39–006

108TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 2d Session 108–788

TO REQUIRE THE PROMPT REVIEW BY THE SECRETARY OF THE INTERIOR 

OF THE LONG-STANDING PETITIONS FOR FEDERAL RECOGNITION OF 

CERTAIN INDIAN TRIBES, AND FOR OTHER PURPOSES 

NOVEMBER 19, 2004.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. POMBO, from the Committee on Resources, 

submitted the following 

R E P O R T 

[To accompany H.R. 5134] 

[Including cost estimate of the Congressional Budget Office]

The Committee on Resources, to whom was referred the bill 

(H.R. 5134) to require the prompt review by the Secretary of the 

Interior of the long-standing petitions for Federal recognition of 

certain Indian tribes, and for other purposes, having considered the 

same, report favorably thereon with an amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following:

SECTION 1. PROMPT CONSIDERATION OF CERTAIN PETITIONS REQUESTING FEDERAL RECOGNITION AS AN INDIAN TRIBE. 

(a) TIME PERIOD FOR PROPOSED FINDING.—Not later than 6 months after the date 

of the enactment of this Act, the Secretary shall publish a proposed finding with 

respect to the petition for Federal recognition of each eligible tribe consistent with 

part 83 of title 25, Code of Federal Regulations. 

(b) TIME PERIOD FOR FINAL DETERMINATION.—Not later than one year after the 

date of the enactment of this Act, the Secretary shall publish a final determination 

with respect to the petition for Federal recognition of each eligible tribe. 

(c) NOTIFICATION; OPT IN.—

(1) NOTIFICATION OF TRIBES.—Not later than 45 days after the date of the enactment of this Act, the Secretary shall notify, in writing, all potentially eligible 

tribes that they may opt into the expedited procedure for proposed findings and 

final determinations under this Act and of the provisions of paragraph (2). 

(2) OPT IN.—If, not later than 90 days after the date of the enactment of this 

Act, a potentially eligible tribe notifies the Secretary, in writing, that the potentially eligible tribe elects to opt into the expedited procedures under this Act, 

the potentially eligible tribe shall be considered an eligible tribe for the purposes of this Act. Potentially eligible tribes shall not be considered eligible 

tribes for the purposes of this Act if notification is not made by the potentially 

eligible tribe in accordance with this paragraph. 

(d) NUMBER OF MEMBERS NOT A FACTOR.—The number of persons listed on the 

membership roll contained in a petition for Federal recognition of an eligible tribe 

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shall not be taken into account in considering the petition, except that the Secretary 

may review the eligibility of individual members or groups listed in a petition in 

accordance with the provisions of part 83 of title 25, Code of Federal Regulations. 

(e) EFFECT OF FAILURE TO COMPLY.—If the Secretary fails to publish a proposed 

finding required by subsection (a) or a final determination required by subsection 

(b) by the end of the time period required for the proposed finding or final determination by such subsections, the relevant eligible tribe may seek in the appropriate 

United States district court a determination by the court of whether the eligible 

tribe should be recognized as an Indian tribe in accordance with the criteria specified in section 83.7 of title 25, Code of Federal Regulations. In any such action, the 

court shall treat such failure by the Secretary as final agency action. 

(f) REVIEW OF ADVERSE DECISION.—If the final determination required by subsection (b) refuses to recognize the eligible tribe as an Indian tribe, the eligible tribe 

may seek, during the one-year period beginning on the date on which the final determination is published, a review of the determination in the appropriate United 

States district court, notwithstanding the availability of other administrative remedies. 

(g) CONSIDERATION OF OTHER PETITIONS.—Until the Secretary has published a 

proposed finding with respect to the petition of each eligible tribe as required under 

subsection (a), no other petition for recognition as an Indian tribe may be processed 

except those listed as having a status of ‘‘Active’’ or ‘‘In Post-Final Decision Appeal 

Process’’ by the Department of the Interior on July 1, 2004. 

(h) NO CHANGE IN CRITERIA.—Nothing in this Act shall be construed to change 

the criteria established by the Department of the Interior to determine whether or 

not a petitioner meets the requirements to be a federally recognized tribe. 

(i) DEFINITIONS.—For the purposes of this Act, the following definitions apply: 

(1) ELIGIBLE TRIBE.—The term ‘‘eligible tribe’’ means a tribe that—

(A) has made an initial application for recognition as an Indian tribe to 

the Department of the Interior before October 17, 1988; 

(B) is listed as having a status of ‘‘Ready, Waiting for Active Consideration’’ by the Department of the Interior on July 1, 2004; and 

(C) not later than 90 days after the date of the enactment of this Act, 

notifies the Secretary, in writing, that it opts to have its petition for recognition as an Indian tribe considered under the expedited procedure for 

proposed findings and final determinations under this Act. 

(2) POTENTIALLY ELIGIBLE TRIBE.—The term ‘‘potentially eligible tribe’’ means 

a tribe that—

(A) has made an initial application for recognition as an Indian tribe to 

the Department of the Interior before October 17, 1988; 

(B) is listed as having a status of ‘‘Ready, Waiting for Active Consideration’’ by the Department of the Interior on July 1, 2004; and 

(C) has not notified the Secretary, in writing, whether or not it opts to 

have its petition for recognition as an Indian tribe considered under the expedited procedure for proposed findings and final determinations under this 

Act. 

(3) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior, or 

a designee of the Secretary.

PURPOSE OF THE BILL

The purpose of H.R. 5134 is to require the prompt review by the 

Secretary of the Interior of the long-standing petitions for federal 

recognition of certain Indian tribes, and for other purposes. 

BACKGROUND AND NEED FOR LEGISLATION

H.R. 5134 seeks to require the Department of the Interior to give 

a more timely response to certain petitions for federal recognition 

of Native American Indians as tribes. It prioritizes Departmental 

resources for acknowledgment and recognition to first be used to 

process long-standing petitions that were submitted before the enactment of the Indian Gaming Regulatory Act, and have yet to be 

processed. The bill in no way changes the existing criteria that determine whether a tribe qualifies to be federally recognized. 

The decision by the United States government to grant federal 

recognition to an Indian tribe is the cornerstone of the governmentVerDate jul 14 2003 01:18 Dec 01, 2004 Jkt 039006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR788.XXX HR788
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to-government relationship between the federal government and 

America’s Indian Nation. Only federally-recognized tribes have inherent sovereignty and a unique government-to-government relationship with the United States, as well as many other rights and 

benefits. It is a very important and serious status. 

When the process of acknowledgment and recognition was established at the Department of the Interior, it was widely believed 

that the process of verifying the accuracy of a petition by a tribe 

for recognition and whether a tribe met standards for federal recognition would be a thorough but reasonably quick process. According to a January 9, 1977, Department of the Interior memorandum 

prepared for the Assistant Secretary of Indian Affairs by the Director of the Office of Indian Services, the Department estimated the 

completion time for an average petition at 195 days, with the potential of reducing this period to 150 days with changes in the regulations prior to finalization. The memo further estimated that 

each staff member could handle four to six petitions concurrently, 

and at maximum effort, the Department could process 96 petitions 

a year. 

Obviously these goals set forth by the Department in 1977 have 

come nowhere near being realized. Many petitioning tribes have 

waited decades to go through the process, literally seeing generations of elders pass away while still receiving no answer to their 

petition. The current list of petitioners has tribes that first applied 

back in the early 1970s, before the process for recognition had even 

been finalized. Many of these petitioners are still awaiting their answer. Even more discouraging to them is the fact that other tribes 

who did not even make their first application until the late 1990s 

have already completed the process and have received decisions on 

their recognition. 

The Committee held a hearing on March 31, 2004, on the tribal 

recognition process. At this hearing, the Director of the Office of 

Federal Acknowledgment within the Office of the Assistant Secretary of Indian Affairs testified that there were currently 13 fully 

documented petitions that were ready and awaiting active consideration by the Department. In the nearly six months that have 

passed since that hearing, not a single one of the groups that was 

deemed ready for consideration has moved forward or received a 

determination. Thus, a tribe such as the St. Francis Abenaki of 

Vermont, which first applied for recognition on June 14, 1983, and 

was deemed ready for consideration on January 17, 1996, continues 

to make no headway towards receiving a determination on their petition. Other witnesses testified how their tribes had waited decades for an answer and had to resort to extraordinary tactics such 

as litigation against the Department or seeking legislative recognition to break out of the gridlock of the process. 

As ordered favorably reported from the Committee on Resources, 

H.R. 5134 will address the plight of these and other applicants who 

have had long-standing completed petitions that have yet to be 

processed by the Department. It will provide that a tribe that made 

its initial application for recognition prior to October 17, 1988, and 

whose petition was determined to be ready and waiting consideration by the Department as of July 1, 2004, be eligible for expedited review. Using these criteria, 10 of the 13 aforementioned 

tribes will be eligible to finally get a ‘‘yes’’ or ‘‘no’’ decision. This 

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expedited review mandates that the Secretary must make a proposed finding for each eligible petitioner no later than 6 months 

after enactment, and a final determination no later than one year 

after enactment. Failure by the Secretary to meet these deadlines 

shall be deemed a negative final agency action and shall allow the 

petitioner to seek in United States district court a determination 

of whether they meet the Department’s criteria for recognition as 

an Indian tribe. Any eligible tribe which chooses to participate in 

this review must opt in. Furthermore, H.R. 5134 clarifies that 

nothing in the bill modifies in any way the criteria by which a petitioner is judged to qualify as a tribe. 

COMMTTEE ACTION

H.R. 5134 was introduced on September 23, 2004, by Resources 

Committee Chairman Richard Pombo (R–CA). The bill was referred 

to the Committee on Resources. No hearing was held on the bill. 

On September 29, 2004, the Full Resources Committee met to consider the bill. Chairman Pombo offered an amendment in the nature of a substitute. The amendment changed the participation 

process of eligible tribes from an opt-out process to an opt-in process. The time period for these processes was extended to 45 days 

from enactment for the Secretary to notify petitioners of their eligibility, and 90 days from enactment for the petitioners to opt in. 

The amendment also deemed failure to act by the Secretary as 

final agency action. It was adopted by voice vote. The bill as 

amended was then ordered favorably reported to the House of Representatives by voice vote. 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on Resources’ oversight findings and recommendations are reflected in 

the body of this report. 

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States 

grants Congress the authority to enact this bill. 

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. 

2. Congressional Budget Act. As required by clause 3(c)(2) of rule 

XIII of the Rules of the House of Representatives and section 

308(a) of the Congressional Budget Act of 1974, this bill does not 

contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures. 

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3. General Performance Goals and Objectives. This bill does not 

authorize funding and therefore, clause 3(c)(4) of rule XIII of the 

Rules of the House of Representatives does not apply. 

4. Congressional Budget Office Cost Estimate. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office:

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, November 18, 2004. 

Hon. RICHARD W. POMBO, Chairman, Committee on Resources, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 5134, a bill to require the 

prompt review by the Secretary of the Interior of the long-standing 

petitions for federal recognition of certain Indian tribes, and for 

other purposes. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mike Waters. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN, Director.

Enclosure. 

H.R. 5134—A bill to require the prompt review by the Secretary of 

the Interior of the long-standing petitions for federal recognition 

of certain Indian tribes, and for other purposes 

Summary: H.R. 5134 would require the Department of the Interior (DOI) to process and settle certain petitions for official recognition of Indian groups by the federal government. The bill would 

mandate that the department respond to all 10 eligible petitions 

within one year of its enactment. Based on information from the 

Office of Federal Acknowledgement (OFA), CBO expects that current staff of this office is insufficient to meet that deadline. Assuming that the department hires enough new staff to respond to all 

eligible petitions as rapidly as feasible, COB estimates that implementing H.R. 5134 would cost $12 million over the 2005–2009 period, subject to appropriation of the necessary amounts. 

H.R. 5134 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would impose no costs on state, local, or tribal governments. 

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 5134 is shown in the following table. The costs 

of this legislation fall within budget function 450 (community and 

regional development).

By fiscal year, in millions of dollars—

2005 2006 2007 2008 2009

CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level ...................................................................... 2 5 5 0 0

Estimated Outlays ......................................................................................... 2 5 5 0 0

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Basis of estimate: For this estimate, CBO assumes that the bill 

will be enacted near the beginning of 2005 and that DOI would attempt to comply with the deadlines in the bill. 

Indian tribes may currently be recognized by the federal government through an act of Congress, DOI administrative procedure, or 

a decision by a United States court. The usual route to federal recognition is through DOI’s administrative process. Federal recognition of an Indian group entitles the group to participate in programs operated for the benefit of Indians mostly by the Bureau of 

Indian Affairs (BIA) within DOI. It also creates a government-togovernment relationship between the tribe and the federal government. 

Administrative federal recognition 

Numerous tribes are currently at various stages in the administrative process to petition for federal recognition. Ten of those petitions would be covered by the provisions of this bill and would each 

require both a proposed finding and a final determination of the 

group’s status. 

Regulations governing the federal acknowledgment process require a minimum comment period of at least eight months following delivery of a proposed finding. After that, they allow the department 60 days to issue a final determination. Within BIA, OFA 

reviews and recommends findings on petitions by interested Indian 

groups for federal recognition. The office currently employs 11 staff 

members, including three teams of petition researchers, and has recently issued finding at a rate of roughly two proposed findings and 

three final determinations per year. 

H.R. would require DOI to complete all proposed findings within 

six months of enactment and to complete all final destinations 

within one year. Because the current regulations require eight 

months between delivery of a proposed finding and preparation of 

a final destination, CBO expects that the department probably 

would be unable to comply with the deadlines in the bill even with 

additional resources. In that event, the affected tribes could pursue 

judicial recognition as they may under current law. 

To properly evaluate the 10 petitions as expeditiously as possible, 

the department would need additional personnel. (Such personnel 

might be a combination of federal and contractor employees.) Based 

on information from DOI, CBO estimates that OFA would need the 

equivalent of about 60 personnel for roughly a two-year period to 

process all eligible petitions. CBO estimates that the additional 

staff would cost $12 million over the 2005–2007 period, subject to 

appropriation of the necessary amounts. 

Intergovernmental and private-sector impact: H.R. 5134 contains 

no intergovernmental or private-sector mandates as defined in 

UMRA and would impose no costs on state, local, or tribal governments. 

Estimate prepared by: Federal Costs: Mike Waters. Impact on 

State, Local, and Tribal Governments: Marjorie Miller. Impact on 

the Private Sector: Selena Caldera. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

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COMPLIANCE WITH PUBLIC LAW 104–4

This bill contains no unfunded mandates. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW

If enacted, this bill would make no changes in existing law.

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