideration was rejected when considering the relocation of the Mashpee. A document dating from 1822, A Report to the Secretary of 

War of the United States on Indian Affairs, states in regard to Mashpee relocation, 

‘‘They are of public utility here as expert whalemen, and manufacturers of 

various light articles; have lost their sympathy with their brethren of the 

forest; are in possession of many privileges, peculiar to a coast, indented by 

the sea; their local attachments are strong; they are tenacious of their 

lands; of course the idea of alienating them and removing to a distance, 

would be very unpopular. This is evident from the feelings manifested by 

those whom I have sounded on the subject; I have no reason therefore, to 

believe the scheme would take with them.’’ 1

Then, the rebuff of Mashpee removal was predicated on our strong ties to the land 

and sea, as well as our fierce love for the land we have inhabited for so long. Now 

we seek to have the federal government recognize the Mashpee and acknowledge 

our history in this land, a history recognized in texts such as these. Yet, this is not 

the singular piece of supporting evidence in our case for federal recognition. 

The town of Mashpee, Massachusetts, was incorporated as a township in 1870 and 

common land allotted to Indians and non-Indians. Members of our tribe served in 

all leading roles in the town of Mashpee until 1964, serving the town in governance 

positions including selectman, as police and firemen, and as municipal officials. During this period, we opened to the public our traditions in hope that others could understand our culture as we had been forced to understand theirs. In 1920 we began 

the first community powwow, inviting citizens to participate in one of our most sacred customs. Over time, Massachusetts embraced our tribe and, most notably, recognized the Mashpee in statute. In fact, more recently, members of the Massachusetts Legislature submitted a joint resolution supporting federal recognition; ‘‘Massachusetts Legislature recommends that the Federal Government follow the Commonwealth’s lead by formally recognizing the Mashpee Wampanoag Tribe.’’ 2 And 

yet, federally we have been unable to gain recognition. 

Currently, our main land base consists of 55 tribally leased acres in the town, located near the southwestern end of Cape Cod—a small sliver of the 16,500 acres 

originally provided by England’s King George II and reaffirmed by Plymouth Colony. In the past we have struggled to survive on the Cape, and continue to do so 

today. As Cape development reshaped our community and the vacation-based economy boomed, the Mashpee tribal members did not benefit from the growth. One of 

the fastest growing communities in the State, population soared to almost 13,000 

by 2000. Mashpee land continued to shrink and the challenge of retaining our identity grew. 

We, as Mashpee, struggle every day to teach our Indian culture, while, concurrently teaching the mores and history of the United States. We find it hard to resolve our history on this land and our dedication to this country with the lack of 

recognition by the government we helped shape. Thus, in 1932 we began the federal 

recognition process and rejuvenated our efforts in the 1970s. We have pursued our 

status in court as well as through the Bureau of Indian Affairs. 

The Wampanoags of Mashpee filed a letter of intent with the United States Department of the Interior’s Bureau of Indian Affairs (BIA) in 1975. The BIA’s response was prompt, stating the Mashpee were among the first tribes to be considered for only fourteen others had filed prior to that time. However, at the time the 

BIA had not adopted any regulations setting forth official criteria for federal recognition of tribes. 

19

In 1978 the Bureau of Indian Affairs had solidified the criteria for achieving federal recognition. Although we understood the process was a long one, taking years, 

we initiated our formal petition. This process was not complete in full until 1990. 

In 1990, after years of research, the Mashpee submitted its formal application, 

compiled without the aide of scholars due to our lack of resources. Our lack of scholarly or professional consulting in our application resulted in the BIA reply that 

there existed obvious deficiencies in our argument that the Wampanoag functioned 

as a tribal entity throughout the twentieth century. Consequently, under the leadership of Harvard-educated Tribal President, Russell Peters, we went back to work. 

In 1996 we resubmitted our application, supported by hundreds of pages of documentation and several boxes of vital records. Through the aid of lawyers, archaeologists, genealogists and researchers we meticulously documented our history in the 

Commonwealth. Less than a month after our second submission, the agency deemed 

the petition ‘‘ready for active consideration.’’

Our petition has been ready for active consideration for seven years—since 1996. 

In that time, other tribes’ petitions have jumped our own for consideration. For example, the Muwekma, a tribe which was not on the ready list for consideration until 

1998, has already received a ruling. The Department has also entered into settlements placing groups, including the Schaghticoke and Golden Hill Tribes, on expedited schedules for consideration. Moreover, the Department has jumped tribes such 

as the Pawcatuck Eastern Pequots and the Match-E-Be-Nash-She-Wish Band of 

Potawatomi Indians of Michigan ahead in order to consider their petition in tandem 

with similarly situated tribes. In contrast, the Mashpee continue to await a decision 

to move forward on our petition. 

We have followed the rules and regulations put forth by the BIA and it’s predecessor, the War Department. Despite our best efforts to comply, we remain without 

any sense of when we can expect completion of our petition or whether the BIA will 

meet its obligations under the established procedures. Thus, we felt we had no 

choice but to proceed through the courts. We are presently seeking a court order 

to force the BIA to process our petition in a timely manner. We believe that we can 

establish that the delay in processing our petition has been egregiously unreasonable particularly in light of the other tribes whose petitions have been considered 

before our own. 

In 2001, the U.S. District Court for the District of Columbia found the BIA had 

unreasonably delayed action on the Mashpee petition, and ordered the BIA to make 

a final finding on the petition by December 21, 2002. The District Court decision 

was appealed by the BIA to the U.S. Court of Appeals for the D.C. Circuit. In 2003, 

the Court of Appeals remanded the case back to the District Court ‘‘for a full and 

fresh evaluation of whether the delay Mashpee is encountering should be deemed 

‘‘unreasonable.’’ Thus, the case is now pending once again before the District Court. 

The Mashpee fully expect to be successful in demonstrating that the BIA has unreasonably delayed action on the Mashpee petition. The petition has been languishing at the BIA for seven years. Unless the Court or Congress intervenes, the 

Mashpee are likely to be waiting seven to fourteen more years before receiving a 

decision. After considering the facts surrounding the Department’s history of delay, 

its past actions, as well as the fundamental rights and privileges at stake in the 

tribal recognition process, we believe the District Court will again find that this 

delay—with no end in sight—is egregious and must be remedied. 

Tribes which have won court decisions forcing the BIA to review their file have 

received negative rulings. My worry, as Tribal President, is that the Mashpee will 

be reprimanded in the form of a negative ruling. Seventeen tribes, winning a legally 

forced review, have all been denied federal recognition since 1980. Six of those had 

lower placement on the list for consideration. Five of the denied tribes sought litigation to no avail. Only the Schaghticoke of Connecticut won their suit and received 

favorable consideration. 

It is our contention that the Department is adversarial at best. It is difficult for 

tribes to prove their case for recognition and, furthermore, there exists no readily 

available clarification of the rules and regulations to improve the process. The BIA 

only respond when something is wrong, rather than explaining their interpretation 

of the facts and application of the criteria. 

It is not only possible for the consideration process to be improved, but also necessary. Experts have told us that the entire backlog of petitions could be completed 

in 2 years if the Bureau worked efficiently and with a view toward achieving equitable resolution of the various pending applications. The Mashpee application could 

be done in a few months given our long history of recognition by the Commonwealth 

of Massachusetts, substantial shared history with a tribe recognized by the Bureau, 

and other factors. Yet, the Bureau proceeds, year after year, with no enforced standards, no clear procedures, no commitment to completion and no effort to secure 

20

resources to get the job done either internally or through a limited contractual program utilizing the top experts from across the country. 

With the aid of scholars and the use of historical archives the time frame could 

be truncated considerably. Schools such as Rutgers, University of Virginia and University of Pennsylvania, with well-established and respected leaders in the field of 

Native studies, could review the applications of a number of tribes if each were assigned just two per year. 

The lack of communication on behalf of the Bureau of Indian Affairs has been not 

only frustrating, but also insulting. We feel we have pursued our federal recognition 

through the proper channels and deserve due process of our claim. We have observed the Bureau’s lack of ability to adhere to its rules and regulations; yet, the 

tribes seeking recognition are made to adhere to said regulations. Capriciously, the 

BIA has moved forward on the claims of tribes which had submitted their applications significantly after the Mashpee with little or no explanation. 

Mr. Chairman, members of the committee, the denial of resolution on our petition 

carries real consequences for the members of my tribe. We are denied access to 

health care and many of the other federal benefits that recognition conveys. As a 

result, like many other native people, we suffer from diseases such as diabetes at 

levels substantially higher than most populations. More importantly, failure to complete our petition denies Mashpee tribal members the pride that only recognition 

of our tribe and its contributions to this country will convey. 

Given our record of service to this country, the Mashpee people have earned and 

deserve better treatment. We have shared our land, shed our blood, and have grown 

together as part of this nation. Still, we struggle every day to live on the land that 

has always been our home. We struggle to preserve a history and language that is 

critical to the telling of the story of America. And, yet, we remain committed to the 

dream that we have so long been denied, and seek only that to which we are justly 

entitled. 

As a representative of these hardworking, dedicated and proud Mashpee tribal 

members I respectfully submit these thoughts for your consideration. I would welcome the opportunity to discuss our tribe and our case for federal recognition further or furnish any requests for more information. I thank you for your time and 

consideration. 

The CHAIRMAN. Thank you. 

Mr. Gumbs? 

STATEMENT OF LANCE GUMBS, TRIBAL TRUSTEE,

SHINNECOCK INDIAN TRIBE 

Mr. GUMBS. Mr. Chairman, Ranking Member Rahall, and members of the Resources Committee, thank you for inviting me to testify on this critical issue here today. 

Today is the first time that a member of the Shinnecock Indian 

Nation has testified before Congress since the year 1900. In 1976 

we were one of the first four tribes to file an application for Federal 

recognition. That was 25 years ago. Our recognition effort was 

stalled in part because we could not afford the high cost of completing our application. We were finally placed on the ready for active consideration list by the BIA on September 9, 2003. A month 

later we were informed that the Shinnecock petition is now 12th 

on the current list and according to BIA, ‘‘Without additional resources it may take the OFA up to 15 years to decide all completed 

applications.’’ Thus, without a change to the current process, the 

Shinnecocks will have languished in an unrecognized status for almost half-a-century. 

The Shinnecock Indian Nation is one of the oldest continuously 

self-governing tribes in the country and was one of the first to have 

contact with the European settlers who sailed into Peconic Bay in 

1640. From that time on, early settlers have deceived our ancestor 

21

and illegally began taking our lands, which we repeatedly tried to 

prevent. 

We continued our practice of self-governance until 1792 when 

New York State enacted a law entitled ‘‘An Act for the Benefit of 

the Shinnecock Tribe of Indians Residing in Suffolk County.’’ This 

Act took away our traditional self-governance and established a 

trustee form of government. Our tribal election process has been 

recorded each April by the clerk of the town of Southampton from 

1792 to the present. 

Thus, it is well documented that the Shinnecock Indian Nation 

has had a continuous existence and contact with colonialists dating 

to the 1600s and formal relations with New York State since its 

creation. This history was reaffirmed in 1974 when the New York 

State Legislature called on Congress to grant our tribe Federal recognition. 

In addition, a 1987 letter from the Secretary of the State of New 

York to trustees stated, ‘‘The Shinnecock tribe is one of the historic 

tribes of Long Island which still has tribal existence and occupies 

fee simple land generally within its aboriginal territory and it is 

clear that the Federal government deals with the Shinnecocks as 

an Indian tribe.’’

You should also know that legal experts in the Federal recognition process from the Native American Rights Fund have stated 

that our application is one of the strongest documented petitions 

ever submitted to the OFA. 

As you know, the GAO stated in November 2001, ‘‘The regulatory 

process is not equipped to respond in a timely manner; nor does the 

process impose effective time lines that create a sense of urgency.’’ 

The GAO also noted that it takes the BIA an average of 15 years 

to resolve a petition in a system that was originally designed to 

take 2 years. 

In response to the GAO report, then Assistant Secretary of 

Indian Affairs McCaleb testified before Congress in February 2002 

that staff research positions remain vacant. That is completely unacceptable. 

It seems each time Congress looks into this matter there is a 

flurry of activity at BIA but ultimately little is done and nothing 

changes. I hope this time this will be different. 

What systems could be put in place to provide for additional 

funding and manpower to establish a reasonable time line for application decisions? For example, I am aware there is presently an 

expedited procedure to disapprove a petition. Why not develop a 

process that would expedite the approval of a petition if certain criteria are met, such as being continuously recognized by a state, as 

is the case with my tribe in New York State? 

In addition, we oppose H.R. 3838 and I am appalled that the 

Federal government would contemplate using tax dollars to potentially oppose tribal recognition or related issues. No Federal funds 

have been made available to assist us or any tribe on recognition, 

yet some in Congress want to fund local governments to oppose us. 

This seems another unfair tactic to me. 

In conclusion, please remember that we are among the first people of what is now New York State. Our roots have been traced 

back thousands of years and we have endured countless hardships 

22

since that time. Our lands have been illegally taken and we have 

been forced to walk in two worlds as we fight assimilation and 

struggle to maintain our ancestral heritage. 

At present we number 1,320 tribal members, of which 650 reside 

on or about 800 livable acres of our original lands. In many ways 

the injustices that we and our fellow indigenous people have endured for centuries continue today under this broken Federal recognition process. I am here today as a descendent of a proud and 

ancient people and as an elected leader who has a sacred responsibility to my nation and the unborn seventh generation. I would respectfully request that you do all in your power to fix this Federal 

recognition process and to correct the past indignities and to provide for our future for all time. Thank you. 

[The prepared statement of Mr. Gumbs follows:]

Statement of Lance A. Gumbs, Tribal Trustee, Shinnecock Indian Nation 

Mr. Chairman, Ranking Member Rahall and Members of the Resources Committee, thank you for holding this oversight hearing on Tribal Recognition and for 

inviting me to testify on behalf of the Shinnecock Indian Nation on this critical 

issue. 

The committee will hear testimony today from other tribes who have struggled 

for many years with the bureaucratic morass known as the federal recognition process. Many of these tribes have waited decades while their application has languished at what is now the Office of Federal Acknowledgment or, ‘‘OFA.’’

Today is the first time that a member of the Shinnecock Indian Nation has testified before Congress since 1900. In 1978, we were one of the first four tribes to file 

an application for federal recognition—the completion of which was delayed for 

many years due to the cost involved. Twenty five years later, we were finally placed 

on the ‘‘Ready for Active Consideration’’ list by letter from the BIA dated September 

9, 2003. 

Then in an October 2003 letter, we were informed that the Shinnecock Petition 

is now 12th on the current list and, according to BIA, ‘‘without additional resources, 

it may take the OFA up to 15 years to decide all completed applications.’’ Amazingly, it may take another 15 to 20 years before a final determination is made! 

Thus, without a change to the current OFA process, the Shinnecock will have languished in an unrecognized status for more than half a century—a time in which 

several generations have passed on—and it appears that the present and future 

generations will also have to wait before we, the original inhabitants of Eastern 

Long Island, receive acknowledgment from the federal government. 

My nation, the Shinnecock Indian Nation, is one of the oldest, continuously selfgoverning tribes in the country and was one of the first to have contact with the 

European settlers when eight men, one woman and a child newly arrived from 

Lynn, Massachusetts, sailed into Peconic Bay in 1640. From there my Shinnecock 

ancestors led the group southward to what became the town of Southampton. 

In 1640, early settlers deceived the inhabitants of the area and illegally began 

systematically taking our land, which we repeatedly tried in vain to prevent. 

We continued our practice of self-governance until February 24, 1792, when the 

State of New York enacted a law titled ‘‘An Act for the benefit of the Shinnecock 

Tribe of Indians, residing in Suffolk County.’’ This Act took away our form of selfgovernance and established a trusteeship form of government in which the minutes 

of our tribe and the elections of our trustees have been recorded each April by the 

Town of Southampton Clerk from 1792 to the present. During this time, the State 

of New York has attempted to illegally regulate our sovereignty by enacting numerous constitutional amendments, statutes, rules and regulations. 

Thus, it is well-documented that we, the Shinnecock Indian Nation, have had a 

formal relationship with colonists dating to the 1600s and subsequently with the 

State of New York, which predates contact Western Tribes have had with the federal government by over 200 years. This history was reaffirmed in 1974 when the 

State Legislature of New York unanimously adopted a resolution calling on Congress to grant our tribe federal recognition. In addition, a 1987 letter from the Associate Counsel of the Secretary of State of New York to trustees on a zoning issue 

stated that ‘‘the Shinnecock Tribe is one of the historic tribes of Long Island which 

still has tribal existence and occupies fee simple land generally within its aboriginal 

23

territory...(and)...it is clear that the federal government deals with the Shinnecocks 

as an Indian Tribe.’’

Therefore, records show that we have had a continuous existence and relationship 

with colonial settlers and later governments for more than 400 years and formal relations with the State of New York for more than 200 years. Yet, because of a lack 

of resources and commitment by the government agency responsible for tribal recognition, our application will likely collect dust for at least two more decades before 

we are granted the recognition by the federal government that we rightly deserve. 

You should also know that legal experts in the federal recognition process from 

the Native American Rights Fund, which have supported petitions for numerous 

tribes, have stated that our application is one of the strongest documented petitions 

ever submitted to the OFA. 

As you know, the GAO issued a report in November 2001 stating that the ‘‘basis 

for the BIA’s...recognition decisions (are) not always clear ‘‘as to what level of evidence is sufficient to demonstrate a tribe’s continuous existence over time;’’ that the 

‘‘regulatory process is not equipped to respond in a timely manner;’’ nor does the 

process ‘‘impose effective time lines that create a sense of urgency.’’ The GAO also 

recognized that it takes on average 15 years to resolve petitions in a system that 

was originally designed to take 2 years! 

In response to the GAO report, then Assistant Secretary of Indian Affairs Neal 

A. McCaleb testified before the House Government and Reform Oversight Committee in February 2002 that then-BAR staff research positions remain unfilled. 

From our perspective, this is unacceptable. 

I am certain that you will hear testimony later today that OFA and BIA are taking steps internally to address the GAO’s and Congress’s concerns. While these efforts are laudable, it seems a lot of noise and a flurry of activity occurs each time 

Congress looks into this matter and ultimately, little is done and nothing changes. 

I hope this time will be different. No matter what, it would appear that tribes currently ‘‘in the pipeline’’ will continue to wait—without recourse—for their federal 

status for years to come. 

I would ask what mechanism exists or can be put in place to provide for additional funding and personnel resources in order to establish a reasonable time line 

for application decisions? For example, I am aware that there is presently an expedited procedure to disapprove a petition. Why not develop a similar process to provide for expedited approval of a petition if certain criterion, such as being continuously recognized by the state—as is the case with my tribe and the State of New 

York—are met? 

In addition, we oppose H.R. 3838, legislation introduced by Members from Con- necticut to provide federal grants of up to $500,000 to offset costs to local governments facing acknowledgment, land trust or land claim issues. I am appalled that 

the federal government would contemplate using taxpayer dollars to potentially oppose tribal recognition or related issues. In fact, our recognition effort was stalled 

in part for the past twenty-five years because we could not afford the costs associated with completing our application. No federal funds have been made available 

to assist us, or any other tribe, with this costly and burdensome process, yet some 

in Congress want to fund local governments to oppose us? It would seem to me that 

there is a basic underlying issue of fairness here. 

In conclusion, please remember that we are among the ‘‘First People’’ of what now 

is New York State. Our roots have been traced back thousands of years and even 

though the survival of that original colony can be credited to my people, we have 

endured countless indignities since that time. Our lands have been illegally taken 

and we have been forced to walk in two worlds as we fight assimilation and struggle 

to maintain our ancestral heritage. At present, we number 1,320 tribal members, 

of which 650 or so reside on about 800 acres of our original lands. 

In many ways, the indignities that we and our fellow indigenous people have endured for centuries continue today under this broken federal recognition process. I 

am here today as the descendant of a proud and ancient people and also as an elected tribal leader who has a sacred responsibility to my people and the unborn ‘‘seventh generation’’. 

I would respectfully request that you do all that is in your power to help the first 

people of this land and our Nation by fixing the federal recognition process, not only 

to correct past injustices but to provide for our future, both tomorrow and for all 

time. 

Thank you. 

The CHAIRMAN. Thank you. 

Ms. Cambra. 

24

STATEMENT OF ROSEMARY CAMBRA, CHAIRPERSON,

MUWEKMA OHLONE INDIAN TRIBE, SAN FRANCISCO BAY 

AREA, CALIFORNIA 

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

Oversight Hearing Committee. My name is Rosemary Cambra and 

I am the Chairwoman for the Muwekma Tribe of San Francisco 

Bay region. I also Co-Chair the Recognition Task Force for the National Congress of American Indians. I have also worked on the 

Recognition Task Force for the congressionally created Advisory 

Council on California Indian Policy between 1994 through 1998. 

The National Congress of American Indians (NCAI) allowed a 

created working group in the year 2000 and became an official National Congress of American Indian task force in the year 2001. 

Two Co-Chairs, the honorable Ken Hansen, who comes from a recognized tribe, and myself, Rosemary Cambra, from an unrecognized 

tribe. We are 100 percent supported by President Sue Maston and 

the honorable Tex Hall. 

The NCAI task force has developed several goals and objectives 

that I want to share with you today. One is to support and develop 

reform measures either through legislation or regulatory reform or 

court intervention to ensure a timely, a fair and efficient recognition process, to demand full and meaningful consultation with both 

recognized and nonfederally recognized tribes in any proposed reform measures prior to the enactment. 

The task force has heard testimony from many tribal groups expressing their frustration over the near insurmountable costs, in 

the millions, necessary to complete the BAR process, the enormous 

amount of time waiting in bureaucratic limbo, the nonresponsiveness by the negative attitudes of the BAR staff, and the obstacles 

and the regulations posed relative to the unique historical circumstances surrounding particular petitioning tribal groups. 

The National Congress of American Indians is trying to help formulate suitable alternatives and take the recognition process out 

of the BIA and supports the creation of a commission, as specified 

in Senator Campbell’s bill, S. 611. Other alternatives include legislation for those tribes that have demonstrated that they are previously recognized and who were never terminated by any Act of 

Congress, as is the case in the restoration of the Tlingit and Haida 

Tribes of Alaska in 1944—see H.R. 4180—or through Federal court 

systems. 

The Advisory Council on Indian Policy of California was created 

through a passage of H.R. 2144 and was signed into law by President Bush in October of 1992. The ACCIP finalized their findings 

in a series of reports and submitted them in 1988, as mandated by 

Congress. In those ACCIP reports it was estimated that 80,000 

California Indians, many of whom have BIA numbers, currently 

have no legal standing because their tribes, although never formally terminated by Congress, no longer appear on the list of federally acknowledged tribes. See H.R. 4180. Presently these tribal 

groups are no longer federally acknowledged by the Secretary of Interior due to the dereliction of duty, neglect, and gross mismanagement by the BIA. 

Since the revisions of the acknowledgment regulations, 25 C.F.R., 

Part 83, in 1994, at least two of these California tribal groups, the 

25

Muwekma Tribe and the Tsnungwe Council, have obtained formal 

determinations of previous unambiguous Federal recognition from 

the Office of Federal Acknowledgment. 

In 1998, the ACCIP made the following statement with regard to 

several of the previously recognized tribes in California. ‘‘The 

Dorrington report provides evidence of previous Federal acknowledgment for modern-day petitioners who can establish their connection to historical bands identified therein. Clearly, the BIA recognized its trust obligations to these bands when it undertook, pursuant to the authority of the Homeless California Indian Acts and the 

Allotment Act, to determine their living conditions and their need 

for land. The fact that some were provided with land and others 

were not did not diminish that trust.’’

‘‘Among those California Indian groups that have petitioned for 

Federal acknowledgment there are several who can trace their origins to one or more bands identified in the Dorrington report. The 

Muwekma Tribe is one whose connections to the Verona Band has 

been recently confirmed in a letter from BAR.’’

In that final report eight other tribes were also identified. These 

tribes are the Dunlap Band of Mono Indians, the Kern Valley 

Indian Community, the Tinoqui-Chalola Council, the American 

Indian Council of Mariposa County, the YOKo, the Shasta Nation, 

the Hayfork Band of Nor El-Muk Wintu Indians and the Tsnungwe 

Council. 

In the year 2000 Congressman George Miller formulated the 

California Tribal Status Clarification Act. As a potential follow-up 

to the ACCIP recommendations, in Title II of that proposed Act the 

following tribal groups were included for restorations as previously 

recognized tribes: the Lower Lake Koi, the Muwekma Tribe, the 

Tsnungwe Council, the Dunlap Band of Mono Indians. That bill 

never got out of Committee. 

The Muwekma Tribe was recognized under a series of Acts enacted by Congress beginning in the year 1906 to secure home sites 

for the landless Indians of California. Our tribe was identified in 

a special Indian census and we came known as the Verona Band 

of Alameda County. Our tribe fell under the jurisdiction of the 

Reno and later Sacramento agencies and through the dereliction of 

duty by Superintendent Dorrington, no land was ever purchased 

for our people. 

Our men and women have served in the United States armed 

forces from World War I to the present conflict in Iraq. Our men 

are buried in the Golden Gate National Cemetery. 

In March of 1989 the Muwekma Tribal Council submitted a letter of intent to petition, number 111, the Federal government for 

acknowledgment. The following month, on April 25, 1989, our tribal council received a response from the BIA Tribal Government 

Services acknowledging the receipt of our letter. In that letter the 

Acting Chief of Tribal Services informed our council that ‘‘Because 

of the significance and permanence of acknowledgment as a tribe, 

the process of evaluation is a lengthy and thorough one.’’

Mr. Chairman, I want to point out the word permanence. If I am 

not mistaken, permanence means something intended to last indefinitely, without change. When the Muwekma had obtained its 

determination of ‘‘previous unambiguous Federal recognition’’ in 

26

1996, my tribal council had the audacity to ask the BIA the following question. Now if we are previously recognized, a recognized 

tribe, and have never been terminated by Congress, how then did 

we lose our status? The BIA could not and would not answer that 

question until we went to court. 

In 1998, Muwekma was placed on ready status and we realized 

we were the only tribe with previous recognition. By our accounting, it would have taken approximately 20 more years before the 

BIA would look at our petition. 

The tribe decided to sue the DOI and in 1999 submitted a complaint before the U.S. District Court in D.C., the result of which 

was the court found the BIA in violation of the Administrative Procedures Act and Justice Urbina stated that 2 years was too long 

to wait. This action challenged the BIA’s control over this process 

and we have had to pay for this dearly. The overall Federal acknowledgment process, including the research for the petition, the 

trips to Washington, D.C., the lawsuit, has cost my tribe millions. 

On September 9, 2002, the BAR denied extending the acknowledgment to my tribe, even though we had submitted evidence for 

each decade under each criteria. Although the BIA was predisposed 

to reject our petition, they never once refuted any evidence we submitted. They also failed, as promised in their response to Justice 

Urbina in our lawsuit, to explain how the tribe lost its acknowledgment status. We also discovered that they never referenced 87.6(d), 

reasonable likelihood of the facts when reviewing our petition. 

The BIA did, however, conclude——

The CHAIRMAN. Ma’am, I am going to have to ask you to wrap 

it up on your oral testimony. We do have your entire written testimony that will be included in the record. I have tried to be lenient 

with the time but if I could ask you to wrap it up. 

Ms. CAMBRA. Yes. I would just like to conclude that 100 percent 

of our living members today descend from a historical tribe. It has 

never been terminated and I am pleading from you today and the 

Committee members to grant my tribe justice, not to deny us justice but to grant us justice by proposing legislation to reaffirm my 

tribe. Thank you. 

[The prepared statement of Ms. Cambra follows:]

Statement of Rosemary Cambra, Chairwoman, Muwekma Ohlone Tribe 

Good Morning Mr. Chairman and Members of the Oversight Hearing: 

Mr. Chairman, my name is Rosemary Cambra and I carry several badges of honor 

in Indian Country. I am the elected Chairwoman of the Muwekma Ohlone Tribe of 

the San Francisco Bay region since 1984 and I am the Co-Chair of the Recognition 

Task Force for the National Congress of American Indians (NCAI). I also had the 

good fortune to work on the Recognition Task Force for the Congressionally created 

Advisory Council on California Indian Policy between 1994 and 1998. 

As you can tell by my commitment, Mr. Chairman, I am a person deeply concerned about the justice issues not only confronting my tribe, but the plethora of 

issues confronting the many disenfranchised historic tribes throughout this country 

that were either previously recognized or whom fell through the administrative 

cracks, thereby rending both groups as Unacknowledged by the Secretary of Interior 

today. 

Today, I want to speak on four points. The first is my involvement as Co-Chair 

of the Recognition Task Force for NCAI. The second reports upon the implications 

of ACCIP reports submitted to the Congress in 1998. The third address to long, 

painful and costly efforts that my Tribe has been engaged in both prior to and during the Recognition Process and the adverse ramifications for my people. And lastly, 

27

I want to discuss about the conflict of interest and violations under the Administrative Procedures Act by both BAR staff and DOI Legal Council. 

NCAI Recognition Task Force 

Since 2001, I have had the honor to serve as Co-Chair on the NCAI Recognition 

Task Force. My fellow Co-Chair is The Honorable Mr. Ken Hansen, Chairman of 

the Samish Tribe from the State of Washington, which suffered for over 20 years 

in the BAR Process. Together, Mr. Hansen and myself, along with a cadre of devoted Native Americans and non-Native professionals are working towards the development of a meaningful alternative to the arduous, disheartening, painful and 

obviously untenable Federal Recognition process as currently executed by the Office 

of Federal Acknowledgment (previously called the BAR). 

During the course of these past several years the NCAI Task Force has heard the 

testimonies from many tribal groups expressing their frustration over the near insurmountable costs (in the millions) necessary to complete the BAR process, the 

enormous amount of time waiting in bureaucratic limbo, the nonresponsiveness by 

and negative attitudes of OFA/BAR staff, and the obstacles that the regulations 

pose relative to the unique historical circumstances surrounding that particular petitioning tribal group. 

As a result of this effort, the NCAI is trying to help formulate suitable alternatives that takes the Recognition Process out of the BIA/OFA and supports the creation of a commission as expressed in the many bills considered since 1989 and 

specified in Senator Campbell’s Bill S.B. 611. Other alternatives includes legislation 

for those tribes that have demonstrated that they were previously recognized and 

whom were never terminated by any Act of the Congress as in the case of the restoration of the Tlingit and Haida Tribes of Alaska in 1994 (see H.R. 4180) or 

through the Federal Court system. 

As a result of the above, these issues hearken back to what Bud Shapard, the retired Bureau Chief of the Branch of Acknowledgment and Research had stated in 

his testimony before the Congress with regards to the then-proposed H.R. 3430 bill. 

Shapard stated that: 

’’...After fourteen years of trying to make the regulations which I drafted 

in 1978 work, I must conclude that they are fatally flawed and unworkable. 

They take too long to produce results. They are administratively too complicated. The decisions are subjective and are not necessarily accurate. The 

criteria are limited in scope and are not applicable to many of the petitioning groups which are in fact, viable Indian tribes; and

...To continue to operate under the present regulations or any legislative 

approximation will not resolve the question of unrecognized Indian tribes 

in this country.

The present regulations cannot be revised, fixed, patched, dabbled with, redefined, clarified or administered differently to make them work. Additional 

money, staff, computer hardware, or contracts with outside organizations 

will not solve the problem. The problem lies within the regulations.

In short, the regulations should be scrapped in their entirety and replaced 

with a simpler, less burdensome, and more objective solution. They should 

be administered by an independent agency—

The essential element, the bottom line key to any solution to the question 

of serving unrecognized Indian tribes falls directly on the Congress. If there 

is to be any sort of permanent answer, Congress must spell out in unmistakable terms who the United States will serve as Indians and Indian 

tribes.’’

These words from former Branch Chief Shapard still ring today as they did 14 

years ago and even with his testimony, little has changed in the Recognition process. Bills have been threatened to be introduced by concerned Congressional representatives to remove the process from the BIA, however, the burden on the tribes 

have not been alleviated, but instead have become increasingly more difficult and 

politicized. 

Advisory Council on California Indian Policy (ACCIP) 

As you know, the Advisory Council on California Indian Policy was created 

through the passage of H.R. 2144 and was signed into law by President Bush in 

October 1992. Under President Clinton, the ACCIP’s council was in place by 1994, 

and having authorization to spend public moneys, the ACCIP held hearings around 

the state addressing the critical issues confronting the California Indians. The 

ACCIP finalized their findings in a series of reports, and submitted them in 1998, 

as mandated by the Congress. It has now been over five years since those reports 

28

were issued to the Congress and since then, the Congress appears to be totally mute 

on any response in addressing those critical issues confronting California tribal 

groups. 

In those ACCIP reports, it was estimated that approximately 80,000 California 

Indians (many of whom have BIA numbers) currently have no legal standing because their tribes, although never formally ‘‘Terminated’’ by the Congress, no longer 

appear on the List of Federally Acknowledged Tribes (see H.R. 4180). Presently, 

these historic tribal groups are no longer Federally Acknowledged by the Secretary 

of Interior due to dereliction of duty, neglect and gross mismanagement by the BIA. 

Since the revisions of the Acknowledgment regulations (25 CFR Part 83) in 1994, 

at least two of these California tribal groups, the Muwekma Ohlone Tribe and 

Tsnungwe Council, have obtained formal determinations of ‘‘previous unambiguous 

Federal recognition’’ from the Office of Federal Acknowledgment (OFA). In fact, 

since 1996 no other tribe has been issued such a determination, and, in fact, the 

OFA has decided to eliminate such determinations under the end of the review process. Previous Recognition was written into the revised regulations to supposedly 

lessen the burden of a tribe. With the elimination of previous recognition during the 

Technical Assistance phase, the OFA has ensured that tribes will indeed be once 

again burdened with their research. 

In 1998, the ACCIP made the following statement with regards to several of the 

previously recognized tribes in California: 

‘‘The Dorrington report provides evidence of previous federal acknowledgment for modern-day petitioners who can establish their connection to the 

historic bands identified therein. Clearly, the BIA ‘‘recognized’’ its trust obligations to these Indian bands when it undertook—pursuant to the authority of the Homeless California Indian Acts and the Allotment Act ‘‘to determine their living conditions and their need for land. The fact that some 

were provided with land and others were not did not diminish that trust.

‘‘Among those California Indian groups that have petitioned for federal acknowledgment, there are several who can trace their origins to one or more 

of the bands identified in the Dorrington report. The Muwekma Tribe is one 

whose connection to the Verona Band has been recently confirmed in a letter from the BAR....’’

In that final report, eight other tribes were also identified: These tribes are the 

Dunlap Band of Mono Indians, Kern Valley Indian Community, Tinoqui-Chalola 

Council, American Indian Council of Mariposa County, Yokayo, Shasta Nation, 

Hayfork Band of Nor El-Muk Wintu Indians and Tsnungwe Council. In 2000, Congressman George Miller formulated the California Tribal Status Clarification Act. 

As a potential follow up to the ACCIP recommendations, in Title II of that proposed 

Act the following tribal groups were included for restorations as previously recognized tribes: Lower Lake Koi, Muwekma Ohlone Tribe, Tsnungwe Council and 

Dunlap Band of Mono Indians. That bill never got out of committee. Since then 

nothing has come out of the Congress that addresses the recognition issues confronting the previously recognized tribes of California, with the exception of the restoration of the Graton Rancheria in 2002. 

Muwekma Ohlone, A Previously Recognized Tribe and its Quest For Restoration 

Mr. Chairman, as you may already know, the Muwekma Ohlone Tribe was recognized under the series of Acts enacted by the Congress beginning in 1906 to secure 

homesites for the landless Indians of California. Our tribe was identified in special 

Indian censuses and we became known as the Verona Band of Alameda County. Our 

tribe fell under the jurisdiction of the Reno and later Sacramento agencies and 

through the dereliction of duty by Superintendent Dorrington, no land was ever purchased for out people. Nonetheless, we still maintained ourselves as a landless tribe. 

Our men and women have served in the United States Armed Forces from World 

War I to the present conflict in Iraq and our men are buried in the Golden Gate 

National Cemetery. 

In March 1989, the Muwekma Tribal Council submitted a letter of intent to petition (#111) the Federal Government for acknowledgment. The following month on 

April 25, 1989, out Tribal Council received a response from the BIA Tribal Government Services acknowledging receipt of our letter. 

In that letter, the Act Chief of Tribal Services informed our council that ‘‘Because 

of the significance and permanence of acknowledgment as a tribe, the process of 

evaluation is a lengthy and thorough one.’’ Mr. Chairman, I want to point out the 

word ‘‘permanence.’’ If I’m not mistaken permanence means something ‘‘intended to 

last indefinitely without change.’’

When Muwekma had obtained its determination of ‘‘Previous unambiguous Federal Recognition’’ in 1996, my Tribal Council had the audacity to ask the BIA the 

29

following question. If we are a previously recognized tribe and we were never terminated by any Act of the Congress, how did we lose our ‘‘permanent’’ Recognized status? And the BIA could not and would not answer our question until we went to 

court. In 1998, Muwekma was placed on Ready Status and we realized that we were 

the only tribe with previous recognition. By our accounting, it would have taken the 

BIA approximately 20 or more years before they would look at our petition. The 

Tribe decided to sue the DOI and 1999 submitted a complaint before the U.S. District Court in D.C. The result was that the Court found the BIA in violation of APA 

and Justice Urbina stated that two years’ wait was too long. This action challenged 

the BIA’s control over this process and we have paid dearly for this. The overall federal acknowledgment process including the research for the petition, the trips to 

Washington, D.C. and the lawsuit has cost my tribe several millions of dollars. 

On September 9, 2002, the OFA/BAR denied extending Acknowledgment to my 

tribe even though we had submitted evidence for each decade under each criterion. 

Although the BIA was predisposed to reject our petition, they never once refuted 

any of the evidence that we submitted. They also failed, as promised in their response to Justice Urbina in our lawsuit; to explain how our Tribe lost it’s Acknowledged status. Also, we discovered that they never referenced 87.6 (d) reasonable 

likelihood of the facts when reviewing our petition. 

The BIA did however conclude that our 100% of members have demonstrated 

their descent from a historical tribe the Verona band of Alameda Council and that 

the Congress never terminated us. 

When we started the Recognition process in 1984, there were around eighteen 

original members of the Verona Band alive, today there are only three. Today there 

are over 400 members enrolled in our tribe all of whom are directly descended from 

the Verona Band. 

The Federal Acknowledgment Process clearly constitutes a war of attrition 

against the many disenfranchised tribal groups that have been and continue to be 

adversely impacted by the very Federal governmental entity that has had fiduciary 

responsibility over Indian tribes. 

BAR Staff and DOI Solicitor 

During the course of our interaction with the BIA since 1989, we found some of 

them to be completely evasive, fraudulent and outright hostile. For example, in November 1995, the BAR Branch Chief contacted us and we were told to come to 

Washington, D.C., that our letter for previous recognition would be issued. Five of 

us flew into Washington and when we met with this person, we were told that no 

such letter existed. We complained to AS-IA Ada Deer office, which apparently took 

action against this individual. This individual was one of the three BAR staff assigned to our petition. 

During the period of our successful lawsuit against the BIA between 1999 and 

2000, we discovered that the same people who bitterly opposed our Tribe in the lawsuit, were the same individuals who made the Final Determination against the 

Tribe. One of these people is Scott Keep, Solicitor from Interior. Presently we have 

been waiting for Mr. Keep to respond to our FOIA requests since the beginning of 

last year. We are also waiting for him to respond to Principal Deputy Aurene Martin’s request for a possible alternative review of our charted petition. 

On November 7, 2001, the BAR held an ‘‘On-The-Record Technical Assistance 

Meeting’’ with representatives from my tribe. During the course of the Technical Assistance meeting one of our consultants inquired if the 1997-1998 ACCIP reports 

‘‘had a bearing’’ on the BAR decision making process. The response by one of the 

BAR staff was: 

‘‘Well, if you want us to consider the report, you really should submit it for 

the record.—That makes it part of the record. And, furthermore, when you 

submit it as part of the record, you can give us an explanation of how you 

think it applies. And the we can consider that argument and your take on 

how the report applies.’’ (On-The-Record Technical Assistance Meeting, 

page 52) 

In the Final Determination the BAR staff determined to circumvent such considerations by stating: 

‘‘Given these conclusions of the Proposed Finding under criterion 83.7(a), 

that the period prior to 1927 is outside the period to be evaluated and that 

the petitioner met this criterion during the period after 1985, it is not necessary to respond to the petitioner’s comments and arguments for those two 

time periods. Neither the petitioner nor any third party challenged the conclusions of the Proposed Finding that the petitioner met the criterion before 

1927 and after 1985. Therefore, the evaluation of criterion 83.7(a) for this 

30

Final Determination will review the evidence and arguments for the years 

between 1927 and 1985.’’ (FD 2002 page 9) 

As a result, the BAR staff avoiding reviewing and considering numerous amounts 

of crucial evidence that Muwekma submitted for its Final Determination. The documents that the BAR staff decided to disregard were those that dated after 1985 and 

before 1931 These documents included the ACCIP reports, the GAO Report of November 2001, Congressional legislation, the BAR’s own report on Recognition in 

California, and also the Bureau’s correspondences from 1918 to 1931, that demonstrated Superintendent Dorrington’s dereliction of duty and disregard for Office 

policies and the need to purchase homesites for Muwekma and other California 

Tribal bands). 

Based upon the above statement, the (is fact, most, if not all) Technical Assistance 

provided by the BAR was as useless as the treaties that were made between Indian 

Nations and the Government. On the one hand the BAR suggests to us to submit 

reports and documents for ‘‘the record,’’ and on the other hand, although they didn’t 

inform us during the Technical Assistance meeting, that anything submitted as evidence prior to 1927 or after 1985 will not be considered in the Final Determination. 

This is Technical Assistance par excellence! 

Furthermore, by circumventing any evidence dating 1985 and later, the BAR simply and unilaterally decided that not only were they not going to consider the merits 

contained in the ACCIP reports, but they would not consider any of the Congressional legislation (e.g., H.R. 4180), or the BAR’s own precedents and Working Paper 

on California Acknowledgment, or the GOA report, or even the BAR’s own directive 

to the ACCIP with regards to Muwekma’s previous Recognition. 

Solutions 

The Muwekma Ohlone Tribe supports alternatives to the current process. Clearly 

new directions such as pilot projects utilizing the expertise of University or Museum 

based scholars could be immediately implemented that are cost effect and nonpartisan. 

Finally, in the Tribe’s Final Determination decision the BAR staff wrote: 

‘‘When a Final Determination is negative, the regulations direct that the 

petitioner be informed of alternatives to this administrative process for 

achieving the status of a federally recognized tribe, or other means by 

which the petitioner’s members may become eligible for services and benefits as Indians (25 CFR 83.10(n).—In addition, Congress may consider taking legislative action to recognize petitioners which do not meet the specific 

requirements of the acknowledgment regulations but, nevertheless, have 

merit.’’ (Pages 7-8) [Emphasis added.] 

I am requesting of you, Mr. Chairman, to take this last BAR recommendation to 

heart and please introduce legislation during this session of Congress that restores 

the Acknowledged status to my tribe. My Elders are dying and our people just cannot afford to go through such costly litigation in order to secure their rights as a 

tribe. 

Thank you for considering these pressing issues. 

The CHAIRMAN. Thank you. 

Mr. Taylor? 

STATEMENT OF WILFORD ‘‘LONGHAIR’’ TAYLOR, TRIBAL 

CHIEF, MOWA BAND OF CHOCTAW INDIANS 

Mr. TAYLOR. Mr. Chairman and Committee members, good morning. My name is Wilford Longhair Taylor and I am the elected 

Tribal Chief of the MOWA Band of Choctaw Indians. Thank you 

for granting me the opportunity to testify on the Federal recognition acknowledgment process by the Bureau of Indian Affairs, the 

BIA. 

The Choctaw Indians of Mobile and Washington Counties, Alabama, MOWA, are descendants of American Indians who occupied 

this territory prior to European discovery. We selected the acronym 

MOWA to represent our modern-day geographic area. We live in an 

area transacted by the county line between south Washington and 

north Mobile Counties. Although the State of Alabama legislature 

31

officially recognized the MOWA Choctaw Tribe in 1979, and an official recognition proposal was approved by a U.S. Senate Committee 

in 1991, the Bureau of Indians Affairs later denied our petition for 

Federal acknowledgment. 

The criteria for Federal acknowledgment which a petitioning 

group must satisfy were designed to provide a uniform and objective view. However, the immense latitude granted to and demonstrated by the agency in its evaluation of the evidence submitted 

has clearly yielded arbitrary and subjective decisions. One example 

is the radically different standards applied in evaluating the petitions of the MOWA Choctaw and the Jena Band. The oral history 

of our venerated elders were discounted as allegations while the 

oral histories of the Jena Choctaws were described as even more 

reliable than written records. Identical types of written documentation that we were required to produce for BIA were characterized 

as an impossible and unreasonable expectation for the Jena Choctaws. Our petitions were evaluated within just months of each 

other. In all fairness, the same criteria should have been applied. 

The Federal recognition process was designed to take 2 years but 

in reality, the process often places a petitioning group in an endless 

loop of research and expenses that for most tribes is overwhelming. 

It took 7 years for our initial petition to be processed. It took 10 

years for the final determination report. If you include the years 

needed to undertake the research the BIA requires for documentation and our continued fight today, my people are in the 23rd year 

of this process. 

Although it is obviously not practical for me to present to you 

today my tribe’s entire struggle with the recognition process, it is 

spelled out in detail in my written testimony. Therefore please 

allow me to share with you just a few comments of independent experts from across the country regarding our failed effort to achieve 

recognition. 

In the words of the well-known and renowned Native American 

legal scholar and member of the Standing Rock Sioux, Professor 

Vine Deloria, Jr. writes, ‘‘The Federal acknowledgment process 

today is confused, unfair, and riddled with inconsistencies. Much of 

the confusion is due to the insistence that Indian communities 

meet strange criteria which, if applied to all Indian nations when 

they sought to confirm a Federal relationship, would have disqualified the vast majority of presently recognized groups.’’

He further writes, ‘‘The MOWA Choctaws have a typical profile 

for Southeastern Indians. Their credentials are solid and the historical data that identifies them as Indians extends back to the 

days when they were integral villages in the Choctaw Nation. The 

fragmentation of the Five Civilized Tribes before, during, and after 

removal makes their history a fascinating story of persistence and 

survival but certainly does not eliminate them from the groups of 

people that should rightfully be recognized as Indians.’’

Dr. Richard W. Stoffle, Ph.D., an anthropologist from the University of Arizona, wrote to me in response to the BIA’s decision to 

deny recognition, saying, ‘‘I can only express my deepest disappointment in the BIA’s decision. As someone who has reviewed 

your petition at length and has talked with your elders, there is 

no just argument against recognizing your status as an American 

32

Indian tribe. After working for 27 years with more than 80 American Indian tribes, it is my considered opinion that the MOWA 

Choctaw people are a persistent tribal society. It is difficult for me 

to understand how that point could have been missed by the BIA.’’

Dr. Kenneth York, Ph.D., a member of the Mississippi Band of 

Choctaw Indians, after critical review of our evidence writes, ‘‘It is 

my belief as a member of the MBCI that members of the MOWA 

Band are decedents of the Great Choctaw Nation which was disbanded by the U.S. Government during the Indian Removal Period. 

It is my professional opinion that the MOWA Band has provided 

the documentation regarding the history, culture and ancestral relationship as well, if not better, as any tribal petition in recent 

years.’’

Dr. Loretta A. Cormier, Ph.D. and anthropologist at the University of Alabama at Birmingham, recently wrote, ‘‘As you are well 

aware, I have had the opportunity to work among the MOWA 

Choctaws over the course of the last 3 years and have researched 

your cultural history. Let me say unequivocally that I have no 

doubt that the MOWA Choctaws are an American Indian community. I am astounded by the BIA’s denial of Federal recognition and 

find the technical report they prepared to be seriously flawed in 

terms of its historical, cultural and even logical analysis of MOWA 

Choctaw history.’’

The work and words of these individuals, and many other informed professionals, should provide ample support to prove that 

the BIA’s recognition process is flawed and riddled with inconsistencies. The Bureau of Indian Affairs, as a Federal government 

agency, has a duty to make decisions on a rational basis which are 

neither arbitrary nor capricious. I find it quite disturbing that the 

BIA can selectively pick and choose the evidence it uses to deny a 

petition and, at the same time, not even consider or, in fact, totally 

and completely disregard stronger, more solid compelling evidence 

that it normally uses as support to acknowledge other tribes. 

The Federal acknowledgment process was originally designed to 

be fair, objective and neutral. Today the process is dehumanizing 

and insulting. As American Indians, we are the only people in this 

country who have to prove to the United States government who 

we are. I strongly believe that as long as the BIA has the power 

to serve as judge, advocate and adversary, the issues we discuss 

today will never be resolved and the recognition process will continue to be widely held in contempt. Thank you. 

[The prepared statement of Mr. Taylor follows:]

Statement of Wilford ‘‘Longhair’’ Taylor, Tribal Chief,

MOWA Band of Choctaw Indians 

Mr. Chairman and committee members: good morning. My name is Wilford ‘‘Longhair’’ Taylor and I am the elected tribal chief of the MOWA Band of Choctaw 

Indians. Thank you for granting me the opportunity to testify on the federal recognition and acknowledgment process by the Bureau of Indian Affairs (BIA). 

The Choctaw Indians of Mobile and Washington Counties, Alabama, (MOWA) are 

the descendants of American Indians who occupied this territory prior to European 

discovery. We selected the acronym, MOWA, to represent our modern day geographic location. We live in an area transected by the county line between south 

Washington and north Mobile Counties. Although the State of Alabama legislature 

officially recognized the MOWA Choctaw as a tribe in 1979, and an official recognition proposal was approved by a U.S. Senate committee in 1991, the Bureau of 

Indian Affairs later denied our petition for Federal acknowledgment. 

33

The criteria for Federal acknowledgment which a petitioning group must satisfy 

were designed to provide a uniform and objective review. However, the immense 

latitude granted to and demonstrated by the agency in its evaluation of the evidence 

submitted has clearly yielded arbitrary and subjective decisions. One example is the 

radically different standards applied in evaluating the petitions of the MOWA Choctaw and the Jena Choctaw. The oral histories of our venerated elders were discounted as ‘‘allegations’’ while the oral histories of the Jena Choctaw were described 

as even more reliable than written records. Identical types of written documentation 

that we were required to produce for BIA were characterized as an impossible and 

unreasonable expectation for the Jena Choctaw. Our petitions were evaluated 

within just months of each other. In all fairness, the same criteria should have been 

applied. 

The Federal recognition process was designed to take two years, but in reality, 

the process often places a petitioning group in an endless ‘‘loop’’ of research and expense that, for most tribes, is overwhelming. It took seven years for our initial petition to be processed. It took ten years for the final determination report. If you include the years needed to undertake the research the BIA requires for documentation and our continued fight today, my people are in the twenty-third year of this 

process. 

Although it is obviously not practical for me to present to you today my tribe’s 

entire struggle with the recognition process, it is spelled out in detail in my written 

testimony. Therefore, please allow me to share with you just a few comments of 

independent experts from across the country regarding our failed effort to achieve 

recognition. 

In the words of the well-known and renowned Native American legal scholar and 

member of the Standing Rock Sioux, Professor Vine Deloria, Jr., writes ‘‘The Federal 

acknowledgment process today is confused, unfair, and riddled with inconsistencies. 

Much of the confusion is due to the insistence that Indian communities meet 

strange criteria which, if applied to all Indian nations when they sought to confirm 

a Federal relationship, would have disqualified the vast majority of presently recognized groups. He further writes, ‘‘The MOWA Choctaws have a typical profile for 

Southeastern Indians. Their credentials are solid and the historical data that identifies them as Indians extends back to the days when they were integral villages in 

the Choctaw Nation....the fragmentation of the Five Civilized Tribes before, during 

and after Removal makes their history a fascinating story of persistence and survival but certainly does not eliminate them from the groups of people that should 

rightfully be recognized as Indians.’’

Dr. Richard W. Stoffle, Ph.D., an anthropologist from the University of Arizona, 

wrote to me in response to the BIA decision to deny recognition, saying, ‘‘I can only 

express my deepest disappointment in the BIA’s decision. As someone who has reviewed your petition at length and has talked with your elders, there is no just argument against recognizing your status as an American Indian tribe.—After working for 27 years with more than 80 American Indian tribes, it is my considered opinion that the MOWA Choctaw people are a persistent tribal society. It is difficult for 

me to understand how that point could have been missed by the BIA.’’

Dr. Kenneth York, Ph.D., a Member of the Mississippi Band of Choctaw Indians, 

after critical review of our evidence writes, ‘‘It is my belief as a member of MBCI 

that members of the MOWA Band are descendents of the Great Choctaw Nation 

which was disbanded by the U.S. Government during the Indian Removal Period. 

It is my professional opinion that the MOWA Band has provided documentation regarding the history, culture, and ancestral relationship as well, if not better, as any 

tribal petition in recent years.’’

Dr. Loretta A. Cormier, Ph.D., an anthropologist at the University of Alabama at 

Birmingham, recently wrote, ‘‘As you are well aware, I have had the opportunity 

to work among the MOWA Choctaw over the course of the last three years and have 

researched your cultural history. Let me say unequivocally that I have no doubt 

that the MOWA Choctaw are an American Indian community. I am astounded by 

the BIA’s denial of your Federal recognition and find the technical report they prepared to be seriously flawed in terms of its historical, cultural, and even logical 

analysis of MOWA Choctaw history.’’

The work and words of these individuals, and many other informed professionals, 

should provide ample support to prove that the BIA’s recognition process is flawed 

and riddled with inconsistencies. The Bureau of Indian Affairs, as a federal governmental agency, has a duty to make decisions on a rational basis, which are neither 

arbitrary nor capricious. I find it quite disturbing that the BIA can selectively ‘‘pick 

and choose’’ the evidence it uses to deny a petition and, at the same time, not even 

consider or, in fact, totally and completely disregard stronger, more solid and compelling evidence that it normally uses as support to acknowledge other tribes. 

34

The federal acknowledgment process was originally designed to be fair, objective 

and neutral. Today, the process is dehumanizing and insulting. As American 

Indians, we are the only people in this country who to have to prove to the United 

States government who we are. I strongly believe that as long as the BIA has the 

power to serve as judge, advocate or adversary, the issues we discuss today will 

never be resolved and the recognition process will continue to be widely held in contempt. 

Thank you. 

Introduction: The Choctaw of Mobile and Washington Counties, Alabama 

We, the MOWA Band of Choctaw, are a community comprised of the ancestors 

of American Indians who escaped the 1830 Indian removal act and remained in our 

traditional homeland in southwest Alabama. We chose the acronym ‘‘MOWA’’ to 

refer to our location in the area bordering Mobile and Washington Counties. 

Our credentials are solid and the historical data that identifies us as Indians extends back to the days when we were integral villages in the Choctaw Nation. Few 

people realize that not all people were removed when the Army marched our nation 

to the West. Our ancestors have been documented as a distinct American Indian 

community since shortly after the 1830 Indian removal act. In 1835, a government 

Indian School was built in Mount Vernon, Alabama, and described in the Library 

of Congress Historic Building Survey as built for Indians by Indian labor (Russell 

1935 [1835]). Census records, birth certificates, sworn court testimony, government 

correspondence, military records, and anthropological descriptions provide written 

documentation of our continuous history in the area. However, the strongest evidence of our American Indian ancestry is not found in written documents, it is found 

in our lives. Our ancestors passed to us our Indian identity and traditions, persevering and preserving our heritage despite a long history of injustice and persecution. 

Our ancestors essentially became fugitives in their own homeland. After the 

Indian Removal Act of 1830, they retreated into heavily forested, marginally desirable land along the Tombigbee River, married amongst themselves, and maintained 

a separate community. It is critical to understanding the experience of our ancestors 

to know that such segregation was not only due to the amalgamation of our Indian 

ancestors who escaped removal: it was an imposed isolation. Isolation helped to 

spare our people from persecution, although not completely. Elders describe atrocities against our ancestors such as being hunted down and imprisoned; killed, dismembered and stuffed in a gopher hole; or taken West in periodic Indian round-ups 

by government-paid contractors. These types of events are well-documented in the 

literature (e.g., Debo 1972 [1934] and Forman 1982 [1932], Matte 2002). 

Non-Indian settlers to the area applied the term ‘‘Cajun’’ to our ancestors’ community, a term borrowed from a nickname given to French-Canadian immigrants to the 

Gulf Coast area originating in Acadia, which our ancestors clearly were not. We consider the term a pejorative, but nevertheless, this is the term often used to document our community in the literature, including a 1948 Smithsonian Institute description of the Cajun Indians of southwest Alabama (Gilbert 1948:144). 

Unfortunately, such erroneous descriptions of our culture have been the rule rather than the exception in our history. The ultimate irony is that the very isolation 

and persecution contributing to our bonding together as an Indian community have, 

even today, impeded our ability to receive acknowledgment that we are who we say 

we are. We were denied federal recognition primarily on the basis that the BAR 

found insufficient written documentation by outsiders to substantiate the reality of 

our history and our lives. 

The second section of this document entails a critique of the BAR denial of federal 

recognition for our people. At this juncture, it is important to make the point that 

we did provide the BAR with substantial documentation of the type that is acceptable to them in these matters. We maintain that we provided clear evidence to them 

that should have been more than sufficient to prove by their standards that we are 

who we are. 

In brief, the BAR accepts that Indians remained in the area inhabited by the 

MOWA Choctaw today after the 1830 Removal Act. They also accept that our 

MOWA Choctaw community demonstrates clear ancestry from late 19th century 

core ancestors with Indian traditions. The crux of the denial is that our ancestors 

from the mid to late 19th century who lived as a separate community with Indian 

traditions cannot provide a level of documentation of Indian ancestry written by the 

non-Indian peoples who persecuted them that is considered acceptable to the BAR. 

Logically, it defies reason that non-Indians of that time period would desire to voluntarily adopt Indian traditions that would only invite persecution. Even if such 

self-destructive individuals were to exist, then one would have to presume that anVerDate 0ct 09 2002 12:17 Sep 08, 2004 Jkt 088533 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 J:\DOCS\92827.TXT HRESOUR1 PsN: KATHY
35

other, as of yet unidentified, Indian community existed in the MOWA Choctaw area 

from whom these non-Indians would be able to acquire foreign traditions. This is 

a bizarre and irrational scenario. Our MOWA Choctaw ancestors had Indian traditions because they were Indian. 

Our people are, and have always been, a self-governing community following traditional ways of our ancestors and not accommodating ourselves to the rigid institutional organization that the majority of the nation adopted. Traditional ways, our 

people rightly feel, are more precise and enable the community to meet the needs 

of our people whereas the institutional process serves only people who fit into rigidly defined categories of assistance. Thus, the political and social profile of our 

MOWA Band of Choctaw Indians does not always fit into the neat and narrow categories required by the federal acknowledgment process. Although the Alabama legislature officially recognized the MOWA Choctaw as a tribe in 1979, as did a U.S. 

Senate committee in 1991, the Bureau of Indian Affairs denied our petition. Nevertheless, as our revered elder, Mr. Leon Taylor stated to Congress in 1985, 

‘‘Today, I am Choctaw. My mother was Choctaw. My Grandfather was Choctaw. 

Tomorrow, I will still be Choctaw.’’

This abstract and time line form the basis of the petitions and supporting documents submitted to the Bureau of Indian Affairs-Branch of Acknowledgment and 

Research in 1988, 1991, and 1996. A more in-depth treatment of the material summarized here can be found in Jacqueline Matte’s, They Say the Wind is Red: The 

Alabama Choctaw—Lost in Their Own Land (2002, New South Books). 

Critique of the BAR Technical Report 

The following is a summary critique of the BAR Technical Report denying our federal recognition. Our critique addresses four key problem areas we see in their evaluation, 1) dismissal of written documents, 2) arbitrariness in evaluating oral history, 3) failure to appreciate the historical context of the MOWA Choctaw experience, and 4) procedural errors. It should be duly noted that space limitations for 

this testimony do not allow us to present to the Committee on Resources a complete 

description of the factual errors, erroneous interpretations, and inconsistencies in 

the BAR technical report of our people. However, we are fully prepared to present 

more extensive evidence and inaccuracies of the BAR report and, more extensive 

documentation demonstrating that we are a legitimate American Indian people. 

1. The BAR Discounted Written Documents Presented as Evidence of MOWA Choctaw American Indian Ancestry 

a. The Bar Discounted Written Documents of MOWA Choctaw Antebellum 

Ancestry 

We presented extensive written documentation to the BAR of the continuous settlement of our people in the region we inhabit today from 1813 until the present. 

Included were letters of correspondence to representatives of the U.S. government 

between 1832 and 1859, which provide a continuous record of our presence for a 

time period that spans approximately 30 years after the 1830 Indian removal act 

(Exhibit 1: Choctaw Time line). In our original petition, we described the segregation of our ancestors from the surrounding community in that they were not permitted to attend either ‘‘white’’ or ‘‘black’’ schools, and built their own. A record of 

the school exists in the Library of Congress that verifies that the school was built 

in 1835 ‘‘by Indians and for Indians’’ (Exhibit 2: Original Catalogue Record of Indian 

School). We presented to the BAR documentation of 120 records in the U.S. General 

Land Office from 1836 to 1936 of homesteads showing land occupation by the same 

names listed on the 1910 census who were described as mixed blood Indians (see 

Exhibit 1 for references for census data and Database of Land Records, 1836-1936). 

These records demonstrate 100 years of our continued occupation in the area from 

shortly after the Indian Removal Act until nearly the middle of the 20th century. 

We also provided the evidence of an 1855 ‘‘Census Roll of the Choctaw Indians,’’ 

which describes Indians living in our present-day area as well as evidence of a 

‘‘Choctaw Regiment’’ in Mobile County during the Civil War (see Exhibit 1: references for the Cooper Roll 1855, showing Choctaws in Mobile, Alabama, and the 

1862 Choctaw Regiment of Mobile, Alabama.) 

The evidence above contradicts the conclusion of the BAR which states, 

‘‘the petitioner’s attempt to demonstrate the existence of a continuing 

American Indian tribal entity, or community, in southwestern Alabama in 

the first half of the nineteenth century was not documented’’ (Technical Report: MOWA Band of Choctaw 1994:72 [cited hereafter as TR-MOWA]). 

Not only did we provide such evidence, it should be duly noted that BIA regulations under which the final determination was made do not require evidence of ancestry prior to 1900. The BAR required a burden of proof in violation of BIA standVerDate 0ct 09 2002 12:17 Sep 08, 2004 Jkt 088533 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 J:\DOCS\92827.TXT HRESOUR1 PsN: KATHY
36

ards and failed to acknowledge documentary evidence that indeed met the inappropriate standard they imposed upon us. 

In addition, although the BAR relied most heavily on genealogical historical 

records, support for the material we presented is found in genetic research published in professional medical journals that characterize our contemporary MOWA 

Choctaw people as a community of Native American ancestry that have intermarried and been genetically isolated since antebellum times. Our community has been 

a subject of study by medical geneticists from the University of South Alabama due 

to the high frequency of Marinesco-Sjorgren syndrome, an extremely rare autosomal 

recessive genetic disorder. The community of these patients was described as, 

‘‘each patient was a member of an inbred population living in a well-defined 

area of South-Western Alabama. The ancestry of this population is Indian, 

with White and Black admixture’’ (Superneau et al. 1987:9); and

‘‘all come from a remote, rural area of southwest Alabama that has been 

virtually isolated since before the Civil War’’ (Brogdon, Snow, and Williams 

1996:461-462). 

b. The BAR Discounted 1910 U.S. Census Evidence of American Indian 

Ancestry 

The 1910 United States Census for Washington County, Alabama, contained marginal notes which identify MOWA Choctaw families in the Fairford and Malcolm 

precincts of Washington County. The original identification of Indian was written 

over with the word ‘‘mixed.’’ The interlineations were written by an official taker 

of the United States Census. The note explains: ‘‘These people entered as mixed are 

composed of Indian, of Spanish, some of them French, some with White, and some 

with Negro. The prevailing habits are Indian. Called ‘‘Cajun’’ (see Exhibit 1 references to 1910 Census Identifying Indian People and Communities in Washington 

County). 

Despite this direct proof, the BAR concludes, ‘‘nor were the core ancestors identified as an Indian entity on the 1910 U.S. Census.’’ It should also be noted that the 

core ancestors were dead by the time of the 1910 census, and these would have been 

descendants of our core ancestors. Moreover, the BAR concluded that ‘‘none of the 

primary records demonstrate that the petitioner’s members descend from a historical tribe or tribes which combined to form an autonomous political entity’’ (Summary under the Criteria and Evidence for Final determination of the MOWA 1997:5 

[cited hereafter as SCFD-MOWA]. We offered the report of Professor Richard Stoffle 

(1996), entitled, ‘‘A Persistent People: A Rapid Ethnographic Assessment of MOWA 

Choctaw Federal Acknowledgment Petition.’’ Stoffle, using an anthropological approach, concluded that we were operating as an Indian community at the time of 

the Treaty of Dancing Rabbit Creek in 1830. 

Rather than respond to the substantive conclusions reached by Stoffle, the BAR 

suggested that we did not demonstrate that our core ancestors descended from persons listed on the Dawes Rolls. However, when the Curtis Act of 1898 directed the 

commission to enroll the Mississippi Choctaw (Mann 2003:293), some of our ancestors did make application for enrollment. They were rejected because they had no 

written documents to verify their Indian identity and were labeled ‘‘half-bloods.’’ 

Most of the applicants rejected lived in Alabama and traced their descendancy 

through Lofton and Byrd’s lineage. This information was submitted to the BAR. The 

basis for the exclusion from the list was not that the applicants were not Choctaw. 

Indeed they could speak the Choctaw language. No logical reason exists for anyone 

to speak the Choctaw language in 1898 in Alabama if they were not Choctaw. They 

were not permitted on the list because they could not supply written documentation 

and were deemed ‘‘half-bloods.’’ The BAR ignored this information. 

In addition to the 1910 census, the 1920 census identified our people as ‘‘French 

and Indian’’ (see Exhibit 1 reference to the 1920 Census Identifying Indians in 

Washington County). We have also recently found Birth and Death Certificates from 

around this time period identifying our people as Indian (see Exhibit 1 references 

to Birth and Death Certificates Identifying MOWA Choctaw as ‘‘Indian’’). Moreover, 

the 2000 U.S. census is unequivocal in its description of our people as Indian. In 

its ‘‘Race List Codes,’’ the MOWA Choctaw Indians are listed under the category 

‘‘American Indian,’’ subcategory ‘‘Choctaw,’’ subcategory ‘‘C12-Mowa Band of Choctaw’’ (Exhibit 4: Federal Agencies Recognizing the MOWA Choctaw, U.S. Department of Commerce). We agree with the contemporary classification of our people as 

American Indian by the United States Federal government, and so should the BAR. 

37

c. The BAR Discounted Sworn Testimony Related to the American Indian 

Ancestry of Core MOWA Choctaw Families 

The MOWA Choctaws submitted minutes from ‘‘The State v. John Goodman and 

Jenny Reed,’’ dated 1881-1882 (Washington County, Alabama Circuit Court 1881-

1882). We also presented a 1918 miscegenation case, ‘‘The State of Alabama v. Percy 

Reed and Helen Corkins [aka Calkins]’’ (See Exhibit 1 reference to 1920 Miscegenation Case of Percy Reed and Helen Caulkins). The BAR ignored direct evidence of 

Indian ancestry which arose out of these hearings and also intentionally refused to 

draw inferential conclusions from the trials. 

First, we used the minutes from ‘‘The State v. John Goodman and Jenny Reed’’ 

to support the claim that Rose Gaines was half-Choctaw and half-white. The minutes indicated that Alabama prosecuted John Goodman and Jenny Reed under the 

miscegenation acts. The BAR concluded that the not-guilty verdict was non-supportive of Choctaw heritage. The BAR discredited sworn testimony of witnesses who 

stated that Rose was the daughter of Young Gaines and a Choctaw woman. Additionally, the BAR questioned the reference to burned records in our 1988 petition, 

‘‘Initially, the petitioner claimed that ‘‘these [1880’s] court records were burned’’ 

(FD-MOWA 1997:13). The 1988 petition was based on information available at the 

time. That the BAR would castigate us for dutifully supplementing its submission 

is inconceivable, unprofessional, and insulting. We did not know that the records existed because we were told in 1988 that some of the courthouse records had burned 

in 1907. However, some of the records had been moved and were later found in a 

storage closet in Chatom, Alabama. 

At the trial involving John Goodman and Jenny Reed, testimony was offered that 

Jenny was American Indian. The BAR ignored this testimony, which was provided 

in prior submissions to the BAR. They took issue with the fact that Mr. Sullivan, 

the foreman of the jury, had testified similarly in the 1920’s. However, that does 

not discredit the testimony, rather it supports the conclusion of Indian descendancy. 

The fact that the jury found the defendants not guilty in the Goodman and Reed 

case is strong proof that Jenny Reed was of Native American rather than African 

descent. This is the only defense that would have worked in the jury trial. The BAR 

completely and literally ignored this conclusion. 

In addition, the specific reasons outlined by the BAR for not accepting this conclusion are specious. First, the BAR says that the testimony was given at a time greatly removed from the events being discussed. The BAR is acting as a super-jury in 

determining the Reed and Goodman case again. The original jury, hearing the evidence and seeing the witnesses, concluded that the defendants were not guilty of 

miscegenation. The only reasonable conclusion for that verdict can be that Jenny 

Reed was Native American. The credibility and weight accorded to witnesses’ testimony is to be decided by the jury in that case and not decided by a reviewing agency 

some 115 years after the court hearing. The BAR does not, and should not, sit as 

a super-reviewing agency of previous court decisions. Finally, the BAR impugns the 

testimony of George Sullivan because he was 74 years old. Again, this is a matter 

which was weighed and determined by the jury hearing that case. The BAR does 

not have legitimate basis for declining to believe sworn testimony evaluated by a 

jury. 

We also presented the 1918 case of ‘‘Alabama v. Percy Reed and Helen Corkins 

[Calkins].’’ Percy was the son of Reuben Reed and the grandson of Daniel and Rose 

Reed. Percy Reed was originally found guilty of miscegenation; however, the Alabama Court of Appeals reversed that verdict and concluded that the evidence presented at the trial was hearsay and that the trial Judge should have directed a verdict in favor of the defendants. The Court of Appeals concluded: ‘‘Judgment entry 

that court ascertained ‘that defendant is of Indian or Spanish origin’ significant that 

state failed to make a case of miscegenation (State of Alabama 1918),’’ the BAR did 

not accord this judicial conclusion any weight at all. In fact, the BAR ignored this 

direct evidence of Native American descent. 

2. The BAR Demonstrated Bias, Arbitrariness, and Inconsistency in Evaluating 

MOWA Choctaw Oral History 

Recording of oral histories is a key research methodology for both historians and 

anthropologists. It is also the traditional Native American means of transmitting 

family history and cultural traditions from generation to generation. Glaring problems exist in the BAR evaluation of information from oral history we provided to 

them. The BAR is inconsistent and arbitrary in its utilization of oral history information as evidence of Native American ancestry. Oral history information substantiating written documents is dismissed. The BAR reviewed the petitions of the 

MOWA Band of Choctaw and the Jena Band of Choctaw within several months of 

each other. However, similar types of oral history information were deemed superior 

38

to written documents for the Jena Choctaw, but judged as inadequate evidence for 

the MOWA Choctaw. Second, the requirement for extensive antebellum documentation of genealogy is an unreasonable expectation for a non-literate people whose cultural norms are based on preserving cultural heritage through oral tradition. 

a. The BAR Discounted Oral History Information Substantiating Written 

Documents 

The BAR has completely dismissed our oral history as ‘‘vague and unreliable 

when tested.’’ The BAR refused to accept oral history ‘‘until verified from contemporary documentary sources.’’ As demonstrated with Nancy Fisher, contemporary 

documentary sources have been provided that have, for reasons beyond being described as frivolous, been discounted. The BAR concludes that oral traditions cannot 

be accepted at face value and must be evaluated where there are accuracy and reliability. The BAR refers to Rubicam, ‘‘consider and analyze all of the facts, regardless of the source, whether tradition or an official record, then decide if you should 

accept or reject those facts’’ (Rubicam 1980:48). 

The BAR has ignored its own advice and refused to consider and analyze all of 

the facts. We have urged, on more than one occasion, that the strong common 

thread of references to Indian heritage, the 180 year-old story of our Indian ancestor 

who swam the river with the baby on her back and self-identification has to be 

given weight. Further support for the veracity of our oral tradition has been found 

in an 1816 Washington, D.C., newspaper which recounts the incident (Marschalk 

1816). A transcript of the newspaper account is provided in Exhibit 3. 

Jacqueline Matte has served as the primary historical researcher for our people. 

Over a twenty-year period, she collected every reference, published or unpublished, 

related to our ancestors. Each piece of this information has been sent to the BAR, 

some of it repeatedly, in the anticipation that gaps in chronology, incomplete documentation, and unanswered questions could be expected for a nonliterate people. 

Those gaps, however, were used offensively by the BAR to deny recognition rather 

than to leave open the analysis for further consideration. 

While we do not discredit the value of genealogical records, the BAR has not 

taken into account that our earliest ancestors were not literate in English. It is unreasonable to expect that they would have kept extensive genealogical records of 

themselves in a language they did not know. Vine Deloria, Jr., (Lakota Sioux, Professor Emeritus at the University of Colorado) has commented on this very problem 

in the federal recognition process, and specifically in reference to the MOWA Choctaw stating, 

‘‘Much of the confusion is due to the insistence that Indian communities 

meet criteria which, if it had been applied in the past, would have disqualified the vast majority of presently recognized groups’’ (Deloria 2002:10). 

He refers to the ‘‘catch-22’’ in the federal recognition process. If our ancestors had 

assimilated, they would have been more likely to have left the types of written documentation the BAR requires to demonstrate Indian ancestry. However, such assimilation, by the BAR rules, would disqualify a community as a legitimate Indian tribe. 

A recently discovered 1960 letter written by U.S. Representative Frank Boykin 

also demonstrates the veracity of our oral history. An excerpt follows below: 

I’ll take care of him when he gets here, because we have a lot of wild 

Indians. You will remember that Aaron Burr was captured there on our 

game preserve at McIntosh in 1806; and then a little later, Chief Geronimo, 

that great fighting chief, was captured here. Well, we sent them all to Oklahoma, after having them in captivity here a long time. Well, I still have 

a lot of them and they work for us. They can see in the dark and they can 

trail a wounded deer better than some of our trail dogs (Boykin 1960). 

Boykin’s description of the MOWA Choctaw is that they are descendants of 

Indians who escaped removal and remained in the area that we currently inhabit. 

Although Boykin’s use of the term ‘‘wild Indian’’ is insulting, it is, nevertheless, an 

indisputable description of us as an Indian community. 

b. The BAR Applied Radically Different Standards in Evaluating the MOWA 

Choctaw and the Petitions of Other Tribes, Particularly in Terms of 

Oral History 

The BAR has applied radically different standards in evaluating the petitions of 

the MOWA Band of Choctaw and other tribes. We have chosen to draw comparisons 

between the petition of the Jena Band of Choctaw with our own since they were 

evaluated within months of each other and both are Southeastern Indian groups 

with Choctaw ancestry. The BAR applied a higher standard for the MOWA Choctaw 

than the Jena, in some cases, requiring the MOWAs to provide information that was 

described as impossible to obtain for the Jena. They were particularly inconsistent 

39

in evaluating the oral history of these two groups. Similar types of information derived from oral history were accepted for the Jena and rejected for the MOWA Choctaw. In one instance where a discrepancy between oral history and census data existed for the Jena Choctaw, oral history was deemed more reliable. However, the 

exact opposite conclusion was drawn for the MOWA Choctaw for similar circumstances. We should be clear that we are in no way questioning the legitimate 

Indian status of the Jena band of Choctaw. Rather, we are making the point that 

we feel that in all fairness, the same standards should have been used in evaluating 

our petitions. 

One example of this type of discrepancy in the BAR’s evaluation of the MOWA 

Choctaw and Jena Choctaw petitions involves the importance of oral history in establishing ancestral links. For the Jena, the BAR recognized that their earliest 

Choctaw ancestors would have logically had Choctaw rather than Anglicized names 

and established a linkage between 1830 Choctaw based on the oral history of their 

1880 descendants among the Jena. The following citation from the Jena petition is 

lengthy, but important for it makes clear that the federal government acknowledged 

the impossibility of linking Choctaw names to anglicized names and further, argued 

that it was ‘‘fair and reasonable to assume’’ that 1880 persons living in traditional 

Choctaw territory who claimed descent from Choctaw ancestors through oral history, were, indeed, Choctaw: 

After one commissioner visited Mississippi for several weeks, the Dawes 

Commission produced a roll of the Mississippi Choctaws and submitted it 

to the Department of the Interior in March 1899. Later in the year, however, the Commission asked that the roll be withdrawn and returned it. 

The roll contained 1,923 names (Dawes Commission 1899, 78; 1900, 18, 10; 

Commissioner of Indian Affairs 1899, 122; 1901, 157-158). The Commission 

had identified as Mississippi Choctaws all of the full-blood Choctaws who 

had appeared before it. The Commission noted that it was impossible to 

prove that an individual’s Choctaw ancestors had made a good-faith effort 

to comply with the provisions of Article 14 of the treaty after 1830. The 

facts were not known to those living 60 years later, the Choctaws with 

English names could not be traced back to ancestors with Indian names; 

the Government’s records were inadequate; and the investigations made 

after the treaty had demonstrated that Agent William Ward had refused to 

register Choctaws who sought to comply with the treaty’s terms. The Mississippi Choctaws, the treaty contended could not be reasonably expected to 

show that their ancestors had complied with the provisions of the treaty. 

It was ‘‘fair and reasonable to assume,’’ however, that the Choctaws who 

had remained in Mississippi had intended to declare their intention to do 

so and to use the treaty to assure themselves of a homestead ([Dawes Commission 1899, 78-79] from TR-Jena 1994:21). (Emphasis added.) 

We provided the BAR with similar documentation in the form of an 1851 petition 

signed by our Choctaw ancestors that was submitted to the Commissions of Indian 

Affairs on our behalf by John Seawell (Mayor of Mobile) and Felix Andry (See Exhibit 1 references to Indians of South Alabama of the Choctaw Nation 1851 and 

Choctaws in Mobile). The BAR rejected this evidence on the grounds that 1851 

Choctaw names could not be linked to Anglicized names, although this was described as an unreasonable and even ‘‘impossible’’ expectation for the Jena Band of 

Choctaw: 

Evidence was presented by the petitioner to indicate that some Choctaw 

Indians remained in Southern Alabama between the Treaty of Dancing 

Rabbit Creek in 1830 and the Civil War. However, no evidence was presented by the petitioner to indicate that either the Reed or the Weaver/Rivers/Byrd family associated as colleagues or witnesses with Felix Andry, who 

was married to a Choctaw woman named Nancy and who submitted claims 

to the Federal government on behalf of the Choctaw remaining in Alabama 

(TR-MOWA 1994:5). 

It should be noted that one of the progenitors of the MOWA Choctaw described 

in our petition to the BAR has been traced to a person with an Anglicized name, 

Chief Tom Gibson (aka Eli-Tubbee, Elah, Tubbee, or Elatatabe). He lived in Washington County, Mississippi Territory (presently Washington County, Alabama) until 

1813 when the influx of whites caused him to move to Killistamaha (English Town) 

clan of the Six Towns located in southeastern corner of the present boundary of the 

State of Mississippi, just miles from the current southwest Alabama location of our 

MOWA Choctaw community. John Gibson, James Gibson, and Betsy Gibson were 

in Mobile area in 1850 as shown in U.S. government correspondence and 1880 census. However, the BAR discounted this information because the 1860 census described her probable place of birth as Georgia, her father’s North Carolina, and her 

40

mother’s Virginia (TR-MOWA 1994:75-76). The BAR concluded that the link is 

‘‘based on oral tradition only’’ (TR-MOWA 1994:75) rather than acknowledging that 

the census information itself was ambiguous. 

The conclusion drawn here is particularly troubling given that when the Jena proposal contained ambiguous census date, oral history was described as more reliable 

than census data, 

‘‘The Dawes Commission testimony suggests that tribal members born before 1872 were born in Mississippi, while those who were younger than that 

were born in Louisiana during the 1880’s. Census data on individuals’ place 

of birth does not support this conclusion, but the census is less reliable than 

personal testimony’’ (TR-Jena 1994:16). 

In multiple instances, the BAR discounts our oral history as legitimate evidence. 

In the first example below, it is belittled by stating that our petition ‘‘alleges’’ a family connection. In the second example, even sworn court testimony is treated as allegation and discounted because we were expected to produce additional written documents to support the testimony. 

‘‘The MOWA petition alleges, also on the basis of oral tradition, that a 

George W. Reed, supposedly the son of Hardy Reed and a Creek woman 

whose maiden name was Elizabeth Tarvin, was the brother of Daniel Reed, 

as were Amos Reed and Squire Reed, but provides no documentation for the 

assertion, and the BAR researchers located none’’ (TR-MOWA 1994:31).

‘‘According to the witness in the 1920 trial, Mrs. Rush testified that Rose 

Reed, who had died in 1878, had told her that her mother was a ‘Choctaw 

squaw.’ This hearsay testimony was not documented by any contemporary 

evidence’’ (TR-MOWA 1994:6). 

The oral history of the Jena is treated with more respect and regarded as legitimate in terms of both historical dates and social relationships, 

‘‘In the oral history of group members, William Bill Lewis is remembered 

as the group’s leader from the time of his arrival from Catahoula Parish 

about 1917 until his death about 1933...as the eldest male among the Choctaw residents of the Jena area after the death of Bill Lewis, Will Jackson 

was expected to play the role of community leader...’’ (TR-Jena 1994:30). 

Another example of information that was accepted for the Jena Choctaw and rejected for the MOWA Choctaw is the presence of Indian Schools. The Jena Choctaw 

petition states, 

‘‘Local authorities and private individuals made efforts to create a school 

specifically for the Indian population. During the 1930’s the Penick Indian 

School operated with some funding from the Federal Office of Indian Affairs’’ (SUC-Jena 1994:4). 

We provided the BAR with virtually identical information about a separate, federally funded Indian school for the MOWA Choctaw. In our original petition, we provided evidence of federal funding being sought in 1934, the same time period identified for the Penick Indian School of the Jena Choctaw (see time line). Moreover, as 

previously described, the Indian school for the MOWA Choctaw ancestors was established 100 years earlier than that of the Jena Choctaw. In addition, since 1965, we 

have received federal funding through the Title IV and Title IX Indian Education 

Programs (Exhibit 4: Federal Agencies Recognizing the MOWA Choctaw, Department of Education). 

Another extraordinary example of the BAR applying wholly different criteria to 

the Jena Choctaw and the MOWA Choctaw is in their evaluation of virtually identical events involving a Choctaw family moving into the community around 1900. 

For the Jena Choctaw, the addition of the Choctaw Lewis family in the early 1900’s 

is described as a positive event which allowed a dwindling Jena Choctaw community 

to remain viable. For the MOWA, the addition of the Choctaw Laurendine family 

is described as irrelevant because they did not marry into the community until the 

early 1900’s. The BAR description of the Lewises states, 

‘‘Before the arrival in LaSalle Parish about 1917 of William Bill Lewis and 

his extended family from Catahoula Parish, the Trout Creek settlement 

may have shrunk to two families, those of brothers Will Jackson and Chris 

Jackson...At that time, the two Jackson families may have consisted of only 

eight people...The arrival of the Lewis family gave the Trout Creek settlement the potential to remain a viable community’’ (TR-Jena 1994:28). 

But the description of the MOWA Choctaw states, 

‘‘The Mississippi Choctaw Laurendine family did not, apparently settle in 

Mobile County until after the Civil War’’.No Laurendine descendants married into the petitioning group until after 1900...’’ (TR-MOWA:87). 

The inconsistency is incredible. The BAR completely dismisses the intermarriage 

of the Choctaw Laurendine family into the ancestral MOWA Choctaw community 

41

as anomalous because it did not occur until around 1900. However, for the Jena 

Choctaw, the intermarriage of the Choctaw Lewis family around 1900 is viewed as 

critical to the very existence of the Jena Choctaw today. 

c. The BAR Placed little value on oral history as the traditional American 

Indian means of transmitting heritage. 

Finally, it is disappointing that the BAR, as an Indian agency, places so little 

value on oral history. For all American Indians, oral history is the traditional Indian 

way of transmitting our heritage from generation. Disregarding these traditions 

demonstrates disrespect for our venerated elders and more generally, disrespect for 

Indian cultural traditions. Moreover, the very existence of our oral history, passed 

down through generations to multiple descendants could not be been motivated by 

any other logical reason except as a means to preserve our heritage. Cedric Sunray’s 

‘‘MOWA Tribal Council Presentation’’ put it well, 

‘‘When elder after elder recounts the same story in a relatively similar fashion...how can we discount it? How could an entire group of elderly people 

be convinced to lie and falsify such a long story? They would need to go 

against their own collective beliefs, have meetings to get their stories ‘on 

the same page’ and then, with a straight face, lie to anthropologists and 

BAR officials. No one could possibly believe that the senior population of 

the MOWA community organized to this level with the intent to mislead 

the BAR’’ (Sunray 2002:15). 

3. The BAR failed to evaluate written documentation in its historical context 

a. The BAR failed to recognize the widespread American Indian resistance to the 

Dawes Roll. The BAR equates the Dawes Roll (and similar registers) as a Native American census, failing to recognize both the widespread Native American Resistance to the Dawes Act, and the fraud and corruption in the Miriam 

Report of 1928 which led to its repeal. 

b. The BAR failed to recognize racism and racial designations applied to American Indians in Alabama. The BAR has characterized the documents identifying MOWA Choctaw ancestors with Indian heritage as ambiguous. We have 

presented clear documentation that our MOWA Choctaw ancestors were described as Indian. However, the BAR describes this evidence as ambiguous 

pointing to terms such as ‘‘free person of color’’ and ‘‘mulatto’’ that have sometimes been applied to them. Such an attitude demonstrates a lack of awareness 

of not only historical racial categories in the region, but more importantly, it 

indicates a lack of awareness of the racism and prejudice that our people have 

experienced. 

c. The BAR applied an unreasonable standard for the level of documentation required for non-literate antebellum American Indians. The requirement of the 

BAR for the MOWA to present extensive antebellum evidence is an unreasonable standard for an American Indian people who were not literate in the language. Applying such a standard indicates a clear failure to appreciate the cultural, historical, and linguistic history of the Indians who escaped removal in 

1830. 

4. The BAR deviated from BIA protocol in evaluating the MOWA Choctaw Petition. 

a. By the BIA’s own admission, the Federal Recognition process is a confusing, ambiguous, expensive, and time-consuming process (Bureau of 

Indian Affairs 2001:3-4). One consequence of the confusion and delays is 

that we presented our petition under the set of guidelines in effect at 

the time but our petition was not evaluated until seven years later. The 

rules for federal recognition were changed just months before the BAR 

evaluated our proposal. We believe our petition should have been evaluated in a timely manner. Further, given that the BAR did not evaluate 

our petition within the recommended two-year time frame, that our petition should have at least been evaluated under the guidelines in effect 

when we submitted our proposal. 

b. The BAR deviated from BIA protocol in requiring pre-1900 documentation. Much of the criticism in the 1994 BAR Technical Report is directed 

at their evaluation of our providing insufficient antebellum documentation of our ancestry. As we have already argued, we strongly disagree 

with this conclusion. But leaving that aside, as a matter of procedure, 

the requirement for antebellum documentation deviates from protocol. 

By the BIA’s own admission, the meaning of ‘‘historical’’ has been ambiguous and inconsistently applied for tribes seeking federal recognition. 

The BIA clarified the time frame in 1997 to mean ‘‘since 1900.’’ However, 

in the Final Determination, written after the BIA clarified the approVerDate 0ct 09 2002 12:17 Sep 08, 2004 Jkt 088533 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 J:\DOCS\92827.TXT HRESOUR1 PsN: KATHY
42

priate time frame, the BAR continued to apply an antebellum standard. 

We find it particularly unfair, frustrating, and inconsistent that the BAR 

applied outdated standards in the Final Determination given that our 

original petition was required to meet standards that had been changed 

only months before. 

c. The BAR deviated from the BIA protocol in failing to provide an objective 

evaluation of the MOWA Choctaw petition. The BAR failed to provide an 

objective analysis of our petition. We base this on (1) the adversarial 

tone of the BAR report; (2) evidence of racial bias by the BAR evaluator; 

and (3) politics. Our experience has made it clear that the federal recognition process is rife with politics and bias. We were not evaluated objectively. Kevin Gover, the Assistant Secretary of Indian Affairs who 

signed off on the negative determination of our petition perhaps puts it 

better than we can. He is quoted in the Hartford Advocate as saying, 

‘‘The tribal recognition process should be ‘‘fair, open, objective, and neutral...our present system lacks these features and we need an impartial 

commission...Today the tribal recognition process is ‘dehumanizing’ and ‘insulting’... imagine have to prove to the government who you are.’’ (Miksch 

2003, quoting Gover). 

Concluding Remarks 

With the exception of the Bureau of Indian Affairs, virtually everyone who has 

come into contact with our people recognizes that we are Indian. We have multiple 

letters of support from professionals that are all willing to provide expert testimony 

under oath. As previously described, we already have established relationships with 

numerous branches of the federal government who recognize us as Indian, even to 

the extent of our being given an Indian racial code for the purpose of compiling governmental statistical data. But more importantly that all of the letters and government documents that repeatedly substantiate our American Indian heritage, we 

simply are who we are. 

References 

Boykin, Rep. Frank. 1960. Letter to Dr. Sam McGee. Congress of the United States, 

House of Representatives, Washington D. C. 

Brogdon, B.G., R. D. Snow, and J. P. Williams. 1996. Skeletal Findings in Marinesco 

Sjogren Syndrome. Skeletal Radiology 25:461-465. 

Bureau of Indian Affairs. 2001. Indian Issues: Improvements Needed in the Tribal 

Recognition Process. United States General Accounting Office, Report to Congressional Requesters. 

Debo, Angie. 1972 [1934] The Rise and Fall of the Choctaw Republic. Norman: University of Oklahoma Press. 

Deloria Jr., Vine. 2002 Foreword. The Say the Wind is Red, Jacqueline A. Matte. 

Pp. 9-11. Montgomery: New South Books. 

Foreman, Grant. 1982 [1932] Indian Removal: The Emigration of the Five Civilized 

Tribes of Indians. Norman, OK: University of Oklahoma Press. 

Gilbert Jr., William Harlen Gilbert. 1948 Surviving Indians of the Eastern United 

States. Annual Report. Smithsonian Institution: Washington, D.C. 

Mann, Barbara Rice. 2003. Native Americans, Archaeologists, and the Mounds. New 

York: Peter Lang. 

Marschalk, Andrew. 1816. By This Morning’s Mail. Washington Republican and 

Natchez Intelligencer. Vol. 4. No. 12 (Wednesday, July 10, 1816). 

Matte, Jacqueline A. 2002. They Say the Wind is Red: The Alabama Choctaw—Lost 

in Their Own Land. Montgomery: New South Books. 

Miksch, Joe. 2003 A ‘‘Broken’’ Bureau of Indian Affairs. Hartford Advocate: January 

9, 2003, http://hartfordadvocate.com/gbase/News/content.html?oid=oid:1065

Rubicam, Milton (ed). 1980. Genealogical Research: Methods and Sources. Washington, DC: American Society of Genealogists. 

Russell, E. W. (photographer). 1935 [est. 1835] Photograph of 1835 Indian Schoolhouse, County Road 96, Mount Vernon, AL. Card Catalogue No. #AL0387; Photograph Nos.: HABS, ALA, 49- MOUV, 4-1, 4-2, and 4-3. Historic American 

Buildings Survey (HABS). Washington D.C.: Library of Congress, Prints and 

Photograph Division. 

State of Alabama. Appellate Court Records. 1918. The State of Alabama v. Percy 

Reed and Helen Corkins [aka Calkins]. Book 270, 1st Division 372-471. 

Stoffle, Richard W. 1996. A Persistent People: A Rapid Ethnographic Assessment of 

MOWA Choctaw Federal Acknowledgment Petition. Prepared Report Submitted 

to the Bureau of Indian Affairs. 

43

Sunray, Cedric. 2002. MOWA Tribal Council Presentation. Graduate student paper 

submitted to the University of Kansas. 

Superneau, Duane W., Wladimir Wertelecki, Hans Zellweger, and Frank Bastian. 

1987. Myopathy in Marinesco-Sjogren Syndrome. European Neurology 26:8-16. 

United States. Commission and Commissioner to the Five Civilized Tribes. 1894-

1907. Annual Report. Washington, D.C.: Government Printing Office (cited as 

Dawes Commission). 

United States. Department of the Interior. Bureau of Indian Affairs. Branch of Acknowledgment and Research (BAR). 1994 Historical Technical Report: Jena 

Band of Choctaw Indians. Washington, D.C.: Bureau of Indian Affairs (cited as 

TR-Jena) 

United States. Department of the Interior. Bureau of Indian Affairs. Branch of Acknowledgment and Research (BAR). 1994 Summary Under the Criteria and Evidence for Proposed Finding Against Federal Recognition of the MOWA Band of 

Choctaw. Washington, D.C.: Bureau of Indian Affairs (cited as SC-MOWA). 

United States. Department of the Interior. Bureau of Indian Affairs. Branch of Acknowledgment and Research (BAR). 1994 Technical Report: MOWA Band of 

Choctaw. Washington, D.C.: Bureau of Indian Affairs (cited as TR-MOWA). 

United States. Department of the Interior. Bureau of Indian Affairs. Branch of Acknowledgment and Research (BAR). 1997 Final Determination: Mobile-Washington County Band of Choctaw Indians of South Alabama, Technical Report. 

Washington D.C.: Bureau of Indian Affairs (cited as FD-MOWA). 

United States. Department of the Interior. Bureau of Indian Affairs. Branch of Acknowledgment and Research (BAR). 1997 Summary Under the Criteria and Evidence for Final Determination Against Federal Acknowledgment of the MobileWashington County Band of Choctaw Indians of South Alabama. Washington, 

D.C.: Bureau of Indian Affairs (cited as SCFD-MOWA). 

EXHIBIT 1: TIME LINE FOR CHOCTAW INDIANS IN ALABAMA FROM 1813 TO 2003

For references see: They Say the Wind is Red: The Alabama Choctaw Lost in 

Their Own Land by Jacqueline Anderson Matte, with foreword by Vine Deloria, Jr., 

Revised Edition, 2002, NewSouth Books, Montgomery, AL 

1813 Forty-five Choctaw families join Creeks to fight against Americans in Creek War of 1813 (part of War of 1812) 

Source: ‘‘John Pitchlynn, Ocktibbaha to Governor Blount, September 14, 1813,’’ 

Roll 6; ‘‘George Smith, Pitchlands, to A. Jackson, November 23, 1813,’’ 

Roll 7; ‘‘John McKee, Fort Smith Mr. Pitchlynn, to A. Jackson, 

January 6, 1814’’ and ‘‘John McKee, Campte Toote, Massatabbe east 

bank of the Black Warrior 85 miles above its junction with the 

Tombigby, to A. Jackson, January 26, 1814, Roll 8, Andrew Jackson 

Papers, Manuscript Division, Library of Congress; ‘‘Narrative, December 5, 1813,’’ John McKee Papers, Manuscript Division, Library of Congress; ‘‘David Holmes to Turner Brashears, August 3, 1813,’’ RG 2, Mississippi Territorial Governor’s Papers, 6:308, Mississippi Department of 

Archives and History; ‘‘John McKee, Mr. Pitchlynn’s to GS Gaines, January 2, 1814,’’ RG 217, Records of the Accounting Officers of the Department of the Treasurer, Records of the Fifth Auditor, box 1, account 

475, National Archives; Gideon Lincecum, ‘‘Life of Apushimataha, 

‘‘Publications of the Mississippi Historical Society, 9(1906): p. 479 

(hereafter cited PMHS). 

1819 Choctaw village in Mobile and inhabitants described March 31, 

by James Leander Cathcart, agent for U.S. Navy, in his daily 

journal. 

Source: Jean Strickland and Patricia N. Edwards, Residents of the Southeastern Mississippi Territory—Three Journals, Book Four. ‘‘Records of 

the General Land Office, Journal and Report of James Leander 

Cathcart and James Hutton, agents appointed by the Secretary of the 

Navy to survey timber resources between the Mermentau and Mobile 

44

Rivers, in accordance with an act of March 1, 1817, November 1818-

May 1819,’’ pp. 48-49.

Daniel Reed worked for Young Gaines as a cattle drover. A notice in 

the St. Stephens, Alabama Territory newspaper, The Halcyon and 

Tombeckbe, proclaimed: ‘‘Lost, a red Morocco Pocket book containing 

a Due Bill on Mr. Young Gaines for $60; which I forewarn all person 

from trading for the same. Daniel Reed. St. Stephens.’’

Source: Halcyon & Tombeckbe, March 10, 1819. 

1824 Choctaw families in Mobile described and interviewed by Gideon Lincecum, Botanist, who lived with Choctaw. 

Source: Lincecum, ‘‘Life of Apushimataha,’’ Publications of the Mississippi Historical Society, 1906, p. 480. 

1830 Treaty of Dancing Rabbit Creek to remove all Choctaw Indians 

West of the Mississippi River. 

Source: Charles J. Kappler, ed., Indian Affairs, Laws and Treaties, 2:310-15. 

1832 George S. Gaines reported ‘‘A great number of Chactaw [sic] 

Indians for many years past have resided with the corporate 

limits of this city during the winters and spring months, and 

many families remaining through the summer, to the annoyance 

of the citizens...’’

Source: NARC, RG 75, Entry 201, Letters Received, 1831-36,Records of the 

Commissary General of Subsistence, June 30, 1832. 

1835 Indian Schoolhouse, County Road 96 (Old Saint Stephens Road), 

Mount Vernon, Mobile County, AL. Built approx. 1835; Owner: 

State of Alabama. Built for Government School for Indians by 

Indian labor. Description: Frame, one story, wood cypress siding, small porch on the front.’’

Source: Historic American Buildings Survey (HABS), Library of Congress, 

Prints and Photograph Division, Washington, DC 20540, Card 

#AL0387. http://memory.loc.gov/ammem/hhhtml/hhhome.html 

1836 James Gibson, descendant of Chief Tom Gibson (Eli- tubbee/ 

Elah-tubbe) listed on ‘‘Muster Rolls of Choctaw Indians,’’ and in 

Correspondence from Mobile. 

Source: Records of the War Department, Office of the Advocate General, Alabama at war, 2nd Creek War, 1836, SG13379, Alabama Department of 

Archives & History. (ADAH) 

1836-1936 Inclusive—120 Land Records show ownership and occupation by 

people with whose same names are listed on 1910 U.S. Census in 

Mobile & Washington counties as ‘‘Mixed...the prevailing habits 

are Indian.’’

Source: General Land Office, Suitland Maryland. 

1838 Investigation into fraudulent land claims. Testimony taken to 

establish claims by Choctaws; 7,000 who refused to move west. 

Source: NARC, RG 75, Entry 270 Evidence, 1837-38, U.S. Court of claims, No. 

12742, The Choctaw Nation of Indians vs. the United States. 

1844 George S. Gaines reported ‘‘The south eastern Indians known as 

the Six Towns under the influence of Capts. Oak-lah-be and Post 

Oak...number about 2,000. 

Source: NARC, RG 75, M234, Letters Received, Choctaw Emigration, Roll 185, 

pp. 903-908, September 22, 1844. 

1847 ‘‘Since the time of 1830 the Choctaws who remained...has been 

left to follow there own inclination, the greater part of them 

leading vagrant lives...in the southern part of Alabama and deriving a precarious subsistence by—hunting and fishing in 

swamp...about 3,000, including 2 and 300 who have wandered off 

to the seashore between Mobile and New Orleans..’’

Source: NARC, RG, 75, M234, Roll 188, fr. No. 226, Choctaw Agency, Emigration, April 27, 1847. 

45

1851 ‘‘Several hundred Indians were determined to remain in vicinity 

of Mobile’’ 6 Nov 1851; reports that ‘‘several hundred more 

Indians have come to vicinity’’ 27 Nov 1851; ‘‘about 500 are assembled...’’ 15 Dec 1851; ‘‘petition signed by Choctaws: 60 men, 45 

widows and 4 children.’’ 29 Dec 1851. 

Source: NARC, RG 75, M234, Roll 171, Letters Received by OIA, Choctaw 

Agency, 1839-51, fr. no. 738 753. 

1852 ‘‘Petition in behalf of all the Indians of south Alabama of the 

Choctaw Nation...over 400 Choctaws residing in Southern Alabama and near Mobile, who do not wish to emigrate but to remain where we are and become citizens. Signed in behalf of all 

the Indians of South Alabama of the Choctaw Nation.’’

Source: NARC, RG 75, M234, Roll 172, Fr. no. 44-47, Letters Received, Choctaw Agency, August 17, 1852. 

1856 ‘‘Census Roll of Choctaw Families, Residing East of the Mississippi River and in the States of Mississippi, Louisiana and 

Alabama made by Douglas H. Cooper, U.S. Agent for Choctaws, 

July 26, 1856: Original manuscript: Six Town clan located in Jasper & Newton Counties, Mississippi and Mobile, Alabama; list of 

Choctaw names; recapitulation, showing number of men, women 

and children, number of families and places of abode. The Six 

Town Clan was comprised of 129 men, 191 women, 194 children 

for a total of 514 individuals or 96 families.’’

Source: NARC, RG 75, Entry No. 260. 

1859 ‘‘Gov’t has no intention to make any further removal of Choctaws...’’

Source: NARC, RG 75, M234, Roll 175, Letters Received by OIA, Choctaw 

Agency, Frame No. 409-417. 

1860 Response to series of letters requesting information on name 

and residence of Choctaw Agent, ‘‘No such agent has been appointed by the Department...‘‘

Source: NARC, RG 75, M234, Roll 176, Letters Received by OIA, Choctaw 

Agency, Frame No.13-17 & 165-167. 

1862 Choctaw ancestors of the MOWA remained in Alabama and were 

recruited for the Confederacy at the foot of Stone Street in Mobile, Alabama. The majority of the men were killed, leaving the 

women and children in south Alabama. 

Source: ‘‘Major S. C. Spann, Commander Dabney H. Maury Camp, No. 1312, 

UCV, Meridian, Miss.’’, Halbert Collection, Folder No. 178, ADAH; 

Muster Roll of this Choctaw Regiment is in Department of Archives 

and History, Jackson, Mississippi (cover only, roll missing). 

1870 U.S. Census: Indians identified in Mobile County—9. 

1880 U.S. Census: Indians identified in Mobile County—19; in Washington County—2. 

1890 U.S. Census (manuscript burned) population totals only available. Indians identified in Washington County—0; in Mobile 

County -- 402 (plus 384 Apaches). 

1898-1914 MOWA Choctaw enrollment applications in Mobile and Washington Counties for Dawes Roll, generated in response to General Allotment Act, February 8, 1887. (U.S. Statutes at Large, 

24:388-91). 

Source: Applications for Enrollment of the Commission to the Five civilized 

Tribes 1898-1914, RG 75, M1301, roll 116, Mississippi Choctaw Roll no. 

2556, MCR number 2189 and 2190. 

46

1900 U.S. Census, Indians identified in Washington County—0; in Mobile County—5. 

1907-1909 U.S. Agent, John Beck, enrolled 64 Choctaw families in Mobile 

and Washington Counties on Eastern Cherokee Roll (Guion Miller Roll). Ancestors of MOWA Choctaw Application Numbers 

14393, 17390- 17395, 41601-41750, 43551-43700 Eastern Cherokee 

Roll (a.k.a. Guion Miller roll). 

Source: RG 75, Records Relating to Enrollment of Eastern Cherokees by Guion 

Miller, 1908-1910, M685; RG 123, M1104, Eastern Cherokee applications, 

1909—1930s Indians identified in Birth and Death Records, Vital Statistics,: 

Washington county—12 births, 1 death; and Mobile County, 6 

births, 0 death.. 

Source: Mobile County Probate Court, Archival Birth and Death Records; Birth 

and Death Records, Registration No. 651200, Vital Statistics, Records 

of Washington County, ADAH 

1910 U.S. Census, Indians identified in Washington County—172; in 

Mobile County—7. Marginal notes designated clusters of families 

in Fairford, (Precinct 12) and Malcolm (Precinct 13), ED 14 as: 

‘‘These people entered as mixed, are composed of Indian, of 

Spanish, some of them with French, some with white, and some 

with Negro. The prevailing habits are Indian,. Called Cajun.’’ 

The original identification in column, ‘‘Ind’’ was written over 

with ‘‘mixed.’’

1919 Choctaw Indians in Mobile and Washington counties ‘‘discovered’’ by Southern Baptists. 

Source: The 39th Annual Session of the Mobile Baptist Association, Citronelle 

Baptist Church, 1919. 

1920 U.S. Census, Indians identified in Washington County—10; in 

Mobile County—12. 

1921-1955 Thirty-four years of Reports by Baptist Missionaries provide 

continuous written documentation to Mobile and Washington 

Counties to teach ‘‘American Indians of Choctaw heritage, under 

the overall program of missions to American Indians.’’

Source: Annual Reports of the Southern Baptist Convention, 1922-1955. 

1924 Governor W. W. Brandon’s report on ‘‘Cajan- Indians’’ in Mobile 

and Washington counties. Hilary Herbert Holmes, ‘‘The so-called 

Cajan Settlements in Southern part of Washington County, Alabama: A Survey made for Governor William W. Brandon, 1924.’’

Source: Governors’ Papers (1920-27: Brandon), RC2:G156, Administrative files, 

folders: ‘‘Cajan,’’ ADAM. 

1930 U.S. Census, Indians identified in Washington County—0; in Mobile County—50. 

1930s-1990s Several Master’s theses and ‘‘scientific studies’’ done on Choctaw Indians in Mobile and Washington Counties. 

Source: Horace Mann Bond, ‘‘Two Racial Islands in Alabama,’’ American Journal of Sociology 36 (1931: 552-567; Laura Frances Murphy, ‘‘The 

Cajans of Mobile County, Alabama’’ (master’s thesis, Scarritt College 

for Christian Workers, 1935); Clatis Green ‘‘Some Factors Influencing 

Cajun Education in Washington County, Alabama’’ (master’s thesis, 

University of Alabama, 1941); Edward Thomas Price, Jr. ‘‘Mixed-Blood 

Populations of Eastern United States as to Origins, Localizations, and 

Persistence, (Ph.D. Anomalies in School Children of an American 

Triracial Isolate: A Frequency Study’’ (master’s thesis, University of 

Alabama at Birmingham, 1965); George Harry Stopp, Jr., ‘‘The Impact 

of the 1964 Civil Rights Act on an Isolated ‘Tri-Racial’ Group’’ (master’s 

thesis University of Alabama, 1971; Duane W. Superneau, Wladimir 

Wertelecki, Hans Zellweger, and Frank Bastian, ‘‘Myopathy in 

Marinesco-Sjogren Syndrome. European Neurology 26:8-16, 1987; B.G. 

Brogdon, R.D. Snow, and J.P. Williams, ‘‘Skeletal Findings in 

Marinesco Sjogren Syndrome,’’ Skeletal Radiology 25:461-465, 1996; 

‘‘Circle of Life: University of Alabama Researchers look at how children 

47

with developmental disabilities fit into the Circular scheme of Native 

American World View,’’ UAB Magazine, Summer, 1995: 13-15. 

1930-1965 Separate school system established for ‘‘Cadians’’ (Indians) in 

Mobile and Washington counties. 

Source: Minutes of Mobile County Board of Education and Minutes of Washington County Board of Education. 

1931-1966 Annual Reports of Mission Work Among the Cajan Communities 

1931-66 to the Woman’s Missionary Society and Woman’s Society 

of Christian Service. Work among these communities identified 

by following names: Byrd’s Chapel, Work Among the Cajans, 

Methodist Community House, Aldersgate Mission, Mobile County 

Rural Center, Calcedeaver School. 

Source: The United Methodist Church Commission on Archives and History, 

Alabama-West Florida Conference, Houghton Memorial Library, Huntingdon College, Montgomery, AL. 

1934 Mrs. Elvin Byrd sought federal aid for Indian schools. 

Source: Indian Office File No. 55742-1934; file no. 150. Report on findings was 

submitted to the Commissioner of Indian Affairs by Dr. W. Carson 

Ryan, Jr., Director of Indian Education. 

1940 U.S. Census—No statistics on Indians. 

1940-1941 School year. Miss Eva Crenshaw’s Sixth and Seventh grade students of Weaver School compiled a ‘‘History of Byrd Settlement,’’ 

‘‘with the help of some of the oldest people....Mrs. Laura Byrd, 

Mrs. Irene Rivers, and Mr. Book Byrd.’’ The story of the ‘‘woman 

who swam the river with her baby’’ is included. 

Source: ‘‘History of Byrd Settlement,’’ typescript., 1940-41. Copy acquired in 

1991 from Miss Eva Crenshaw, former Methodist Missionary to South 

Alabama Indians, 1937-44. 

1940s Indians from Mobile and Washington counties served in World 

War II. 

Source: Cemetery Records, U.S. Military Identification cards, Discharge papers. 

1948 ‘‘The 3rd major census of Indians in 1930 was the occasion for 

the ‘discovery’ of two more Indian mixed groups...These people 

are centered in the area of heavy woods and hills about 

Citronelle in upper Mobile and lower Washington Counties, and 

number 3,000 or more.’’

Source: William Harlen Gilbert, Jr., ‘‘Surviving Indian Groups of the Eastern 

United States.’’ Annual Report of the Board of Regents of the Smithsonian Institution for 1948 (1949): 407-438. See No. 18, Alabama. 

1950 U.S. House of Representatives report lists all Indians in U.S. including the Cajans of Alabama [ancestors of the MOWA Choctaw] under category of ‘‘Siouans of the East.’’

Source: ‘‘Compilation of Material Relating to the Indians of the United States 

and the Territory of Alaska, Including Certain Laws and Treaties Affecting Such Indians by Subcommittee on Indian Affairs of the Committee on Public Lands House of Representatives’’ H. Res. 66 (81st 

Cong., 2d Sess.) June 13, 1950, Serial No. 30. 

1950 American Indians across the South, including MOWA Choctaw, 

joined ‘‘Kinsmen of Indians for Liberty, Reform and Instructions 

in Civic Affairs’’ (KILROI). As Descendants of the Creek Indians, 

East of the Mississippi River.’’

Source: Docket 21, Indian Claims Commission, Bureau of Indian Affairs. Microfilmed copy of Register, Mobile County Public Library Local History Division. 

48

1965 Secured federal assistance for Indian Education in schools. Title 

IV, Part A, Indian Education Program implemented in Reed’s 

Chapel School, McIntosh, Washington County, Alabama and 

Calcedeaver School, Mt. Vernon, Alabama. The Indian Education 

program continues today in Mobile and Washington Counties. 

Source: ‘‘Statement of Jack Edwards, Member of Congress for Alabama 1965-

1985’’ in Testimony in support of S.362 (S.282) Proposed Legislation for 

Federal Recognition of MOWA Choctaw of Alabama. 

1976 Choctaws in Mobile and Washington Counties, 4,000. 

Source: Report of American Indian Policy Review Commission. Chapter 11, 

‘‘Nonrecognized Tribes,’’ p. 468, 

1979 The MOWA Band of Choctaw Indians recognized by State of Alabama. 

Source: Legislative Act No. 79-228, H.313—Turner, Alabama Laws of the Legislature of Alabama, 1979, Vol. I, p.350. 

1980 U.S. Census, Washington County, Alabama: Indians—779

Alabama Attorney General confirms that Choctaw Indians of Mobile 

and Washington counties retain their rights as a sovereign tribe. 

1981 MOWA Band of Choctaw Indians sought help of the Bureau of 

Indian Affairs to provide assistance to be federally recognized. 

Alabama Humanities Foundation—awarded a study grant.

Letter from Eddie L. Tullis, Chairman, Poarch Band of Creek Indians 

to Framon Weaver, Chairman, MOWA Band of Choctaw Indians, June 

20, 1981 requesting ‘‘in the spirit of Indian brotherhood, to support our 

efforts for Federal Recognition....We as Native Americans must work 

together to protect our rights. I assure you that if you assist us with 

our struggle for Federal Recognition you can count on us to be there 

when your petition is ready for consideration by BAR.’’

1983 MOWA Choctaw hired an Executive Director as a grants writer; 

applied for research grant from the Administration of Native 

Americans, which they received. Held organizational meeting 

for federal acknowledgment research team. Letter of intent to 

petition was sent to the Branch of Acknowledgment and Research (BAR), May 19, 1983. 

1984-1987 Data collection—research, interviews, writing 

1987 S. 1142, Shelby; H.R. 3107, Callahan, Nichols, Erdreich 

1988 Submitted FAP to BIA/BAR, April 28, 1988; up-dated tribal roll 

submitted 

1989 S. 381, Shelby, Heflin; H.R. 1562, Callahan 

1990 BIA/BAR reviewed FAP and sent Obvious Deficiency letter to 

MOWA Choctaw, February 15, 1990. 

1991 S. 362 Shelby, Heflin; H.R. 2349, Callahan; BAR held technical 

assistance teleconference in September; MOWA Choctaw submitted response to Obvious Deficiency letter, November 8, 1991. 

1992 Supplementary documentation showing Choctaws in Mobile 

area from 1832-1860 was presented to the BAR and reported as 

received in the BAR’s Proposed Finding. However, in a 1996 

meeting with BAR officials (Virginia DeMarce, Kay Davis and 

Holly Reckord), they stated they did not receive them. 

1993 S. 282; Shelby, Heflin, Inouye; H.R. 3605, Hilliard; supplementary documentation showing MOWA Choctaw ancestors’ 

Dawes Roll Applications and supporting evidence as to why 

they submitted applications for the Eastern Cherokee Roll 

(a.k.a. Guion Miller Roll).

49

1994 S. 282, H.R. 4231, MOWA Band of Choctaw Indians Recognition 

Act; hearing May 17, 1994; BAR sent Proposed Finding Against 

Federal Acknowledgment of the MOWA Band of Choctaw, December 16,1994. 

1995 Because a new chief was elected, MOWA Choctaw requested extension of time. We applied for and received Administration for 

Native Americans (ANA) Grant to complete Federal Acknowledgment Petition (FAP). 

1996 New chief, research committee and tribal council met with BAR 

staff in Washington for technical assistance on March 1, 1996. 

Research committee met with anthropologist, May 7-8. On June 

27, 1996, Chief Wilford ‘‘Longhair’’ Taylor submitted Report and 

up-dated tribal roll. 

1997 BIA/BAR issued a negative Final Determination Technical Report. 

1998 MOWA Band of Choctaw Indians of South Alabama filed an Appeal before the Interior Board of Indian Appeals, U.S. Department of Interior. The appeal was denied. 

2000 Kevin Gover, Assistant Secretary of Indian Affairs under President Clinton invited Chief Taylor to meet with him to discuss 

MOWA Choctaw Federal Recognition 

2003 The School Board of Washington County returned Reed’s Chapel 

School and property to the MOWA Choctaw. The first school was 

held in Reed’s Chapel Church by missionaries. The school was 

built by ancestors of the MOWA Choctaw on land they donated 

for this purpose.


92827.006
50

EXHIBIT 3: TRANSCRIPT OF WASHINGTON REPUBLICAN AND NATCHEZ INTELLIGENCER

NEWSPAPER ACCOUNT OF THE NANCY FISHER STORY

BY THIS MORNING’S MAIL

ST. STEPHENS, JUNE 7

We learn from the most respectable authority that two of the murderers of Johnston and McGaskey have been given up, and that diligence is promised on the part 

of some of the chiefs in apprehending the balance of the party. It is stated that the 

Seminoles and some of the lower Creeks are determined on war and have embodied 

1500 warriors to cut off the supplies and provisions ordered up the Apalachicola for 

the use of the U.S. Troops. The most stringent measures are adopted by the commanding general to ascertain their statement and intentions as to prevent the commission of outrages on the frontier. In consequence of the reports of the Indian unrest, the surveyors of the Creek lands have suspended their labors, but we understand, under security assumed by military force, they are about to recommencing 

them. 

June 23

The following interesting part of a letter was communicated by our friend at Fort 

Stoddert dated June 15, 1816. 

‘‘Left Tuesday night, about the rise of the moon, five Creek Indians came 

to the home of Mrs. Fisher, about fifteen miles below this place on the eastern bank of the river. Three of them fired on a Chactaw, who had been at 

the same time about Fort Montgomery, engaged in hunting and who was 

then encamped near Mrs. Fisher’s hours. As soon as they had killed him, 

they fired at the door upon which her daughter catched up a child escaped 

at the opposite door, and the Indians rushed in and fell upon an old woman 

with clubs. Her cries only excited the taunts of the Indians, whose conversation, in the Creek language, was heard by her distracted daughter. 

The old woman was left for dead; but the daughter got to a canoe and escaped, with the child, to the swamp on the western side of the river, where 

she soon saw the house buried in flames. Mrs. Fisher, however, was not actually dead, but was enabled to have—from immediate destruction. 

Mr. Myric in whose employ her son was, had them all brought up in a boat yesterday evening. I have just been to see them, but found the poor old woman dead. She 

had been disabled in her hip, her fingers were miserably mashed, and her head conVerDate 0ct 09 2002 12:17 Sep 08, 2004 Jkt 088533 PO 00000 Frm 00054 Fmt 6633 Sfmt 6621 J:\DOCS\92827.TXT HRESOUR1 PsN: KATHY

92827.007
51

siderably fractured. The whole of their furniture, clothing, and provisions were destroyed with their house. Every family on the same side of the river is equally exposed. Mrs. Fisher was a sister to the later Mrs. Stiggins. Her father was a Cherokee and her mother was one of the old Natchez tribe. She has lived with the white 

people upwards of 20 years, and her husbands (both of who are dead) were white 

men. She had not seen a Creek Indian before since the commencement of the war, 

and had no idea who they were that killed her, except they were Creeks. 

Marschalk, Andrew. 1816. By This Morning’s Mail. Washington Republican and 

Natchez Intelligencer, Wednesday, July 10, 1816. 

EXHIBIT 4: FEDERAL AGENCIES RECOGNIZING THE MOWA BAND OF CHOCTAW

INDIANS

1. U.S. Department of Commerce 

The U.S. Bureau of the Census 

The U.S. Bureau of the Census recognizes the MOWA Band of Choctaw as an 

American Indian group. The Bureau of the Census uses a racial classification code 

for generating statistical profiles of the American population. The MOWA Band of 

Choctaw is listed under the category, ‘‘American Indian,’’ as a Choctaw group with 

the racial code number C12 (See Department of Commerce, Bureau of the Census, 

American Community Survey Race Code List: 

http://www.census.gov/acs/www/UseData/CodeList/SSAll/2000/Race.htm). In addition, the Bureau of the Census has also generated a map of American Indian groups 

resulting from the 2000 Census, and the MOWA Band of Choctaw reservation is 

southwest Alabama is included (See http://www.census.gov/geo/www/maps/aian—

wall—map/aian—wall—map.htm [map can be enlarged on-line). 

2. U.S. Department of Housing and Urban Development 

Office of Native American Programs 

Indian Community Development Block Grant Program (ICDBGP) 

The MOWA Band of Choctaw has received a federal grant (ICDBGP) through the 

Office of Native American Programs, U.S. Department of Housing and Urban Development. The criteria for receipt of the grant states, 

Eligible applicants for assistance include any Indian tribe, band, group or 

nation (including Alaskan Indians, Aleutes, and Eskimos) or Alaskan native 

village which has established a relationship to the Federal government as 

defined in the program regulations. In certain instances, tribal organizations may be eligible to apply (http://www.hud.gov/offices/pih/ih/grants/

icdbg.cfm) 

MOWA Choctaw Chief Taylor is featured on the front cover of the June 2003 Native American Housing News, a publication sponsored by the U.S. Department of 

Housing and Urban Development. 

3. U.S. Department of Health and Human Services 

a. Low Income Home Energy Assistance Program (LIHEAP) 

b. Administration for Native Americans 

c. Centers for Disease Control and Prevention 

The MOWA Band of Choctaw have, in the past, received federal funding through 

the Administration for Native Americans (ANA) to assist them in researching their 

cultural history and are currently receiving federal funding through the Low Income 

Home Energy Assistance Program (LIHEAP). The LIHEAP grant is administered 

specifically to the MOWA Band of Choctaw with those eligible being, ‘‘eligible Choctaw households in Baldwin, Choctaw, Mobile and Washington Counties’’ (http://

www.ncat.org/liheap/Directors/Agreements/Alabama.htm). In addition, the Centers 

for Disease Control and Prevention employ the same racial designation for the 

MOWA Band of Choctaw as does the U.S. Bureau of the census (American Indian, 

code C12). 

4. U.S. Department of Education 

Office of Indian Education 

Title IV and Title IX 

For almost 40 years, the MOWA Choctaw have received federal funding for Indian 

education through Title IV (beginning in 1965) and later Title IX programs through 

the U.S. Department of Education’s Office of Indian Education. If one considers the 

Indian School built for MOWA Choctaw ancestors in 1835, they have a 155 year history of government sponsored Indian education for the MOWA Choctaw people. 

The CHAIRMAN. Thank you. 

52

Mr. Marshall, in your written testimony you state that 17 tribes 

winning a legally forced review have all been denied Federal recognition. Chairperson Cambra testified that the same people at Interior who fought her tribe’s lawsuits were the ones responsible for 

the final determination denying recognition to her tribe. 

This makes me wonder about objectivity of the people that are 

making a decision. Can you maybe enlighten the Committee a little 

bit about how you feel or how the people that you represent have 

dealt with the objectivity of those that are in the decisionmaking 

process. 

Mr. MARSHALL. Thank you, Mr. Chairman. First off, the frustration of all tribes is well known. It is well documented. Not only the 

frustration of the process but yet when you seek remedy outside of 

the process, because your people do not have access to health programs, education programs, 638 programs, we are denied the process. When you seek outside remedies through the court or through 

congressional help, they become adversarial, at best. 

Partly because there is just such a vacuum of bureaucracy up in 

that particular building, I do not want to go to that building. 

Where I come from we call it bad medicine. You do not feel human 

going in there. You do not feel like you are getting your just day 

in court. You do not feel like you are going to have your fair say. 

You feel like you are going there with your hat in your hand to beg 

for something. But I will you that we did not allow any foreign settlers to beg for anything when they came to us for help. 

I think it is totally disgusting that a tribe who has been a consistent living, breathing tribe has to prove to someone else that 

they are a tribe. If you are of European descent and you say you 

are English, they do not ask you how much English you are. If you 

say you are Indian, they want to know what part and how much. 

The sad part about it is that whole thought process goes throughout the country. But without Native Americans’ contribution to this 

country, we would not have a country. We would not have a Constitution. We governed our people long before—our constitutions 

and our governance predate the Constitution of this country and 

we have been living in peace and harmony and planning for seven 

generations since the beginning of time and I find that when we 

do seek outside remedies, we have to pay the piper. But the frustration is do I go back and tell my elders that I cannot get the job 

done inside the BIA in a timely fashion and on my watch? 

I will tell you this. From the time that we put in our letter of 

intent to today, we have lost 147 members because they did not 

have access to programs and I find that a little tough. 

The CHAIRMAN. Mr. Marshall, you and I have had a chance to 

talk in the past and as I told you privately, whether the decision 

is to recognize you as a tribe or not recognize you as a tribe, it is 

unconscionable to not give you a decision. That, in my mind, is just 

beyond any bureaucratic mess-up. It is just something that this 

Committee is going to have to deal with in one way or another. 

Unfortunately, as we were preparing for this hearing we found 

that you were not alone and that there are a lot of folks that are 

out there that have been waiting for decades just to get an answer. 

Mr. MARSHALL. That is correct. 

The CHAIRMAN. And that is uncalled-for in my mind. 

53

I do have questions dealing with the objectivity of people in the 

decisionmaking process. I happen to have one of my local tribes 

that has gone through—in fact, it has made national news lately—

quite an ordeal in terms of the leadership of that particular tribe 

and the accusations have been made that those that were making 

the decision within the BIA for one reason or another had a conflict 

in that decisionmaking process and listening to the testimony of 

this panel really makes me wonder if there is not a different way 

that we ought to approach the Federal recognition process and 

maybe have some kind of an independent process. 

You heard on the first panel somebody who felt very strongly 

against the recognition process in one particular tribe and has the 

ability to have political pressure brought into bear on that particular decision. In my mind, this should not be political or bureaucratic. It is either yes or no. Either you qualify or you do not. To 

me, I do not understand how that can take 30 years. 

Mr. MARSHALL. Mr. Chairman, we are not sure, either, but I can 

guarantee you that the tribal leaders sitting at this table either 

meet or exceed all seven of the criteria. The BIA knows it. They 

know we have been tribes for years. 

I find it hard to believe that a governmental agency would go 50/

50—16 approved, 16 denied. How does that happen? If you did that 

in business you would be a miracle man. But you know what the 

sad part about it is? That we even have to come here to tell you 

this. 

And you know the really disgusting part is in Connecticut you 

have tribes there that contribute a great deal of money and resources and jobs to the State of Connecticut and I would say to you, 

sir, that if they lost those casinos, that the State of Connecticut 

would be in a financial ruin without those two tribes. Instead of 

embracing the tribes they fight them. 

But in Massachusetts we have a resolution that says from the 

statehouse, please recognize this tribe, urging the Massachusetts 

delegation to seek recognition for this tribe. We are not saying yes 

or no; we are asking to have our chance at the bat. But I am afraid, 

like most people are, that when you seek an outside remedy that 

the first answer is going to be a negative, as happened to the 

Muwekmas, as happened to Schaghticokes, and as happened to 

Eastern and Pawcatuk Pequots. 

The Department has taken upon itself the ability to change the 

rules when they want to, jumping people from behind us ahead of 

us, and they have done that at least five or six times. And you 

know the wonderful part about that is they send you this great letter that says it will not harm you as far as time is considered because we are going to short-circuit and take the time of the process. 

And I think they drank Reverend Jim’s Kool-Aid. 

The CHAIRMAN. Thank you, sir. 

Mr. Rahall. 

Mr. RAHALL. Thank you, Mr. Chairman. 

I would like to ask Chief Taylor a question. You stated that in 

denying your tribe Federal recognition, the BIA failed to take into 

account that your earliest ancestors were not literate in English. 

Could you explain how this worked adversely against you? 

54

Mr. TAYLOR. Well, our people, you know, they required us to 

match our Choctaw names with English names, which we could not 

do that. Over time, assimilation, most all Indian tribes are losing 

their native language. We are trying to bring ours back. So that 

works against us there, I believe, if I understood your question 

right. 

Mr. RAHALL. Right. 

Let me ask Chairwoman Cambra if I might, how has the Interior 

solicitor’s involvement with your lawsuit created complications? 

And this could very well be a follow-up to the Chairman’s questions, as well. Are there conflicting personalities here that you feel 

have worked against you? 

Ms. CAMBRA. I believe so. I believe that they have made a process into a personal vendetta against my tribe specifically. 

I also believe that it is very clear when they admit that we are 

a historical tribe, 100 percent of our members descend from a historical tribe, it is very clear that Congress has never terminated 

our tribe in any way, shape or fashion, then they automatically 

should come up with an alternative. And I have requested since, 

in fact, the earliest administration that I started working politically was with Ada Deer’s administration and I asked the question, 

can you help us? If we are previously recognized, never terminated, 

how can you help us? Well, go through the process, which we did. 

The BAR said we were previously recognized, never terminated, 

100 percent of our membership comes from a historical tribe. They 

did not offer any alternative except to recommend legislation and 

that was their only recommendation that they offered the tribe, 

and I am assuming through the solicitor. And I can testify as a witness that American Indians are no friend of the solicitor. 

As a taxpayer and as a grandmother and a mother and as a leader, is this what the American Federal government provides 

Indians? Instead of taking the fiduciary responsibility, they take a 

very negative pro-war process with them and that has to stop. We 

cannot afford that. We cannot afford that. 

Mr. RAHALL. Thank you. 

Thank you, Mr. Chairman. 

Mr. HAYWORTH. (presiding) I thank the Ranking Member and I 

am going to ask your indulgence. Obviously a frog decided to take 

root in my throat today. 

I would like to thank the witnesses for coming down here today. 

A couple of points. As I heard your testimony I thought back to the 

district I represented when I first came to Congress. Things 

changed because of reapportionment but in the district that I initially represented I was honored to represent the sovereign Navajo 

Nation, the largest of our tribes. The area the Navajo inhabit transcends the borders of four states. It itself is about as large as the 

Ranking Member’s home State of West Virginia. 

What I keep coming back to when I hear your words today remind me of a tribal elder whom I met in a town hall meeting when 

he said, ‘‘Congressman, as far as I am concerned, as far as the people I represent are concerned, BIA stands for bossing Indians 

around.’’

55

But listening today, I hear another unfortunate acronym to hear 

your experiences. BIA seems to now stand for bureaucratic indecision always. 

If you would again, and I share Mr. Marshall’s lament; it is unfortunate in the first place that this hearing even has to take place 

but even accepting that for a second, there is something good that 

comes from this because we have the chance to put into the record 

and to amplify for the record the challenges you face. 

I would ask each of you who have testified, I know it is in your 

official record but again to distill and to amplify for this Committee 

and for the Congress and for our friends who join us here today 

how long have you been involved in this process? Let us begin with 

Mr. Marshall and just in the order of testimony, if you would tell 

us the number of years you have been involved in seeking recognition. 

Mr. MARSHALL. Officially, 29. 

Mr. GUMBS. Officially, since 1978, 25 years. 

Ms. CAMBRA. Since 1989—23, 24 years. 

Mr. TAYLOR. This year 24. 

Mr. HAYWORTH. So an average of a quarter century for all these 

tribes just through the official recognition process. That is on average what we are hearing here today. A quarter century to reach 

some conclusion. 

As the Chairman said and as I would amplify, simple respect and 

decency should have prompted a yes or no answer at some point 

during the span of a quarter century of seeking this recognition. 

The Chair would recognize the gentleman from Michigan, Mr. 

Kildee. 

Mr. KILDEE. I thank the Chair and thank the witnesses. 

You certainly have appeared before the right body. Each one of 

us in this body take an oath to uphold this Constitution and the 

Constitution, as I am sure most of you know, Article 1, Section 8 

says, ‘‘The Congress shall have the power to regulate commerce 

with foreign nations and among the several states and with the 

Indian tribes.’’ This Constitution states the three types of 

sovereignties that we deal with and you are one of those three. 

I have two citizenships. I am a citizen of the United States and 

I am a citizen of the State of Michigan. Native Americans have 

three citizenship recognized by this Constitution. They are citizens 

of the United States and they have proven that over and over again 

by their service in our armed forces. They are citizens of their respective states and they are citizens of their sovereign tribes, recognized—not granted—recognized by this Constitution, because it is 

a retained sovereignty. 

John Marshall in 1832, Chief Justice of the United States Supreme Court, said, ‘‘The Indian nations had always been considered 

as distinct, independent political communities retaining their original natural rights as the undisputed possessors of the soil from 

time immemorial. The very term nation so generally applied to 

them means a people distinct from others.’’

You have a retained sovereignty and our job is to make sure that 

we recognize—not grant—we recognize that retained sovereignty. 

In my time here in the Congress I have helped some tribes in 

my own state get their sovereignty reaffirmed, reaffirmed their 

56

recognition, not granted. As a matter of fact, I had three tribes one 

time over in the Oval Office when President Clinton was President, 

three tribes and the President signed those bills. I will tell you a 

quick story about that, too. I really believe in this sovereignty. 

After President Clinton signed those three bills recognizing the 

retained sovereignty of three Michigan tribes I turned to the three 

chiefs or Chairmen, because Clinton was wandering around as he 

generally does in the Oval Office talking to everybody. I said, ‘‘Why 

do you not sit down in the President’s Chair?’’ And one of the senators said, ‘‘Dale, I do not think we can do that.’’ And I said, ‘‘We 

probably should not because we are not chief executives of sovereign tribes, sovereign nations, but these three are.’’ So they all 

took their turn sitting in the President’s Chair. 

But it is a real sovereignty and it is a shame when we recognize 

foreign nations much more quickly than we recognize those who 

had sovereignty and are recognized by this Constitution. 

You know, I have gone through the process of helping tribes go 

through the—I got so tired of the BAR process because it is broken, 

it is shattered, it just is not working. So very often, I have had to 

take tribes through the congressional process and, by the way, I 

have taken tribes through the congressional process long before 

IGRA, long before gaming ever came in. Now every time you think 

of trying to get your sovereignty recognized people think of gaming. 

Well, that is beside the point. The main thing is that if you are sovereign, you are sovereign, and it is a retained sovereignty. 

All you are asking of the BIA or asking the Congress is to recognize again that retained sovereignty. You come before this body 

and I think it is more than a legal responsibility; it is a moral responsibility this Congress has to either repair the BAR process or 

to use the congressional path to help again recognize your retained 

sovereignty. 

I have some prepared remarks, Mr. Chairman, I would like to 

submit for the record but I just wanted to speak to you. I admire 

your loyalty to this country, I admire your loyalty to the state in 

which you live, and I admire the loyalty to the sovereign tribes of 

which you are members. 

Thank you very much and I yield back the balance of my time.

Statement of The Honorable Dale E. Kildee, a Representative in Congress 

from the State of Michigan 

Mr. Chairman, I am pleased that you scheduled this hearing today so that we can 

engage in the type of dialogue that will lead to badly needed changes to the federal 

recognition process. 

I have met with several tribes over the years who have informed me of the complaints they have about the current administrative process. 

We all have heard these complaints: 

• that the office of federal acknowledgment is underfunded; 

• that the process is too slow as it can take decades before a petition is reviewed; 

• that the process is too expensive; 

• that the process is filled with conflicts of interest within the BIA; and 

• that the BIA is more worried about the fiscal impacts of approviing petitions 

than providing justice to tribes who legitimately deserve to have their status 

as tribes restored. 

It is because of those complaints, and my commitment to provide justice to Indian 

tribes, that I have supported and sponsored over the years specific legislation to reaffirm the federal recogniton of a tribe. 

Previous attempts to revamp the federal recognition process have failed in the 

past because of fears by some that doing so would lead to more Indian gaming. 

57

Just this week, the New York Times published an article about gaming investors 

seeking to create tribes. Certainly, I am appalled by this idea. I know it does happen. It has happened in my own state and I opposed that effort, but these few examples do not remove the fact that there are Indian groups that deserve to have federal recognition and that the federal recognition process needs to be improved. 

I look forward to hearing from the witnesses today. Thank you. 

The CHAIRMAN. Thank you. 

Mr. Pearce? 

Mr. PEARCE. Thank you, Mr. Chairman. 

I appreciate your testimony and like the others, echo the response that answers should be given. I would ask if any of you happen to know the number of employees that work in the Department 

who are in charge of recognition, the recognition process? Just approximately. 

Mr. MARSHALL. I understand there are three teams of three—an 

anthropologist, a genealogist, and a historian. For a long time there 

was one team of three but they have since hired new people. 

Mr. PEARCE. Mr. Chairman, I just have some observations here 

that I have been working out on the calculator. If you figure 8 

hours per day per person, which may be at risk, but 5 days a week 

per person, you get 40 hours a week times 48 weeks if they get a 

month’s vacation. That is 1,920 hours and over 25 years, which 

these people have averaged, that is 48,000 hours of manpower. And 

if you multiply it times the nine employees, the three teams of 

three, we have 432,000 hours and it seems like we could give these 

people an answer with 432,000 hours of labor time. 

On another note, if we spend 15 minutes a day on coffee breaks, 

that is 1,500 hours in the careers, the 25 years that these people 

have been waiting. If we just post a little note at the coffee table 

that if you will simply talk about it over a break, you have 1,500 

hours, so surely we could come up with an answer for at least one 

of the tribes. 

Thank you, Mr. Chairman. 

The CHAIRMAN. If the gentleman would yield just for a second, 

how many hours was that? 

Mr. Pallone. 

Mr. PALLONE. Thank you, Mr. Chairman. 

I was glad that Congressman Kildee brought out the Constitution and read that section where it says Congress has the power 

because I guess my biggest concern after listening to Mrs. Johnson 

on the first panel was that states and towns are looking to influence this process of recognition in a way that I think is inappropriate and I think we need to be reminded that it is a Federal 

issue, that Congress has the power. Congress is the one that deals 

with the sovereignty issue. 

And in the same respect, I guess I am concerned about opening 

up the BIA recognition process in the sense that we would amend 

it or we would change it because my fear is that there is so much 

pressure now and maybe Connecticut is the worst example but 

there are others, too, that if we reopen it and try to change it, rather than it becoming a better process and less bureaucratic, that it 

might become more limiting and the states would, through their 

representatives here, exercise their ability to make it even more 

difficult to get recognition. 

58

That is just by way of background. I am not saying I understand 

all the problems in the bureaucracy and everything you have but 

that is just my fear. 

I guess it was Lance Gumbs, who is a Trustee. You said something about if the states have recognized the tribe, maybe there 

should be some expedited procedure because of the state recognition but I would fear that if states thought that was true they 

might just rescind it. I could see maybe Connecticut just rescinding 

state recognition of the Eastern Pequots or some of the others, 

knowing that that might have some factor. 

What I really wanted to ask you is Mrs. Johnson talked about 

giving money to the localities to help with the recognition process 

or challenging recognition and I asked a question about well, what 

about the tribes? They do not get any money. 

What would you say about—and this goes to the cost issue. I just 

want each of you, if you could, to tell us what would you say if 

there was a bill introduced—I guess I could introduce it—that mirrors Mrs. Johnson’s but does not give money to the towns or the 

states; it gives money to the tribes and says that if a tribe is seeking recognition, we will give them money to make their case? 

I think it was Mr. Gumbs and Chief Taylor who both talked 

about how difficult and costly it was to go through the process. 

Give me a little information about how difficult it is because the 

perception that Mrs. Johnson and some of the others are giving is 

that tribes have all this money from the casinos to help them with 

the recognition and they have no problem getting money to help 

the process. 

Two questions. One is what would you say about legislation that 

would give money to tribes so that they could use it for the recognition process? And how difficult is it and where are your resources 

coming from to go through this 20-year process? I will start with 

maybe Mr. Gumbs and Mr. Taylor because they talked about how 

costly the process is but anybody could answer. 

Mr. GUMBS. Thank you. The costs have been astronomical for us 

at the Shinnecock Nation. Our sole source of income within our 

community—and we are a community. We have health facilities. 

We have a family preservation center. We are an active community. The costs have been astronomical. Our sole source of income 

at this point has been our annual Labor Day weekend powwow and 

that has gone to fund our tribal offices and the various programs 

that we have within our community and, to say the least, it is not 

a lot. 

To take it a step further, if it had not been for NARF coming in 

to give us a hand with our process, we would probably still be 

doing it. You know, 25 years and NARF has spent approximately, 

just since 1988, approximately $800,000 on our process. The research that goes into this process is tremendous. You have to go 

to different places. In New York, for instance, we have had to go 

to Albany and some of our records are up in New Bedford, Connecticut, and some of our records are actually over in England dating back to the colonial times. 

So in order to achieve what has been required of the process we 

have had to expend an inordinate amount of funds to get this process done. And, as I said, if it had not been for NARF coming in and 

59

giving us a hand with that, we would still be in the process. We 

would not have been able to afford this based on the income that 

we have within our community at this present time. 

Mr. PALLONE. What about having the Federal Government help 

you pay for it? 

Mr. GUMBS. That would have been great. I mean we could have 

used that 25 years ago. 

Mr. TAYLOR. Do you want me to answer? 

Mr. PALLONE. It is up to the Chairman. Yes, I guess, sure. 

Mr. TAYLOR. It has been a great burden on us. We did secure one ANA grant that gave us $65,000 but when you look at hiring professionals to do your work, it is costly. They do not do it for thank 

you. They have to travel. They have to go to the archives, land 

records, military service records, and they have to search and 

search and search. They have to fly. They have paperwork and all 

to do and they really, like Dr. Richard Stoffle from the University 

of Arizona, he works for them and we had to fly him in to do some 

research. We had to fly him in to talk to our elders. We had to fly 

him back and we had to pay him for his time. 

So we are looking at, for 10 years there when we were working 

on the process, it cost us a half-a-million dollars and we got one 

$65,000 ANA grant from the government and we had to foot the 

other bill on our own, from our pow-wows, from fundraisers. 

The CHAIRMAN. Thank you. 

Mr. Flake, did you have questions? 

Mr. FLAKE. No questions. 

The CHAIRMAN. Mr. Baca? 

Mr. BACA. Thank you very much, Mr. Chairman. 

Mr. Pallone, I agree with you that it should stay in Congress as 

far as Congress having the power and I would hate to see the 

states even get the power in terms of recognizing Federal tribes or 

tribes within our areas because that would do away with a lot of 

the sovereignty and the protection for sovereignty that we have to 

continue to protect. 

Mr. Hayworth, you mentioned what BIA stood for. I believe it 

stands for bureaucratic inaction versus the definition that you 

gave. 

But it is a shame that when we look at tribes having to spend 

29 years, 25, 23 and 24 years, that they are not able to be recognized, especially for many different kinds of reasons. One is when 

you look at dignity and respect they are very important and you 

cannot put a dollar price in terms of identifying who you are, 

where you are coming from and that tribe to also be recognized. 

Government has the habit of recognizing all of us. Immediately 

we are labeled. I remember when we were first labeled as Caucasians and then it was changed from Caucasians to Hispanics and 

then from Hispanics to Latinos and from Latinos to Mexican-American, where I think we are a combination of all of them with a little 

bit of Indian blood that is still in us. 

But it is a shame that individuals have spent so much time in 

trying to gain the kind of dignity and respect that we should have 

in identifying individuals. I would like to see hopefully some kind 

of a process or guidelines with time lines in terms of when a tribe 

asks for an application, that within a certain period of time they 

60

should be recognized within that period of time and they should be 

held accountable. BIA should be held accountable to say if a tribe 

has filed, why has it taken so long? 

It is appalling—I agree with you, Mr. Chairman—it is appalling 

to see them go so long and to see a tribe—can you imagine us sitting in this Committee—I do not think all of us will be here for 29 

years or 25 or 23 or 24; maybe you, Mr. Chairman; you are a little 

bit younger—to finally recognize one of these tribes that is seeking 

the recognition that they rightly deserve. I think that we need to 

reassess what goes on there. 

So my question would be to the panelists out here how do you 

suggest the process can be sped up? And any one of you can answer 

that. Then do you feel that you have been taken advantage of in 

your efforts to become a federally recognized tribe? That means financially or otherwise, gouged by individuals, attorneys and others, 

because there are a lot of people out there that are willing to gouge 

individuals to say I am willing to work on your application and all 

of a sudden for whatever reason, conflicts or others, it is still there 

and we are still dealing with 29 and 25 and 23 and 24 years. Any 

one of you can answer that. 

Ms. CAMBRA. I believe, Congressman Baca, I believe that 

immediately this Committee and Congress should take action, 

immediately take that authority and power away from the BAR. 

Personally I believe that the tribes that are previously recognized 

or have merit for recognition and have spent millions of dollars on 

the process and have been treated with ill will and have been basically—what I think the BAR has done is that they have tried to 

kill our spirit in this whole process and the will to want to continue 

to face you men and women in Congress. 

I mean what the BAR has done to our integrity or to my tribe 

and its integrity and even to function, it is worse than 9/11. It is 

actually worse than 9/11. Also, anthrax. Here we get a letter that 

says you no longer are to be considered a candidate for recognition; 

you have to follow another process. Yet we know, yet we know with 

the history of our people and the legal history and even a court document, Federal court document, that we were previously recognized, never terminated, and 100 percent of us are from the same 

group. I mean we know the truth and we carry the truth with pride 

but when we face the BAR and the Interior solicitors, it is like they 

dismiss our presence and our rights as a sovereign nation. That, 

in itself, their actions are insulting. And it is not only insulting to 

us as Indians but it is insulting to the American government. 

Mr. BACA. Good. Would anybody else like to answer? 

Mr. TAYLOR. Yes, I would like to say something, sir. 

Mr. BACA. Yes. 

Mr. TAYLOR. My personal opinion is to let the BAR continue to 

work but I think Congress, what they should do, they should have 

a watchdog Committee. Instead of appealing to the BAR, like the 

fox watching the henhouse, you know, so to speak, instead of appealing to the BAR, appeal it to a Committee of Congress and let 

the Congress decide. Let them have some expert witnesses, something like those expert witnesses that testified on my behalf. I 

think if they knew they had a watchdog Committee and if they denied a petition and Congress had a Committee sitting here that is 

61

going to scrutinize their decision, I think they would be more honest and more fair. I really do. That is my opinion. 

Mr. BACA. Thank you. 

Mr. MARSHALL. Mr. Congressman, I would respectfully say that 

the BAR staff is overburdened, first off, but they have not yet 

asked for more money, either. They have not asked for more money 

for the recognition process. 

In a deposition that we had we talked to one of their budget people and all of the money seems to go to the trust fund issue at this 

point. So that leaves the Federal recognition and the BAR or OFA 

in limbo. There was only one funding source for tribes that were 

seeking recognition and that was ANA and NARF. 

And to answer your question, my tribe has not been unduly 

harmed by anybody that has done any work for it in any way, 

shape or form. We do not allow it. We are not insensitive and we 

are not stupid. We can find the right people to do these things. I 

think that sometimes people have this predisposed notion that we 

do not know what to do or how to do it and I would say that the 

BAR staff needs to be shored up. I believe that they need some 

help. I believe they need some guidance and they need a fresh evaluation of what their job is. Their job is to go through the process 

and not personally hold one decision over another and it certainly 

is not to jump one tribe from behind another, ahead. 

Mr. BACA. Thank you. 

Mr. GUMBS. I think that the process clearly was designed to have 

Indian tribes fail. As the Chairwoman said, the process is long, it 

is an exhausting process, and they constantly change the rules. 

Our stuff was submitted in 1998 and then there was a TA letter 

that was sent to us, which said that we had not met a certain criteria. We then went back and spent another couple of years working on that criteria, only to have another tribe given recognition 

with the same problems that we had, that they claimed that we 

had. 

So we are looking at it as well, what is going on here? You know, 

here we spent all of this time doing this and then we turn around 

and you tell us that we did something or left something out, and 

then when we turn around and look, you recognize another tribe 

with the same problems. So there is no consistency in the process 

itself. 

And as Glenn said, ANA was the only agency that we were able 

to get a small fund from and at this time now they have even taken 

the position that they are not going to be funding recognition anymore. So how do we do this with no money? 

It is a process that is designed to have Indian nations fail and 

it is as simple as that. 

Mr. BACA. Thank you very much. It sounds familiar because that 

is part of the process that happens with many individuals, immigrants who want to become citizens who accidentally somehow 

leave a blank or a space left and they go to the end of the line and 

the whole process has to begin again. That is why we have 10 million and some that are backlogged right now that they have never 

even processed in that area, so am hearing the same kind of problems that we have here right now. 

62

Mr. MARSHALL. Forty percent of the tribes that enter the recognition process give up and there is nobody in this room that would 

understand that frustration unless you have been through it. Forty 

percent of the tribes do the job of the BIA by quitting because they 

cannot take the frustration, the pressure, and the financial responsibility that it takes to push a petition through and that is pretty 

sad. 

Mr. BACA. Thank you very much. 

Thank you, Mr. Chairman, for allowing me extra time. 

The CHAIRMAN. Thank you. 

Before I dismiss this panel and call up our third panel I wanted 

to first of all, thank all of you for your testimony. I think the entire 

Committee realizes how difficult it is for all of you to be here and 

to testify in front of a congressional panel in the way that you did 

and we appreciate your having the tenacity to stick with it but we 

really do appreciate your making the effort to be here and to share 

with us your experiences. 

Mr. Taylor, you suggested that there be some kind of a congressional oversight, congressional watchdog. Well, that is who we are 

and that is the job of this Committee. I will fully admit that in the 

past we may not have done some of the things we should have on 

this Committee but that is changing. We are here to do our job and 

our job is to have oversight over these functions and we are doing 

that. That is part of the effort of this hearing here today. 

Mr. TAYLOR. I know in my particular case what I was referring 

to, sir, was like when our petition was denied we appealed it but 

we appealed it back to the Bureau of Indian Affairs. Instead of appealing it back to the Bureau of Indian Affairs, if you could appeal 

it to the Oversight Committee it might help. 

See, when someone makes a decision, then you are going to appeal it back to the same people. That is what I am trying to say. 

The CHAIRMAN. Yes, which unfortunately came up, I think, in all 

of your testimony, that there is something wrong with this process 

that we are going through. I am sure that in working our way 

through this, that any legislative changes that we need to make, 

that that will definitely be part of the process that we have to go 

through in order to figure out if there is a better way to do this. 

I know in listening to your testimony and reviewing your testimony 

before that the process that all of you have gone through is unconscionable and we need to do something different. I do not think any 

of us knows exactly the way we are going to work that out but I 

do know that we need to change it. 

I appreciate all of you being here and your testimony. Thank you 

very much. 

I would like to call up our third panel, consisting of Tim Martin 

of the Poarch Band of Creek Indians, a federally recognized tribe, 

and Miss Kate Spilde, an expert on recognition issues for the Harvard Project on American Indian Economic Development. If you 

could join us at the witness table, please? 

And before you take a seat if I could just have you stand and 

please raise your right hand. 

[The witnesses were duly sworn.] 

The CHAIRMAN. Thank you very much. Let the record show they 

both answered in the affirmative. 

63

Welcome to the Resources Committee. I appreciate your being 

here today. I am going to start with Mr. Martin. 

STATEMENT OF TIM MARTIN, POARCH BAND OF CREEK 

INDIANS, NASHVILLE, TENNESSEE 

Mr. MARTIN. It is almost good afternoon but I will say still good 

morning, Chairman Pombo and other distinguished members of the 

House Resources Committee. 

On behalf of the Poarch Band of Creek Indians of Alabama, I am 

happy to be here to have the opportunity to testify on the Federal 

recognition process. I extend the regrets of my tribal Chairman, 

Mr. Eddie L. Tullis, who is unable to be with us today but has authorized me to speak on behalf of the tribe. 

My name is James T. Martin. I am an enrolled member of the 

Poarch Band of Creek Indians. I am Executive Director of United 

South and Eastern Tribes, an intertribal council representing 24 

federally recognized tribes in the South and Eastern parts of the 

United States. 

Prior to my position as Executive Director, I was employed by my 

tribe between 1979 and 1985. During that time I observed and took 

part in our tribe’s endeavor to go through the Federal recognition 

process. Therefore today I will reflect on our tribe’s experience and 

the current atmosphere that is surrounding the Federal recognition 

process. 

My tribe, the Poarch Band of Creek Indians, is located in South 

Alabama. We have a current enrollment of roughly 2,250. And I 

would like to read some excerpts from the Federal Register notice 

of Monday, June 11, 1984, to give you a perspective of where I am 

coming from. Our tribe was one of the first tribes to go through the 

FAB and avail ourselves of the BAR and the criteria that we will 

be talking about today. 

Evidence indicates that the contemporary Poarch Band of Creek 

Indians is the successor of the Creek Nation of Alabama prior to 

its removal to Indian Territory. The Poarch Band of Creeks remained in Alabama after the removal of the 1830s and shifted 

within a small geographic area until it settled permanently near 

the present-day Atmore, Alabama. The band has existed as a distinct political unit since before the Creek wars of 1813-1814. It was 

governed by a succession of military leaders and permanent men 

in the 19th Century from the late 1800s through 1950. Leadership 

was clear but informal. A formal leader was elected in 1950. 

Virtually all of the band’s 1,470 members can document 

descendancy from the historical Creek Nation. No evidence was 

found that the members of the Poarch Band of Creek Indians are 

members of any other tribe or that their tribe or its members have 

been subject to congressional legislation which would expressly terminate or forbid the relationship with the Federal Government. 

The BAR process can work. Federal recognition of Indian tribes 

is a formal act that acknowledges the sovereign status of a tribe 

and affirms the perpetual government-to-government relationship 

between the tribe and the United States. Federal recognition 

assures the tribe the dignity it deserves and the same privileges 

and immunities enjoyed by other federally recognized tribes for 

their status as Indian tribes. Federal recognition has a tremendous 

64

effect on the tribe, the surrounding communities, and the Nation 

as a whole. 

Historically, tribes have been granted Federal recognition 

through treaties, by Congress, or through administrative decisions 

with the executive branch. The criteria used was not always clear 

and often depended upon the official who received the inquiry from 

the group. 

The General Accounting Office in its report GAO-02-49 reports 

that until 1960 there were limited requests by groups to be federally recognized and the Department was able to assess these requests on a case-by-case basis. 

The Poarch Band of Creek Indians recognizes that Congress has 

the ultimate power to recognize certain groups but in your infinite 

wisdom Congress has considered the Federal recognition process to 

be a complex one, a tedious one not to be entered into lightly. 

Therefore, the Congress has deferred most Federal recognition determinations to the U.S. Department of Interior. 

The Department of Interior has established a set of regulations 

standardizing the recognition process and creating an administrative procedure to determine whether particular Indians’ groups 

qualify as federally recognized Indian tribes. The Bureau of Indian 

Affairs Branch of Acknowledgment and Research procedures were 

established in 1978 as a result of a 2-year study by the congressionally established American Indian Policy Review Commission. 

The BAR guidelines are composed of the following seven criteria 

for recognition, and due to the time, Mr. Chairman, I have listed 

in my written testimony so I will not state all of those one by one, 

the seven criteria. 

As I said, the Poarch Creek are proud to be one of the first tribes 

to go through that process. We are in general agreement with the 

seven criteria that the groups must meet to be granted recognition. 

However, the length of time involved to receive recognition is increasingly becoming substantial. This is due, in part, to the workload of the BIA BAR staff, which is substantially increasing. The 

workload is increasing due to the detailed petitions ready for evaluation at the same time the staff at the BAR has been decreased. 

It has received a 35 percent decrease from 1973, a staff of 17, down 

to averaging no more than 11 over the last 5 years. 

The GAO report continues to state that as of November 2001, of 

the 250 petitions received, 55 had been completed documentation 

to be considered for the process and the bureau finalizing 29, recognizing 14 and denying 15. Of the 10 petitions currently in ready 

status, six of these have been waiting at least 5 years. At the current rate of review it could take over 100 years to resolve all the 

petitions awaiting consideration. The initial regulations outlined a 

process for active consideration of a complete petition that should 

take approximately 2 years. 

Federal recognition for the Poarch Band of Creek Indians was 

also slow. We began our process in 1975. A petition for Federal recognitions was officially filed in January 1980 and the tribe did not 

receive a notice of active consideration until November 1982. Final 

determination for Federal acknowledgment was published in the 

Federal Register in June 1984. 

65

As I said, the Poarch Band of Creek Indians were proud to be 

one of the first to go through the Federal recognition BAR process 

when the process should have been timely and the cost been appropriate. The long time lags and increased costs are a deterrent to 

petitioners, as you have well seen today. 

Recently in a New York Times article Eric Eberhard, a lawyer 

specializing in Indian law, stated that roughly it took, as it was 

validated today, about $100,000 to $200,000 to go through the FAB 

process. Now it costs into the millions. And we in this room know 

why some of that is, and that is through the outside influences of 

third parties for economic interests. 

The CHAIRMAN. Mr. Martin, I am going to have to ask you to 

wrap it up. 

Mr. MARTIN. OK, yes, sir. I will cut to the end of my testimony 

to talk about the recommendations that our tribe thinks should be 

made. 

The BAR process was intended to provide a clear, uniform and 

objective approach for the Department of Interior that established 

specific criteria. The Poarch Band of Creek Indians believes that 

the process could be improved and the ultimate goal of timeliness 

could be accomplished with the following changes. More resources 

allocated to the BAR staff or resources allocated to the BIA to outsource parts of the review that are fact-finding only. A defined list 

of information that must be submitted by the petitioners prior to 

the petitioners submitting a letter of intent. Provide adequate 

technical assistance available to petitioners to assist them in providing substantial amounts of work required to receive the letter 

of intent and help avoid continued submission of incomplete petitions. Expand the authority of the Assistant Secretary to review petitions and declare negative determinations on frivolous petitions. 

Changes in procedures to further insulate BAR staff from outside 

third-party influence to maximize their productivity. 

The Poarch Band of Creek Indians submits these suggested 

changes for your consideration but reiterates that any changes that 

would have a significant impact on the Federal recognition process 

should be undertaken only after considerable review and deliberation was conducted, as it was conducted in the initial set-up of the 

regulations in 1978. Thank you for this opportunity to provide testimony. 

[The prepared statement of Mr. Martin follows:]

Statement of James T. Martin, Enrolled Member, Poarch Band of Creek 

Indians, Executive Director, United South and Eastern Tribes, Inc. 

Chairman Pombo and distinguished members of the House Resources Committee, 

on behalf of the Poarch Band of Creek Indians (PBCI) of Alabama, I thank you for 

the opportunity to provide testimony regarding the Federal Acknowledgment Process. I extend regrets from my Tribal Chairman Eddie L. Tullis who is unable to be 

here today and has authorized me to speak on behalf of the Tribe. 

My name is James T. Martin. I am an enrolled member of the Poarch Band of 

Creek Indians and the Executive Director of United South and Eastern Tribes, Inc. 

(USET), an intertribal organization consisting of twenty-four federally recognized 

Indian Tribes from twelve states in the South and Eastern region of the United 

States. Prior to my position as Executive Director of USET, I was employed by the 

Poarch Band of Creek Indians from May 1979 until June 1995. During that time, 

I observed and was a part of the Tribe’s endeavor to obtain federal recognition; 

therefore today I will reflect on our Tribal experience and the current atmosphere 

surrounding the Federal recognition process. 

66

Federal recognition of Indian Tribes is a formal act that acknowledges the sovereign status of a Tribe and affirms a perpetual government-to-government relationship between a Tribe and the United States. Federal recognition ensures a Tribe 

the dignity it deserves and the same privileges and immunities enjoyed by other federally recognized Tribes by virtue of their status as Indian Tribes. 

Federal recognition has a tremendous effect on Tribes, their surrounding communities, and the nation as a whole. Historically, Tribes have been granted federal recognition through treaties, by Congress, or through administrative decisions within 

the executive branch. The criteria used was not always clear and often depended 

on which official responded to the group’s inquiry. The Government Accounting Office (GAO) Report GAO-02-49 reports that until the 1960’s there was a limited number of requests by groups to be federally recognized and the Department was able 

to assess these requests on a case by case basis. 

PBCI recognizes that Congress has the power to extend recognition to certain 

groups, but in its infinite wisdom Congress has considered the federal recognition 

process a complex and tedious one, not to be entered into lightly. Therefore they deferred most federal acknowledgment determinations to the U.S. Department of the 

Interior (DOI). The DOI has established a set of regulations standardizing the recognition process and creating an administrative procedure to determine whether 

particular Indian groups qualify as federally recognized Indian Tribes. The Bureau 

of Indian Affairs (BIA)/Branch of Acknowledgment and Research (BAR) procedures 

were established in 1978 as a result of a two-year study by the Congressionally established American Indian Policy Review Commission. 

The BAR guidelines are composed of the following seven criteria for recognition 

under the 25 CFR Part 83 regulatory process: 

(1) The petitioner has been identified as an American Indian on a substantially 

continuous basis since 1900; 

(2) A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present; 

(3) The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present; 

(4) The group must provide a copy of its present governing documents and membership criteria; 

(5) The petitioner’s membership consists of individuals who descend from a historical Indian tribe or tribes, which combined and functioned as a single autonomous political entity; 

(6) The membership of the petitioning group is composed principally of persons 

who are not members of any acknowledged North American Indian Tribe; and 

(7) Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden recognition. 

The Poarch Band of Creek Indians is in general agreement with the seven criteria 

that groups must meet to be granted recognition. However, the length of time involved to receive recognition is increasingly becoming substantial. This is due in 

part because the workload of the BIA/ BAR staff is substantially increasing. The 

workload is increasing due to more detailed petitions ready for evaluation and at 

the same time the number of staff assigned to evaluate the petitions has decreased 

by 35 percent, from 17 staff members in 1993 and in the last five years averaging 

no more than 11. GAO Report GAO-02-49 stated that as of November, 2001 of the 

250 petitions received, 55 have completed documentation to be considered by the 

process with BIA finalizing only 29, recognizing 14 and denying 15. Of the 10 petitions currently in ready status, six of these have been waiting at least 5 years. At 

the current rate of review, it could take over 100 years to resolve all of the petitions 

awaiting active consideration. The initial regulations outline a process for active 

consideration of a completed petition that should take approximately 2 years. 

Federal recognition for the Poarch Band of Creek Indians was a slow process beginning in 1975. A petition for recognition was filed in January 1980 and the Tribe 

did not receive notice of active consideration until November 1982. Final Determination for Federal Acknowledgment was published in the Federal Register in June 

1984. Poarch Band of Creek Indians was among the first to be federally recognized 

through the BAR process when the process should have been timely and costs 

should have been appropriate. Time and cost have increased even more in the years 

following. The long time lags and increased costs are a detriment to petitioners. Eric 

Eberhard, a lawyer specializing in Indian law, stated in a New York Times interview, entitled ‘‘Would-Be Tribes Entice Investors’’ on March 29, 2004, that the recognition process that once cost between $100,000 and $200,000 now runs in the millions of dollars. A monumental factor in the increased costs is that the political climate at the time of Poarch Band of Creek Indians was totally different than now 

due to the onslaught of Indian gaming. 

67

The Summary Status of Acknowledgment Cases as of February 10, 2004, compiled 

by the BAR office reports that 294 petitioners currently await consideration to permit processing under 25 CFR 83. There are 9 active status petitions, 13 ready petitions, 57 resolved petitions, 2 petitions in post-final decision appeal process, one decision in litigation, and 213 petitions not ready for evaluation. The not ready for 

evaluation petitions include 68 incomplete petitions, 130 letters of intent to petition 

with no documentation submitted, 9 petitions no longer in touch with the BIA, and 

6 with legislative action required. There were 40 petitioners when 25 CFR 83 became effective in October 1978 and 254 new petitioners since October 1978. 

Compounding the backlog of petitions awaiting review is the increased number of 

third parties active in the process, the increased number of administrative responsibilities that the BAR staff must assume, and the increased number of lawsuits 

from dissatisfied petitioners. The increasing amount of time involved in the process 

will continue to frustrate petitioners. Improvements that focus on fixing the time 

problems will improve confidence in the process. Money and politics must not be a 

concern of a petitioner for federal recognition. BIA resource constraints must not negate the need for thorough review of a petition. 

The BAR process was intended to provide a clear, uniform, and objective approach 

for the DOI that established specific criteria and a process for evaluating groups 

seeking federal recognition in a timely manner. Poarch Band of Creek Indians believe the process could be improved and that the ultimate goal of timeliness could 

be accomplished with the following changes: 

• more resources allotted to the BAR for staffing or resources allocated to the BIA 

for outsourcing parts of the review process that are fact-finding only; 

• a definitive list of information that must be submitted by the petitioner prior 

to the petitioner submitting and receiving a letter of intent; 

• with affordable technical assistance available to petitioners to assist them in 

providing a substantial amount of work required to receive the letter of intent 

and help avoid the continued submission of incomplete petitions; 

• expanded authority for the Assistant Secretary to review petitions and declare 

negative determinations on frivolous petitions; and 

• changes in procedures to further insulate BAR staff from outside third party influence to maximize their productivity. 

Poarch Band of Creek Indians submits these suggested changes for consideration 

but the Tribe would reiterate that any changes to the criteria that would significantly impact the federal recognition process should be undertaken only after considerable review and deliberation as was conducted in the initial development of 

regulations that govern the recognition process to date. 

Again, on behalf of the Poarch Band of Creek Indians we appreciate the opportunity to provide testimony on this critically important issue. 

I would be happy to respond to questions at this time. 

The CHAIRMAN. Thank you. 

Ms. Spilde? 

STATEMENT OF KATHERINE SPILDE, PH.D., HARVARD 

PROJECT ON AMERICAN INDIAN ECONOMIC DEVELOPMENT 

Ms. SPILDE. Mr. Chairman and distinguished members of the 

Committee, good morning. My name is Katherine Spilde and I am 

a Senior Research Associate with the Kennedy School of Government, Harvard University. My background also includes a Ph.D. in 

cultural anthropology, which frames my work on Indian affairs. I 

appear before the Committee today not as a representative of Harvard University nor of the Kennedy School of Government. Nor do 

I appear on behalf of any other person, corporation or organization 

and I have no connections with anyone with any interest in the 

outcome of this hearing. 

I am honored to be here today to participate in this discussion 

of ways to improve the Federal acknowledgment process and I 

want to commend the Committee for undertaking the very important task of finding a solution to the substantial delays facing 

68

Indian groups that are seeking Federal recognition and for showcasing their struggles. 

Unfortunately, some of the loudest voices for reform of the Federal acknowledgment process have been those who are critical only 

of positive determinations and have called for a moratorium on all 

decisionmaking, a proposal that seems beside the point for a process that, as we have heard today, can take decades. 

In undertaking a discussion of the critical importance of streamlining the processing recognition petitions, it seems meaningful to 

point out that the current process was established in 1978, in part 

to address the very issue of long delays in making recognition decisions. Today we know that the system that was created is not functioning as intended. That is, the process is not meeting the needs 

of the Indian groups still seeking formal recognition. 

The BIA’s regulations outline a process that was designed to take 

about 2 years. The facts show that the process is inefficient. In the 

26 years since 1978 the Office of Federal Acknowledgment has 

made decisions in only 35 petitions, 16 of those positive and 19 

negative, which amounts to an average of 1.3 decisions per year. 

Since 1978, 294 Indian groups have submitted letters of intent. 

Nine are currently on the active list and 13 petitions are ready, 

waiting for active consideration. Of course, a final determination, 

positive or negative, is rarely the last word since lawsuits and appeals are now common. 

There are a host of reasons why the current process takes so 

long, the most obvious being that the OFA is severely underfunded. 

With so many competing priorities among existing federally recognized tribes, it is a difficult decision for the Department of Interior 

to allocate scarce resources to this process. 

One complicating factor is that there is no real constituency for 

unrecognized tribes so there seems to be little incentive among 

Federal agencies or Congress to address the needs of unrecognized 

Indian groups, since they have no formal relationship with the Federal Government. 

Political considerations also prolong the process by overburdening the OFA staff, who must review and make recommendations on existing and incoming petitions, which is their task, while 

also undertaking many additional and distracting tasks, including 

responding to a growing number of Freedom of Information Act requests. In fact, the BIA estimates that professional OFA staff 

spend between 40 and 60 percent of their time on these administrative activities. 

Given the range of challenges involved in streamlining the process, my suggestions fall into three general categories: first, increased appropriations, second, supplemental human resources, 

and third, changes in the current regulations to make it more efficient. 

First, increased appropriations. The BIA estimates that the OFA 

would need to triple the size of its current staff in order to meet 

the increased demands associated with petitions and follow-up requests. At current funding levels it could take 15 years to resolve 

only those petitions on the active and ready-for-active lists. With 

adequate funding, however, this timeframe could be reduced to 

three to 4 years. 

69

In addition to hiring sufficient professional staff to review petitions, OFA could contract with qualified academic researchers from 

independent research institutions who could be asked to provide 

technical assistance and additional context for petitions, potentially 

saving time. In addition, BIA’s regional offices could be encouraged 

to provide the OFA with access to critical information both before 

and during field visits to petitioning Indian groups in that region. 

After meeting both funding and staffing needs, the process itself 

could be streamlined by reducing the paperwork associated with 

each petition. There are a couple of ways to do this. First, the regulations could be adjusted to address when and how often interested 

parties could participate in the process. Under current political conditions, the comment and response period appears to be too involved and could be revisited. 

A second recommendation for reducing paperwork would be to revisit and narrow the definition of who is eligible for interested 

party status. It seems reasonable to consider narrowing the definition even further at this time in the interest of streamlining the 

process by defining interested parties as those who have a legal or 

property interest in the final decision, specifically other tribes or 

states. 

Under the current regulations, the Assistant Secretary for Indian 

Affairs has the authority to expedite a proposed negative finding 

after the technical assistance review. I would also recommend exploring a grant of authority to the Assistant Secretary to expedite 

a proposed positive finding in the same way. If the Assistant 

Secretary, after the technical assistance review, finds that a tribal 

group has an obviously strong case to support recognition, then the 

Department of Interior could recommend that Congress legislatively recognize the group based upon the research and findings of 

the OFA and the Assistant Secretary. This process would give Congress the opportunity of exercising its constitutional authority with 

regard to Indian tribes while also reducing the challenges of litigation. 

Thank you for the opportunity to appear here today and once 

again I commend the Committee for exploring this important topic. 

[The prepared statement of Ms. Spilde follows:]

Statement of Katherine A. Spilde, Ph.D., Senior Research Associate, 

Harvard Project on American Indian Economic Development, Kennedy 

School of Government, Harvard University 

Mr. Chairman and distinguished members of the Committee, good morning. My 

name is Katherine Spilde and I am a Senior Research Associate with the Kennedy 

School of Government, Harvard University. Prior to my appointment at Harvard, I 

served in a number of research and policy positions here in Washington, D.C., including work with the Congress’ National Gambling Impact Study Commission 

(NGISC) and the National Indian Gaming Association (NIGA). My background includes a Ph.D. in cultural anthropology, which frames my work on Indian affairs. 

I appear before the Committee today not as a representative of the Kennedy School 

of Government nor of Harvard University. Nor do I appear on behalf of any other 

person, corporation, or organization. I have no political, financial, organizational or 

other connections with anyone with any interest in the outcome of this hearing. I 

appear today at the unsolicited request of the Committee on Resources. I am honored to be here today to participate in this discussion of ways to improve the federal 

acknowledgment process. 

I commend you on undertaking the very important task of finding a solution to 

the substantial delays facing Indian groups that are seeking federal recognition. In 

particular, I want to commend the Committee for showcasing the struggles endured 

70

1See also 25 C.F.R. § 83.5(a). 

2 ‘‘The Imprimatur of Recognition: American Indian Tribes and the Federal Acknowledgment 

Process.’’ Washington Law Review. V. 66, January 1991 at 210. See also, The Great Father, by 

Francis Prucha. (1984) 3 ‘‘Federal Acknowledgment of American Indian Tribes: Authority, Judicial Interposition, and 

25 C.F.R. § 83.’’ William W. Quinn, Jr. American Indian Law Review. V.17 No.1, 1992. According 

to Quinn, the so-called ‘‘Cohen criteria’’ were used as the standard. 4 25 C.F.R. § 83

5TASK FORCE TEN, AMERICAN INDIAN POLICY REVIEW COMMISSION, 94TH CONGRESS, 2ND SESSION, REPORT ON TERMINATED AND NONFEDERALLY RECOGNIZED 

INDIANS (1976). See also, ‘‘The Imprimatur of Recognition: American Indian Tribes and the 

Federal Acknowledgment Process.’’ Washington Law Review. V. 66, January, 1991 at 210. There 

were many ways to be left off ‘‘the list.’’ For example, many tribes in California remain unrecognized because of unratified treaties. 

by Indian groups who are petitioning for federal recognition. This is an important 

event because it highlights the frustrated attempts by—-and impacts of these delays 

on—tribal groups to receive recognition decisions from the Office of Federal Acknowledgment (OFA) (formerly the Branch of Acknowledgment and Research 

(BAR)). Recently, we have heard a great deal about the system for federal recognition being ‘‘broken.’’ However, some of the loudest voices for reform of the Federal 

Acknowledgment Process (FAP) have been those who are critical only of positive determinations and have called for a moratorium on all decisionmaking. I commend 

the Committee for holding a hearing that forwards the concerns of Indian groups 

seeking acknowledgment as Indian tribes, who have the most to lose if the process 

continues to stagnate. I am pleased that this hearing will focus on solutions, particularly on ideas for streamlining the process so that petitioning groups receive decisions in a timely manner. 

The History of and Need for a Formal Recognition Process 

In order for members of Indian tribes to be eligible for federal programs through 

the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS), the Indian 

tribal governments must have a formal government-to-government relationship with 

the United States. The names of all federally recognized tribes appear on a list that 

the Secretary of the Interior publishes annually, pursuant to the Federally Recognized Indian Tribes List Act of 1994. The latest list of tribes was published in the 

Federal Register on December 5, 2003, and includes 562 tribes. 1

The United States government has recognized Indian tribes in various ways since 

its own inception. The earliest executive branch recognition of tribes occurred in the 

context of treaty-making and the establishment of executive order reservations. 2 In 

the twentieth century, the Department of the Interior determined which tribes were 

eligible for its administrative services. For example, after the 1934 Indian Reorganization Act (IRA), the Federal government’s recognition activities focused 

exclusively on determining which Indian nations were eligible to organize under the 

Act and which were not. In 1934, the BIA compiled a list of 258 recognized tribes. 

In 1936, two Acts were passed that also allowed the Alaska and Oklahoma tribes 

to organize under the IRA. Between 1936 and 1978, Indian nations would generally 

get ‘‘on the list’’ through the Department of the Interior or Congress on a case-bycase basis. 3

In 1978, the Bureau of Indian Affairs (BIA) established an administrative process 

for federal acknowledgment of unrecognized Indian tribes. 4 This process, called the 

Federal Acknowledgment Process, originated out of concern for Indian groups that 

were denied rightful recognition. 5 In addition, there were some concerns about 

tribes being administratively recognized at that time without any supporting standards. 

The Process was Created to Address Considerable Delays 

In undertaking a discussion of the critical importance of streamlining the processing of recognition petitions, it seems meaningful to point out that the current 

process was established in 1978 precisely to address the issue of long delays in making recognition decisions and concern about the absence of a formal process of recognition. One impetus for creating a formal process derived from the findings and 

recommendations of Task Force No. 10 of the United States Congress’ American 

Indian Policy Review Commission. Specifically, the work of the 1976 Policy Review 

Commission found that unrecognized tribes, because they were not being served by 

federal programs, were among the nation’s poorest citizens. The Commission identified 133 unrecognized tribes, representing more than a hundred thousand people, 

and found that ‘‘the results of ‘non-recognition’ upon [those] Indian communities and 

71

6See ‘‘Lost Tribes: Native Americans and Government Anthropologists Feud over Indian Identity.’’ Lingua Franca. May/June 1999, p. 36. 7 AMERICAN INDIAN POLICY REVIEW COMMISSION, FINAL REPORT 480-83. See also, 

‘‘Federal Acknowledgment of American Indian Tribes: Authority, Judicial Interposition, and 25 

C.F.R. § 83.’’ William W. Quinn, Jr. American Indian Law Review. V.17 No.1, 1992 at 51. 8See ‘‘Federal Acknowledgment of American Indian Tribes: Authority, Judicial Interposition, 

and 25 C.F.R. § 83.’’ William W. Quinn, Jr. American Indian Law Review. V.17 No.1, 1992, p. 

41. 9See ‘‘The Imprimatur of Recognition: American Indian Tribes and the Federal Acknowledgment Process.’’ Rachael Paschal. Washington Law Review. V. 66, January, 1991 at 210. 10 ‘‘More Consistent and Timely Tribal Recognition Process Needed.’’ United States General 

Accounting Office (GAO). February 7, 2002, p.2. 11 Ibid. p.6. 

individuals has been devastating.’’ 6 The Commission’s report essentially chastised 

various departments of the United States for their neglect of ‘‘non-recognized’’ 

Indians and made six specific recommendations, including the establishment of a 

special office to determine tribal status by reviewing petitions submitted by 

unacknowledged Indian groups. 7

Three court cases made the creation of a formal acknowledgment process even 

more urgent since the determination of tribal status stood as the threshold issue 

in each. The first, United States v. Washington, held that Indian tribes exercising 

treaty fishing rights were entitled to half the commercial fish catch in the State of 

Washington, but limited eligibility to treaty signatories and federally recognized 

tribes. In the second, Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 

two unacknowledged tribes claimed hundreds of thousands of acres of land in Maine 

which had been illegally ceded to the state. Following these two court cases, the Department of Interior (DOI) instituted an unofficial moratorium on acknowledging 

tribes until a system could be developed. Caught in the middle of this moratorium, 

the Stillaguamish Tribe’s petition for federal acknowledgment awaited action by the 

Secretary until the Tribe sough equitable relief in federal court. In Stillaguamish 

Tribe v. Kleppe, the court described the moratorium as ‘‘arbitrary and capricious’’ 

and ordered the DOI to decide on the Stillaguamish petition within thirty days. 8

Regulations governing the administrative process for Federal acknowledgment 

first became effective October 2, 1978. The regulations were designed to provide a 

uniform process to review acknowledgment claimants whose character and history 

varied widely, placing the burden of proof on the tribal groups themselves. This presumption results in rigorous research and documentation requirements and contributes to bureaucratic delays since OFA staff, who are tasked with evaluating 

petitions, are aware of the possibility of legal challenges to their recommendations 

and findings. 9

Average Number of Decisions Per Year is Low 

Today, we know that the system that was created in 1978 is not functioning as 

intended; that is, the process is not meeting the needs of the Indian groups still 

seeking formal recognition and therefore these groups continue to be denied the 

chance to prove they should be receiving critical services. BIA’s regulations outline 

a process for evaluating a petition that was designed to take about two years. 10 The 

facts show that the process is inefficient and takes significantly longer than intended. In the 26 years since 1978, the OFA has made decisions on only 35 petitions 

(16 positive and 19 negative), which amounts to an average of 1.3 decisions per 

year. Since 1978, 294 Indian groups have submitted letters of intent; 9 are currently 

on the active list and 13 petitions are ready, waiting for active consideration. According to the BIA, under the current resources, it could take 15 years to resolve 

all of the currently completed petitions—those on the active and ready for active 

lists. 11 And of course a final determination is rarely the last word today, since lawsuits and appeals are common. 

Reasons Why the Decisions are Slow 

There are a host of reasons why the current process takes so long. For starters, 

the OFA is woefully underfunded. Significantly more funding is needed to ensure 

that the OFA is adequately staffed and provided with the resources required to address both the petitions themselves and the related work required by the contemporary political situation. Former Assistant Secretary for Indian Affairs Kevin 

Gover noted that one reason the OFA is consistently underfunded is because there 

are so many pressing Indian needs, such as police departments, schools and a soluVerDate 0ct 09 2002 12:17 Sep 08, 2004 Jkt 088533 PO 00000 Frm 00075 Fmt 6633 Sfmt 6621 J:\DOCS\92827.TXT HRESOUR1 PsN: KATHY
72

12See Statement of Hon. Kevin Gover, Assistant Secretary, Indian Affairs, Department of the 

Interior, at the Hearing Before the Senate Committee on Indian Affairs on S. 611, The Indian 

Federal Recognition Administrative Procedures Act of 1999. May 24, 2000. 13 ‘‘More Consistent and Timely Tribal Recognition Process Needed.’’ United States General 

Accounting Office (GAO). February 7, 2002, p.6. See also ‘‘Strategic Plan: Department of the Interior Bureau of Indian Affairs, Office of Tribal Services, Brand of Acknowledgment and Research: Response to the November, 2001 General Accounting Office Report.’’ September 2002. 

p. 9. 14 ‘‘Strategic Plan: Department of the Interior Bureau of Indian Affairs, Office of Tribal Services, Brand of Acknowledgment and Research: Response to the November 2001 General Accounting Office Report.’’ September, 2002. p. 9. 15 Ibid. p., 10. 16 Ibid. p., 6. 

tion to the trust system. 12 With so many competing priorities among existing federally recognized tribes, it is a difficult decision for the DOI to allocate scarce resources to this process. 

The bigger problem is that there is no real constituency for unrecognized tribes. 

While the National Congress of American Indians (NCAI) does have a task force 

dedicated to the issues raised by the FAP, there is little incentive among federal 

agencies or Congress to address the needs of unrecognized Indian groups since they 

have no formal relationship with the federal government. 

In addition to being seriously underfunded, the Bureau of Indian Affairs (BIA) has 

acknowledged the OFA staff is also overburdened. Currently, the OFA has only eleven full-time staff, who estimate that they spend between 40%-60% of their time fulfilling administrative responsibilities. 13 In addition, the process itself has become 

overly cumbersome, essentially drowning the staff in paperwork. For example, OFA 

staff is taxed with having to review and make recommendations on existing and incoming petitions, which is their task, while also undertaking many additional and 

distracting tasks, such as responding to information requests in connection with 

independent review and appeals of official determinations by the Interior Board of 

Indian Appeals (IBIA), with pending lawsuits and with responding to growing numbers of Freedom of Information Act (FOIA) requests. For example, both negative and 

positive findings now generate appeals and lawsuits, whether from the petitioners 

themselves or other interested parties. This growing burden also results from increased interest and participation in the process by local governments and states. 

Some of these parties have indicated that they view these FOIA requests as a 

means to deliberately slow down the process. 

Suggestions for Improving the Process 

Given the range of challenges involved in streamlining the process, my suggestions fall into three general categories: increased appropriations, supplemental 

human resources and changes in the current regulations to make it more efficient. 

1) Increased appropriations 

A recent report by the Bureau of Indian Affairs found that the OFA would need 

to triple the size of its current staff in order to meet the increased demands associated with petitions and follow-up requests. 14 As of September 2002, the BAR consists of eleven staff members ($1,100,000 FY2003 President’s Budget). The staff 

members include: one (1) branch chief, one (1) secretary, three (3) cultural anthropologists, three (3) genealogical researchers and three (3) historians. Meanwhile, the 

DOI’s analysis and response to a November 2001 GAO Report recommends a total 

of 33 staff members ($3,184,000) to eliminate the current workload in three to four 

years. 15 As I mentioned, at current funding levels, it could take 15 years to resolve 

only those petitions on the active and ready for active lists. 16

2) More outside resources 

With adequate funding, OFA could hire additional staff to assist in responding to 

information requests, enabling OFA professional staff to focus on reviewing petitions. In short, professional staff with expertise on tribal history and genealogy 

should be focused exclusively on reviewing petitions, not spending their time making photocopies or preparing the administrative records for litigation in Federal 

Court. One additional alternative may be to contract with outside experts on particular petitions. Qualified historians, applied anthropologists and genealogists from 

academic institutions could be called upon as a resource, providing technical assistance and additional context for petitions, potentially saving time. OFA staff could 

be encouraged to utilize the expertise of scholars of the local region, which could 

be enormously helpful in providing critical historical context to the petitions themselves. In addition, BIA’s Regional Offices could be encouraged to provide the OFA 

73

with access to critical information, both before and during field visits to petitioning 

Indian groups in that region. 

3) Changes to current regulations 

Reduce paper work Once funding and staffing needs are met, the process itself 

could be streamlined by reducing the paperwork associated with each petition. In 

some cases, the OFA staff is a victim of its own success. By turning out more final 

determinations annually (both positive and negative), they generate more FOIA requests and more appeals, resulting in additional administrative duties and generating more paperwork. There are a couple of ways to reduce the paperwork associated with each petition. First, the regulations could be adjusted to address when 

and how often interested parties could participate in the process. Currently, interested parties are allowed to comment on nearly each step of the petition process. 

The regulations were originally written to provide the maximum opportunity for 

comment in order to collect as much information as possible during the process and 

make the decisions defensible as possible. Under current political conditions, the 

comment and response process appears to be too involved and could be re-visited. 

By limiting the comment opportunities for outside parties, the paperwork and response times would both be reduced. It seems reasonable that interested parties 

would be notified when a letter of intent is filed, then allowed to comment only after 

OFA completes its work on the petition. 

A second recommendation for reducing paperwork would be to re-visit and narrow 

the definition of who is eligible for ‘‘interested party’’ status. Following the 1994 regulations, some ‘‘interested parties’’ (i.e., scholars) were redefined as ‘‘informed parties’’ with diminished rights of comment and response. Of course, this change was 

intended to streamline the process and reduce paperwork. It seems reasonable to 

consider narrowing the definition even further at this time by defining ‘‘interested 

parties’’ as those who have a legal or property interest in the final decision, such 

as other tribes or states. 

Expedite Positive Findings 

Under the current regulations, the Assistant-Secretary, Indian Affairs (AS-IA) has 

the authority to expedite a proposed negative finding after the technical assistance 

review. What this means is that the AS-IA can issue a proposed negative finding 

before allowing the petition to enter the active consideration phase of the process. 

This expedited negative finding is based upon three of the required criteria (e-g.) 

I would recommend exploring a grant of authority to the AS-IA to expedite a 

proposed positive finding in the same way. If the AS-IA, after the technical assistance review, finds that the tribal group has an obviously strong case for recognition, 

then the DOI could recommend that Congress legislatively recognize the group 

based on the research and findings of the OFA and the AS-IA. This process would 

give Congress the opportunity of exercising its constitutional authority with regard 

to Indian tribes and while also reducing the challenges of litigation. 

Thank you for the opportunity to present my ideas with you today. 

The CHAIRMAN. Thank you. 

Miss Spilde, to begin with you, you testified that placing the burden of proof on tribes results in bureaucratic delays, since the BIA 

staff has to thoroughly examine those petitions. How is this problematic and do you think the burden of proof should be shifted, and 

how? 

Ms. SPILDE. That is a great question. I believe, as we have heard 

today, many of the tribes are coming into the process and there is 

the assumption that they do not have a relationship with the Federal Government and, of course, each tribe has very unique histories and challenges in trying to document the relationship that 

they believe they do have, hence their application. 

So I believe that I am not sure how the burden of proof could 

be shifted but certainly I think the presumption that petitioning 

groups are not tribal groups makes that case very difficult to make. 

The CHAIRMAN. Mr. Martin, you recommended insulating the 

Federal acknowledgment staff from outside third-party influence. 

How would we do that? What do you recommend on that? 

74

Mr. MARTIN. I think the internal procedures of the BIA could be 

written and their manuals could be rewritten to isolate or give confidence to the BAR process that their decisions will not be tainted 

or influenced by third parties. As it stands right now, for Freedom 

of Information requests, answering OSHA requests, it puts a slant 

on the information that they are receiving. As we have heard testimony before, now that the onslaught of gaming has come in, the 

tribes who are in the petitioning process put together elaborate petitions and continually go into the BIA on a regular basis and tie 

up that staff’s time. They should be isolated to be able to do their 

work, make their recommendations, and go to the next petition. 

The CHAIRMAN. Let me ask both of you, and I wanted to ask the 

previous panel this question, should there come a point in time 

where the Federal government says this is it, that all of the tribes 

that are seeking recognition, to reinstitute recognition, that we are 

going to draw a line and say this is all of them? Or should the process just continually remain open the way it is right now? Is there 

ever a point in time where you would foresee that this is everybody? 

Mr. MARTIN. I would say, Mr. Chairman, that tribes are not 

made overnight, that they had to have existed. I think the Congress can issue notification across this country that says if you 

want to be considered, you have this date certain to get your stuff 

together. You do not just develop tribes. They had to have existed. 

The criteria shows that you had to, as my tribe, have a definite 

link back to historical times. 

The CHAIRMAN. Miss Spilde, did you want to answer that? 

Ms. SPILDE. Are you asking about whether or not there should 

be some sort of sunset clause with regard to adding additional letters of intention? 

The CHAIRMAN. Yes, just as Mr. Martin said, just a date certain. 

Just tell everybody you have to have it in within the next 3 years 

or 10 years or something. 

Ms. SPILDE. I believe there are a couple of ways to look at that 

question, the first being that right now certainly there is no timeframe, which I understand contributes in some cases to the delay. 

But there is also imbedded in that the assumption that this is a 

one-shot deal, so there is no incentive to rush them because this 

is the one chance that each tribe has once they do apply. 

But I guess if there were a sunset clause inserted in the process 

I would then want to also have an additional clause saying that 

there should then be no termination of tribes that already exist. 

The CHAIRMAN. Well, thank you. 

Mr. KILDEE. Mr. Chairman, I will submit some questions in writing. 

I welcome both of you here. It is always good to see Tim Martin 

and I will give you some questions in writing. Thank you very 

much. 

The CHAIRMAN. The bell has gone off. We have just been called 

for a vote on the House Floor, so we are going to temporarily recess 

the Committee. I am told we only have one vote, so it should just 

be a few minutes and we will be back. 

So the Committee is going to stand in recess. 

[Recess.] 

75

The CHAIRMAN. The Committee will come to order. I apologize to 

the witnesses. Sometimes we have no control over when they call 

votes but thank you for your patience. 

Mr. Pallone? 

Mr. PALLONE. Thank you, Mr. Chairman. 

I just want to say to the two panelists that your testimony is 

pretty much along the lines of my concerns because I think both 

of you made it quite clear that you think that the existing process 

could work and I guess in Ms. Spilde’s case you made some recommendations but they did not involve legislation. I still have this 

great fear that if we try to open this up legislatively that I think 

you actually mentioned at one point that those who want to reform 

the BIA process legislatively seem more interested in a moratorium 

or making it more difficult than they do in making it easier or to 

expedite it. 

But Tim, you mentioned that the BIA—actually, both of you 

mentioned the BIA needing more resources and I had two questions. One is the same question I asked the previous panel, which 

is, would you be in favor or could you foresee a procedure where 

the Federal Government actually gave money to tribes to defray 

the cost of their going through the process? 

And second, which is really another issue that you brought up, 

which is if the BIA needs more money, which I definitely think it 

does, how are we going to go about that? We could talk about tripling the staff but if you get the money from general revenue it is 

probably not going to be there, given the deficit and all the problems that we have with that. So is there some other way to do it? 

I mean I assume that tribes that are already recognized would 

probably be reluctant to pay for a process to recognize new tribes 

but is there some way to finance the additional resources for the 

BIA without just coming up with general revenues? 

And second, would you be in favor of actually having the Federal 

Government provide some funding for tribes so they do not have 

to rely on these outside sources? 

Mr. MARTIN. Thank you, Congressman. As you look at my testimony, one of the bullet points for recommendations was TA, technical assistance. As the earlier testifiers mentioned, the tribes did 

get at one time grants from ANA, Administration for Native Americans, for tribes that were going through the FAB process. Our tribe 

was fortunate to get one of those grants, also, and it was a tremendous help for us to be able to purchase the outside resources of the 

historians, the genealogists, to come in and to be able to do factfinding on what you were telling the government. It almost acted 

as one professional checking another professional’s work. I think a 

mechanism where one, we could expedite petitioners before they 

get to the active consideration, make sure the information is in 

there, and there is a host of professionals that exist that could help 

petitioners in there to make sure that they have correct petitions, 

and that would expedite it. 

You mentioned also about the BIA staffing. As Miss Spilde alluded to, 40 percent of the time is taken in administrative requests 

for the Freedom of Information Act. When I talk about insulating 

the staff, it should be segmented. There should be a component of 

the BIA that does nothing but concentrate on the review of the peVerDate 0ct 09 2002 12:17 Sep 08, 2004 Jkt 088533 PO 00000 Frm 00079 Fmt 6633 Sfmt 6602 J:\DOCS\92827.TXT HRESOUR1 PsN: KATHY
76

titioners’ application. Then there could be different staff that could 

then answer the FOIA requests and other requests or administrative duties to free them up to maximize on nothing but the review 

of a petition. 

Mr. PALLONE. OK. Miss Spilde, if you wanted to comment? 

Ms. SPILDE. I would also be in support of funding for tribes. Partly I think this would also address the political question. When we 

hear those who are not in favor of the process who do have concerns about perhaps gaming interests funding tribal groups who 

are petitioning, that this could alleviate some of those concerns and 

give tribes another option. So I think it would be both an economic 

and possibility even a political answer. 

Mr. PALLONE. And what about the BIA? Do you foresee any of 

funding this? It is easy to say—not that it is easy but I appreciate 

your saying we need three times as much money and all that, but 

I can almost guarantee you if I went before Appropriations and 

asked for three times the funding they would say well, we cannot 

do it. 

Is there any other way to fund it maybe so the BIA has more 

money? 

Ms. SPILDE. Well, as I did mention, I do think that there are so 

many competing priorities and it is a difficult decision to appear to 

be allocating money from federally recognized tribes to the process, 

but I think if there is true concern to get through a number of petitions quickly and possibly get closure to a lot of these petitions, if 

there is a short-term solution where there is an understanding that 

there would be a big allocation just for a new three to 5 years or 

something—I know that has been proposed—perhaps that would 

make it more palatable. 

Mr. PALLONE. Mr. Chairman, I know the time has run out but 

I just wanted to say to you because I heard what you said today 

about maybe having some sort of sunset clause on tribes to achieve 

recognition in some way, I just wanted to say I do not like that, 

only because I think the problem historically is that a lot of tribes, 

in some cases because of government action, have been terminated 

or have lost their existence and you can always think about the 

fact that in the future there might be some new scientific way to 

achieve recognition and show that there was continuity. 

So the idea of completely saying here is the deadline and if you 

do not apply by such-and-such a date bothers me only because I 

think as time goes on, there may be more ways for tribes that 

maybe would not have met the test to prove that they existed or 

that they had ancestors, maybe through new forms of DNA analysis or whatever. 

I do not even know if you were expressing your opinion on that 

as much as asking the question but that is the only problem I 

would have with it. 

Ms. SPILDE. Can I add something to that? In response to the sunset clause, I think also something I wanted to note was I think that 

the idea of sort of closing the door assumes that there are going 

to be increasing numbers of petitions because there is this perception that Indian groups are going to be pursuing gaming and therefore there are going to be more and more groups coming out. 

77

I just wanted to put some of those concerns to rest by mentioning 

that the average number of petitions filed has remained constant 

since 1978. In fact, the average number of petitions filed between 

1978 and 1988 when IGRA was passed was 10 per year and between 1988 and now there have been an average of 10.9 petitions 

filed per year. 

So I think that the concern that somehow there are going to be 

more and more petitions filed because gaming is one of the opportunities for federally recognized tribes, if that is weighing into this 

decision, I just wanted to put those facts out there. 

Mr. MARTIN. Mr. Chairman, I would also like to add clarity to 

the point I made to the Congressman earlier about technical assistance grants to the tribes. I did not want it to be construed that because you give a technical assistance grant to a tribe that State 

and local governments should be able to get technical assistance 

grants. 

Technical assistance to the tribes is because they do not have the 

resources. Local governments would have then their State resources that they could apply to to get technical assistance if they 

were concerned. It is because tribes do not have the revenue or the 

resources to be able to do the petition that I believe technical assistance is needed for them, not for the States or local governments. 

The CHAIRMAN. Just to respond to Mr. Pallone, when I talk about 

having some kind of a sunset clause, I have not made up my mind 

on that whether or not that is a good idea but I do think it is worthy of discussion. I think that it is something that we need to 

throw out on the table and talk to a number of people about as we 

move forward with this. 

I have had a couple of tribes that have approached me with that 

and said that in order to speed up this process and at some point 

come to finality on this, that that may be something that we have 

to do in order to clear the deck, so to speak, of all these people that 

are waiting. And I am willing to listen to that. I am willing to pursue that. 

But in terms of what happens if at some point in the future 

someone else comes out, I think that you would always have to 

leave the ability for Congress to make a decision on something like 

that if it does happen because it is ultimately the authority of Congress to make that decision and we would always have the ability 

to do it, as we have in the past when we may have disagreed with 

decisions that were made by the BIA or when we felt that it was 

taking too long to come up with the decision. This Committee has 

acted in the past; Congress has acted in the past in terms of recognition. I think that possibility would always be there. 

But I think it is something that we need to talk about. We need 

to put that out there and get as much response on that, along with 

all of the other suggestions that have been made today. 

I want to thank you both and again I apologize for the recess, 

for the delay. I appreciate both of you making the effort to be here 

and sharing your knowledge and your views with us. Thank you. 

The final witness in our next panel is the Administration witness, R. Lee Fleming, director of the Office of Federal Acknowledgment of the BIA. I wanted the Administration to testify last so that 

78

he may provide information and responses to the Committee in 

light of the testimony we heard from previous panels of witnesses. 

Thank you for joining us. If I could have you raise your right 

hand? 

[The witness was duly sworn.] 

The CHAIRMAN. Let the record show he answered in the affirmative. Thank you very much for being here. Again I apologize to you 

for the delay in the hearing but it is an extremely important topic, 

as I am sure you are well aware, and we look to your testimony 

and the opportunity to discuss this with you. So Mr. Fleming? 

STATEMENT OF R. LEE FLEMING, DIRECTOR, OFFICE OF 

FEDERAL ACKNOWLEDGMENT, BUREAU OF INDIAN AFFAIRS 

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

Committee. I am pleased to be here today to speak on behalf of the 

Department of the Interior about the Federal acknowledgment 

process. 

My name is Lee Fleming, Director of the Office of Federal Acknowledgment, which is within the Department’s Office of the Assistant Secretary, Indian Affairs. I am also a member of the Cherokee Nation, which is located in Oklahoma. 

The purpose of my testimony is to address what reforms are 

being made to improve the Department’s Federal acknowledgment 

process, specifically what is being done to improve the consistency 

and the reliability of the process and decision, as recommended by 

the General Accounting Office. 

The Federal acknowledgment process regulations at 25 C.F.R. 

Part 83 govern the Department’s administrative process for determining which groups are Indian tribes within the meaning of Federal law. A final determination that a group is an Indian tribe 

means, among other things, that it has continuously existed as a 

tribe, has inherent sovereignty, and is entitled to a government-togovernment relationship with the United States. Tribal status is a 

political, not racial, classification. Whether to acknowledge tribal 

status is a decision taken seriously by the Department. 

In recent years legislation has been introduced almost annually 

to modify the criteria for acknowledgment of tribes or to remove 

the process from the Department. While some parties seek to 

change the administrative process by speeding it up, others believe 

that doing so will undermine the factual basis for the decision. 

The Office of Federal Acknowledgment has a high volume of 

work. The current workload consists of nine petitions on active consideration and 13 fully documented petitions that are ready, waiting for active consideration. The administrative records for some of 

these documented petitions range between 10,000 to 30,000 pages. 

There are also 213 groups that have submitted only letters of intent or partial documentation. These groups are not ready for evaluation and will require technical assistance. There is only one determination under review at the Interior Board of Indian Appeals. 

In addition, there are currently four lawsuits directly involving 

the Federal acknowledgment process or the Freedom of Information 

Act related to Federal acknowledgment. 

The GAO investigated the effectiveness and consistency of the 

tribal recognition process and issued its report in November of 

79

2001. The GAO report recommended that acknowledgment decisions be made more transparent and more timely. The GAO noted 

that the workload of the staff assigned to evaluate recognition decisions has increased while resources have declined. 

In response to the GAO report, the Assistant Secretary provided 

a strategic plan and a needs assessment dated September 30, 2002 

to the GAO, OMB, and the pertinent Senate and House Committees. The Assistant Secretary’s response to the GAO report is based 

on a commitment to the principle that acknowledgment decisions 

should continue to be based on fully documented records that have 

been carefully reviewed in accordance with the regulatory standards and then made available to the public in a transparent and 

timely manner. 

In response to the GAO report, all technical assistance review 

letters, proposed findings, final determinations, and reconsidered 

decisions of completed cases made under the regulations were electronically scanned and indexed and are now available on CD-ROM 

from the Office of Federal Acknowledgment. This CD will be updated as necessary. Ready access to all prior decisions addresses 

both transparency and consistency in the decisionmaking process. 

Two vacancies within the office were filled, resulting in a professional research team of three cultural anthropologists, three historians, and three genealogists. The office’s full-time staff consists of 

one director, one secretary, and these three professional research 

teams. A team composed of one professional from each of the disciplines is assigned to review and evaluate each petition. 

Congressional appropriations for Fiscal Year 2003 and Fiscal 

Year 2004 increased funding, allowing the hiring of two sets of 

contractors. The first set of contractors included two FOIA specialists/records managers. The second set of contractors includes three 

research assistants who work with a computer data base, scanning 

and indexing the documents to help expedite the professional research staff evaluation of a case. Both sets of contractors assist in 

making the process more accessible to petitioners and interested 

parties while increasing the productivity of the professional researchers by freeing them of these administrative duties. 

A significant response by the Department to the GAO report has 

been the development of the use of the Federal Acknowledgment 

Information Research or FAIR, a computer data base system that 

provides on-screen access to all the documents in the administrative record of a case. These are linked to entries of information extracted from them by the professional office researchers. Documents are scanned and then the data is extracted, linked and indexed to create a searchable administrative record. 

This system allows the OFA or Office of Federal Acknowledgment researchers to have immediate access to the records and allows them to make more efficient use of their time. This system 

also allows petitioning groups and interested parties, such as 

States and local governments, to have the record on CD and thus 

have on-screen access to the administrative record and to any data 

entries made by the professional researchers. 

We anticipate that the next generation of scanning for FAIR will 

allow electronic redaction of privacy information from documents, 

which will save the Department a tremendous amount of time 

80

spent photocopying cases for interested parties or FOIA requests of 

these voluminously documented petitions. Such steps will further 

improve the acknowledgment process. 

This concludes my testimony. Thank you for the opportunity to 

testify about the Federal acknowledgment process and I will be 

happy to answer any questions you may have. 

[The prepared statement of Mr. Fleming follows:]

Statement of R. Lee Fleming, Director, Office of Federal Acknowledgment, 

Office of the Assistant Secretary—Indian Affairs, U.S. Department of the 

Interior 

Good morning, Mr. Chairman and Members of the Committee. I am pleased to 

be here today to speak on behalf of the Department of the Interior about the Federal 

acknowledgment process. My name is Lee Fleming and I am the Director of the Office of Federal Acknowledgment (OFA) within the Department’s Office of the Assistant Secretary—Indian Affairs (AS-IA). OFA was formerly the Branch of Acknowledgment and Research (BAR), which was under the Bureau of Indian Affairs’ Office 

of Tribal Services. The purpose of my testimony is to address what reforms are 

being made to improve the Department’s Federal acknowledgment process, specifically what is being done to improve the consistency and reliability of the process 

and decisions, as recommended by the General Accounting Office (GAO). 

Background 

The Federal Acknowledgment regulations, known as ‘‘Procedures for Establishing 

that an American Indian Group Exists as an Indian Tribe,’’ 25 C.F.R. Part 83, govern the Department’s administrative process for determining which groups are ‘‘Indian tribes’’ within the meaning of Federal law. A final determination that a group 

is an Indian tribe means, among other things, that it has continuously existed as 

a tribe, has inherent sovereignty, and is entitled to a government-to-government 

relationship with the United States. Tribal status is a political, not racial, 

classification. Whether to acknowledge tribal status is a decision taken seriously by 

the Department. 

In recent years, legislation has been introduced almost annually to modify the criteria for acknowledgment of tribes or to remove the process from the Department. 

While some parties seek to change the administrative process by speeding it up, others believe that doing so will undermine the factual basis for the decisions. For example, 20 Attorneys General collectively stated their concern that quality in the review process should not be sacrificed in the name of expediency and that ‘‘all parties 

benefit from a careful and comprehensive review of the evidence on each petition.’’

Workload 

OFA has a high volume of work. The current workload consists of nine petitions 

on active consideration and 13 fully documented petitions that are ready, waiting 

for active consideration. The administrative records for some of these documented 

petitions are in excess of 30,000 pages. There are 213 groups that have submitted 

only letters of intent or partial documentation. These groups are not ready for evaluation and require technical assistance. There is one final determination under review at the Interior Board of Indian Appeals in response to a request for reconsideration. In addition, there are currently four lawsuits directly involving Federal acknowledgment or the Freedom of Information Act (FOIA) related to Federal acknowledgment. 

GAO Report 

The GAO investigated the ‘‘effectiveness and consistency of the tribal recognition 

process’’ in response to a request from several members of Congress, and issued its 

report in November 2001. The GAO report recommended that acknowledgment decisions be made more transparent and more timely. The GAO noted that the workload 

of the staff assigned to evaluate recognition decisions has increased while resources 

have declined. 

In response to the GAO report, the AS-IA provided a strategic plan and needs assessment dated September 30, 2002, to GAO, OMB, and the pertinent Senate and 

House Committees under 31 U.S.C. 720. The AS-IA response to the GAO report is 

based on a commitment to the principle that acknowledgment decisions should continue to be based on fully documented records that have been carefully reviewed in 

accordance with regulatory standards and then made available to the public in a 

transparent and timely manner. 

81

Current Improvements 

In response to the GAO report, all technical assistance review letters, proposed 

findings, final determinations, and reconsidered decisions of completed cases made 

under the regulations were electronically scanned and indexed and are now available on CD-ROM from the OFA. This CD will be updated, as necessary. Ready access to all prior decisions addresses both transparency and consistency in the decisionmaking process. 

Two vacancies within the OFA were filled, resulting in a professional research 

staff of three cultural anthropologists, three historians, and three genealogists. 

OFA’s full-time staff consists of one director, one secretary, and three professional 

research teams. A team composed of one professional from each of the disciplines 

is assigned to review and evaluate each petition. Congressional appropriations for 

FY 2003 and FY 2004 increased funding, allowing the hiring of two sets of contractors. The first set of contractors includes two FOIA specialists/records managers. 

The second set of contractors includes three research assistants who work with a 

computer database system; scanning and indexing the documents to help expedite 

the professional research staff evaluation of a case. Both sets of contractors assist 

in making the process more accessible to petitioners and interested parties, while 

increasing the productivity of the OFA researchers by freeing them of administrative duties. 

A significant response by the Department to this GAO report has been the development and use of the Federal Acknowledgment Information Resource (FAIR), a 

computer database system that provides on-screen access to all the documents in 

the administrative record of a case. These are linked to entries of information extracted from them by OFA researchers. Documents are scanned and then the data 

is extracted, linked, and indexed to create a searchable administrative record. This 

system allows the OFA researchers to have immediate access to the records and allows them to make more efficient use of their time. This system also allows petitioning groups and interested parties, such as States and local governments, to have 

the record on CD and thus have ‘‘on screen’’ access to the administrative record and 

to any data entries made by the OFA researchers. This ready access to the record 

addresses both the GAO report’s recommendations that the decisions be made in a 

more transparent manner and that they be more timely. In fact, FAIR has been applauded by attorneys working for the towns in Connecticut related litigation. 

We anticipate that the next generation of scanning for FAIR will allow electronic 

redaction of privacy information from the documents, which will save the Department a tremendous amount of time spent photocopying cases for interested parties 

or FOIA requests of these voluminously documented petitions. Such steps will further improve the acknowledgment process. 

Conclusion 

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

[The Bureau of Indian Affairs’ response to questions submitted 

for the record follows:

Responses to questions submitted for the record by the

Bureau of Indian Affairs 

The Bureau of Indian Affairs requires a petitioner be identified as an 

American Indian entity on a substantially continuous basis since 1900. 

QUESTION 1: What types of identification are acceptable? 

ANSWER: Section 83.7(a) of the Federal acknowledgment regulations at 25 C.F.R. 

Part 83 lists the basic types of external identification that meet that criterion. The 

regulations state that the petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900. Evidence that the group’s character as an Indian entity has from time to time been denied shall not be considered 

to be conclusive evidence that this criterion has not been met. Evidence to be relied 

upon in determining a group’s Indian identity may include one or a combination of 

the following, as well as other evidence of identification by other than the petitioner 

itself or its members. 

(1) Identification as an Indian entity by Federal authorities. 

(2) Relationships with State governments based on identification of the group as 

Indian. 

(3) Dealings with a county, parish, or other local government in a relationship 

based on the group’s Indian identity. 

82

(4) Identification as an Indian entity by anthropologists, historians, and/or other 

scholars. 

(5) Identification as an Indian entity in newspapers and books. 

(6) Identification as an Indian entity in relationships with Indian tribes or with 

national, regional, or state Indian organizations. 

In addition, Section 83.6(g) provides that other forms of evidence, not specifically 

listed, may also be used. Section 83.6 (g) states: ‘‘The specific forms of evidence stated in the criteria in § 83.7 (a) through (c) and § 83.7(e) are not mandatory requirements. The criteria may be met alternatively by any suitable evidence that demonstrates that the petitioner meets the requirements of the criterion statement and 

related definitions.’’

QUESTION 2: How was that year determined? 

ANSWER: The original 1978 regulations required external identification as an 

Indian entity throughout history until the present. The 1994 revised regulations 

shortened this time period to 1900 to the present. The preamble to the 1994 regulations noted there were strong concerns raised, ‘‘particularly regarding historical 

identification of groups in the South, that racial prejudice, poverty, and isolation 

have resulted in either a lack of adequate records or records, which unfairly characterized Indian groups as not being Indian.’’

In response, the preamble further states: ‘‘the criterion for continued identification 

has been revised to reduce the burden of preparing petitions, as well as to address 

problems in the historical record in some areas of the country. The requirement for 

substantially continuous external identification has been reduced to require that it 

only be demonstrated since 1900. This avoids some of the problems with historical 

records in earlier periods, while retaining the requirement for substantially continuous identification as Indian.’’ (59 FR 9286) 

QUESTION 3: Under current recognition guidelines, when a petitioner is 

required to be a distinct community and have authority over its members 

since historical times, are historical times defined as ‘‘since 1900?’’

ANSWER: The regulations require demonstration of community and political influence ‘‘from historical times until the present’’ (25 C.F.R. Part 83, § 83.7(b) and 

§ 83.7(c)). The regulations in section 83.1, Definitions, states ‘‘Historically, historical 

or history’’ as ‘‘dating from first sustained contact with non-Indians.’’

In 1846, after two hundred years of documented tribal history, the Federal government split the Miami tribe into two tribes—the Indiana Miami 

(Eastern Miami) and the Oklahoma Miami (Western Miami). 

QUESTION 4. Given that the Federal government split the tribe into two 

entities, does the requirement that a petitioning group not be part of any 

recognized North American Indian tribe, apply to the Indiana Miami 

Indians? 

ANSWER: The Federal government did not split the Miami tribe into two entities. 

At the time of removal, the Federal government, based on Statute and treaty requirements, allowed portions of the Tribe to remain in Indiana, and allowed some 

of the families that moved to Oklahoma to return to Indiana. See Federal Register, 

Volume 55, Number 139, pp. 92423-29425, for the proposed finding of the Miami 

Tribe of Indiana. 

The regulations allow for historical processes where tribes have divided in the 

past and do not prevent recognition on this basis. As an example, see the 

Snoqualmie and Poarch Band of Creek findings. The language cited by the question, 

from 25 C.F.R. Part 83, section 83.3(d), refers to portions of currently recognized 

tribes that may seek to separate and be separately acknowledged. Such groups cannot be recognized under the acknowledgment regulations unless they meet the requirements of 25 C.F.R. Part 83, section 83.7(f). 

In 1897, Assistant Attorney General Willis Van Devanter administratively 

terminated Federal recognition of the Indiana Miami tribe. 

QUESTION 5: How many other tribes have been de-recognized through 

similar bureaucratic decisions? 

ANSWER: The Department did not ‘‘administratively terminate’’ the Indiana portion of the Miami tribe as a result of Vandevanter’s legal opinion. That opinion concluded that the Indiana Miami were no longer maintaining tribal relations and, 

therefore, the Department, under the laws and policies of the time, no longer had 

a legal responsibility for the Miamis that remained in Indiana. The decision to decline to acknowledge the Indiana Miami did not rely on Vandevanter’s opinion. 

We do not have a list of tribal groups that were at one time considered Federal 

responsibilities but subsequently lost that status. The regulations make specific provision for previously acknowledged groups, reducing the evidentiary burden on such 

petitioners (25 C.F.R. Part 83, section 83.8), but requiring that they demonstrate 

that they have continued to exist as a tribe up until the present time. Some petiVerDate 0ct 09 2002 12:17 Sep 08, 2004 Jkt 088533 PO 00000 Frm 00086 Fmt 6633 Sfmt 6621 J:\DOCS\92827.TXT HRESOUR1 PsN: KATHY
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tioners that have claimed a connection with tribes recognized in the past have, on 

examination, been found to have no such connection, or to be descendants of tribes 

who have not formed a distinct community for generations. 

QUESTION 6: How many Indian tribes have been recognized administratively by the Bureau of Indian Affairs? 

ANSWER: Since 1978, the year the Federal Acknowledgment Regulations became 

effective, the following tribes have been administratively recognized under 25 C.F.R. 

Part 83: 

1. Grand Traverse Band of Ottawa & Chippewa Indians of Michigan, Administrative recognition under 25 C.F.R. Part 83 (AR), 5/27/1980

2. Jamestown S’Klallam Tribe of Washington, AR, 2/10/1981

3. Tunica-Biloxi Indian Tribe of Louisiana, AR, 9/25/1981

4. Death Valley Timbi-Sha Shoshone Band of California, AR, 1/3/1983

5. Narragansett Indian Tribe of Rhode Island, AR, 4/11/1983

6. Poarch Band of Creek Indians of Alabama, AR, 8/10/1984

7. Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts, AR, 4/11/1987

8. San Juan Southern Paiute Tribe of Arizona, AR, 3/28/1990

9. Mohegan Indian Tribe of Connecticut, AR, 5/14/1994

10. Jena Band of Choctaw Indians, Louisiana, AR, 8/29/1995

11. Huron Potawatomi, Inc., Michigan, AR, 5/17/1996

12. Samish Indian Tribe, Washington, AR, 4/26/1996

13. Match-e-be-nash-she-wish Band of Potawatomi Indians of Michigan, AR, 8/23/

1999

14. Snoqualmie Tribe, Washington, AR, 10/6/1999

QUESTION 7: Were any of these recognitions a restoration of previously 

withdrawn recognitions? 

ANSWER: A number of acknowledgment decisions have recognized petitioners as 

tribes, petitioners that at some earlier point in time had been a Federal responsibility, but through laws, treaties and the operation of policy were no longer a Federal responsibility. Examples of groups acknowledged under 25 C.F.R. Part 83 include the San Juan Southern Paiute, the Cowlitz, Poarch Band of Creeks, the Grand 

Traverse Band of Ottawa and Chippewa, the Snoqualmie, the Huron Potawatomi, 

and the Jamestown S’Klallam. Congress has legislatively recognized the Little Traverse, Pokagon Potawatomi and Yavapai Tonto Apache Tribe of Arizona, among others. The Miami Indians were exposed to western society as early as the seventeenth century. Moreover, during the nineteenth century, the Federal government encouraged the acculturation and assimilation of native populations. 

QUESTION 8: What standards does the BIA use when evaluating an historically distinct tribal community? 

ANSWER: The standards used to evaluate a historically distinct tribal community 

are embodied in the acknowledgment regulations, themselves. The Indiana Miami 

Proposed Finding and Final Determination describe in detail the application of 

those standards. See Federal Register, Volume 55, Number 139, pp. 92423-29425, 

and Volume 57, Number 118, pp. 27312-27313, respectively (copies enclosed). 

QUESTION 9: Is some latitude given to tribes who maintain some tribal 

customs and traditions but who, because of time and government policy, 

are largely assimilated and acculturated into the American populace? 

ANSWER: The regulations do not require the maintenance of any distinct customs 

or traditions, but do require the maintenance of a distinct social and political community. The regulations list a variety of forms of evidence to demonstrate community (see criterion 83.7(b)). Maintenance of distinct culture is one form of evidence 

to demonstrate community, but is not a required form. 25 C.F.R. Part 83, 

§ 83.7(b)(1)(vii) and § 83.7(b)(2)(iii) 

A delineated parcel of land (i.e., reservation or tribal land) seems to be 

an important component in acquiring Federal recognition. In 1873, the 

Federal government forced the privatization of the Indiana Miami tribal 

lands, and by 1887 the lands of other tribes, thus effectively eliminating the 

reservation and tribal governments as coherent entities. 

QUESTION 10: Are there any provisions or considerations given to tribes 

that lack tribal lands, due to government action, when those tribes apply 

for federal recognition? 

ANSWER: The acknowledgment regulations do not require that a petitioning 

group have retained land owned in common by the tribe, or reserved by the Federal 

government or a state government for the tribe. The retention of a common land 

base is both an aid to preservation of a tribal community, and an indicator of the 

group’s community and political processes which have aided it in retaining a land 

84

base. Tribes recognized which did not maintain or have maintained for them a common land base include the Snoqualmie, Jena Choctaw, Mohegan and the Cowlitz, 

as well as others. Among the decisions where a group has maintained or had maintained for them a common land base upon which at least a portion of the tribe has 

continued to reside up until the present are the Death Valley Timbi-sha Shoshone, 

San Juan Southern Paiute, Tunica-Biloxi, and Jamestown S’Klallam. 

The regulations allow for many different, alternative, forms of demonstration of 

community and political processes and do not require a demonstration of tribal political functions that could only be exercised with the maintenance of a common land 

base. 

The Miami of Indiana, although no longer federally recognized, continue 

to receive payments from the Federal government under various treaties 

and agreements, including the 1795 Treaty of Greenville. 

QUESTION 11: How many similarly unrecognized tribes receive money 

from the U.S. Government through such treaties? 

ANSWER: We are not aware of any payments currently received by the Indiana 

Miami under Federal treaties and agreements. The Indiana Miami did not submit 

evidence during the petitioning process that demonstrated such payments. 

supplemental questions submitted by representative rahall 

QUESTION 1: Please explain the process the Office of the Federal Acknowledgment goes through once a FOIA request is received. Who handles 

the request and how are the research teams’ anthropologists, genealogists, 

and historians involved? 

ANSWER: When a FOIA request is received by the Office of Federal Acknowledgment (OFA) to prepare a response, a FOIA specialist/records manager handles the 

majority of the tasks. The tasks involved in responding to a FOIA request include 

searching and compiling of documents, estimating the time it will take to complete 

the tasks, reviewing the documents, copying the documents once found, redacting 

the documents following the Privacy Act guidance, withholding documents that fit 

FOIA exemptions or fall under Privacy Act information, releasing and preparing responses concerning the FOIA requested documents, reviewing responses with the 

Office of the Solicitor, maintaining copies of all documents released to meet the 

FOIA request, assisting in FOIA appeals, and reporting. OFA follows the March 28, 

1991, Freedom of Information Act Handbook, which is a ‘‘supplement to the requirements prescribed by Title 383 of the Departmental Manual 15 and 43 C.F.R. Part 

2, Subparts A and B. OFA anthropologists, genealogists, and historians (professionals) have performed most of the tasks cited above, however, with additional appropriations within the Interior Appropriations Act for the past two fiscal years, the 

OFA has been able to hire outside contractors to handle these requests. On occasion, 

the professionals may assist with minor searches and reviews; however, under most 

circumstances, the hiring of contractors has allowed them time to focus on their reviews and evaluations of the documented petitions. 

QUESTION 2: The OFA is no longer part of the BIA—it is under the Office 

of the Assistant Secretary for Indian Affairs. How has this change brought 

better services to the petitioning tribes? 

ANSWER: Effective July 27, 2003, the Department began to implement the reorganization for most of the Office of the Assistant Secretary—Indian Affairs. The 

staff of the Branch of Acknowledgment and Research (BAR) was realigned to the 

new Office of Federal Acknowledgment (OFA). OFA reports directly to the Principal 

Deputy Assistant Secretary—Indian Affairs. Prior to the change, staff reported first, 

to the Director, Office of Tribal Services, second, to the Director, Bureau of Indian 

Affairs, and then to the Assistant Secretary-Indian Affairs. The change eliminates 

two layers of review and provides more direct and efficient policy guidance. Currently, there is no assessment available on whether the change provides better services to the petitioners. 

QUESTION 3: In response to a question from Chairman Pombo about 

whether changes that have been made at OFA have increased the Office’s 

efficiency in the processing of petitions, you responded that productivity 

has increased from July 2002, to the present. You told the Committee that 

from July 2002, to the present, your office has issued 14 decisions. Does this 

number include decisions beside Proposed Findings and Final Determinations? Please explain what other decisions have been issued. A list of the 

14 would be helpful. 

ANSWER: Since July 2001 to the present, the Department has issued 14 decisions: six were proposed findings, six were final determinations, and two were reconsidered final determinations. These decisions are provided in the enclosed table.

85

The CHAIRMAN. Thank you. Mr. Fleming, in reviewing your testimony is it your contention that the changes that you are making 

in the process are making it more efficient and timely in the decisionmaking process? 

Mr. FLEMING. It is my contention and I will give you an example. 

Our productivity for July 4 to the present, which also takes into 

our new contracting, we have issued 14 decisions in that 3-year 

period—six proposed findings, six final determinations, and two reconsidered final determinations. If you divide three into 14, you get 

a tremendously higher number than the average that was expressed earlier in one of the individual’s testimony, which I think 

was 1.3 per year, which is a tremendous increase in our productivity. 

The CHAIRMAN. In terms of the objectivity of those in the decisionmaking process, it appears from looking at it that when a petition is denied, a lawsuit is filed, that those that are defending that 

lawsuit or who originally made a decision end up being the ones 

that they appeal to and there is a possibility that they may not be 

as objective in making those determinations. How do you respond 

to that? 

Mr. FLEMING. The regulations allow for due process throughout. 

One period immediately available to the petitioner and interested 

parties is after a proposed finding to acknowledge or not to acknowledge opens up a public comment period of 180 days and this 

allows a petitioner or interested party to provide evidence, argumentation to support or rebut the proposed finding. 

After the final determination is issued there is another opportunity for due process, which is called reconsideration before the 

Interior Board of Indian Appeals and under the regulation of 83.11, 

this is the Department’s independent review board that would look 

into the decision. So if the petitioner or interested party is not satVerDate 0ct 09 2002 12:17 Sep 08, 2004 Jkt 088533 PO 00000 Frm 00089 Fmt 6633 Sfmt 6602 J:\DOCS\92827.TXT HRESOUR1 PsN: KATHY

92827.005
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isfied with the final determination, they have that opportunity of 

due process, of putting a request in for reconsideration. 

Then if the final decision is final and effective for the Department, then the next avenue for a petitioner or interested party is 

to sue the Department under the Administrative Procedures Act in 

Federal court. 

The CHAIRMAN. And what about the situation where a decision 

is not made, where someone comes in and petitions for recognition 

and, just to pull a number out of the air, spends 29 years waiting 

for an answer? 

Mr. FLEMING. The process begins with a letter of intent and 

when the process began in 1978 after the promulgation of the regulation, we had 40 petitioning groups at that juncture. 

Some groups take part of the time working on documenting their 

petitions and there is no limitation as to how many years they can 

put together a petition. So if a group is working for 20 years developing their petition and then they submit the petition, the regulations then require us to review all that information. We are sometimes blamed for that 20-year time span when indeed the evidence 

comes before us under the regulations we are then required to do 

a technical assistance review letter for any obvious deficiencies or 

significant omissions. This allows the petitioning group to supplement their petition in any areas that need to be supplemented. 

Then that may take a short period of time or it may take four or 

5 years for the group to come back with additional documentation 

and then we move forward under the regulatory timeframes. 

The regulatory timeframes in and of themselves require a minimum of at least 25 months or a little over 2 years. Once they 

begin those regulated timeframes, then we are under a clock generally. Those timeframes, as I said, are at a minimum. There are 

opportunities for the petitioner to request extensions for good 

cause. They may have come up with a source of evidence that they 

were not aware of and they would need time to consider researching out those records and sometimes they ask for extensions and 

they are granted. 

But any time you have one extension for one group, it may mean 

that there is a delay with the other groups that are under the active consideration stage of the process. 

The CHAIRMAN. Once a petition is filed, it’s complete, all of the 

information requested has been given to you, they should have an 

answer within 2 years? 

Mr. FLEMING. The regulatory timeframe allows a minimum of at 

least 25 months. 

The CHAIRMAN. And a maximum? 

Mr. FLEMING. That I would need to research on. 

The CHAIRMAN. Why is there a minimum and not a maximum? 

Mr. FLEMING. The regulation allows for extensions to allow the 

petitioner or interested party or even the Department if it 

needs——

The CHAIRMAN. But let me just stop you there. That is not your 

fault. If they ask for an extension, that is their decision to ask for 

an extension. 

Mr. FLEMING. Correct. 

87

The CHAIRMAN. Why is there not a maximum on how long it 

takes you to give them an answer? If someone comes in to you and 

says we are requesting an extension, we need to do more research 

for whatever reason, then I understand that. That is not your fault. 

That is not you that is asking to delay it. 

But it seems to me and in my experience in dealing with most 

Federal agencies is that when we pass a law, we tell them you 

have 2 years to give them an answer and if that person asks for 

an extension, they waive their statutory deadline when they ask for 

an extension. In this one it seems like it is opposite of that and I 

am not sure why. 

Mr. FLEMING. Well, let me clarify. Under the regulation, the first 

regulatory timeframe is what is known as active consideration. It 

is designed to allow the Department at least 12 months to review 

all of the evidence. So you have a deadline right there. At the end 

of 12 months there ought to be an answer called a proposed finding. 

Then when the decision is made on the proposed finding, it is 

published in the Federal Register, which then starts the next regulatory timeframe called the public comment period. So there is a 

deadline or an end to that public comment period. 

If the evidence is voluminous the petitioner or a town or state 

may ask for an extension. So that is their ability to add more time 

if needed. At the end of that period, then begins a response period 

for the petitioner to respond to any comments that came in during 

the comment period. Let us say comments were made by an interested party and they put a particular spin on that evidence but 

when you review that evidence, then the petitioner has the opportunity to say that is not what we see, that is not what our professionals see. So they have an opportunity to address any comments. 

That has an end period. That has an end date and that is in the 

regulation. 

Then the Department has 60 days at a minimum to review all 

of the evidence, all of the comments, all of the responses, and come 

up with a recommendation for a final determination. So you do 

have in the regulation an end date for and answer. 

The CHAIRMAN. And if you add all those periods up, where do 

you end up? What is that timeframe? 

Mr. FLEMING. At that point 25 minus three, 22 months. 

The CHAIRMAN. Twenty-two months to give them a decision? 

Mr. FLEMING. At a minimum. And that is under the regulations. 

The CHAIRMAN. I guess what I am having difficulty with is it is 

not 22 months at a minimum. It is just kind of 22 months if everything fits. 

Mr. FLEMING. That is how it is designed and as the practice has 

been, the Department has asked for extensions due to the complexity of the case or the voluminous nature of the evidence or the 

petitioners may have asked for an extension or an interested party 

may need more time, as well. So if you have those extension requests, then the Department has to consider whether to grant 

them and has to take a look as to how it is going to affect the process. 

The CHAIRMAN. Maybe you can answer this for the record for me. 

How would the Department feel if we said you have 36 months 

88

plus whatever time the petitioner requests in extensions to give 

them an answer and give you a drop-dead date to give them an answer? If they ask for a year extension, you add a year to it and you 

have 48 months to give them an answer, but give you a deadline 

to give them an answer. 

Mr. FLEMING. I think it would be something considered. Everyone likes to have a deadline, a beginning point and an end point. 

I think what has assisted us over the past 3 years is that these 

decisions, after recommendations were made, even the decisions 

were made in a timely manner and nothing was delayed in that aspect. So if there are definite dates, that could be useful. 

The CHAIRMAN. Thank you. 

Mr. Pallone? 

Mr. PALLONE. But following up on that, Mr. Chairman, the only 

way that would be effective is if at the end of the period if they 

did not act, then the recognition was granted. Otherwise there 

would not be any club, really. 

What would you think of that? 

Mr. FLEMING. Well, if there is inaction and then there is a provision in that statute, I just know there would be tremendous 

pressure felt by all concerned. 

Mr. PALLONE. All right. I am going to try to get through a few 

questions quickly because I know I do not have a lot of time. 

I am very concerned about the state’s pressure. I will use Connecticut. I should not pick on them but they are the obvious one 

to pick on in this case. We have the Eastern Pequots, we have the 

other tribe that was more recently granted preliminary recognition 

from Connecticut, and now we understand that Connecticut is appealing that. 

When mention here was made of interested parties and the input 

of interested parties, is one of the reasons why the process is taking so long and becoming more expensive because states are now 

appealing? And what is the likelihood of if a state like Connecticut 

does object in these two tribes’ cases, the Eastern Pequot and the 

others, what do you do? I mean do you have the power to 

specifically—I mean do you actually do research to specifically refute or support an interested party like Connecticut’s objections? 

Has any interested party ever succeeded? 

I mean I am just concerned that now that a state like Connecticut is putting so much pressure against and appealing, for example, those two tribes, what is going to happen? Just comment on 

that if you could. 

Mr. FLEMING. I believe that the regulation itself offers the opportunity for interested parties to participate and right now some of 

the decisions are ripe for requests for reconsideration before the Interior Board of Indian Appeals. So in the regulations there are opportunities for interested parties to participate. And even if a petitioner or interested party is still not satisfied with what the final 

outcome may be, be it positive or negative, they still can have a 

remedy through the Administrative Procedures Act and that would 

be the proper time for the petitioner or interested party to then follow up. 

Mr. PALLONE. Now the other thing is we talk about the budget. 

Your office’s annual budget, I guess, is $1.7 million, but in response 

89

to the pleas about understaffing in Fiscal Year 2003, Congress appropriated an additional $500,000. This was followed by an additional $250,000 in Fiscal Year 2004. However, it is my understanding there has not been any new hiring of full-time anthropologists, genealogists or historians, the professional staff. 

How is it that an infusion of funds, nearly half of the office’s 

budget, has not resulted in speeding up the process? 

My understanding, same question, is that the BIA’s strategic 

plan in 2002 called for hiring 18 anthropologists, genealogists and 

historians to establish six teams of three persons but, as we heard 

from the previous panel, we only have three teams of three persons 

now. So what happened? Why has not this funding made a difference and why are we still at the three instead of the six that 

you supposedly were trying to accomplish? 

Mr. FLEMING. In the Department’s response to the GAO report 

we provided at their recommendation a needs assessment and an 

analysis of the workload and based on expectations, if the expectation was to eliminate the current workload in 3 years, then this is 

what it would take. If the expectation was to eliminate the workload in four, five, or 6 years, then this is what it would take. 

And our response, and I would be happy to provide the Committee with the response, it was a way to convey what our needs 

indeed were based on the analysis of the workload. 

Mr. PALLONE. But Mr. Fleming, what happened to this extra 

money and when are you going to be able to double these teams? 

You said you would like to go from three to six. It has not 

happened. What happened to the money and when is that going to 

happen? And how much more do you need? What do you want us 

to do? 

Mr. FLEMING. The appropriations were indeed very helpful. It allowed us to do the contracting that I described, the two sets of contractors. We were able to take on the two FOIA specialists, records 

managers, and the three research assistants. 

Because these were one fiscal year appropriations, we were not 

able to use that resource, those funds, to hire full-time employees 

because if they only were available to us just on an annual basis, 

it would not be helpful to hire somebody and then fire them because of the lack of funds, should we not have been able to get another appropriation. 

Mr. PALLONE. I know the time is running out but did the money 

lapse? Was it used? 

Mr. FLEMING. Yes, the money was used. The appropriation was 

used and as a result, we were able to make use of the contractors 

in reducing the administrative work that would normally fall on 

the professional staff and the professional staff was then able to 

focus on the cases at hand. And as I indicated, at least from the 

time the contractors came on board, we were able to issue eight decisions out of the 14 that I described that had been issued since 

the first of this Administration. 

Mr. PALLONE. Thank you. 

Thank you, Mr. Chairman. 

Mr. Chairman, could I just ask that members have the right to 

submit written questions to the witnesses? 

90

The CHAIRMAN. Yes. I was going to say both to this witness, I 

have a series of questions that I will submit in writing to this witness and any other witnesses who appeared today, you have the 

right to submit questions in writing. And to those witnesses that 

are still here, if you could answer those in a timely manner so that 

they can be included in the hearing record, I would appreciate it. 

Thank you. 

Before I adjourn this hearing I want to thank all of our witnesses, including the Administration witness. This is obviously an 

extremely important issue that I do believe we need to make 

progress on and I will look forward to working with everybody, including the Administration, to try to move forward in a positive 

way with trying to deal with this in a much more timely fashion 

and a fair and transparent system. I think that is what all of us 

want out of this and that is what this Committee will word toward. 

So thank you very much. Thank you to all our witnesses for 

being here and the hearing is adjourned. 

[Whereupon, at 12:05 p.m., the Committee was adjourned.]

The following information was submitted for the record: 

• Benedict, Jeff, President, Connecticut Alliance Against Casino 

Expansion, Inc., Statement submitted for the record 

• Blumenthal, Hon. Richard, Attorney General, State of 

Connecticut, Statement submitted for the record 

• Charley, Benjamin, Tribal Chairman, Dunlap Band of Mono 

Indians, Letter submitted for the record 

• Jones, Laura, Ph.D., Campus Archaeologist, Stanford 

University, Senior Scholar, The Carnegie Foundation, Letter 

submitted for the record 

• Mullane, Nicholas H., First Selectman, Town of North 

Stonington, Connecticut, Statement submitted for the record 

• Towns of Ledyard, North Stonington, and Preston, 

Connecticut, Letter submitted for the record

[A statement submitted for the record by Jeff Benedict, 

President, Connecticut Alliance Against Casino Expansion, Inc., 

follows:]

Statement of Jeff Benedict, President,

Connecticut Alliance Against Casino Expansion, Inc. 

The State of Connecticut is serving as an unwilling witness to one of the most 

remarkable breakdowns in federalism—the relationship between the federal and 

state governments—in the history of the United States. The likely consequence is 

the complete transformation of the economic vitality, quality-of-life, and governmental structure of the State. All these changes would be for the worse, and they 

are being forced upon the State by the federal government. 

The tool being used for this purpose is the so-called ‘‘acknowledgment process,’’ 

by which the Bureau of Indian Affairs (BIA) bestows the status of ‘‘federal Indian 

tribe’’ on groups of individuals who claim descent from tribes that existed during 

colonial times. The people and towns of Connecticut are rightfully outraged over 

what is happening, and dramatic and immediate action is needed to protect the 

State’s interests. 

How can tribal acknowledgment have such a significant effect? And isn’t acknowledgment little more than the symbolic act of according federal status to Indian 

groups long ago recognized as tribes by the State? The answers to these questions 

demonstrate why the future of the State of Connecticut is at risk. They also show 

how the actions of a few federal bureaucrats, combined with the investment of tens 

91

of millions of dollars by gambling financiers, have manipulated federal law to strip 

away Connecticut’s inherent right to determine its own future. 

What Does Tribal Acknowledgment Mean? 

Once a group obtains status as an Indian tribe under federal law it becomes, in 

effect, a sovereign governmental entity. The new tribe, its members, and its businesses, are exempt from virtually all state and local laws, including taxation. Their 

lands are open to any kind of development. The tribe and its businesses do not need 

to comply with state and local environmental, land use, health and safety, labor and 

other laws. They cannot be sued. For many purposes, they act as foreign governments. 

In Connecticut, there are two acknowledged tribes and twelve groups that are 

seeking tribal status. The two acknowledged tribes are the Mashantucket Pequot, 

who were acknowledged by Congress in 1983, and the Mohegans, who achieved tribal designation from the BIA in 1994. Of the twelve additional groups trying to become tribes under the BIA acknowledgment process, four are well-advanced in the 

process: the Eastern Pequot/Paucatuck Eastern Pequot, the Schaghticoke, the Golden Hill Paugussetts, and the Nipmuc, who are actually located in Massachusetts, 

but they assert land rights in Connecticut. 

These groups claim that land belonging to their historical ancestors was unlawfully taken away 200 years ago and that they are entitled to get it back regardless 

of its current ownership. As much as one-third of the State is potentially subject 

to these land claims. The Schaghticokes and Golden Hill Paugussetts have already 

filed lawsuits against innocent landowners for this purpose. 

But these tribal acknowledgment efforts have less to do with land and more to 

do with gambling. Each of the four groups that are furthest along in seeking recognition is bankrolled by casino moguls or developers. These groups hope to secure 

recognition in order to take advantage of the federal Indian Gaming Act that permits federal tribes to open massive new casinos and earn over one billion dollars 

a year, as the Mashantucket Pequots and Mohegan do at their existing casinos. The 

biggest winners in these casino ventures are not the tribes, but the wealthy nonIndian moneymen who provide the financial, legal, and political muscle to help 

these groups get acknowledged. 

What does all of this have to do with Connecticut? Thanks to the BIA’s artificially 

propagated and arbitrarily applied acknowledgment process, the State faces a serious risk of being transformed into a gambling hub with as many as six separate 

sovereign nations within its boundaries, each one of which will pursue large tracts 

of land to carve out from state and local control for purposes of opening new casinos. 

Make no mistake about it; life in Connecticut will never be the same if this corruption is not stopped and corrected. Otherwise, the BIA will transform Connecticut 

from the ‘‘Constitution State’’ to the ‘‘Casino State.’’ The two largest gambling halls 

in the world are already here. With potentially four more, already jammed highways 

will go into gridlock with the cars of casino patrons. The local tax base will be devastated. Land use control and planning will become a thing of the past. Environmental quality will decline due to air pollution from cars and other impacts. Crime 

will increase, and societal values will shift, as they always do in gambling centers. 

The labor base will change. Affordable housing will dissipate in towns around the 

casinos. Corporations and large businesses will flee the State to be replaced with 

low-paying, unskilled jobs, bringing attendant demographic shifts in Connecticut’s 

population. Within a decade or so, Connecticut as we know it today will no longer 

exist. 

For about twelve years, the small towns in southeastern Connecticut have struggled with the consequences of reservation lands, tribal sovereign immunity and 

Indian casinos. They have lived with the many adverse impacts of the 

Mashantucket Pequot Foxwoods and Mohegan Sun resorts, and they are now confronted with a third possible mega-casino on lands of the Eastern Pequot Indian 

group, which BIA is proposing to acknowledge as a tribe. 

The problems that resulted in southeastern Connecticut have not been fully understood in other more populous and politically powerful parts of the State. Then, 

on January 29, 2004, the BIA issued a decision that seeks to acknowledge the 

Schaghticoke Tribe. Now there is the prospect for land claims throughout southwestern and western Connecticut, and the specter of a new casino resort along the 

already overburdened I-84 and I-95 corridors has risen. 

The BIA’s decision to drop yet another sovereign nation in Connecticut has finally 

turned a spotlight on the flawed acknowledgment process. Much of the illumination 

has been triggered by the BIA’s own conduct. Right after the BIA announced its decision in the Schaghticoke matter, an internal BIA memorandum dated January 12, 

2004, and titled ‘‘Schaghticoke Briefing Paper,’’ surfaced. In it, the staffer from the 

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Office of Federal Acknowledgment responsible for reviewing the Schaghticoke petition notified the Assistant Secretary that the petitioner’s ‘‘evidence of political influence and authority is absent or insufficient for two substantial historical periods.’’ 

The memo also acknowledged that the petitioner’s ‘‘membership list does not include 

a substantial portion of the actual social and political community.’’

Despite these gaping holes in evidence, ones which the BIA does not have authority to arbitrarily fill with substitutes for the mandatory criterion, the agency nonetheless granted acknowledgment. The BIA’s brazen internal memo is a glaring illustration of how badly this process needs legal and political reform. This agency is 

absolutely unaccountable and by its own words acting outside its authority. 

BIA’s Acknowledgment Process 

Much has been made recently of the role that wealthy financial backers play in 

helping petitioner groups obtain tribal acknowledgment. High-powered lobbyists 

wired to the Bush Administration have been paid huge amounts of money to lobby 

for the Eastern Pequots and the Schaghticokes. The sources of money paying for 

those lobbyists, and the numerous lawyers, consultants, and public relations firms 

supporting these efforts, are not fully known. Nor is the amount of money spent. 

It is known, however, that massive sums have been invested by the likes of Donald 

Trump, Fred DeLuca (the Subway sandwich shop entrepreneur), David Rosow (a 

Fairfield-based ski resort developer), Bill Koch (the Texas oil magnate and America’s Cup racing tycoon), and Thomas Wilmot, a New York mall developer, who has 

spent in excess of $10 million backing the Paugussetts. The role played by big 

money and big-time lobbying in tribal acknowledgment is an outrage, and undoubtedly has a corrupting influence on the process. Full investigation and immediate reform is needed. 

As important as it is to get casino entrepreneurs out of the acknowledgment process, there is an equally important reform that is needed on an even more basic level. 

Simply put, the BIA should not have this power in the first place. The Eastern 

Pequot and Schaghticoke decisions have now revealed clearly the biased, result-oriented, and arbitrary manner in which BIA makes these decisions. The outrage Connecticut feels toward the lobbyists and multimillionaire financial backers should 

pale compared to the anger that should be directed at BIA and the political appointees who are approving these decisions. 

As a starting point, it must be understood that the BIA has never been granted 

the power to acknowledge Indian tribes. Obviously, creating a sovereign Indian tribe 

is a very significant decision. The power to take such action is vested by the Constitution exclusively in the Congress. Under the U.S. Constitution, federal agencies 

cannot take legislative actions of this nature unless Congress expressly grants the 

power to do so and sets standards to govern how the agency exercises that authority. Congress has never taken either step to allow BIA to make the fundamentally 

political decision of whether to create new sovereign tribal entities. For years, the 

BIA has glossed over this problem, trying to hang its acknowledgment hat on the 

weakest and most general of its Indian affairs powers. 

The Schaghticoke Decision 

The recent Schaghticoke decision illustrates the problems of letting BIA run free 

to make acknowledgment decisions in the absence of tight standards set by Congress. BIA is making up the rules as it goes along, and applying its self-proclaimed 

tribal acknowledgment power to rule in favor of Connecticut petitioner groups. 

A close look at the Schaghticoke decision reveals how BIA plays this game. One 

of the abiding principles of BIA acknowledgment decisions has been the need for the 

Indian group to prove that it has existed as a functioning political entity following 

identifiable leaders and as an intact social community from colonial times to the 

present without any significant gap in time. A break in continuity of even a generation is fatal to an acknowledgment petition. 

For the Schaghticoke, the gaps in its historical record should have been insurmountable. In 1993, the Schaghticoke’s own expert, a leading pro-tribal advocate, 

said it was ‘‘probably impossible’’ for the Schaghticoke to meet this test for virtually 

all of the 1800s and the first half of the twentieth century. In 1999, Ann McMullen, 

another expert hired by the Schaghticoke, agreed. In 2001, the BIA’s top official Neil 

McCaleb reached the same conclusion when he ruled in the proposed finding against 

granting acknowledgment to the Schaghticoke group. McCaleb said the group failed 

to meet this test for a total of over 150 years. 

In response to that ruling, the Schaghticoke’s own ‘‘chief’’ during the 1960’s, Irving Harris, testified that the BIA’s negative proposed decision was correct because 

there was no tribal government in effect for most of his lifetime. That conclusion 

was borne out by the research conducted by the State of Connecticut, numerous 

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local governments, and the private landowners whose property is at risk because of 

Schaghticoke land claims. But the BIA ignored Chief Harris’s testimony and supporting research submitted by other interested parties. 

All of this information and expert opinion was in front of BIA, yet it did not matter. On January 29, 2004, the BIA reversed its 2001 negative decision and concluded 

that the Schaghticoke should be granted federal recognition. How did BIA reach this 

result? Quite simply, it made up new rules, selectively considered the evidence that 

would support the desired result of tribal creation, and ignored everything else. 

The gimmicks used by BIA to push the Schaghticoke group over the acknowledgment finish line are too numerous and complex to describe here. They entail practices such as shifting the burden of proof from the tribal petitioner to the opposing 

parties, selective use of interview evidence, selective use of documentary evidence, 

retreat from the requirements of the 2001 negative proposed finding, and the incredible conclusion that the longstanding rift between rival Schaghticoke factions that 

tore the group into pieces was actually evidence of political unity and continuity. 

While the specifics of the 200-page BIA decision defy simple explanation, it is possible to gain insight into the manipulative decisionmaking employed by BIA by focusing on a few aspects of the agency’s final determination. 

Beginning with the Eastern Pequot decision, BIA has developed a new principle 

of tribal acknowledgment unique to Connecticut. Because Connecticut had historically set aside small tracts of land for Indians, BIA has established the assumption 

that gaps in tribal continuity can be filled by the mere existence of such a land base. 

In other words, because Connecticut set aside land for Indians in the past, the BIA 

decided that it is appropriate to infer that functioning political entities and social 

communities must have existed at the same time. 

The BIA invokes this ‘‘state recognition’’ assumption to fill gaps in the history of 

a tribal petitioner in Connecticut whenever it is necessary to do so to make up for 

a lack of evidence. This principle, one that BIA never developed through its rulemaking or public review processes, has thus become a kind of evidentiary silly putty 

to be used to plug any holes in a tribal petitioner’s case. In Connecticut, BIA has 

transformed the requirement for evidence of continuous tribal governmental authority under identified leaders and social community into one that allows for only partial evidence, so long as the petitioner group traces to a tribe for which a State reservation existed and on which some individuals lived during the period of the missing evidence. 

Even with this artificial assumption, BIA had to play additional games to reach 

a positive result for the Schaghticokes. For example, there was no evidence of a politically functioning tribe for the period 1801 to 1876. BIA invoked one of the rules 

it made up under its regulations to help the Schaghticokes fill this gap. Under this 

rule, if fifty percent of the marriages in a group during a period of time are between 

tribal members, then the BIA assumes the existence of tribal political activity. 

This rule, equating marriage rates with tribal political activity, is a big stretch 

on its own. But the BIA didn’t stop there. To help the Schaghticokes fill the 1801 

to 1876 gap, first the BIA changed its approach to defining who counts in defining 

the marriage rate. In the past, BIA looked only to ancestors of the petitioner group. 

For this decision, the BIA counted any individual associated with the Schaghticoke, 

thereby greatly expanding the universe of marriages to consider. 

Second, BIA abandoned its own fifty percent rule. Even by expanding the group 

of people considered for intermarriage, the BIA equaled that rate for certain periods 

of time. Third, even after giving all of these breaks to the Schaghticokes, BIA could 

not fill in the entire 1801 to 1876 period. A one-generation gap still existed between 

1820 and 1841. Under the BIA’s previous interpretations, this gap in political authority alone should have resulted in a negative decision. 

The BIA got around this problem by pulling out its ‘‘state recognition’’ silly putty. 

Because a Schaghticoke reservation existed during this time, BIA ruled it would 

allow this assumption of political activity to make up for the below-fifty percent 

marriage rate and the absence of any other evidence of tribal political activity during this extended period. Thus, by these tricks and gimmicks, the BIA found a way 

to make a 75-year gap in tribal political authority disappear without a shred of evidence. 

Similar games were played in the Eastern Pequot decision. In that case, the BIA 

also used the state recognition assumption to fill major holes. In addition, BIA took 

the incredible step of forcibly joining two distinct Pequot groups into a single tribe, 

over the strong objections of the smaller group. Only by doing so was the BIA able 

to find enough evidence to create a new tribe. In taking that step, the BIA allowed 

its tribal creationism to reach an ultimate extreme. Not only did the BIA assume 

power never granted to it by Congress to develop its own rules for establishing sovereign nations, it slipped into the role of making new law by deciding when and how 

94

groups of individuals claiming Indian descent should be forced to affiliate with each 

and form a common tribe. How arrogant, and how fundamentally at odds with the 

most basic principles of the U.S. Constitution. 

Even more troubling is that these decisions are being made by an agency with 

an admitted bias in favor of Indians. The bureaucrats who make these decisions are 

trained in Indian anthropology, history and similar disciplines. They have a clear 

bias in favor of Indians, and they wear it on their sleeves. That is why they are 

in this profession, and that is why they work for an agency that has a duty to advance the interests of Indians and tribes. 

The bottom line is that the BIA staff has made up their minds on Indians in Connecticut. The agency will not allow the facts, or lack thereof, to get in the way of 

their determination to establish new federal tribes in Connecticut. The same BIA 

official’s are involved in the Nipmuc decision, so we can expect more of the same 

in May when that final determination is issued. The Nipmucs, like the Eastern 

Pequot, consist of two groups who oppose each other. They both received negative 

proposed findings, but the writing is on the BIA wall. The agency staff who invented 

the theories that achieved positive results for the Eastern Pequots and 

Schaghticokes can be expected to achieve the same result by combining the Nipmuc 

groups and devising new rules to allow them to fill their evidentiary gaps. 

While the BIA staff that are at the bottom of these decisions are easy to blame, 

in some ways their actions are predictable. After all, they are not specialists in 

Indian history and anthropology because they are disinterested or objective. They 

are set in their ways and will do anything to protect their bureaucratic turf. We 

need to look elsewhere for the solution. 

What Should Be Done? 

The real problem here is with a political system that gives the BIA this much 

power in the first place. While decisions on the existence of tribes should be based 

on sound factual research, the consequences of those decisions are inherently political. There is no law or regulation that leads to the result BIA has now decreed for 

Connecticut. It is based on assumptions and leaps of faith that transparently lead 

to a prescribed result. The decision to rely upon these presumptions and, in so 

doing, create new tribal governments and change the face of Connecticut should not 

be left to BIA staff, or even its political appointees. One need only think back to 

the blatantly political acts of the Clinton appointees to BIA to realize that there is 

no comfort to be found in the agency leadership either. 

Equipped with the facts, Congress should decide whether to recognize new tribes. 

While the legislative branch may not be suited to the task of fact-finding, it certainly has the prerogative and the ability to analyze the results of such reviews and 

make final decisions. We in Connecticut have seen how Congress can misapply this 

power when it is uninformed, as it did in recognizing the Mashantucket Pequot 

Tribe in 1983. That ‘‘tribe’’ now has a very dubious claim to acknowledged status. 

Had Congress been adequately informed of the facts, however, it could have made 

an educated decision as to whether to exercise the political power vested in it by 

the Constitution to recognize such a tribe. 

In doing so, it also could have taken the appropriate actions to address the social 

and economic consequences such an act would have for the entire state. When BIA 

acknowledges a tribe, it does nothing more than give the group legal status as a 

federal tribe. This, in turn, leads to the horrendous results now confronting Connecticut. If Congress were in command of this issue, however, such adverse effects 

could be addressed at the same time that deserving Indian groups which meet strict 

standards are recognized as tribes. 

Even if Congress believes it should not be in the acknowledgment business, it has 

the duty to constrain the power of the Executive Branch to make such decisions. 

Congress should set forth very clear standards under which the Executive Branch 

at the highest levels would make acknowledgment determinations. Those standards 

would need to instill objectivity into the process, remove decisions from career staff, 

and avoid situations where gimmicks and games can be played to meet the tests 

for tribal acknowledgment. Alternatively, Congress could follow Connecticut Attorney General Richard Blumenthal’s recommendation and create a new decisionmaking body that would be truly objective and beyond pro-Indian bias and the influence of lobbyists. 

[A statement submitted for the record by The Honorable Richard 

Blumenthal, Attorney General, State of Connecticut, follows:]

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Statement submitted for the record The Honorable Richard Blumenthal,

Attorney General, State of Connecticut 

I appreciate the opportunity to comment on the issue of federal recognition of Indian 

Critically and immediately, Congress should enact a moratorium on any BIA decisions or appeals and initiate a full and far-reaching investigation of the BIA’s actions in these petitions. 

Congress should then enact reform creating an independent agency insulated from 

politics or lobbying to make recognition decisions. It must have nonpartisan members, staggered terms, and ample resources. There is compelling precedent for such 

an independent agency the Securities and Exchange Commission, for example, or 

the Federal Communications Commission, and the Federal Trade Commission. 

which deal professionally and promptly with topics that require extraordinary expertise, impartiality, and fairness. 

Even before permanent reform -- and especially until the investigation is complete 

-- the Secretary of Interior should impose a moratorium or stay on all tribal recognition decisions involving Connecticut and other similar states. The need for a moratorium is demonstrated dramatically by an internal confidential BIA memorandum 

discovered during review of documents for our administrative appeal in the 

Schaghticoke decision which provides a blueprint for BIA senior officials to disregard and distort the law. This pattern and practice cannot be permitted to continue. 

Far-reaching, fundamental form is critical to restoring the integrity and credibility of the present system. Indeed, the argument may be made that the Department of Interior currently has an unavoidable conflict of interest responsible for advocating for and protecting Native American interests as trustee, and at the same 

time deciding objectively among different tribes which ones merit recognition. 

Congress should also adopt the tribal recognition criteria in statute, reducing the 

likelihood that the BIA will stretch or sandbag criteria in an effort to recognize an 

undeserving petitioner. It should also enact measures to ensure meaningful participation by the entities and people directly impacted by a recognition decision. One 

of the most frustrating and startling consequences of the current review process is 

the potential for manipulation and disregard of the seven mandatory criteria for recognition—a potential that the GAO and Inspector General reports found has been 

realized in recent petitions. 

Finally, Congress should provide additional much needed, well deserved resources 

and authority for towns, cities and Indian groups alike in an effort to reduce the 

increasing role of gaming money in the recognition process. Federal assistance is 

necessary and appropriate, in light of the increasing burdens that towns, cities and 

the state, must bear in retaining experts in archeology, genealogy, history and other 

areas all necessary to participate meaningfully in the recognition process. Because 

recognition has such critical, irrevocable consequences, it is. essential that all involved petitioning groups, the public, local communities, states have confidence in 

the fairness and impartiality of the process. That confidence has been severely compromised in recent times. I urge the committee to approve these bills and begin the 

process of overhauling the system so that public faith can be restored. 

The central principle of this reform should be: Tribes that meet the seven legally 

established criteria deserve federal recognition and should receive it. Groups that 

do not meet the criteria should not be accorded this sovereign status. 

The present system for recognizing Indian tribes is fatally and fundamentally 

flawed. It is in serious need of reform to ensure that such decisions which have such 

profound ramifications are lawful, fair, objective and timely. After more than a 

dozen years of experience with tribal recognition issues, I strongly and firmly believe that fundamental, far-reaching reform is necessary. 

The current recognition process has proven to be susceptible to improper influences of power, money and politics, documented by both the General Accounting Office (GAO), the Department of Interior’s Inspector General and our own experience 

in Connecticut. 

In a December, 2003 ruling involving the State of Connecticut, the BIA 

inexplicably reversed its preliminary decision to deny federal recognition to the 

Schaghticoke petitioner, . finding that the petitioner had met the seven criteria, despite the lack of any evidence to establish that the group met two of the mandatory 

criteria political autonomy and social community. This decision remained a mystery 

until several weeks ago, when an internal staff briefing paper was released publicly. 

The briefing paper created a road map as close to a smoking gun as we’ve seen for 

the agency to reverse its prior finding despite the lack of credible evidence meeting 

96

the seven standards for Indian recognition. I have attached that briefing paper to 

my testimony. 

The briefing paper sets forth options and seeks guidance from the Acting Assistant Secretary with respect to how to address two issues staff acknowledged were 

potentially fatal to the Schaghticoke petition: (1) little or no evidence of the petitioner’s political influence and authority, one of the mandatory regulatory criteria, 

for two substantial historical periods; and (2) serious problems associated with the 

internal fighting among the two factions of the group. 

With respect to the lack of evidence, the Office of Federal Acknowledgement 

(OFA) shows, by its owns words and analysis, its disregard for the legal standards 

and precedents as demonstrated by one of the four options posited by the OFA. OFA 

posits that one of the options is to: ‘‘Decline to acknowledge the Schaghticoke, based 

on the regulations , and existing precedent.’’ In. explaining this option, which the 

OFA and the Assistant Secretary rejected, the OFA explained: ‘‘Option 2 [declining 

to acknowledge the group] maintains the current interpretation of the regulations 

and established precedents concerning how continuous tribal existence is demonstrated.’’ In other words, declining to acknowledge the group means following the 

law. Yet, despite this clearly correct legal path, the BIA chose option 1, and acknowledged the petitioner by substituting state recognition in lieu of actual evidence 

for large periods of time. The BIA chose this option despite its own concession that 

it would create a ‘‘lesser standard.’’

This OFA briefing paper confirms that recognition of Schaghticoke petitioner required the BIA to disregard its own regulations and long accepted precedents, and 

to ‘‘revise,’’ yet again, its recent pronouncements on the meaning and import of the 

State’s relationship with the group, as well as ignore substantial gaps in the evidence. The BIA has now revised its view of the legal import of state recognition no 

less than four times in only two years. It has completely, unashamedly reversed the 

longstanding view that federal recognition could not be based on state recognition 

alone, moving to its present view that it alone can actually replace or substitute for 

evidence on critical and mandatory criteria. 

This deception is mirrored in our experience with other acknowledgment petitions. 

In the Eastern Pequot and Paucatuck Eastern petitions, the former head of the BIA 

unilaterally overturned staff findings that two Indian groups failed to provide evidence sufficient to meet several of the seven mandatory regulatory criteria. He also 

issued an illegal directive barring staff from conducting necessary independent research and prohibiting the BIA from considering information submitted after an arbitrary date regardless of whether the BIA’s review had begun without notice to interested parties in pending recognition cases. 

In June, 2002, the BIA issued a Final Determination recognizing a single Eastern 

Pequot tribe in Connecticut comprised of the Eastern Pequot and the Paucatuck 

Eastern Pequot groups, despite the fact that these groups had filed separate conflicting petitions for recognition. The two petitions were pending for years and contradicted each other. , In fact, in one of their last submissions, the Paucatuck 

Eastems argued vigorously that the Eastern Pequots did not submit adequate proof 

that they were an Indian Tribe. The Final Determination reflected substantial gaps 

in evidence in both tribal petitions, but the BIA distorted the relationship between 

the State of Connecticut and the Eastern Pequot group to bridge these gaps, contrary to the BIA’s own regulations. 

To make matters worse, shortly after the recognition decision was released and 

before the appeal could even be filed, top BIA officials held a private (ex parte) 

meeting with representatives of the Paucatuck Eastern and Eastern Pequot groups 

a secret session that seems improper under the rules. At the very least, the private 

meeting reinforces public perception that the recognition process is unfair and biased toward petitioning groups. 

In theory, present legal rules require any tribal group seeking federal recognition 

to meet seven distinct criteria aimed at proving the petitioning tribe’s continuous 

existence as a distinct community, ruled by a formal government, and descent from 

a historical tribe, among others. In practice, as the OFA briefing paper clearly demonstrates, the BIA’s political leaders have routinely distorted and disregarded these 

standards, misapplied evidence, and denied state and local governments a fair opportunity to be heard. 

Connecticut’s experience is not unique. In 2002, the GAO issued a report documenting significant flaws in the present system, including uncertainty and inconsistency in recent BIA recognition decisions and lack of adherence to the seven mandatory criteria. The GAO report also cited lengthy delays in the recognition process 

including inexcusable delays by the BIA in providing critical petition documents to 

interested parties like the states and surrounding towns. 

97

The United States Department of the Interior’s Office of the Inspector General 

also found numerous irregularities with the way in which the Bureau of Indian Affairs handled federal recognition decisions involving six petitioners. The report documents that the Assistant Secretary and Deputy Assistant Secretary either rewrote 

civil servant research staff reports or ordered the rewrite by the research staff so 

that petitioners that were recommended to be denied would be approved. The 

former Assistant Secretary himself admitted that ‘‘acknowledgment decisions are political’’ and later expressed concern that the huge amount of gaming money that is 

financially backing some petitions would lead to petitions being approved that 

should not be approved. Interestingly, he also advocated for reform of the current 

system. 

To date, the BIA has done nothing to cure these dramatic defects in the recognition process.. 

The impacts of federal recognition of an Indian tribe cannot be understated underscoring the urgent need for reform. A decision to acknowledge an Indian tribe has 

profound and irreversible effects on tribes, states, local communities and the public 

and in Connecticut’s experience greatly affects the quality of life in those communities living in close proximity to Indian reservations. Federal recognition creates 

a government-to-government relationship between the tribe and the federal government and makes the tribe a quasi-sovereign nation. A federally recognized tribe is 

entitled to certain privileges and immunities under federal law. They are exempt 

from most state and local laws and land use and environmental regulations. They 

enjoy immunity from suit. They may seek to expand their land base by pursuing 

land claims against private landowners, or seeking to place land into trust under 

the Indian Reorganization Act. They are insulated from many worker protection 

statutes relating, for example, to the minimum wage or collective bargaining protections as well as health and safety codes. 

Since the enactment of the Indian Gaming Regulatory Act (IGRA) more than a 

decade ago, federally recognized tribes may operate commercial gaming operations. 

This law has vastly increased the financial stakes involved in federal recognition. 

Several of the petitioning groups in Connecticut are reported to have been funded 

by gaming interests such as Lakes Gaming of Minnesota and some of the wealthiest 

businessmen in America. 

Connecticut has been particularly impacted by the federal recognition process. Although geographically one of the smallest states, Connecticut is home to two of the 

world’s largest and most profitable casinos within 15 miles of each other. We also 

have 12 other groups seeking recognition as federally recognized Indian tribes, most 

of whom have already indicated their intention to own and operate commercial gaming establishments. 

The enormity of the interests at stake make public confidence in the integrity and 

efficacy of recognition decisions all the more essential. Unfortunately, public respect 

and trust in the current process have completely evaporated. 

In addition, the BIA is admittedly overworked and understaffed, leading inevitably to lengthy delays in processing petitions and in providing essential documents 

to interested parties. Connecticut was forced to sue the BIA to obtain critical information necessary to respond to petitions—information, including petition documents 

the state was clearly entitled to under the FOIA. In some cases, the documents have 

not been provided until after the BIA has issued proposed findings in favor of recognition. 

Congress must act swiftly and strongly to reform the system and restore its credibility and public confidence. 

I wish to thank the committee for allowing me this opportunity to address this 

important issue and urge the committee’s further consideration of these proposals. 

[A letter submitted for the record by Benjamin Charley, Tribal 

Chairman, Dunlap Band of Mono Indians, follows:]

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92827.002
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[A letter submitted for the record by Laura Jones, Ph.D., Campus 

Archaeologist, Stanford University, Senior Scholar, The Carnegie 

Foundation, follows:]

Representative Richard Pombo, Chair 

U.S. House of Representatives 

Committee on Resources 

Washington, DC 20515

March 30, 2004

Dear Sir,

It has been my privilege to work with California Indian Tribes over the past twenty years in my career as a professional anthropologist. I support the equitable application of rigorous criteria for recognition and acknowledgment. I also believe in the 

rule of reason - when tribes invest years of effort producing substantial documentation they deserve a timely decision based on the facts of the case. What I have observed in my many years supporting the petition of the Muwekma Ohlone Tribe 

cannot be characterized as equitable, reasonable or timely review. 

As a scientist specializing in this area I can assure you that there is no doubt 

of the authenticity of this California Indian community, indeed they have received 

confirmation from the Bureau that they have demonstrated that they are a previously recognized tribe (the Verona Band). Stanford University has enjoyed a relationship with this community since our founding in 1891, and I know that many 

San Francisco Bay Area schools and colleges have benefited from the support of this 

community in our educational, research and cultural programs. It saddens me to 

witness the poor treatment of this California Indian Tribe by the acknowledgment 

process. The Muwekma Ohlone Tribe deserve federal acknowledgment without further bureaucratic delay. 

The Bureau of Indian Affairs has failed to act responsibly on this matter. While 

I congratulate on your efforts to reform the administrative process, justice requires 

a more speedy solution. I urge you to support the California Indian Bill as proposed 

by the Advisory Council on California Indian Policy. It is time to end the 100 year 

legacy of discrimination against California Indians by the Bureau of Indian Affairs.

Sincerely,

Laura Jones, Ph.D. 

Campus Archaeologist, Stanford University 

Senior Scholar, The Carnegie Foundation 


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[A statement submitted for the record by Nicholas H. Mullane, 

First Selectman, Town of North Stonington, Connecticut, follows:]

Statement submitted for the record by Nicholas H. Mullane, II,

First Selectman, Town of North Stonington, Connecticut 

Introduction 

Mr. Chairman and Members of the Committee, I am pleased to submit this testimony for your hearing today on the tribal acknowledgment process. I am Nicholas 

Mullane, First Selectman of North Stonington, Connecticut. I testify today also on 

behalf of Susan Mendenhall, Mayor of Ledyard, and Robert Congdon, First Selectman of Preston. 

As the First Selectman of North Stonington, a small town in Connecticut with a 

population of less than 5,000, I have experienced first-hand the problems presented 

by Federal Indian policy for local governments and communities. Although these 

problems arise under various issues, including trust land acquisition and Indian 

gaming, this testimony addresses only the tribal acknowledgment process. 

Reform of the federal acknowledgment process must occur if valid decisions are 

to be made. Acknowledgment decisions that are not the result of an objective and 

respected process will not have the credibility required for tribal and community interests to interact without conflict. In this regard, I want to commend Senators 

Dodd and Lieberman and Representatives Simmons, Shays, and Congresswoman 

Johnson, and our Attorney General, Richard Blumenthal, for their diligent efforts 

to achieve the necessary reforms. As the bipartisan nature of this political response 

demonstrates, the problems inherent in tribal acknowledgment and Indian gaming 

are serious and transcend political interests. Problems of this magnitude need to be 

addressed by Congress, and I ask for your Committee to support the efforts of our 

elected leaders to bring fairness, objectivity, and balance to the acknowledgment 

process. 

Acknowledgment and Indian Gaming 

Federal tribal acknowledgment, in too many cases, has become merely a front for 

wealthy financial backers motivated by the desire to build massive casino resorts 

or undertake other development in a way that would not be possible under State 

and local law. The New York Times featured this problem in a front-page article 

published just two days ago. Our Town is dealing with precisely this problem. Both 

of the petitioning groups in North Stonington—the Eastern Pequots and the 

Paucatuck Eastern Pequots—have backers who are interested in resort gaming. One 

of the backers is Donald Trump. These financiers have invested millions, actually 

tens of millions, of dollars in the effort to get these groups acknowledged so casinos 

can be opened, and they will stop at nothing to succeed. In fact, they have even resorted to suing each other out of the desire to control the profits that would result 

from a new Indian casino. 

The State of Connecticut has become fair game for Indian casinos, and the acknowledgment process has become the vehicle to advance this goal. For example, 

three other tribal groups (Golden Hill Paugussett, Nipmuc, Schaghticoke) with big 

financial backers have their eyes on Connecticut. Their petitions are under active 

acknowledgment review and the Schaghticoke have joined the two Pequot groups 

(now merged into one by BIA) in achieving a favorable decision from BIA. As many 

as ten other groups are in line. While it is unfortunate that the acknowledgment 

process and the understandable desire of these groups to achieve acknowledgment 

for personal and cultural reasons has been distorted by the pursuit of gaming 

wealth by non-Indian financiers, the reality remains that tribal recognition now, in 

many cases, equates with casino development. This development, in turn, has devastating impacts on states and local communities. Thus, the stakes are raised for 

every one. 

North Stonington has first-hand experience with the problems that result. In 

1983, the Mashantucket Pequot Tribe achieved recognition through an Act of Congress. This law, combined with the 1988 Indian Gaming Regulatory Act, ultimately 

produced the largest casino in the world. That casino has, in turn, caused serious 

negative impacts on our Towns, and the Tribe has not come forward to cooperate 

with us to address those problems. Having experienced the many adverse casino impacts, and understanding the debate over the legitimacy of the Mashantucket 

Pequot Tribe under the acknowledgment criteria, our Town wanted to assure ourselves that the recognition requests on behalf of the Eastern Pequot and Paucatuck 

Eastern Pequot groups were legitimate. As a result, we decided to conduct our own 

independent review of the petitions and participate in the acknowledgment process. 

It is worth noting that at no time has either petitioner come forward to present to 

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Town leaders any constructive proposal on how they will deal with our concerns if 

acknowledgment is conferred. Thus, the concerns that motivated our participation 

have been validated. 

The Eastern Pequot Acknowledgment Process 

The Towns of North Stonington, Ledyard, and Preston obtained interested party 

status in the BIA acknowledgment process. We participated in good faith to ensure 

that the Federal requirements are adhered to. Our involvement provides lessons 

that should inform federal reform initiatives. 

The issue of cost for local governments needs to be addressed. Our role cost our small rural towns over $600,000 in total over a seven-year period. This is a small 

fraction of the tens of millions of dollars invested by the backers of these groups, 

but a large sum for small local governments. The amount would have been much 

higher if Town citizens, and our consultants and attorneys had not generously donated much of their time. It has been said that the Eastern Pequot group alone has 

spent millions on their recognition, and that they spent $500,000 on one lobbyist 

for one year to provide them knowledge on ‘‘how Washington, D.C. operates.’’ This 

disparity in resources between interested parties and petitioners with gaming backers skews the process and must be addressed. 

The fairness of the process is another problem. We discovered that achieving interested party status was only the tip of the iceberg. One of our biggest problems 

in participating was simply getting the documents. Our Freedom of Information Act 

requests to BIA for the information necessary to comment on the petitions were not 

answered for 2 1/2 years. Only through the filing of a successful federal lawsuit 

were we able to obtain the basic information from BIA when they agreed to release 

the information and provide adequate time for us to respond. The other claims in 

that lawsuit remain pending. Thus, it was necessary for us to spend even more 

money just to get the Federal government to meet its clear duties. I trust you will 

agree with me that taxpayers should not have to pay money and go to court simply 

to participate in a federal process. 

We experienced many other problems. A pervasive problem has been the failure 

of the process to ensure adequate public review of the evidence and BIA’s findings. 

During the review of the Pequot petitions, the BIA experts initially recommended 

negative proposed findings on both groups. One of the reasons for the negative finding was that no determination could be made regarding the groups’ existence as 

tribes for the critical period of 1973 through the present. Under past BIA decisions, 

this deficiency alone should have resulted in negative findings. Despite this lack of 

evidence, the negative findings were simply overruled by the then BIA Assistant 

Secretary, Kevin Gover. Because BIA did not rule on the post-1973 period, interested parties never had an opportunity to comment. This was part of a pattern 

under the last Administration of reversing BIA staff to approve tribal acknowledgment petitions and shortchanging the public and interested parties. Moreover, with 

no notice to us, or opportunity to respond, BIA arbitrarily set a cut-off date for evidence that excluded 60% of the documents we submitted from ever being considered 

for the critical proposed finding. BIA never even told us about this deadline, although they did inform the petitioner groups. 

This problem occurred again with the final determination. In the final ruling, BIA 

concluded, in effect, that neither petitioner qualified under all of the seven criteria. 

Our independent analysis confirmed this conclusion. 

Nevertheless, after combining the two petitioners (over the petitioners’ own objections), considering new information submitted by the Eastern Pequot petitioning 

group, and improperly using State recognition to fill the gaps in the petitioners’ political and social continuity, BIA decided to acknowledge a single ‘‘Historical Pequot 

Tribe.’’ The Towns had no opportunity to comment on this ‘‘combined petitioner;’’ we 

had no opportunity to comment on the additional information provided by the Eastern Pequot petitioners; and we had no opportunity to comment on the critical post1973 period. Thus, the key assumptions and findings that were the linchpin of the 

BIA finding never received critical review or comment. These types of calculated actions have left it virtually impossible for the Towns to be constructively involved in 

these petitions, and they have caused great concern and distrust over the fairness 

and objectivity of the process. 

Another problem is bias and political interference. Throughout the acknowledgment review, we have continually found that politically-motivated judgment was 

being injected into fact-based decisions, past precedents were being disregarded, and 

rules were being instituted and retroactively applied, all without the Towns and 

State being properly notified and without proper opportunity for comment. A perfect 

example is the so-called ‘‘directive’’ issued by Mr. Gover on February 11, 2000, that 

fundamentally changed the rules of the acknowledgment process, including the 

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rights of interested parties. BIA never even solicited public input on this important 

rule; it simply issued it as an edict. This action is the subject of a lawsuit that will 

be argued by Attorney General Blumenthal in the near future. Yet another example 

is Mr. Gover’s overruling of BIA staff to issue positive proposed findings. The massive political interference in the acknowledgment process is discussed in the recent 

Department of the Interior Inspector General’s report, which I submit for the record. 

With the recent actions of the BIA, it is questionable that this agency can be an 

advocate for Native Americans and also an impartial judge for recognition petitions. 

An example is the action by Secretary McCaleb in his recent ‘‘private meeting’’ with 

representatives of the Eastern Pequot and Paucatuck Eastern Pequot petitioners to 

discuss the tribal merger BIA forced upon them. This ex parte meeting with the petitioners is highly inappropriate at a time when the 90-day regulatory period to file 

a request for reconsideration was still in effect. How can BIA be expected to rule 

objectively on an appeal that contests the existence of a single tribe when the decisionmaker is actively promoting that very result? 

Still another problem is the manner in which BIA addresses evidence and comment from interested parties. Simply put, BIA pays little attention to submissions 

from third parties. The Eastern Pequot findings are evidence of this. Rather than 

responding to comments from the State and the Towns, BIA just ruled that it disagrees, without explanation. 

Another example is the BIA cut-off date for evidence. BIA set this date for the 

proposed finding arbitrarily and told the petitioners. It never informed the Towns 

or the State. As a result, we continued to submit evidence and analyses, only to 

have it ignored because of this unannounced deadline. BIA said it would consider 

all of this evidence, but it did not. The final determination makes clear that important evidence submitted by the Towns never got considered for this reason. 

Thus, rather than our Town’s involvement being embraced by the federal government, we were rebuffed. The very fact of our involvement in the process, we feel, 

may have even prejudiced the final decision against us. The petitioning groups attacked us and sought to intimidate our researchers. The petitioning groups called 

us anti-Indian, racists, and accused us of committing genocide. The petitioners publicly accused me of ‘‘Nazism’’ just because our Town was playing its legally defined 

role as an interested party. At various times throughout the process, the tribal 

groups withheld documents from us or encouraged BIA to do so. Obviously, part of 

this strategy was that the petitioners just wanted to make it more expensive to participate, to intimidate us, and to drive the Towns out of the process. They took this 

approach, even though our only purpose for being involved was to ensure a fair and 

objective review, and to understand how a final decision was to be made. 

Finally, I would like to address the substance of the BIA finding on the Eastern 

Pequot petitions. Based upon an incorrect understanding of Connecticut history, 

BIA allowed the petitioners to fill huge gaps in evidence of tribal community and 

political authority, prerequisites for acknowledgment, by relying on the fact that 

Connecticut had set aside land for the Pequots and provided welfare services. These 

acts by the State of Connecticut, according to BIA, were sufficient to compensate 

for the major lack of evidence on community and political authority. By this artifice, 

along with the forced combination of two petitioners, BIA transformed negative findings into positive ones, with no basis in fact or law. 

Clearly, the past actions by Connecticut toward the later residents of the Pequot 

reservation did nothing to prove the existence of internal tribal community or political authority. These actions simply demonstrated actions by the State in the form 

of a welfare function. If BIA does not reject this principle now, it will give an unfair 

advantage not only to the Pequot petitioners but possibly to other Connecticut petitioning groups as well. 

BIA’s seriously flawed decision on the two Pequot petitions is now on appeal. 

Hopefully, the Interior Board of Indian Appeals will lend some semblance of objectivity and credibility to BIA’s acknowledgment process. Along with the State, we 

have provided compelling grounds to reverse the BIA final determination. 

Even under the appeal, the petitioners continue to try and bend the rules. They 

recently wrote to the IBIA asking for expedited treatment of these appeals. They 

made the astonishing claim that its members were being subjected to human misery, poor education, and inadequate housing while waiting for a decision. In the 

height of hypocrisy, they made no mention of one of the true motivations behind 

the push for tribal acknowledgment: the desire to promptly open another massive 

casino and generate huge sums of money for the financial backers. I can tell you 

that members of these groups attend the same schools as other children in our 

town, that some members are paid salaries by financial backers, and that the standard of living the experience, by and large, is comparable to that of many other residents of our small town. 

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The Schaghticoke Decision 

Recently, BIA issued a positive final determination for the Schaghticoke petitioner. This decision is another example of how biased and unfair the BIA acknowledgment process is. In this case, BIA even determined that the petitioner failed to 

meet the criteria. It issued an internal memorandum admitting this fact, which I 

attach to my testimony. Despite this obvious failure, BIA still issued a favorable result. To do so, it again invoked the same state reservation principle it used to push 

the two Pequot groups over the acknowledgment finish line. BIA made another 

flawed finding and assumption to further support the positive finding. It also misrepresented facts to interested parties and even went so far as to suggest that it 

could change the appeal rights of interested parties established by rule and against 

their wishes if a different process had been agreed to in negotiation in a 

Schaghticoke land claim lawsuit. 

While BIA was not successful in this effort, its track record of being prepared to 

violate its own regulations just to achieve results favorable to its own goals is now 

clear. Simply put, the acknowledgment process is in need of more than reform. It 

is time to start all over again, and to put all tribal acknowledgment requests on 

hold in the interim. 

Principles for Reform 

Based upon years of experience with the acknowledgment process, our Towns now 

have recommendations to make to Congress. 

As an initial matter, it is clear that Congress needs to define BIA’s role. Congress 

has plenary power over Indian affairs. Congress alone has the power to acknowledge 

tribes. That power has never been granted to BIA. The general authority BIA relies 

upon for this purpose is insufficient under our constitutional system. In addition, 

Congress has never articulated standards under which BIA can exercise acknowledgment power. Thus, BIA lacks the power to acknowledge tribes until Congress 

acts to delegate such authority properly and fully. Up until now, no party has had 

the need to challenge the constitutional underpinnings of BIA’s acknowledgment 

process, but we may be forced to do so because of the Eastern Pequot decisions. 

Second, the acknowledgment procedures are defective. They do not allow for an 

adequate role for interested parties, nor do they do ensure objective results. The 

process is inherently biased in favor of petitioners, especially those with financial 

backers. 

Third, the acknowledgment criteria are not rigorous enough. If the Eastern 

Pequot, Paucatuck Eastern Pequot, and Schaghticoke petitioner groups qualify for 

acknowledgment, then the criteria need to be strengthened. The bar has been set 

too low. 

Fourth, acknowledgment decisions cannot be entrusted to BIA. The agency’s actions are subject to political manipulation, as demonstrated by the report of the Department’s Inspector General detailing the abuses of the last Administration. Also, 

BAR itself will, in close cases, lean to favor the petitioner. The result-oriented 

Pequot and Schaghticoke final determinations are proof of this fact. For years we 

supported BAR and had faith in its integrity. Now that we have studied the Pequot 

and Schaghticoke decisions, we have come to see the bias inherent in having an 

agency charged with advancing the interests of Indian tribes make acknowledgment 

decisions. The Office of Federal Acknowledgment no longer has any credibility. Similar problems are likely to arise under an independent commission created for this 

purpose, unless checks and balances are imposed that ensure objectivity, fairness, 

full participation by interested parties, and the absence of political manipulation. 

Finally, because of all of these problems, it is clear that a moratorium on the review of acknowledgment petitions is needed. It makes no sense to allow such a defective procedure to continue to operate while major reform is underway. 

Conclusion 

Our Towns respectfully request that this Committee make solving the problems 

with the acknowledgment process one of its top priorities. A moratorium on processing petitions should be imposed while you do so. In taking this action, we urge 

you to solicit the views of interested parties, such as our Towns and State, and to 

incorporate our concerns into your reform efforts. Tribal acknowledgment affects all 

citizens of this country; it is not just an issue for Indian interests. 

We are confident that such a dialogue ultimately will result in a constitutionally 

valid, procedurally fair, objective, and substantively sound system for acknowledging 

the existence of legitimate Indian tribes under federal law. With the stakes so high 

for petitioners, existing tribes, state and local governments, and non-Indian residents of surrounding communities, it is necessary for all parties with an interest 

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in Indian policy to pursue this end result constructively. Ledyard, North Stonington, 

and Preston look forward to the opportunity to participate in such a process. 

Thank you for considering this testimony. 

[NOTE: Attachments to Mr. Mullane’s statement have been retained in the 

Committee’s official files.] 

[A letter submitted for the record by the Towns of Ledyard, 

North Stonington, and Preston, Connecticut, follows:

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