```

[House Report 108-788]
[From the U.S. Government Publishing Office]

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 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 government-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 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.
    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
----------------------------------------------------------------------------------------------------------------

    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-to-government 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.

                    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.

                                  

```