U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

93–280 PDF 2004

S. HRG. 108–534

FEDERAL ACKNOWLEDGMENT PROCESS REFORM

ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

S. 297

TO PROVIDE REFORMS AND RESOURCES TO THE BUREAU OF INDIAN

AFFAIRS TO IMPROVE THE FEDERAL ACKNOWLEDGMENT PROCESS

APRIL 21, 2004

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 297, text of ........................................................................................................... 3

Statements:

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, chairman,

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

Fleming, Lee, director, Office of Federal Acknowledgement, BIA, Department of the Interior ...................................................................................... 48

Gover, Kevin, professor of law, Arizona State University College of Law ... 54

Martin, Aurene, principal deputy assistant secretary-Indian Affairs, Department of the Interior ............................................................................... 48

McCaleb, Neal, board member, Chickasaw Nation Industries ..................... 52

Roybal, Edward, chairman, Piro Manso Tiwa Tribe, New Mexico ............... 51

APPENDIX

Prepared statements:

Gover, Kevin ..................................................................................................... 68

Hawk, Chief Quiet, Golden Hill Indians, Paugussett Nation (with attachment) .............................................................................................................. 85

Martin, Aurene (with attachment) .................................................................. 72

McCaleb, Neal ................................................................................................... 67

Mullane, II, Nicholas H., first selectman, Town of North Stonington,

CT (with attachment) ................................................................................... 95

Roybal, II, Edward (with attachment) ............................................................ 127

Additional material submitted for the record:

Letter from Senators Dodd and Lieberman ................................................... 139

CRS Report for Congress, M. Maureen Murphy, legislative attorney,

American Law Division ................................................................................ 141

Summary Status of Acknowledgment Cases .................................................. 146

Memorandum, Roger Walke, specialist, American National Government,

Domestic Social Policy Division (with attachment) .................................... 161

(1)

FEDERAL ACKNOWLEDGMENT PROCESS

REFORM ACT

WEDNESDAY, APRIL 21, 2004

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 9:34 a.m. in room 106,

Dirksen Senate Building, Hon. Ben Nighthorse Campbell (chairman of the committee) presiding.

Present: Senators Campbell, Akaka, Inouye, and Thomas.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.

SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON

INDIAN AFFAIRS

The CHAIRMAN. The meeting is called on S. 297, a bill I introduced in February 2003 to reform the Federal acknowledgment

process. That is the process by which the United States formally

recognizes an Indian group to be an Indian tribe.

Over the past 8 years I have introduced several reform bills. In

fact, I have had a great deal of input not only from tribes, but from

the Administration, too, on the complicated system that we now

have and the inequities of it, too. We have had numerous oversight

and legislative hearings in an effort to fix what most people admit

is badly broken.

The bill before us does not liberalize the criteria that Indian petitioners must meet. The bill creates an independent review and advisory board to advise the Assistant Secretary in his consideration

of a petition for recognition. Second, it creates a Federal acknowledgment research pilot project to bring badly needed research resources to the backlog of petitions and stops the ‘‘document-churning’’ by making the Freedom of Information Act inapplicable until

a fully documented petition has been submitted by the petitioner.

Before we start, I would like to say that I find the Department’s

testimony on this bill unhelpful and not very responsive to the

main initiatives that were contained in it, but we will be hearing

from them shortly.

I introduced S. 297 to try to find new and creative ways to help

the BAR and the Department do what we all agree is a very, very

difficult task. We have heard that from a number of Secretaries

and Assistant Secretaries, too, over the years. In fact, it has always

put them in a very difficult position, too. The Department has not

responded very well so far, and I find that somewhat disappointing.
2

Senator Thomas, did you have any comments on this?

Senator THOMAS. I do not have comments, Mr. Chairman.

[Text of S. 297 follows:]
3

1

II

108TH CONGRESS

1ST SESSION S. 297

To provide reforms and resources to the Bureau of Indian Affairs to improve

the Federal acknowledgment process, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 4, 2003

Mr. CAMPBELL introduced the following bill; which was read twice and

referred to the Committee on Indian Affairs

A BILL

To provide reforms and resources to the Bureau of Indian

Affairs to improve the Federal acknowledgment process,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Federal Acknowledg5 ment Process Reform Act of 2003’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress finds that—

8 (1) Indian tribes were sovereign governmental

9 entities before the establishment of the United

10 States;
4

2

•S 297 IS

1 (2) the United States has entered into and rati2 fied treaties with many Indian tribes for the purpose

3 of establishing government-to-government relation4 ships between the United States and the Indian

5 tribes;

6 (3) Federal court decisions have recognized the

7 constitutional power of Congress to establish govern8 ment-to-government relationships with Indian tribes;

9 (4) in 1970, President Nixon ended the termi10 nation policy and inaugurated the policy of Indian

11 self-determination;

12 (5) in 1978—

13 (A) the Secretary of the Interior delegated

14 authority to the Assistant Secretary for Indian

15 Affairs to establish a formal process by which

16 the United States acknowledges an Indian tribe;

17 and

18 (B) the Bureau of Indian Affairs estab19 lished the Branch of Acknowledgment and Re20 search to carry out the Federal acknowledg21 ment process; and

22 (6) the Federal acknowledgment process was in23 tended to provide the Assistant Secretary with an in24 formed and well-researched basis for making any de25 cision to acknowledge an Indian tribe.
5

3

•S 297 IS

1 (b) PURPOSES.—The purposes of this Act are—

2 (1) to ensure that, in any case in which the

3 United States acknowledges an Indian tribe, it does

4 so with a consistent legal, factual, and historical

5 basis;

6 (2) to provide clear and consistent standards to

7 review documented petitions for acknowledgment;

8 and

9 (3) to clarify evidentiary standards and expedite

10 the administrative review process for petitions by—

11 (A) establishing deadlines for decisions;

12 and

13 (B) providing adequate resources to proc14 ess petitions.

15 SEC. 3. DEFINITIONS.

16 In this Act:

17 (1) ACKNOWLEDGMENT.—The term ‘‘acknowl18 edgment’’, with respect to a determination by the

19 Assistant Secretary, means acknowledgment by the

20 United States that—

21 (A) an Indian group is an Indian tribe

22 having a government-to-government relationship

23 with the United States; and

24 (B) the members of the Indian group are

25 eligible for the programs and services provided
6

4

•S 297 IS

1 by the United States to members of Indian

2 tribes because of the status of those members

3 as Indians.

4 (2) ASSISTANT SECRETARY.—The term ‘‘Assist5 ant Secretary’’ means the Assistant Secretary for

6 Indian Affairs of the Department.

7 (3) AUTONOMOUS.—The term ‘‘autonomous’’,

8 with respect to an Indian group and in the context

9 of the history, geography, culture, and social organi10 zation of the Indian group, means an Indian group

11 that exercises the political influence or authority of

12 the Indian group independently of the control of any

13 other Indian group.

14 (4) BOARD.—The term ‘‘Board’’ means the

15 Independent Review and Advisory Board established

16 under section 6(a).

17 (5) BUREAU.—The term ‘‘Bureau’’ means the

18 Bureau of Indian Affairs.

19 (6) COMMUNITY.—The term ‘‘community’’

20 means any group of people living within a particular

21 area that, in the context of the history, culture, and

22 social organization of the group, and taking into ac23 count the geography of the region in which the

24 group is located, is able to demonstrate that—
7

5

•S 297 IS

1 (A) consistent interactions and significant

2 social relationships exist within the member3 ship; and

4 (B) the members of the group are differen5 tiated from and identified as distinct from non6 members.

7 (7) CONTINUOUS.—With respect to the history

8 of a group, the term ‘‘continuous’’ means the period

9 beginning with calendar year 1900 and continuing to

10 the present time substantially without interruption.

11 (8) DEPARTMENT.—The term ‘‘Department’’

12 means the Department of the Interior.

13 (9) DOCUMENTED PETITION.—The term ‘‘docu14 mented petition’’ means a petition for acknowledg15 ment consisting of a detailed, factual exposition and

16 arguments, and related documentary evidence, that

17 specifically address requirements for acknowledg18 ment established by the Assistant Secretary under

19 section 4(b).

20 (10) HISTORICAL PERIOD.—The term ‘‘histori21 cal period’’ means the period beginning with 1900

22 and continuing through the date of submission of a

23 petition for acknowledgment under this Act.

24 (11) HISTORY.—The term ‘‘history’’, with re25 spect to an Indian group or Indian tribe, means the
8

6

•S 297 IS

1 existence of the Indian group or Indian tribe during

2 the historical period.

3 (12) INDEPENDENT RESEARCH INSTITUTION.—

4 The term ‘‘independent research institution’’ means

5 an academic or museum institution that—

6 (A) employs significant resources toward

7 the study of anthropology and other human

8 sciences that are commonly used in reviewing

9 petitions for acknowledgment; and

10 (B) could readily detail those resources to

11 assist the Assistant Secretary in reviewing

12 those petitions.

13 (13) INDIAN GROUP.—The term ‘‘Indian

14 group’’ means any Indian band, pueblo, village, or

15 community that is not acknowledged.

16 (14) INDIAN TRIBE.—The term ‘‘Indian tribe’’

17 has the meaning given the term in section 4 of the

18 Indian Self-Determination and Education Assistance

19 Act (25 U.S.C. 450b).

20 (15) INTERESTED PARTY.—

21 (A) IN GENERAL.—The term ‘‘interested

22 party’’ means any person, organization, or

23 other entity that—
9

7

•S 297 IS

1 (i) establishes a legal, factual, or

2 property interest in a determination of ac3 knowledgment; and

4 (ii) requests an opportunity to submit

5 comments or evidence, or to be kept in6 formed of general actions, regarding a spe7 cific petition.

8 (B) INCLUSIONS.—The term ‘‘interested

9 party’’ includes—

10 (i) the Governor of any State;

11 (ii) the Attorney General of any State;

12 (iii) any unit of local government; and

13 (iv) any Indian tribe, or Indian group,

14 that may be directly affected by a deter15 mination of acknowledgment.

16 (16) LETTER OF INTENT.—The term ‘‘letter of

17 intent’’ means an undocumented letter or resolution

18 that—

19 (A) indicates the intent of an Indian group

20 to submit a documented petition for Federal ac21 knowledgment;

22 (B) is dated and signed by the governing

23 body of the Indian group; and

24 (C) is submitted to the Department.
10

8

•S 297 IS

1 (17) PETITIONER.—The term ‘‘petitioner’’

2 means any Indian group that submits a letter of in3 tent to the Assistant Secretary.

4 (18) PILOT PROJECT.—The term ‘‘pilot

5 project’’ means the Federal acknowledgment re6 search pilot project established under section 6(c).

7 (19) POLITICAL INFLUENCE OR AUTHORITY.—

8 The term ‘‘political influence or authority’’, with re9 spect to the exercise or maintenance by an Indian

10 group, means the use by the Indian group of a tribal

11 council, leadership, internal process, or other mecha12 nism, in the context of the history, culture, and so13 cial organization of the Indian group, as a means

14 of—

15 (A) influencing or controlling the behavior

16 of members of the Indian group in a significant

17 manner;

18 (B) making decisions for the Indian group

19 that substantially affect members of the Indian

20 group; or

21 (C) representing the Indian group in deal22 ing with nonmembers in matters of consequence

23 to the Indian group.

24 (20) SECRETARY.—The term ‘‘Secretary’’

25 means the Secretary of the Interior.
11

9

•S 297 IS

1 (21) TREATY.—The term ‘‘treaty’’ means any

2 treaty—

3 (A) negotiated and ratified by the United

4 States on or before March 3, 1871, with, or on

5 behalf of, any Indian group or Indian tribe;

6 (B) made by any government with, or on

7 behalf of, any Indian group or Indian tribe, as

8 a result of which the Federal Government or

9 the colonial government that was the prede10 cessor to the Federal Government subsequently

11 acquired territory by purchase, conquest, annex12 ation, or cession; or

13 (C) negotiated by the United States with,

14 or on behalf of, any Indian group in California,

15 regardless of whether the treaty was subse16 quently ratified.

17 (22) TRIBAL ROLL.—The term ‘‘tribal roll’’

18 means a list exclusively of individuals who—

19 (A)(i) have been determined by an Indian

20 tribe to meet the membership requirements of

21 the Indian tribe, as described in the governing

22 document of the Indian tribe; or

23 (ii) in the absence of a governing document

24 that describes those requirements, have been
12

10

•S 297 IS

1 recognized as members of the Indian tribe by

2 the governing body of the Indian tribe; and

3 (B) have affirmatively demonstrated con4 sent to being listed as members of the Indian

5 tribe.

6 SEC. 4. ACKNOWLEDGMENT PROCESS.

7 (a) LETTER OF INTENT.—

8 (1) IN GENERAL.—An Indian group that de9 sires to initiate with the Department a petition for

10 acknowledgment shall submit to the Assistant Sec11 retary a letter of intent that provides to the Assist12 ant Secretary relevant information concerning the

13 Indian group that may be used to provide notice to

14 interested parties.

15 (2) CONTENTS.—The Indian group shall in16 clude in the letter of intent, to the maximum extent

17 practicable—

18 (A) the current name of the Indian group

19 and any name by which the Indian group may

20 have been identified throughout the history of

21 the Indian group;

22 (B) the 1 or more names of the governing

23 body of the Indian group;

24 (C) the current address of the governing

25 body of the Indian group; and
13

11

•S 297 IS

1 (D) a brief narrative of the history of the

2 Indian group describing—

3 (i) the geographic areas in which the

4 Indian group may have been located dur5 ing that history; and

6 (ii) any relationships of the Indian

7 group with other Indian tribes or Indian

8 groups.

9 (3) NOTICE.—Not later than 90 days after the

10 date of receipt of a letter of intent from an Indian

11 group, the Assistant Secretary shall notify the In12 dian group and interested parties whether the letter

13 of intent reasonably identifies the Indian group.

14 (b) REQUIREMENTS FOR PETITIONS.—

15 (1) EVIDENCE.—

16 (A) IN GENERAL.—Except as provided in

17 paragraph (2), on or after filing a letter of in18 tent, an Indian group that seeks acknowledg19 ment shall submit to the Assistant Secretary a

20 petition accompanied by evidence that dem21 onstrates the existence of the Indian group dur22 ing the historical period.

23 (B) EVIDENCE RELATING TO HISTORICAL

24 EXISTENCE.—To establish the existence of an

25 Indian group during the historical period, a pe-
14

12

•S 297 IS

1 tition shall include evidence that demonstrates

2 with reasonable likelihood that each factor de3 scribed in section 5 with respect to the petition

4 has been achieved by the petitioner.

5 (C) ACCESS TO LIBRARY OF CONGRESS

6 AND NATIONAL ARCHIVES.—On request by a

7 petitioner, the appropriate officials of the Li8 brary of Congress and the National Archives

9 shall permit access by the petitioner to the re10 sources, records, and documents relating to the

11 petitioner for the purposes of conducting re12 search and preparing evidence concerning the

13 status of the petitioner.

14 (2) INELIGIBLE GROUPS AND ENTITIES.—The

15 following groups and entities shall not be eligible to

16 submit to the Assistant Secretary a petition for ac17 knowledgment under this Act:

18 (A) Any Indian tribe, organized band,

19 pueblo, community, or Alaska Native entity

20 that, as of the date of enactment of this Act,

21 is acknowledged.

22 (B) Any Indian group, political faction, or

23 community that separates from the main popu24 lation of an Indian tribe, unless the Indian

25 group, faction, or community establishes to the
15

13

•S 297 IS

1 satisfaction of the Assistant Secretary that the

2 Indian group, political faction, or community

3 has functioned as an autonomous Indian group

4 throughout the historical period.

5 (C) Any Indian group, or successor in in6 terest of an Indian group (other than an Indian

7 tribe, organized band, pueblo, community, or

8 Alaska native entity described in subparagraph

9 (A)), that, before the date of enactment of this

10 Act, in accordance with regulations promul11 gated by the Secretary, petitioned for, and was

12 denied or refused, acknowledgment based on

13 the merits of the petition (except that nothing

14 in this subparagraph excludes any group that

15 Congress has identified as an Indian group but

16 has not identified as an Indian tribe).

17 (D) Any Indian group the relationship of

18 which with the Federal Government was ex19 pressly terminated by an Act of Congress.

20 (c) NOTICE OF RECEIPT OF A PETITION; SCHED21 ULE.—

22 (1) PUBLICATION.—

23 (A) IN GENERAL.—Not later than 30 days

24 after the date on which the Assistant Secretary

25 receives a documented petition under subsection
16

14

•S 297 IS

1 (b), the Assistant Secretary shall publish in the

2 Federal Register a notice of receipt of the peti3 tion.

4 (B) INCLUSIONS.—The notice shall

5 include—

6 (i) the name and location of the peti7 tioner;

8 (ii) such other information as the As9 sistant Secretary determines will identify

10 the petitioner;

11 (iii) the date of receipt of the petition;

12 (iv) information describing 1 or more

13 locations at which a copy of the petition

14 and related submissions may be examined

15 by the public; and

16 (v) a description of the procedure by

17 which an interested party may submit—

18 (I) evidence in support of or in

19 opposition to the request of the peti20 tioner for acknowledgment; or

21 (II) a request to be kept in22 formed of all actions affecting the pe23 tition.

24 (2) SCHEDULE.—Not later than 60 days after

25 the date of publication of a notice under paragraph
17

15

•S 297 IS

1 (1)(A), the Assistant Secretary shall establish a

2 schedule for—

3 (A) the submission of evidence and argu4 ments relating to the petition; and

5 (B) the publication of proposed findings of

6 the Assistant Secretary with respect to the peti7 tion.

8 (d) REVIEW OF PETITIONS.—

9 (1) IN GENERAL.—On receipt of a documented

10 petition, the Assistant Secretary, in accordance with

11 the schedule established under subsection (c)(2),

12 shall—

13 (A) conduct a review to determine whether

14 the petitioner is entitled to acknowledgment;

15 and

16 (B) publish in the Federal Register the

17 proposed findings of the Assistant Secretary

18 with respect to that determination.

19 (2) CONTENT OF REVIEW.—The review con20 ducted under paragraph (1) shall include consider21 ation of—

22 (A) the petition;

23 (B) any supporting evidence; and

24 (C) any factual statements contained in

25 the petition relating to other submissions, in-
18

16

•S 297 IS

1 cluding oral accounts of the history of the peti2 tioner submitted by the petitioner.

3 (3) CONSIDERATION OF EVIDENCE.—Evidence

4 received from interested parties under subsection

5 (c)(1)(B)(v)(I) shall be—

6 (A) considered by the Assistant Secretary;

7 and

8 (B) noted in any final determination re9 garding a petition.

10 (4) OTHER RESEARCH.—In conducting a review

11 under this subsection, the Assistant Secretary

12 may—

13 (A) initiate other research for any purpose

14 relating to—

15 (i) analysis of the petition; or

16 (ii) the acquisition of additional infor17 mation concerning the status of the peti18 tioner;

19 (B) initiate research through the pilot

20 project or the Board; and

21 (C) consider evidence submitted by inter22 ested parties, including oral accounts of the his23 tory of the petitioner submitted by other Indian

24 tribes.
19

17

•S 297 IS

1 (5) EXCEPTION FOR LACK OF CERTAIN EVI2 DENCE.—If the Assistant Secretary determines that,

3 for any period of time, evidence necessary to carry

4 out this subsection is lacking, the lack of evidence

5 shall not be the basis for a determination of the As6 sistant Secretary not to acknowledge a petitioner if

7 the Assistant Secretary determines that the lack of

8 evidence may be attributed to—

9 (A) any applicable official act of the Fed10 eral Government or a State government; or

11 (B) any applicable unofficial act of an offi12 cer or agent of the Federal Government or a

13 State government.

14 (e) FINAL DETERMINATION.—

15 (1) IN GENERAL.—On review of all evidence

16 submitted under section 5 and this section and the

17 results of research conducted under section 5 and

18 this section by the Assistant Secretary (including

19 through the pilot project or the Board), and after

20 providing a petitioner an opportunity to respond to

21 proposed findings of the Assistant Secretary against

22 acknowledgment, the Assistant Secretary shall make

23 a final determination in writing whether the peti24 tioner is entitled to acknowledgment.
20

18

•S 297 IS

1 (2) FACTS AND CONCLUSIONS.—A final deter2 mination under paragraph (1) shall include all facts

3 and conclusions of law in accordance with which the

4 final determination was made.

5 (3) NOTIFICATION OF ACKNOWLEDGMENT.—If

6 the Assistant Secretary determines under paragraph

7 (1) that a petitioner is entitled to acknowledgment,

8 the Assistant Secretary shall—

9 (A) acknowledge the petitioner;

10 (B) notify the petitioner and any interested

11 parties of the final determination to acknowl12 edge the petitioner;

13 (C) provide to the petitioner and any inter14 ested parties a copy of the final determination;

15 and

16 (D) not later than 7 days after notifying

17 the petitioner and any interested parties under

18 subparagraph (B), publish in the Federal Reg19 ister a notice of the final determination of ac20 knowledgment.

21 (f) JUDICIAL REVIEW.—

22 (1) IN GENERAL.—Not later than 60 days after

23 the date of publication of the notice of a final deter24 mination described in subsection (e)(3)(D), a peti25 tioner may seek judicial review of the final deter-
21

19

•S 297 IS

1 mination by the United States District Court for the

2 District of Columbia.

3 (2) STATEMENT OF INTENT.—It is the intent of

4 Congress that, in accordance with Federal law relat5 ing to interpretations of treaties and Acts of Con6 gress affecting the rights, powers, privileges, and im7 munities of Indian tribes, any ambiguity in this Act

8 be liberally construed in favor of an Indian group or

9 Indian tribe.

10 (g) AUTHORIZATION OF APPROPRIATIONS.—There is

11 authorized to be appropriated to carry out this section

12 $5,000,000 for each of fiscal years 2004 through 2013.

13 SEC. 5. DOCUMENTED PETITIONS.

14 (a) FACTORS FOR CONSIDERATION.—A petition for

15 acknowledgment submitted by an Indian group shall be

16 in any readable form that—

17 (1) clearly indicates that the petition is a docu18 mented petition requesting acknowledgment of the

19 Indian group; and

20 (2) contains detailed, specific evidence as de21 scribed in subsections (b) through (g).

22 (b) STATEMENT OF FACTS RELATING TO IDEN23 TITY.—

24 (1) IN GENERAL.—A petition described in sub25 section (a) shall contain a statement of facts and an
22

20

•S 297 IS

1 analysis of those facts establishing that the peti2 tioner has been identified as an Indian group in the

3 United States on a substantially continuous basis.

4 (2) PREVIOUS DENIALS OF STATUS.—The As5 sistant Secretary shall not consider any evidence

6 that the status of the petitioner as an Indian group

7 has previously been denied to be conclusive evidence

8 that the factor described in paragraph (1) has not

9 been met.

10 (3) EVIDENCE RELATING TO IDENTITY.—In de11 termining the Indian identity of a group, the Assist12 ant Secretary may use as evidence 1 or more of the

13 following:

14 (A) An identification of the petitioner as

15 an Indian entity by any department, agency, or

16 instrumentality of the Federal Government.

17 (B) A relationship between the petitioner

18 and any State government, based on an identi19 fication of the petitioner by the State as an In20 dian entity.

21 (C) Any dealings of the petitioner with a

22 county or political subdivision of a State in a

23 relationship based on an identification of the

24 petitioner as an Indian group.
23

21

•S 297 IS

1 (D) An identification of the petitioner as

2 an Indian group by records in a private or pub3 lic archive, courthouse, church, or school.

4 (E) An identification of the petitioner as

5 an Indian group by an anthropologist, histo6 rian, or other scholar.

7 (F) An identification of the petitioner as

8 an Indian group in a newspaper, book, or simi9 lar medium.

10 (G) An identification of the petitioner as

11 an Indian group by an Indian tribe or by a na12 tional, regional, or State Indian organization.

13 (H) An identification of the petitioner as

14 an Indian group by a foreign government or an

15 international organization.

16 (I) Such other evidence of identification as

17 may be provided by a person or entity other

18 than the petitioner or a member of the member19 ship of the petitioner.

20 (c) STATEMENT OF FACTS RELATING TO EVIDENCE

21 OF COMMUNITY.—

22 (1) IN GENERAL.—A petition described in sub23 section (a) shall include a statement of facts and an

24 analysis of those facts establishing that a predomi25 nant portion of the membership of the petitioner—
24

22

•S 297 IS

1 (A) comprises a community distinct from

2 the communities surrounding that community;

3 and

4 (B) has existed as a community through5 out the historical period.

6 (2) EVIDENCE RELATING TO COMMUNITY.—In

7 determining whether the membership of the peti8 tioner meets the requirements of paragraph (1), the

9 Assistant Secretary may use as evidence 1 or more

10 of the following:

11 (A) Significant rates of marriage within

12 the membership of the petitioner, or, as may be

13 culturally required, patterned out-marriages

14 with other Indian populations.

15 (B) Significant social relationships con16 necting individual members of the petitioner.

17 (C) Significant rates of informal social

18 interaction that exist broadly among the mem19 bers of the petitioner.

20 (D) A significant degree of shared or coop21 erative labor or other economic activity among

22 the membership of the petitioner.

23 (E) Evidence of strong patterns of dis24 crimination or other social distinctions against

25 members of the petitioner by nonmembers.
25

23

•S 297 IS

1 (F) Shared sacred or secular ritual activity

2 encompassing a majority of members of the pe3 titioner.

4 (G) Cultural patterns that—

5 (i) are shared among a significant

6 portion of the members of the petitioner;

7 (ii) are different from the cultural

8 patterns of the non-Indian populations

9 with whom the membership of the peti10 tioner interacts;

11 (iii) function as more than a symbolic

12 identification of the petitioner as Indian;

13 and

14 (iv) may include language, kinship, or

15 religious organizations, or religious beliefs

16 and practices.

17 (H) The persistence of a named, collective

18 Indian identity during a continuous period of at

19 least 50 years, notwithstanding any change in

20 name.

21 (I) A demonstration of historical political

22 influence or authority of the petitioner.

23 (J) A demonstration that not less than 50

24 percent of the members of the petitioner exhibit
26

24

•S 297 IS

1 collateral kinship ties through generations to

2 the third degree.

3 (3) CRITERIA FOR SUFFICIENT EVIDENCE.—

4 The Assistant Secretary shall consider a petitioner

5 to have provided sufficient evidence of community

6 under this subparagraph if the petitioner has pro7 vided to the Assistant Secretary evidence dem8 onstrating that, throughout the historical period—

9 (A)(i) more than 50 percent of the mem10 bers of the petitioner reside in a particular geo11 graphical area exclusively, or almost exclusively,

12 composed of members of the group; and

13 (ii) the balance of the membership main14 tains consistent social interaction with other

15 members of the petitioner;

(B) not less than 1 16 ⁄3 of the marriages of

17 the petitioner are between members of the peti18 tioner;

19 (C) not less than 50 percent of the mem20 bers of the petitioner maintain distinct cultural

21 patterns, including language, kinship, and reli22 gious organizations, or religious beliefs or prac23 tices;

24 (D) distinct community social institutions

25 (such as kinship organizations, formal or infor-
27

25

•S 297 IS

1 mal economic cooperation, and religious organi2 zations) encompass at least 50 percent of the

3 members of the petitioner; or

4 (E) the petitioner has met the requirement

5 under subsection (d)(1) using evidence de6 scribed in subsection (d)(2).

7 (d) STATEMENT OF FACTS RELATING TO AUTONO8 MOUS NATURE OF PETITIONER.—

9 (1) IN GENERAL.—A petition described in sub10 section (a) shall include a statement of facts and an

11 analysis of those facts establishing that the peti12 tioner has maintained political influence or authority

13 over members of the petitioner throughout the his14 torical period.

15 (2) EVIDENCE RELATING TO AUTONOMOUS NA16 TURE.—In determining whether a petitioner is an

17 autonomous entity under paragraph (1), the Assist18 ant Secretary may use as evidence 1 or more of the

19 following:

20 (A) A demonstration that the petitioner is

21 capable of mobilizing significant numbers of

22 members and significant member resource for

23 purposes relating to the petitioner.

24 (B) Evidence that most of the members of

25 the petitioner consider actions taken by leaders
28

26

•S 297 IS

1 or governing bodies of the petitioner to be of

2 personal importance.

3 (C) Evidence that there is widespread

4 knowledge, communication, and involvement in

5 political processes of the petitioner by a major6 ity of the members of the petitioner.

7 (D) Evidence that the petitioner meets the

8 requirement of subsection (c)(1) at more than

9 a minimal level.

10 (E) A demonstration by the petitioner that

11 there are conflicts within the membership that

12 demonstrate controversy over valued goals,

13 properties, policies, processes, or decisions of

14 the petitioner.

15 (F) A demonstration or description by the

16 petitioner of—

17 (i) a continuous line of leaders of the

18 petitioner; and

19 (ii) the means by which a majority of

20 the members of the petitioner selected, or

21 approved the selection of, those leaders.

22 (3) EVIDENCE OF EXERCISE OF POLITICAL IN23 FLUENCE OR AUTHORITY.—The Assistant Secretary

24 shall consider a petitioner to have provided sufficient

25 evidence to demonstrate the exercise of political in-
29

27

•S 297 IS

1 fluence or authority if the petitioner demonstrates

2 that decisions by leaders of the petitioner (or deci3 sions made through another decisionmaking process)

4 have been made throughout the historical period

5 with respect to—

6 (A) the allocation of group resources such

7 as land, residence rights, or similar resources

8 on a consistent basis;

9 (B) the settlement on a regular basis, by

10 mediation or other means, of disputes between

11 members or subgroups of members of the peti12 tioner (such as clans or lineages);

13 (C) the exertion of strong influence on the

14 behavior of individual members of the peti15 tioner, such as the establishment or mainte16 nance of norms and the enforcement of sanc17 tions to direct or control behavior; or

18 (D) the organization or influencing of eco19 nomic subsistence activities among the members

20 of the petitioner, including shared or coopera21 tive labor.

22 (e) GOVERNING DOCUMENT.—

23 (1) IN GENERAL.—A petition described in sub24 section (a) shall include a copy of the governing doc25 ument of the petitioner in effect as of the date of
30

28

•S 297 IS

1 submission of the petition that includes a description

2 of the membership criteria of the petitioner.

3 (2) ALTERNATIVE STATEMENT.—If no written

4 governing document described in paragraph (1) ex5 ists, a petitioner shall include with a petition de6 scribed in subsection (a) a detailed statement that

7 describes—

8 (A) the membership criteria of the peti9 tioner; and

10 (B) the governing procedures of the peti11 tioner in effect as of the date of submission of

12 the petition.

13 (f) LIST OF MEMBERS.—

14 (1) IN GENERAL.—A petition described in sub15 section (a) shall include—

16 (A) a list of all members of the petitioner

17 as of the date of submission of the petition that

18 includes for each member—

19 (i) a full name (and maiden name, if

20 any);

21 (ii) a date and place of birth; and

22 (iii) a current residential address;

23 (B) a copy of each available former list of

24 members of the petitioner; and
31

29

•S 297 IS

1 (C) a statement describing the methods

2 used in preparing those lists.

3 (2) REQUIREMENTS FOR MEMBERSHIP.—In de4 termining whether to consider the members of a pe5 titioner to be members of an Indian group for the

6 purpose of a petition described in subparagraph (A),

7 the Assistant Secretary shall require that the mem8 bership consist of descendants of—

9 (A) an Indian group that existed during

10 the historical period; or

11 (B) 1 or more Indian groups that, at any

12 time during the historical period, combined and

13 functioned as a single autonomous entity.

14 (3) EVIDENCE OF TRIBAL MEMBERSHIP.—In

15 making the determination under paragraph (2), the

16 Assistant Secretary may use as evidence 1 or more

17 of the following:

18 (A) Tribal rolls prepared by the Secretary

19 for the petitioner for the purpose of distributing

20 claims money or providing allotments, or for

21 other any other purpose.

22 (B) Any Federal, State, or other official

23 record or evidence identifying members of the

24 petitioner as of the date of submission of the

25 petition, or ancestors of those members, as
32

30

•S 297 IS

1 being descendants of an Indian group described

2 in subparagraph (A) or (B) of paragraph (2).

3 (C) Any church, school, or other similar

4 enrollment record identifying members of the

5 petitioner as of the date of submission of the

6 petition, or ancestors of those members, as

7 being descendants of an Indian group described

8 in subparagraph (A) or (B) of paragraph (2).

9 (D) An affidavit of recognition by tribal el10 ders, tribal leaders, or a tribal governing body

11 identifying members of the petitioner as of the

12 date of submission of the petition, or ancestors

13 of those members, as being descendants of an

14 Indian group described in subparagraph (A) or

15 (B) of paragraph (2).

16 (E) Any other record or evidence based on

17 firsthand experience of a historian, anthropolo18 gist, or genealogist with established expertise on

19 the petitioner or Indian entities in general,

20 identifying members of the petitioner as of the

21 date of submission of the petition, or ancestors

22 of those members, as being descendants of an

23 Indian group described in subparagraph (A) or

24 (B) of paragraph (2).

25 (g) EXCEPTIONS.—
33

31

•S 297 IS

1 (1) IN GENERAL.—An Indian group described

2 in paragraph (2) shall be required to provide evi3 dence for a petition for acknowledgment submitted

4 under this section only with respect to the period—

5 (A) beginning on the date on which the

6 Department first notifies the Indian group that

7 the Indian group is not eligible for Federal

8 services or programs because of a lack of status

9 as an Indian tribe; and

10 (B) ending on the date of submission of

11 the petition.

12 (2) INDIAN GROUP.—An Indian group referred

13 to in this paragraph is an Indian group that dem14 onstrates by a reasonable likelihood of the validity of

15 the evidence that the Indian group was, or is a suc16 cessor in interest to—

17 (A) a party to 1 or more treaties;

18 (B) a group acknowledged by any agency

19 of the Federal Government as eligible to partici20 pate in a project or activity under the Act of

21 June 18, 1934 (commonly known as the ‘‘In22 dian Reorganization Act’’) (25 U.S.C. 461 et

23 seq.);

24 (C) a group—
34

32

•S 297 IS

1 (i) for the benefit of which the United

2 States took land into trust; or

3 (ii) that has been treated by the Fed4 eral Government as having collective rights

5 in tribal land or funds; or

6 (D) a group that has been designated as

7 an Indian tribe by an Act of Congress or Exec8 utive order.

9 SEC. 6. ADDITIONAL RESOURCES.

10 (a) INDEPENDENT REVIEW AND ADVISORY

11 BOARD.—

12 (1) IN GENERAL.—The Assistant Secretary

13 shall establish the Independent Review and Advisory

14 Board—

15 (A) to assist the Assistant Secretary in ad16 dressing unique evidentiary questions relating

17 to the acknowledgment process;

18 (B) to provide secondary peer review of ac19 knowledgment determinations by the Assistant

20 Secretary; and

21 (C) to enhance the credibility of the ac22 knowledgment process as perceived by Con23 gress, petitioners, interested parties, and the

24 public.

25 (2) NUMBER AND QUALIFICATIONS.—
35

33

•S 297 IS

1 (A) IN GENERAL.—The Board shall be

2 composed of 9 individuals appointed by the As3 sistant Secretary, of whom—

4 (i) at least 3 individuals shall have a

5 doctoral degree in anthropology;

6 (ii) at least 3 individuals shall have a

7 doctoral degree in genealogy;

8 (iii) at least 2 individuals shall have a

9 doctor of jurisprudence degree; and

10 (iv) at least 1 individual shall be

11 qualified as a historian, as determined by

12 the Assistant Secretary.

13 (B) PREFERENCE.—In making appoint14 ments under subparagraph (A), the Assistant

15 Secretary shall give preference to individuals

16 having an academic background or professional

17 experience in Federal Indian policy or American

18 Indian history.

19 (C) CONFLICTS OF INTEREST.—No mem20 ber of the Board shall, at the time of appoint21 ment or during the 1-year period preceding the

22 date of appointment, have represented, or con23 ducted research for, any Indian group or inter24 ested party with respect to a petition for ac-
36

34

•S 297 IS

1 knowledgment filed, or intended to be filed,

2 with the Assistant Secretary.

3 (D) STATUS AS EMPLOYEES.—A member

4 of the Board shall not be considered to be an

5 employee of the Department.

6 (3) TENURE; REIMBURSEMENT.—

7 (A) TENURE.—A member of the Board—

8 (i) shall be appointed for an initial

9 term of 2 years; and

10 (ii) may be reappointed for such addi11 tional terms as the Assistant Secretary de12 termines to be appropriate.

13 (B) REIMBURSEMENT.—A member of the

14 Board shall be reimbursed for reasonable ex15 penses incurred in assisting the Assistant Sec16 retary under this section, in accordance with

17 Department policy regarding reimbursement of

18 expenses for individuals serving as advisory

19 board or committee members.

20 (4) REVIEW AND ADVICE.—

21 (A) BEFORE ISSUANCE OF PROPOSED

22 FINDINGS.—At any time before the date of

23 issuance of proposed findings under section

24 4(d)(1)(B) with respect to a petition for ac25 knowledgment under review by the Assistant
37

35

•S 297 IS

1 Secretary, the Assistant Secretary may request

2 an opinion from the Board with respect to the

3 petition if the Assistant Secretary determines

4 that—

5 (i) the petition contains 1 or more evi6 dentiary submissions that raise unique

7 issues or matters of first impression relat8 ing to 1 or more requirements described in

9 section 5; or

10 (ii) the Assistant Secretary is unable

11 to determine the sufficiency of evidence for

12 1 or more of those requirements.

13 (B) AFTER ISSUANCE OF PROPOSED FIND14 INGS.—After issuance by the Assistant Sec15 retary of proposed findings under section

16 4(d)(1)(B), but before issuance of the final de17 termination, with respect to a petition, the As18 sistant Secretary shall request a review by the

19 Board of the proposed findings.

20 (C) LEVEL OF REVIEW.—

21 (i) IN GENERAL.—The Board shall

22 conduct a review requested under subpara23 graph (B) to determine whether an evi24 dentiary question or deficiency exists with
38

36

•S 297 IS

1 respect to 1 or more requirements relating

2 to a petition.

3 (ii) LIMITATION BY ASSISTANT SEC4 RETARY OF SCOPE OF REVIEW.—In re5 questing a review under subparagraph (B),

6 the Assistant Secretary may restrict the

7 scope of the review to address fewer than

8 all matters with respect to a petition.

9 (iii) LIMITATION BY BOARD OF SCOPE

10 OF REVIEW.—In carrying out a review

11 under subparagraph (B), the Board, in ac12 cordance with all applicable professional

13 standards of the members of the Board,

14 may—

15 (I) confine the review to—

16 (aa) the evidence submitted;

17 or

18 (bb) the proposed findings

19 issued under section 4(d)(1)(B);

20 (II) extend the review to the evi21 dence submitted by petitioners and in22 terested parties;

23 (III) request that the Assistant

24 Secretary request additional submis-
39

37

•S 297 IS

1 sions by petitioners or interested par2 ties; and

3 (IV) recommend that the Assist4 ant Secretary hold a formal or infor5 mal administrative proceeding at

6 which the Board may present ques7 tions to, and seek additional informa8 tion from, petitioners and interested

9 parties.

10 (b) ASSISTANCE TO PETITIONERS AND INTERESTED

11 PARTIES.—

12 (1) GRANTS.—

13 (A) IN GENERAL.—Subject to paragraph

14 (2), the Assistant Secretary may provide to a

15 petitioner or interested party a grant to offset

16 costs incurred in submitting—

17 (i) a petition (including related evi18 dence or documents); or

19 (ii) a legal argument in support of or

20 in opposition to a petition.

21 (B) LIMITATION.—In making grants under

22 subparagraph (A), the Assistant Secretary shall

23 ensure that not less than 50 percent of the

24 amounts made available for the grants are re25 served for petitioners.
40

38

•S 297 IS

1 (2) ELIGIBILITY.—The Assistant Secretary

2 shall provide a grant under paragraph (1) based on

3 a demonstration of need of a petitioner or an inter4 ested party that is evaluated using such objective

5 criteria as the Secretary may promulgate by regula6 tion.

7 (3) OTHER ASSISTANCE.—A grant made to an

8 Indian group under paragraph (1) shall be in addi9 tion to any other assistance received by the Indian

10 group under any other provision of law.

11 (4) AUTHORIZATION OF APPROPRIATIONS.—

12 There are authorized to be appropriated to carry out

13 this subsection such sums as are necessary for each

14 of fiscal years 2004 through 2014.

15 (c) FEDERAL ACKNOWLEDGMENT RESEARCH PILOT

16 PROJECT.—

17 (1) ESTABLISHMENT.—The Assistant Secretary

18 shall establish a Federal acknowledgment research

19 pilot project to make available additional research

20 resources for researching, reviewing, and analyzing

21 petitions for acknowledgment received by the Assist22 ant Secretary.

23 (2) COMPOSITION.—

24 (A) IN GENERAL.—The Assistant Sec25 retary, in consultation with the Secretary of the
41

39

•S 297 IS

1 Smithsonian Institution, shall identify a variety

2 of independent research institutions that have

3 the academic and research facilities capable of

4 assisting in the review of petitions described in

5 paragraph (1).

6 (B) PROPOSALS.—The Assistant Secretary

7 shall—

8 (i) invite each institution identified

9 under subparagraph (A) to submit to the

10 Assistant Secretary a proposal for partici11 pation in the pilot project; and

12 (ii) approve not more than 3 propos13 als submitted under clause (i).

14 (C) GRANTS.—The Assistant Secretary

15 may provide a grant to each institution the pro16 posal of which is approved under subparagraph

17 (B)(ii) to assist the institution in participating

18 in the pilot project.

19 (3) DUTIES.—Each institution approved to par20 ticipate in the pilot project shall assemble and pro21 vide a research team that, under the direction of the

22 Assistant Secretary, shall—

23 (A) review submissions described in para24 graph (1); and
42

40

•S 297 IS

1 (B) submit to the Assistant Secretary con2 clusions and recommendations of the research

3 team that are based on the submissions re4 viewed.

5 (4) USE OF CONCLUSIONS.—The Assistant Sec6 retary may take into consideration any conclusions

7 and recommendations of a research team in making

8 a determination of acknowledgment under this Act.

9 (5) REPORT.—Not later than 3 years after the

10 date of enactment of this Act, the Assistant Sec11 retary shall submit to Congress a report that de12 scribes the effectiveness of the pilot project.

13 (6) AUTHORIZATION OF APPROPRIATIONS.—

14 There is authorized to be appropriated to carry out

15 this subsection $3,000,000 for each of fiscal years

16 2004 through 2006.

17 SEC. 7. INAPPLICABILITY OF FOIA.

18 (a) IN GENERAL.—Section 552 of title 5, United

19 States Code (commonly known as the ‘‘Freedom of Infor20 mation Act’’), shall not apply to any action of the Assist21 ant Secretary with respect to a petition for acknowledg22 ment under this Act, and the Assistant Secretary shall

23 have no obligation to provide all or any portion of a peti24 tion, or to provide information regarding the contents of

25 a petition, to any person or entity, until such time as—
43

41

•S 297 IS

1 (1) the petition has been fully documented; and

2 (2) the Assistant Secretary has published a no3 tice in accordance with section 4(c)(1)(A).

4 (b) EXCEPTION.—The restriction under subsection

5 (a) on the provision of information contained in or relating

6 to a petition shall not apply to any formal or informal

7 request made or subpoena issued by a law enforcement

8 agency of the United States.

9 (c) ASSISTANCE FROM ATTORNEY GENERAL.—

10 (1) IN GENERAL.—The Secretary may request

11 assistance from the Attorney General in responding

12 to requests for information relating to a petition

13 made in accordance with section 552 of title 5,

14 United States Code.

15 (2) AUTHORIZATION OF APPROPRIATIONS.—

16 There is authorized to be appropriated to the Attor17 ney General to provide assistance requested under

18 this subsection $1,000,000 for each of fiscal years

19 2004 through 2008.

20 SEC. 8. EFFECT AND IMPLEMENTATION OF DECISIONS.

21 (a) IN GENERAL.—The acknowledgment of any peti22 tioner under this Act shall not reduce or eliminate—

23 (1) the right of any other Indian tribe to govern

24 the reservation of that other tribe (as the reservation
44

42

•S 297 IS

1 exists before, on, or after the date of acknowledg2 ment of the petitioner);

3 (2) any property right held in trust or recog4 nized by the United States for the other Indian tribe

5 (as that property right existed before the date of ac6 knowledgment of the petitioner); or

7 (3) any previously or independently existing

8 claim by a petitioner to any property right described

9 in paragraph (2) held in trust by the United States

10 for the other Indian tribe before the date of ac11 knowledgment of the petitioner.

12 (b) ELIGIBILITY FOR SERVICES AND BENEFITS.—

13 (1) IN GENERAL.—Subject to paragraph (2), on

14 acknowledgment by the Assistant Secretary of a pe15 titioner under this Act, the newly-acknowledged In16 dian tribe shall—

17 (A) have a government-to-government rela18 tionship with the United States;

19 (B) be eligible for the programs and serv20 ices provided by the United States to members

21 of other Indian tribes because of the status of

22 those members as Indians; and

23 (C) have the responsibilities, obligations,

24 privileges, and immunities of those other Indian

25 tribes.
45

43

•S 297 IS

1 (2) PROGRAMS OF THE BUREAU.—

2 (A) IN GENERAL.—The acknowledgment

3 by the Assistant Secretary of an Indian group

4 under this Act shall not establish any imme5 diate entitlement to participation in any pro6 gram of the Bureau in existence as of the date

7 of acknowledgment.

8 (B) AVAILABILITY OF PROGRAMS.—

9 (i) IN GENERAL.—Participation in a

10 program described in subparagraph (A)

11 shall be available to an Indian tribe de12 scribed in paragraph (1) at such time as

13 funds are made available for that purpose.

14 (ii) REQUESTS FOR APPROPRIA15 TIONS.—The Secretary and the Secretary

16 of Health and Human Services shall sub17 mit budget requests for funding for in18 creased participation in a program de19 scribed in subparagraph (A) in accordance

20 with subsection (c).

21 (c) NEEDS DETERMINATION AND BUDGET RE22 QUEST.—

23 (1) IN GENERAL.—Not later than 180 days

24 after a petitioner is acknowledged under this Act,

25 the appropriate officials of the Bureau and the In-
46

44

•S 297 IS

1 dian Health Service of the Department of Health

2 and Human Services shall consult with the newly-ac3 knowledged Indian tribe concerning, develop in co4 operation with the newly-acknowledged Indian tribe,

5 and forward to the Secretary or the Secretary of

6 Health and Human Services, as appropriate—

7 (A) a determination of the needs of the In8 dian tribe; and

9 (B) a recommended budget required to

10 serve the Indian tribe.

11 (2) SUBMISSION OF BUDGET REQUEST.—For

12 each fiscal year, the Secretary or the Secretary of

13 Health and Human Services, as appropriate, shall

14 submit to the President a recommended budget for

15 programs and services provided by the United States

16 to members of Indian tribes because of the status of

17 those members as Indians (including funding rec18 ommendations for newly-acknowledged Indian tribes

19 based on the information received under paragraph

20 (1)) for inclusion in the annual budget submitted by

21 the President to Congress in accordance with section

22 1108 of title 31, United States Code.

23 SEC. 9. REGULATIONS.

24 The Secretary may—
47

45

•S 297 IS

1 (1) promulgate such regulations as are nec2 essary to carry out this Act; and

3 (2) maintain in effect all regulations contained

4 in part 83 of title 25, Code of Federal Regulations

5 (or any successor regulations), that are not incon6 sistent with this Act.

Æ
48

The CHAIRMAN. We will begin with our witnesses: Aurene Martin, the deputy assistant secretary; Ed Roybal, chairman of the Piro

Manso Tiwa Tribe of New Mexico; Neal McCaleb, board member of

the Chickasaw Nation, and former assistant secretary; and Kevin

Gover, professor of law at Arizona State University, who also is a

former assistant secretary.

I am sure with this panel we will have a very enlightened dialog.

We will go ahead and start with Ms. Martin. You may abbreviate, if you want. Your complete written testimony will be included in the record.

STATEMENT OF AURENE MARTIN, PRINCIPAL DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF

THE INTERIOR, ACCOMPANIED BY LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL ACKNOWLEDGMENT, BIA

Ms. MARTIN. Thank you, Mr. Chairman.

Good morning, sir, and members of the committee. I would like

to thank you for the opportunity to appear before you today and

present the Administration’s views on S. 297, the Federal Acknowledgment Process Reform Act of 2003.

While the Department agrees with the stated purposes of S. 297,

we believe there are a number of issues that merit some discussion

regarding the practical ramifications of the legislation if it were enacted. Unfortunately, we cannot support the bill as drafted.

I would like to provide some general comments this morning regarding the practical effects of the bill and some of the concerns

that I have with that. I would also like to state that the purpose

of the current regulations and the stated purposes of S. 297 are to

provide a framework for recognizing sovereign entities who have

functioned from historical times until the present. This recognition

is not a grant of powers, but simply an acknowledgment that the

sovereign has existed from historical times until now.

There have been numerous statements that the process is broken, but we at the Department do not believe that is true, although

we do recognize that improvements can and should be made to the

process.

One of the main concerns I had in going over the legislation was

the lack of definite timelines for the completion of different steps

in the process. For instance, there is no requirement that a petitioner document its petition within a specific time period. Not the

only reason, but one of the main reasons that it takes so long for

the recognition process to be completed is the length of time between the submission of a letter of intent, that is the letter that

the group sends us stating that they are going to seek acknowledgment, and the full documentation of its petition.

I recognize that historically, groups have been too financially

strapped to complete the petition in a more timely manner, but

there is another innovation in the bill which I think will greatly

assist groups in being able to document their petitions and could

provide us some assistance which would help them get the petitions done more timely.

Also, section 4(c)(2) requires the Assistant Secretary to establish

a schedule for the review of a documented petition and publication

of the proposed finding within 60 days of its receipt of that docu-
49

mented petition, but it does not provide any guidance as to the appropriate timelines to guide the process. This leaves the Assistant

Secretary with total discretion to set the timeline for the review of

a petition and presentation of the proposed finding, and this could

be an extremely lengthy period of time.

Finally, with respect to the independent review and advisory

board, there are no timelines established, although the board must

review every final determination and may review proposed findings. This could add a significant amount of time to the review

process.

S. 297 provides that petitioners also document their activities

from 1900 to the present. Establishing 1900 as a baseline presents

a problem as it is set out in the legislation. One of the areas of S.

297 that caused some concern for me was the requirement that the

membership only be defined during the historical period, that is

from 1900 to the present. Our current regulations require that the

petitioner’s membership document that they are descended from a

historical tribe that has existed from first contact until the present.

I am not exactly sure what the reasoning was for the date of 1900

in S. 297. There is also some language that seems to not require

that they are descended from one tribe, but maybe from different

tribes, which may be meant to address the California situation. I

think that section needs a little bit of clarification.

I also believe that the purpose for using 1900 baseline was meant

to assist petitioners who would otherwise have difficulty documenting their petition. But the main problem as I have seen it is not

the ability to document events in the 19th century, but to fill gaps

which occur throughout the petitioner’s existence.

One of the most common types of problems that we see in petitions is a gap in information for a 10- or 20-year period. A group

might have information regarding its political continuity, its political autonomy up to a period like 1910, and then they will have a

gap for 10 to 20 years, and then it will start showing activity again.

That is usually where these petitioners run into problems. That

can occur in any time period: The 19th century, the turn of the century especially seems to be a problem time period, and even in the

1940’s and 1950’s. It is addressing those gaps which might be more

helpful to petitioners.

There are a number of other issues we would like to discuss with

the committee, but there are also a number of positive innovations

that we see included in the bill. One of those is the ability to have

an evidentiary hearing to be able to question witnesses and have

a back-and-forth dialog between the decisionmaker, the petitioners,

and other interested parties. Petitioners have requested this in the

past, but we currently do not have any mechanism to conduct hearings. It seems like a very good idea to allow the decisionmaker to

be able to gauge evidence, especially that of an elder or a person

who is giving evidence on a petition, and to be able to assess that.

But providing a hearing, again, will or could lengthen the process

it would take to review a petition.

Also, the assistance program outlined in the bill for petitioners

and interested parties is an excellent idea. As I said earlier, one

of the problems that petitioners face is the lengthy period it takes

them to document a petition because they do not have the re-
50

sources to hire historians, to go out and do all of the reviews and

the travel needed to collect documents. This assistance program

could be a great help to them, help us fund those kind of activities,

and document their petition more quickly.

Additionally, the pilot project does sound promising. The use of

academic institutions has been discussed in the past at the Department, but we have always had practical considerations that have

hindered implementation. One of those is the amount of time it

takes someone to get up to speed on the history of a particular

group or a particular area. It has been difficult for us to guarantee

funding for more than 1 year to provide to an academic institution

to begin that kind of research and amass that kind of information.

Finally, the limitation on the use of FOIA to the period after the

issuance of the proposed finding is a good idea. FOIA continues to

remain a significant part of the Office of Federal Acknowledgment

staff time. It was at one time reported to be at least 40 percent of

the work time for staff members there. It is somewhat less, but it

is still considerable. It is still considerable even when you would

limit it to occur past the proposed finding time, but the limitation

is very helpful.

While we are not able to support S. 297 at this time, we are always willing to work with the committee and its staff to discuss

our concerns, work out any issues that we might have, clarify our

position, and come up with an agreed upon resolution.

I appreciate the ability to discuss S. 297 with you and I am able

to answer any questions you might have.

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

The CHAIRMAN. Thank you, Ms. Martin. I do have a bunch of

questions. I am going to go ahead and finish the testimony before

I ask them. But I would ask you now, where is Assistant Secretary

Anderson? We have invited him over here a number of times to testify, by the way, and I believe he has not appeared more than he

has appeared.

Ms. MARTIN. Mr. Anderson is in Oklahoma visiting Sequoyah

High School today.

The CHAIRMAN. What high school?

Ms. MARTIN. Sequoyah. It is a BIA high school operated by the

Cherokee Nation, under contract. Mr. Anderson has recused himself from all acknowledgment matters and the Secretary has delegated those authorities to me. That is why I appear before you

today.

The CHAIRMAN. What was his reason for recusing himself?

Ms. MARTIN. He has recused himself from all matters related to

gaming, and gaming fee to trust applications. The perception that

acknowledgment has a connection to gaming also gave him cause

for concern. Because of his previous activities with gaming, he did

not want that to confuse that issue.

The CHAIRMAN. So he has recused himself from gaming, those

questions dealing with trust, and what else?

Ms. MARTIN. Gaming, gaming related fee to trust applications,

and acknowledgment.

The CHAIRMAN. All right. Thank you. It looks to me like he has

recused himself from about one-half of the responsibilities he was

appointed to do. I have to tell you, I have said this before in com-
51

mittee, too, I am a little disappointed in him. I went to bat for him,

as a lot of the members of the committee did, and he seems to have

taken a hike on us. He is just not around most of the time when

he should be. I do not know why he wanted the job, frankly, if he

was going to recuse himself from so many of the things that I think

his responsibility is to do. You might pass that one for me, if you

would.

We will now go to Ed Roybal. Mr. Chairman, go ahead.

STATEMENT OF EDWARD ROYBAL, CHAIRMAN, PIRO MANSO

TIWA TRIBE OF NEW MEXICO

Mr. ROYBAL. Good morning, Chairman Campbell, Senator Thomas and other distinguished members of the Senate Committee on

Indian Affairs. My name is Edward Roybal II and I am Governor

of Piro Manso Tiwa Indian Tribe, Pueblo San Juan de Guadalupe,

Las Cruces, NM. My father is Edward Roybal. My grandfather is

Victor Roybal. My uncle is former Governor Louis Roybal.

First, our people say hello to you and wish you all well and hope

that all your families are doing well. It is a great honor to represent my tribe here today and submit this testimony on S. 297,

the Federal Acknowledgment Process Reform Act of 2003.

I want to touch on a few points in my brief time here today. First

is where the recognition process has slowed us down and bogged

down for us. Since January 1997, our tribe has been in the ready

and waiting for active consideration queue, that is waiting for BAR

staff to complete their reviews of other petitions and begin review

of our petition.

If I may offer just one comment which sums up our tribe’s experience in the recognition process, it would be this. When my uncle,

Governor Louis Roybal, testified before this committee in May

2000, Piro Manso Tiwa was seventh on the ready and waiting for

active consideration list maintained by the Bureau of Acknowledgment Research. Today, nearly four years to the day later, we are

still seventh on ready and waiting.

The other issue I want to touch upon is tribal traditions. I am

the only non-secretary or past secretary up here. I want to enlighten the committee about the effects that——

The CHAIRMAN. There is still a future, by the way. [Laughter.]

Mr. ROYBAL. Thank you, Senator Campbell.

The effects that this has on a tribe like my tribe. While it is difficult to talk about and disclose some of our tribal traditions, my

people have authorized me to illustrate who we are. We are a traditional Indian pueblo. We are blue corn clan. As my uncle Victor has

told us in our oral history, we were put in the Las Cruces area by

the Creator. We are from there. Our oral history tells us that we

are the people who came from under the ice. Our oral history further tells us that we hunted buffalo in the area.

Present-day anthropologists call us Mogollan or other names. In

fact, archaeologists found human remains at the nearby Oro

Grande site that are thousands of years old. They also found buffalo bones in our area. Again, oral history passed those facts down

to us long before scientists came to southern New Mexico. We also

have ancestral burial grounds at present-day White Sands National
52

Monument, where we hold our autumn ceremonies to honor ancestors and pray for their journey.

While our tribe has an administrative form of government, the

tribe interacts with its members through our traditional Cacique

structure. My father Edward Roybal, our Cacique, has been traced

to earlier Roybal caciques for the past 300 years. Our ceremonies,

songs and dances coincide with the seasons, with the seasonal equinox, solstices in the summer, fall, winter and spring. In fact, each

time that you note on your calendars the day the seasons begin,

know that we are dancing and praying around that time.

To shed some light into what I have mentioned about tribal traditions, again it is difficult to discuss here. For example, at winter

we journey up to the Tortugas Mountain, one of our sacred mountains, and spend the night in prayer and sharing our oral history.

The next day, we sing our traditional songs and dance our dances.

Each season we do something similar to thank the Creator and

pray for health and prosperity for our people and all people.

We seek restoration and recognition of our government-to-government relationship so we can have a secure place to call home and

perform our ceremonies. Presently, we must have our dances in

tribal members’ front and back yards, while bewildered onlookers

query our ceremonies. Our songs, drum, dances, prayers, and traditions are sacred. Federal recognition and restoration would afford

us ways to protect and maintain everything that is sacred to our

people.

I come before you today as an example of your world. I am wearing this suit. I am an attorney. I practice law and proudly work on

an Indian reservation for the Fort McDowell Yavapai Nation of

Phoenix, AZ for the last 9 years. First and foremost, however, I am

an indigenous person. I am a member of the Piro Manso Tiwa Indian Tribe, Pueblo of San Juan Guadalupe in Las Cruces, NM. As

a native person, I cherish, live and maintain my tribal culture.

Through my father, uncles and elders and their elders, I am an active participant in our tribal culture and ceremonies. I sing our

tribal songs, dance our dances and pray our tribal prayers.

Mr. Chairman and other distinguished members of the committee, I come before you today in order to save my tribe’s traditions,

culture and people from extinction.

Thank you very much for this opportunity.

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

The CHAIRMAN. Thank you. We will now go to Neal McCaleb

next. We are just doing that because that is the way it is listed on

the witness sheet, Kevin. We will get to you.

STATEMENT OF NEAL MCCALEB, BOARD MEMBER,

CHICKASAW NATION INDUSTRIES

Mr. MCCALEB. Thank you very much, Mr. Chairman and members of the committee. I very much appreciate your providing me

this opportunity to testify on the Federal acknowledgment process

for the recognition of Indian tribes.

During the time that I served as assistant secretary of Indian Affairs, I had occasion to render determinations on petitions of several tribal applicants for recognition as tribal governments. During

that process, I was impressed by three circumstances.
53

These were, first, the length of time and the level of research required to ascertain the compliance of the petitioner with the criteria established for recognition. Second, the almost exclusive reliance by the Assistant Secretary on the finding and conclusions

reached by the professional staff of the BIA’s Board of Acknowledgment and Research, or BAR. Third, the extent and frequency of requests to the BIA for copies of all research, information and documentation submitted or accumulated by the BIA pursuant to a petition for recognition under the Freedom of Information Act.

I believe that the above factors operate to marginalize the credibility and timeliness of the federal recognition process as it now exists. The provisions of this bill will operate to improve these circumstances. The required scheduling provisions of section five

should help create the time discipline and allocation of resources

to reduce the delay and result in timely determinations.

One of the most intractable problems associated with timely determination is the lack of adequate professional resources within

the BIA to provide the extensive and scholarly research and documentation necessary for credible determination. The additional resources provided by the Independent Review and Advisory Board

in section 6 should aid not only in expediting the process, but more

importantly provide the Assistant Secretary with a peer review or

second opinion on controversial matters of opinion interpretation.

While I believe the technical and professional staff of the BAR

are highly qualified, there is the perception that their opinions and

perhaps predisposition resulting from other research may influence

their findings. The introduction of a peer review will enhance the

credibility of the final determination.

The creation and funding of a pilot project provided for in section

6 can help with the timeliness issue and demonstrate the effectiveness of outsourcing research functions to respond to the backlog of

petitions now pending before the BIA.

I also observed during my tenure that there was a substantial diversion of BAR staff time in responding to the extensive and repetitious requests of all manner of research, documentation and administrative materials. These requests for information were almost always mandatory under the Freedom of Information Act, and took

precedence over the productive work of the staff on the petitions.

The cumulative effect of these repetitious FOIA requests was to

delay the determination and to diffuse the focus of the technical

and professional staff.

The provisions of section 7 will certainly operate to make more

effective use of the limited staff time and resources and operate to

expedite the completion of the petition evaluation.

In addition to my comments on the contents of the bill above, I

offer my suggestion that this legislation contain a provision for an

end to future petitions for recognition after some reasonable period

of time to provide ample notice to any potential applicant considering a petition for recognition. The BIA has spent more than a quarter of a century receiving and researching petitions for recognition

from groups alleging their tribal government status. There is little

doubt in my mind that all indigenous peoples of this Nation who

can legitimately claim tribal status under the criteria established
54

for federal recognition are now aware of the acknowledgment process, the consequences of recognition, or lack of it.

To continue indefinitely with receiving and researching new petitions will only further diminish the effectiveness of the limited congressional appropriations in the discharge of the federal trust responsibility.

I want to thank you for the privilege of making this statement.

I will be happy to try to answer any questions.

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

The CHAIRMAN. Thank you.

We will finish with Professor Gover, who even in my tenure here,

6 or 7 years ago brought that to our attention that we had a real

problem with recognition, and even recommended we have a moratorium on it for a while until we get it straightened out. It is nice

of you to come back, Kevin, but as you recognize we are still muddling around trying to get the thing streamlined with some coherency to it and have not gotten there yet. Thank you for being here.

STATEMENT OF KEVIN GOVER, PROFESSOR OF LAW, ARIZONA

STATE UNIVERSITY COLLEGE OF LAW

Mr. GOVER. Yes, sir; Mr. Chairman. I am very pleased to be here,

and honored both to be before the committee and to be part of such

a distinguished panel. I hope you will not think it presumptuous,

Mr. Chairman, that I thank you as well for your service to Indian

country and to the Nation, and for our friendship over the years

and your many kindnesses.

First of all, let me say I agree completely with former Assistant

Secretary McCaleb and the points that he made. Those were problems that plagued the program when I was in office as well. I am

pleased that the new Administration has found some means to

begin to deal with this, I believe, by contracting so that some of

these FOIA requests can be met more quickly and not detract from

the work of the BAR. That is certainly a step in the right direction.

What I find in observing what has gone on both while I was in

office and after is that there is a mythology that has grown around

BAR and about the Federal recognition process. The first myth is

that it seems to be understood that the process is about gaming,

when of course we know that it is not. The process was established

before any of us had thought of casinos, and yet because of the importance of the decision and the fact that a newly recognized tribe

becomes eligible under the Indian Gaming Regulatory Act to conduct gaming in accordance with that act, it is understood to be

about gaming. It really is not, and we have to work very hard in

making policy to make that point and distinguish this process from

gaming.

There are several other approvals that have to take place before

a newly recognized tribe can engage in gaming, and at every one

of those points—the process of compacting, the process of taking

land into—trust, both the local community and the affected State

are deeply involved and their concerns weigh very heavily in that

process in the Department.

The second, and it is closely related to the gaming idea, is the

myth that some group of very powerful lobbyists have an extraordinary amount of influence over the program. I can only speak for
55

myself, of course, but I suspect it is also, true of both Principal

Deputy Assistant Secretary Martin and former Assistant Secretary

McCaleb, The truth is that I rarely if ever saw a lobbyist on these

issues. If I did, it was also in the presence of tribal leadership from

the petitioning tribes where it would be expected. What we do not

get is any sort of backroom, underhanded, undue influence by anybody in the lobbying business.

The third is again related, and that is the idea that somehow the

Branch of Acknowledgment and Research, or now the Office of Federal Acknowledgment, possesses some sort of superior and unassailable expertise about these matters. I do not want to be understood to be putting them down in any way. They are expert. They

are professional. They are very good at what they do. But so are

the police officers that an assistant secretary works with; so are

the educators; so are the social workers; so are the many hundreds

of other experts and professionals that are in the BIA, and yet no

one suggests that an assistant secretary should not override a decision by any of those other experts and professionals. And yet for

some reason, it seems that BAR’s work is understood to be entitled

to some sort of special deference.

Well, it is not. Assistant secretaries are also experts in Indian affairs, and we are asked to bring our expertise and our broader policy vision to bear on these petitions. That is why we are nominated

by Presidents. That is why we are confirmed by the Senate. So it

should come as no surprise that from time to time we find ourselves deciding to not follow the recommendations of the BAR.

The true problems in the program really are structural. That is

what S. 297 goes to. As former Assistant Secretary McCaleb pointed out, the Assistant Secretary for Indian Affairs really has few

staff resources of his or her own to go through and really review

the work that BAR has done. S. 297 would help to solve that problem.

Similarly, the pilot project would bring additional resources to

bear, not so much for the petitions immediately before the Assistant Secretary, but for the petitions in the queue, like Chairman

Roybal’s, which could begin to receive some attention immediately,

rather than remaining seventh on the ready and waiting list for 4

years now, and I suspect for some years to come.

So both of those are good ideas that really begin to speed up the

process and most importantly give the Assistant Secretary the

needed resources to apply his or her own judgment to the evidence

and to make the decisions that have been assigned by the regulations to the Assistant Secretary.

So in those respects, Mr. Chairman, I do support this bill. As you

know, we talked both about a moratorium and a commission when

I was in office. I have since concluded that the moratorium was a

terrible idea, so I take full credit for it. I believe that what would

have happened is that the moratorium would have been put in

place and never lifted. So the committee’s judgment on that matter

was much wiser than my own, and I would not at this point support a moratorium.

Finally, I do believe a commission is probably the best approach

if it were fully funded and up and running as soon as possible. But

I understand the difficulty of such a major change in the BAR proc-
56

ess, so I do commend the Chairman for introducing S. 297 and offer

my support.

Thank you.

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

The CHAIRMAN. Thank you.

With time running out, it is 50/50 if we will be able to get this

passed this year. Since this is my last year as chairman and Senator Inouye’s last year, too, it will be somebody else’s problem next

year, but it will go on, that is for sure, if we do not do something.

Let me start with a few questions of each of you. We will start

with Ms. Martin first. Your testimony is that you oppose the bill

because it lowers the standards for acknowledgment and thereby

creates a process that is not open, transparent, timely or equitable,

as I understand it. But transparency and timeliness relate to the

actions of the BAR staff, not the acknowledgment criteria. Can you

inform the committee what effect lowering or raising the standards,

for that matter, has on the transparency and timeliness of the process?

Ms. MARTIN. First of all, I would just like to clarify that we are

not supporting S. 297 as it is written, and we are willing to work

with you on language so that we might be able to change that, but

we are not opposing the bill.

The CHAIRMAN. I appreciate that.

Ms. MARTIN. With regard to the standards that are included in

the bill, actually the criteria that are laid out are very similar to

the standards that we use now under the current regulations. The

concern we have, and I talked a little bit about this during my testimony, is that the bill itself states that the documentation need to

be made from 1900 until the present. And then there are some exceptions where there has been some recognition of the tribe by federal agencies during that time period.

The issue, as I have encountered it, is not so much the period

from 1900 to the present, and there is a lack of information from

before that. It is actually the gaps in 1820 to 1830, 1910 to 1920,

those are where the issues are and that is what we need to look

at addressing. I think that Mr. Gover addressed the 10-year rule

in his testimony. Those are some of the areas where I think that

we really need to look and seek some clarification, not so much

from the 1900 period to the present.

The CHAIRMAN. Okay. Thank you.

Would you tell the committee the average length of time it now

takes for a petitioner that is on the ready and waiting for active

status, to have their petition considered? We talk about timeliness.

What does that mean?

Ms. MARTIN. I am not sure what the average amount of time is.

We do have petitions where the letters of intent were submitted in

1978 when the regulations were established

The CHAIRMAN. I understand the Tiwas had a letter even in

1971. Is that correct? Maybe I should have asked Mr. Roybal there,

1971, even before the establishment of the process.

As I understand your testimony, too, it criticizes the lowering of

standards set out in S. 297, particularly those provisions regarding

evidence of a community, the autonomous nature of a petitioner
57

since 1900. But don’t the current regulations also require identification as a group from 1900?

Ms. MARTIN. They do. However, they require the showing that

the petitioners show their political autonomy from historical times

to the present; their community from historical times to the presence; their connection to a historical tribe through the present, but

only identification as an American Indian entity since 1900. It is

just one of the criteria.

The CHAIRMAN. What is the magic number about 1900? Why do

the current regulations require identification as an entity since

1900?

Ms. MARTIN. That I am not sure of. I was not part of the original

drafting of the 1978 regulations.

The CHAIRMAN. Do you have someone there who would like to

speak? If you would like to just identify yourself for the record.

Mr. FLEMING. My name is Lee Fleming. I am the Director of the

Office of Federal Acknowledgment.

In 1994, the regulations went through some revisions and there

is language that can be provided to the committee as to the explanation for 1900 to the present. Basically, it is to prevent a group

that just suddenly pops up and claims whatever they are claiming.

Whereas, in 83.7(b) and (c), the group has to demonstrate from historical times to the present.

The CHAIRMAN. I see. In that case, let me go back to Ms. Martin.

Which criteria do you believe to be more important in establishing

a continuing political existence for a tribe: identification by outside

political entities, which I assume is part of the regulations that we

are talking about going back to 1900; or the internal decisions

made by the Indian community themselves?

Ms. MARTIN. For purposes of recognition and the basis for our

recognition regulations and the reason we do recognition, we are

recognizing a sovereign that has existed from the time prior to contacts with non-Indians to the present. In order to do that, we require documentation over that period of time that they have existed as a political entity. So with regard to recognition, I think

that that is probably the most important factor.

The CHAIRMAN. Okay. I am sorry that I am somewhat confused

on this. When you hear from Indian groups like Mr. Roybal’s

group, which traces their ancestry and participates in the same

ceremonies that they have for hundreds of years, literally, it is confusing to me to say that someone else has to recognize them as a

political entity from any time. It would seem to me that the internal group should have a stronger voice in determining how long

they have been an entity in their own tribal government. That is

a political entity, too. It might not have been in the form we think

of the Federal Government, but they had a political entity.

Let me ask another question. We have a problem now, it seems,

with the Freedom of Information Act. Literally every step of the

way, somebody can ask for all kinds of documentation. That is

what we call the churning of the paper. In this particular bill, basically what we tried to do was have it go through, finish all the research, and then be open to the Freedom of Information Act so people could look at it in its entirety, rather than just every little step

of the way, which simply holds things up and confuses things. Can
58

you explain to the committee, is that process used by the Department now? How do you determine who is an interested party and

who is an informed party? And what rights to participate in the

process do each have when they are using the Freedom of Information Act to get information?

Ms. MARTIN. I think that for purposes of the Freedom of Information Act, any citizen of the United States can gain access to that

documentation, subject to our review of the information for privacy

information and other information that might not be appropriate to

send out to the public. We identify interested parties as the local

communities and around where a petitioner is located; other tribes

that might be affected by their recognition; the State in which they

are located.

The CHAIRMAN. Who is an ‘‘informed’’ party?

Ms. MARTIN. That is anybody else, basically.

The CHAIRMAN. That is anybody else. Okay. So basically you are

saying anybody can file. Well, if I understand, S. 297 basically, it

says what we need to do to stop this every step of the way of being

nitpicked when we are going through the recognition process, that

we ought to finish the whole thing and then open it to the Freedom

of Information Act so they can see it in its entirety. But the Department has a problem with that?

Ms. MARTIN. No; That that is one of the excellent innovations

that is included in S. 297. We also see a significant amount of

FOIA activity after the petition has been documented. I would just

use an example of some of the Northeastern cases. We see constant

FOIA requests even after a petition is documented and maybe a

party has already received some FOIA information, there are continuing requests for more and more information after that point as

well. As it is written in the bill now, I believe that is a good innovation.

The CHAIRMAN. This bill also proposes the creation of an independent review and advisory board to assist the Assistant Secretary in making the recognition decisions. In your capacity as an

Assistant Secretary, you have been called on to make recognition

decisions. Would you have found the involvement and existence of

an independent review and advisory board to be helpful to you

when you made those decisions?

Ms. MARTIN. I think that might be helpful. One of the challenges

that I experienced first as counselor for Mr. McCaleb and then as

acting Assistant Secretary was the lack of time to get my arms

around all of the documentation with regard to a petition and to

have a third party be able to look those things over, conducting a

type of peer review as would have been helpful. My only concern

with the independent review board is the length of time that such

a board might take to review a petition, but overall it is a good

idea.

The CHAIRMAN. Okay. Well, we will look forward to having staff

work with you a little further to see if we cannot get this bill right

that would get support from the Administration. Thank you for

being here. I have several other questions. I will submit those in

writing. If you will answer those in writing for the benefit of the

complete committee, I would appreciate it.

Ms. MARTIN. Thank you.
59

The CHAIRMAN. Governor Roybal, why is it that your Pueblo is

not recognized? As I see your testimony, your tribe received a land

grant from the Federal Government in the 1800’s. It also appears

that children from your community were sent to Indian boarding

schools. You mentioned you participated in many tribal ceremonies,

from literally time immemorial. You have no land base, though, is

that correct?

Mr. ROYBAL. Correct.

The CHAIRMAN. You have no land base now. Why is it that you

are not recognized through all these years?

Mr. ROYBAL. This was just an issue where over the period of

populating Southern New Mexico, it was mostly the tribes.

The CHAIRMAN. Did you tribe move back and forth across what

is now the border of Mexico and the United States in the olden

times?

Mr. ROYBAL. Before there was a border, right, tribes historically

moved. But after the Pueblo revolt of 1680, our tribe moved back

up to the Messilla Valley.

The CHAIRMAN. Why don’t you go ahead and finish why you are

not recognized.

Mr. ROYBAL. Historically, what happened was you just had Indian groups and Mexican or Spanish or Hispanic groups down

there. When the United States came in at the beginning of the

1900’s, pressure started to build for some sort of tribal autonomy.

It was really just an issue where we were left alone and did some

interaction and that was fine for decades. But as more and more

people came into Southern New Mexico, our tribe was squeezed

and pushed out and marginalized. That is kind of what happened

along the way.

The CHAIRMAN. Where do most of your tribal members live now?

Mr. ROYBAL. Almost three-quarters live within a 6-mile radius of

our old Pueblo in downtown Las Cruces.

The CHAIRMAN. Las Cruces.

Mr. ROYBAL. Right.

The CHAIRMAN. And what is the number of tribal members?

Mr. ROYBAL. Approximately 225.

The CHAIRMAN. In your testimony, you mentioned the tribe originally filed a petition in 1976, but apparently there was a letter as

early as 1971 seeking recognition. Is that correct?

Mr. ROYBAL. Correct.

The CHAIRMAN. Over the years since you have been trying to get

your tribe recognized, can you give the committee an estimate on

how many documents you have had to file or the volume required

since that 1971 letter your wrote, and perhaps also the expense you

have gone to to try to get recognized.

Mr. ROYBAL. Sure, Senator Campbell, other members of the committee, we first started out with letters, and then we would go

through the process in the late 1980’s, and then the regulations

changed again in the 1990’s. Every time there was a change, we

had to change and file more documentation. I think to date we

have filed 15 boxes or more than that of historical and present information.

In terms of costs, I know a lot of people have said that the process could take millions of dollars. We have operated with grants of
60

approximately $400,000 in the last 16 years. Most of our work has

been by pro bono efforts and donations of time and money.

The CHAIRMAN. That has been the estimated cost to try to get

recognized?

Mr. ROYBAL. That is what I have heard, a few million dollars,

from other people.

The CHAIRMAN. I also understand that there is some difference

tension created by the BAR’s need for documentation and its sensitivity to your traditions and ceremonies. Is that true or not?

Mr. ROYBAL. It has been a major problem, Senator. It is hard

enough to disclose who we are and what we do to prove who we

are. The major problem has been several years ago in FOIA reviews other people have tried to hijack our petition. When they

have to disclose where our ancestral burial sites are, where our sacred ceremonies are, that causes our people real consternation.

The CHAIRMAN. I understand that. Yes. I am a member of the

Northern Cheyenne, and I know from a tribal perspective they feel

the same way. There are some things they just do not want to reveal. They just feel it is somewhat risky to let those things get out

into the public domain.

Mr. ROYBAL. Right.

The CHAIRMAN. Including where some of their sacred sites are,

and some where their burial grounds are, too. We have been

through, as all tribal groups have, a period in history when there

were raids on those things, and we found a lot of things ended up

in museums when they should have been where they were put by

people.

Mr. ROYBAL. It was our fear that that raid would continue and

could continue.

The CHAIRMAN. But you have not been able to reach any mutual

agreement or satisfactory agreement with the BAR staff concerning

those things?

Mr. ROYBAL. No; we have. Thankfully, we did meet with Mr.

Fleming and BAR staff and went over our concerns, and reached

a resolution on those issues.

The CHAIRMAN. I commend you for having the determination for

having to spend all that money and all those years in trying to get

recognized. If you were given a choice of resources, do you think

the tribe would choose to obtain the assistance of a university or

other institution? Or would they rather sign up with a developer

or somebody of that nature?

Mr. ROYBAL. Could you clarify ‘‘developer’’? You mean it is some

type of promoter?

The CHAIRMAN. Yes.

Mr. ROYBAL. We have assistance now with the University of

Texas-El Paso. We have tried to work with New Mexico State University, which is in our backyard. For whatever reason over time,

they have not been as responsive as you would think.

The CHAIRMAN. The university has not?

Mr. ROYBAL. They have not, no. So we have had to rely on others.

The CHAIRMAN. Did they give you help pro bono, whatever help

you did get from them?

The CHAIRMAN. New Mexico State? No.
61

The CHAIRMAN. You had to pay for that?

Mr. ROYBAL. Correct. No; we have not received any assistance

from New Mexico State.

The CHAIRMAN. I see. Thank you.

Former Assistant Secretary McCaleb, let’s just go on down the

line with you, please. Nice to have you here visiting again.

Mr. MCCALEB. Thank you very much, Mr. Chairman.

The CHAIRMAN. I know that you are doing good work back in the

private sector again, and I do not get to see you as much as I used

to, but I certainly enjoyed our personal friendship while you were

here. I am sure the Chickasaws are happy to have you home and

working for them again, and that is great.

During your tenure with the BIA, you oversaw a major review

and restructuring of the BAR process. Keeping in mind the changes

that Mr. Gover made before you were there, former Assistant Secretary Gover, in the format of BAR recommendations, were there

any additional changes in the format of the recommendations that

you thought would be helpful while you were in your tenure, or

even now as you look back on it?

Mr. MCCALEB. One of the events that occurred while I was there

is the General Accounting Office made an assessment of the operation of the federal acknowledgment process as it was conducted,

and had some criticisms in some specific areas. We did some reorganization to try to deal specifically with those criticisms that were

contained in the GAO report. Most had to do with the transparency

of the process and the timeliness of the process. I do not think that

we have achieved a lot of progress in expediting the timeliness of

the process.

The CHAIRMAN. Looking back on your tenure, do you think there

is more that the Department or the staff or even our committee

could have done to address the concerns of those years?

Mr. MCCALEB. One of the weaknesses——

The CHAIRMAN. It is okay. We can take it. [Laughter.]

Mr. MCCALEB [continuing]. One of the weaknesses, of course, is

what is I think kind of like the elephant in the front room, is the

lack of money to fully operate and staff and provide the resources

to deal with this gigantic backlog of petitions that, as Governor

Roybal tribe has experienced, is just lying there with nothing happening on it. That is not a matter of indifference on the part of the

BAR staff. I think it is part of the limited amount of resources that

they have.

I was severely criticized and chastised in the House committee

about why didn’t the Administration come and ask for more

money?

The CHAIRMAN. Because we probably would not have given it to

you anyway.

Mr. MCCALEB. Well, the reality is that we have inadequate finances, at least as it is viewed by the tribal board assisting the

BIA on the needs versus the resources that are available. We have

a kind of a fixed-sum pie to deal with, with very small incremental

increases. So the additional money for recognition has historically

come at the expense of the other functional programs operated by

the BIA for their already-federally recognized tribes. That is a real

tension.
62

So that is one of the reasons that I make the recommendation

that we need to put an end on this sometime in the future by saying, well, there is going to be a cutoff date on petitions, because

let’s just assume that there was a significant increase in the appropriations for the BAR staff and the recognition process. I think the

perception in Indian country was that that would come at the expense of these other functional programs.

The CHAIRMAN. In S. 297, we have a 10-year limitation on appropriations, which would trigger discussion then about the need for

continuing funding. That is a sunset provision of sorts. Do you consider that would be a wise alternative?

Mr. MCCALEB. Indeed, I do.

The CHAIRMAN. And one last question, S. 297 provides an opportunity for outside peer review into the process. Of course, there is

also a cost to that, too, but it would perhaps lend additional credibility to the process. Do you believe that access to outside experts

would have been helpful to your deliberations when you were in office?

Mr. MCCALEB. Yes; it would have. I think it would have given

me a better comfort level. I am sure, I know in my own experience,

there are times that I would have liked to have had resources outside of the Bureau to assist me in making a determination or evaluating some specific task, not because I lacked confidence in the

BAR staff, but because there are so few of them and their processes

are developed over a fairly long period of time.

Most of those people are long-time employees. It is my experience

in any professional process you develop a mindset or a limitation

on your scope that may be detrimental to more objective consideration. I am trying to say, I would have liked a second opinion in

some areas, in some instances.

The CHAIRMAN. You would think that was helpful.

Let me go to Professor Gover. Your testimony is that while you

were at the Bureau, you saw no evidence of improper influence exerted on the BAR process. That corroborates the findings of both

the GAO and the Interior Inspector General, as I understand it, yet

we still get opponents of the process saying that it has been manipulated, or maybe sometimes they have vested interest in it. But in

your opinion, having worked both in the Bureau and outside of the

BIA, do you think a professional lobbyist can have more influence

over the BIA staff or the legislative recognition process and their

internal workings?

Mr. GOVER. That is a tough question because I have never given

lobbyists all of the credit that they seem to take for the progress

of matters in Washington.

The CHAIRMAN. We sometimes give them more than they want.

[Laughter.]

Mr. GOVER. I say that as a lobbyist myself, so I do not want to

be too hard on the profession.

I believe that clearly the process of congressional recognition is

by definition more political than the process that is undertaken at

the BIA. So it should be. Congress is perfectly entitled to make its

judgments on those grounds. The problem is that the BIA is not.

Because the BIA has really in essence borrowed some authority

from the Congress and from the courts in order to conduct this rec-
63

ognition program, it is extremely important that the process not be

affected by what we would think of as partisan or unseemly political influence. In my experience, it was not. Neither the BAR staff

nor the Assistant Secretary’s office was really troubled by lobbyists

and certainly not influenced by them.

The CHAIRMAN. You heard Governor Roybal talk about what they

think might have been the cost they have gone through, maybe

$400,000 so far. It could be very expensive getting through the recognition process. Sometimes I think groups have had to turn to

outside investors because they simply do not have the money to

hire the research that is needed done.

With more and more requests from the Freedom of Information

Act and the litigation by states, local communities and others that

might not want to see the petition go through, it seems to me that

some tribes are being forced more and more to rely on outside resources whether they like it or not. To me, that is a form of mortgaging their future.

In your opinion, would it assist the process for the petitioners to

bring in outside resources from universities or other groups, and

perhaps stay away from the ones that they have to hire so much?

Mr. GOVER. Absolutely, if for no other reason than it gives these

tribes a meaningful choice. You are right. Quite often they find

themselves in a position where they have to accept the resources

of a developer. Of course, those resources come with strings attached, and as you say, they do mortgage their future, at least in

the short term.

Were such expertise and resources available from universities,

that would, as I say, give the tribes a meaningful choice and allow

them to maintain their distance from developers and pursue the

petition on their own, and then when they are done if they want

to deal with developers, they deal with them from a position of

strength, rather than weakness.

The CHAIRMAN. While you were at the Bureau, you hired some

outside contractors to assist you in reviewing petitions. Can you

give us some background on how that worked, how you picked the

outside contractors, and if you believe that the portion of S. 297,

which I call the independent review and advisory committee, would

that address the concerns that you had in having to hire outside

assistance?

Mr. GOVER. It would indeed. As I recall, we hired a single outside

consultant, an attorney who had worked on other petitions on behalf of petitioning tribes. I have to say, it did not work well at all.

First of all, the relationship between the consultant and the BAR

staff was not particularly good. I do not assign blame there. It just

did not work out.

Second, it did not solve the primary problem, which is that you

need a lot of people, a lot of different kinds of expertise, to review

the work of the BAR if it is to have any effect. So we made what

ultimately was a failed effort to try to bring in that outside expertise.

I do think that the resources available under S. 297 could make

a serious impact and have the desired effect of giving the Assistant

Secretary the staff capabilities to conduct a meaningful review of

BAR’s work. That is why I support the bill.
64

The CHAIRMAN. Thank you.

You mentioned the standard of review for petitions and the concern that the BAR has over a period of time developed ‘‘de facto

rules’’ that are not in regulations. If petitioners are required to

meet rules that are not in the regulations or in statute, should the

petitioners be able to challenge those rules in court?

Mr. GOVER. I believe that they should. I gave a couple of examples, but the one that troubled me the most was the idea that, if

BAR were unable to find convincing evidence within each 10-year

period of the tribe’s historical existence, that represented a break

in continuity. And yet if you look at the regulations, it says nothing

of the sort. I was willing to say that if, for example, and this is not

a real example, but if we had evidence that the tribe was there in

1889, and we found evidence the tribe was there in 1905, I was

willing to assume that between 1889 and 1905, they were still

there. They were there the whole time.

Again, I think that BAR’s analysis is driven by their professional

training. I do not object to what they say, that a historian would

be troubled by that gap and by the absence of conclusive evidence,

and so would an anthropologist. Again, bringing a broader perspective to it, and frankly the perspective of an Indian person, it is very

easy for me to see how evidence sort of falls off the table. Let’s face

it, we ran an agency that had a great deal of difficulty with recordkeeping in the best of times, and so it is unsurprising that records

would be absent for these tribes for varying periods, as Principal

Deputy Assistant Secretary Martin pointed out.

The CHAIRMAN. You noted the single most consistent complaint

about the process was the inability of parties to receive reasonably

prompt decisions. What do you think is perhaps the single greatest

obstacle preventing the agency from acting with reasonable

promptness? Would it be that they needed that absolute proof between the analogy you just gave, between 1890 and modern times?

Is that the thing that holds it up the most, not finding that absolute link-to-link chain?

Mr. GOVER. I think there were two things. The first was the absence of resources, that the program simply needed more resources.

Former Assistant Secretary McCaleb is right that when the tribal

advisory committees that consult with the Bureau on the budget

are making their recommendations, needless to say the recognition

program is low priority for them, and that makes it very difficult

for the Bureau to divert resources from those critical programs to

this one.

The second was, yes, I believe that BAR got into far too much

depth in its research. They treated each petition as ultimately a research project, and it seemed that they were in search for some historical truth, which may well be elusive. I do not believe that is

what the regulations call for. I believe they call for an evaluation

of the petition, the application of a standard of proof that is included in the regulations, and then move on.

The CHAIRMAN. One of the problems from a broader sense I have

always had with this business about recognition is that tribes are

being told that they have to document certain things, and yet you

know as well as I do, being an Indian person, the history has been

there was a time in this country when you were not too sure you
65

wanted to document anything or you might be gathered up and

moved by force somewhere you did not want to be moved to.

So we had people hiding out in the woods for years and years

and years, and hiding their identity and doing different things simply because they were afraid of what might happen to them if they

did come forward. And now we have a federal agency saying, well,

you did not document where you have been for the last 50 years,

therefore you must not be Indian.

There is something wrong with that thinking, in my view.

Mr. GOVER. Mr. Chairman.

The CHAIRMAN. Yes, go ahead.

Mr. GOVER. In mine as well. I think that the primary conflict

that I had with the BAR staff was that in that period, I mark it

from 1870 to 1930, there was no reason for an Indian group to

want to come to the attention of the United States. The fact that

they did not meant that their strategy worked, or it may have

meant that their strategy worked. That is certainly a reasonable

interpretation of the phenomenon.

I felt, as you did, Mr. Chairman, that the absence of a lot of proof

during that time really did not tell us very much about whether

that tribe was there or not.

The CHAIRMAN. Certainly not.

I appreciate the testimony from all of the witnesses this morning.

I think there might be some additional questions from other members who had to leave or did not attend today, but thank you so

much for all of your views.

With that, this hearing is adjourned.

[Whereupon, at 10:50 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

(67)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF NEAL MCCALEB, BOARD MEMBER, CHICKASAW NATION

INDUSTRIES

Mr. Chairman, I want to thank you and the members of this committee for providing me with this opportunity to testify on the ‘‘Federal Acknowledgment Process’’

for the recognition of Indian Tribes.

During the time I served as the Assistant Secretary of Indian Affairs I had the

occasion to render ‘‘Determinations’’ on the petitions of several tribal applicants for

recognition as tribal governments. During this process I was impressed by three circumstances. These were:

No. 1. The length of time and level of research required to ascertain the compliance of the petitioner with the criteria established for ‘‘Recognition’’.

No. 2. The almost exclusive reliance of the Assistant Secretary on the findings

and conclusions reached by the professional staff of the BIA’s ‘‘Board of Acknowledgement and Research’’.

No. 3. The extent and frequency of requests to the BIA for copies of all research,

information and documentation submitted or accumulated by the BIA pursuant to

a petition for recognition under the ‘‘Freedom of Information Act’’.

I believe that the above factors operate to marginalize the credibility and timeliness of the Federal Recognition Process as it now exists.

The provisions of this bill will operate to improve these circumstances. The required scheduling provisions of section 5 should help create the time discipline and

allocation of resources to reduce delay result in timely determinations.

One of the most intractable problems associated with the timely determination is

the lack of adequate professional resources within the BIA to provide the extensive

and scholarly research and documentation necessary for credible determination. The

‘‘Additional Resources’’ provided by the ‘‘Independent Review and Advisory Board’’in

section 6 should aid not only in expediting the process but more importantly provide

the Assistant Secretary with a peer review or ‘‘second opinion’’ on controversial matters of opinion and interpretation. While I believe the technical and professional

staff of the BAR is highly qualified there is the perception that their opinions and

perhaps predisposition resulting from other research may influence their findings.

The introduction of a peer review will enhance the credibility of the final determination.

The creation and funding of ‘‘Pilot Project’’ provided for in section 6 can help with

the timeliness issue and demonstrate the effectiveness of outsourcing research functions to respond to the backlog of petitions now pending before the BIA.

I observed during my tenure that there was a substantial diversion of BAR staff

time in responding to the extensive and repetitious requests for all manner of research documentation and administrative materials. These requests for information

were almost always mandatory under the ‘‘Freedom of information Act’’ and took

precedence over the productive work of the staff on the petitions. The cumulative

effect of these repetitious FOIA requests was to delay the final determination and

diffuse the focus of the technical and professional staff.
68

The provisions of section 7 will certainly operate to make more effective use of

limited staff time and resources and operate to expedite the completion of the petition evaluation.

In addition to my comments on the contents of this bill I would also offer my suggestion that this legislation contain a provision for an end to future petitions for

recognition after some reasonable period of time to provide ample notice to any potential applicant considering a petition for recognition. The BIA has spent more

than a quarter of a century receiving and researching petitions for recognition from

groups alleging their tribal governmental status. There is little doubt in my mind

that all indigenous peoples of this Nation who can legitimately claim tribal status

under the criteria established for Federal recognition are now aware of the acknowledgement process and the consequences of recognition or lack of it. To continue indefinitely with receiving and researching new petitions will only further diminish

the effectiveness of the limited congressional appropriations in the discharge of the

Federal trust responsibility.

Thank you for the privilege of making this statement. I will be happy to try and

answer any questions you may have of me.

PREPARED STATEMENT OF KEVIN GOVER, PROFESSOR OF LAW, ARIZONA STATE

UNIVERSITY COLLEGE OF LAW

Mr. Chairman and members of the committee, my name is Kevin Gover. I am a

Professor of Law at the Arizona State University College of Law in Tempe, AZ. I

appear before you as an individual, and my testimony does not necessarily represent

the views of Arizona State University or the College of Law. I am honored to appear

before the Committee today, and I thank the chairman for his introduction of S. 297

and for calling this hearing today.

The Federal Recognition Process as you know, I served as the Assistant Secretary

for Indian Affairs at the Department of the Interior from November 1997 until January 2001. The Department and the Bureau of Indian Affairs face a number of vexing problems in their administration of the laws of the United States concerning Indian tribes. Aside from trust reform, perhaps the most visible of these problems is

the administration of the process for determining whether an Indian group qualifies

as an Indian tribe deserving of a government-to-government relationship with the

United States.

The committee’s attention to this matter is extremely important. For too long, the

program has relied entirely on the administrative authorities of the Department for

both its process and substance. while I believe the Department has, in general, established the correct criteria for Federal recognition and afforded due process in

their application, clearly these are subjects that require the attention and authority

of the Congress if the program is to have the legal and political credibility that we

desire.

Moreover, the program’s recent notoriety in the eastern press requires that the

Congress set the record straight. Far too much of the reporting on the matter is ill

informed and just plain wrong. The New York Times, for example, recently reported

that investigations of the program revealed that decisionmaking is politically influenced. That is simply untrue. Neither the General Accounting Office nor the Inspector General of the Interior Department found that decisions were influenced by political pressure, partisan or otherwise.

Contrary to the thrust of these reports, the Federal recognition program is not

about gaming. Most of the currently noteworthy petitions were filed well before the

Indian Gaming Regulatory Act was passed. I have come to view the program as

being primarily about justice.

Those of us who are or have been in positions of authority in Indian affairs have

few real opportunities to correct historic wrongs and make lasting improvements in

the quality of life for tribal communities. The Federal recognition program is one

of the few undertakings in which the United States can definitively correct grievous

historic wrongs and begin in an immediate way to undo the legacy of the genocidal

policies of the past.

I must admit that when I entered government service in 1997, reform of the Federal recognition process was not among my priorities. The Federal recognition program is, after all, a minor undertaking of the Bureau of Indian Affairs in terms of

the budget and personnel assigned to it. However, it soon became clear to me that

the Assistant Secretary’s decisions on these petitions are a crucial aspect of the

overall responsibility of the Department for the execution of Federal relations with

Indian tribes. Moreover, because of the impact a newly recognized tribe can have

in its home region-that is to say, the impact that casinos can have on communities
69

near the tribes-the Federal recognition program had grown into one the most controversial activities of the Bureau.

From the petitioning tribes’ perspective, the program is deeply troubled. It is a

dense program, requiring an extraordinary amount of research, paperwork, and expense. It is an intrusive program, with its inquiry into, quite literally, the parentage

and family backgrounds of hundreds or thousands of members of the petitioning

tribes. And above all, it is a very, very slow program. Too many tribes have had

petitions pending for more than 20 years. While accuracy and thoroughness are

qualities that we all want in government work, I soon concluded that the pace of

decisionmaking in the program was indefensible and unacceptable. For petitioners

qualifying as tribes, the program’s delays deprive them of services and benefits that

improve the lives of Indian people. Moreover, even petitioners that do not qualify

for recognition deserve as much promptness as possible.

From the perspective of communities potentially affected by the recognition of a

tribe in their region, the process allegedly offered too little opportunity for their concerns to be heard. I believe this concern to be somewhat overstated, because those

non-Indians who seek to participate in the process and can demonstrate that the

decision would affect them are allowed to participate. They are able to meet with

staff, both formally and informally; they receive from the Department large amounts

of information concerning the petitions; they are perfectly free to file their submissions and present their views; they are given extensions for the preparation of their

submissions in opposition to recognition; they can appeal the Assistant Secretary’s

decisions to the Interior Board of Indian Appeals and the Secretary; and they are

able to appeal the Department’s final decision to Federal court. They receive far

more than due process demands.

Still, I believe that some of these non-Indian communities, like the tribal petitioners, have a valid point when they object to the expense of pursuing all of these procedural rights. There is no question that the phenomenon of developers funding tribal petitioners for recognition provides the tribes with resources that the creators of

the Federal recognition process never anticipated. I wish to be clear that I do not

subscribe to the idea that gaming money has led to the recognition of undeserving

petitioners. As to the allegations that expensive lobbyists exercise undue influence

in the process, my experience was that lobbyists play no meaningful role in the process of acknowledgment. However, there is little question that the resources that a

small minority of petitioning tribes can now devote to the process can seem overwhelming to members of the public who are affected by the recognition process.

These factors led me to take a much deeper interest in the recognition process

than I thought that I would when I assumed office. What I found was a deeply problematic and fundamentally flawed program. It was distrusted by its constituent petitioners. It was underfunded and overwhelmed by the broad research tasks it had

undertaken and by the need to respond to Freedom of Information Act requests. It

was under fire, in several Federal courts for the delays in the process. It was missing one regulatory deadline after another and making little progress in reducing the

large backlog of pending petitions.

On the other hand, I found that some of the accusations against the Branch of

Acknowledgment and Research (now the Office of Federal Acknowledgment) were

untrue. As mentioned above, I saw no evidence of improper lobbyist influence in

BAR or in the office of the Assistant Secretary in the processing of petitions. Further, I saw nothing to indicate that BAR staff harbored any particular hostility or

prejudice toward or in favor of any of the petitioners that came before me. And

never, not once, did I hear BAR staff express concern about the budget implications

for the BIA of recognizing additional tribes. I do not doubt that the work performed

by BAR represented the staff’s best efforts and honest judgments about the petitions.

As has been well documented, I did not always agree with the judgments and

opinions of BAR researchers and the attorneys from the Solicitor’s office who advised the BAR. I came to believe that the BAR and its attorneys had been essentially unsupervised for many years and that the Assistant Secretary’s office had become little more than a rubber stamp for their recommendations. It is easy to see

why this had happened. The length and complexity of the research that BAR conducted can easily overwhelm an Assistant Secretary, who inevitably has many other

issues with which he or she must contend. When I first asked to see the technical

reports supporting a proposed determination that came before me, BAR supplied

nearly 1,000 pages of research that it had produced. These ‘‘summaries’’ of the petition were alone overwhelming. There was simply no chance that an Assistant Secretary or his/her staff could or would actually review the several boxes of primary

research materials accumulated by BAR to prepare those summaries.
70

By creating an avalanche of paper, the BAR effectively overwhelmed the office of

the Assistant Secretary, and in so doing assumed an inappropriate degree of control

over the program. The scholarly literature in Administrative Law refers to this phenomenon as ‘‘staff capture,’’ meaning that agency staff essentially defies supervision

by political appointees by overwhelming policymakers with information, while the

public’s access to the policymaker is severely limited. In this respect, the rule in 25

C.F.R. Part 83 that limits access to the Assistant Secretary for agency outsiders

during final consideration of the petition gives OFA staff extraordinary power to

control the outcome. The Assistant Secretary and his or her staff, personally unable

to plow through thousands of pages of research materials, has no one to turn to for

help in discerning which are the key policy and factual issues in any given petition.

That being the case, the urge is strong simply to sign off on the OFA recommendation. I grew well acquainted with this problem as proposed and final decisions on

petitions were brought to me. To address this problem, I revised the part 83 regulations to require BAR to present its review of the petition in a format that is more

helpful to the Assistant Secretary. While I believe that was a worthwhile effort,

more needs to be done.

Another troubling aspect of the program was the phenomenon of analytical tools

employed by BAR hardening into rules of law. Two examples make the point. First,

when applying the requirement that a tribe demonstrate the ‘‘continuous’’ existence

of political influence of tribal leadership over the members, OFA looks to see that

such influence existed in each 10-year increment of the tribe’s existence. This is

unobjectionable as an analytical approach, but it is in my opinion wrong and illegal

to apply the ‘‘10-year’’ approach as a rule of law. BAR maintained that if conclusive

proof of political influence was absent during any 10-year period, continuity was

broken and the petition had to be denied. I believe that, while the absence of such

proof during any given decade might be some evidence of a break in continuity, it

is not conclusive and it cannot fairly give rise to a presumption of a break in continuity. It may, for example, only reflect a gap in effective news reporting, recordkeeping, or record retention, not any actual gap in tribal existence. In my view, for

the ‘‘10-year’’ approach to be hardened into a rule of law, or even permitted to establish a presumption, it must go through notice-and comment rulemaking under the

Administrative Procedures Act, which it did not.

Similarly, BAR had developed a specific approach to evaluating whether the petitioner’s membership consists of individuals who descend from a historical Indian

tribe.’’ BAR essentially asked whether 85 percent of a petitioning tribe’s membership could prove descendancy. This 85 percent rule cannot be found in the regulations. While it may be a reasonable means of analysis, it cannot be administered

as a rule of law without being subjected to notice-and-comment rulemaking.

Finally, the role of the office of the Solicitor presents difficulty. Certain individuals in the Solicitor’s office were drafters of the part 83 rules; participate in OFA’s

consideration of the petition; participate in OFA’s drafting of recommendations to

the Assistant Secretary, compile the administrative record behind each decision; advise the Assistant Secretary directly during his or her review of the petition; help

to draft the decisions of the Assistant Secretary; litigate before the IBIA concerning

the decision; advise the Secretary during reconsideration of decisions of the Assistant Secretary; and assist in the litigation in Federal court that results from the Department’s final actions. These individuals have an inappropriate degree of control,

direction, and influence in the process. I believe that the work of these attorneys

is essentially unsupervised in the Solicitor’s office for the same reason that work

of the BAR is essentially unsupervised by the Assistant Secretary: The Solicitor and

his or her immediate advisers simply do not have the time to master the intricacies

of the evidence because of its volume.

S. 297 recognizes the problems I describe and contains a number of good ideas

to address these problems. I strongly endorse S. 297 and the committee’s ongoing

efforts to improve the Federal recognition process. I believe that the ultimate weighing of the evidence is the job of the Assistant Secretary, not the OFA. The OFA,

to be sure, has a critical role in the process, but it does not have the role of decisionmaker. Nor is the subject matter of the OFA’s work so conceptually difficult that

it cannot be questioned by an Assistant Secretary, even one whose primary expertise is outside the social sciences. Indeed, I argue that an Assistant Secretary who

happens to be an attorney is better qualified than the OFA to apply the law in part

83 to the evidence submitted by the petitioner. I believe it is no coincidence that

the only Assistant Secretaries who have disagreed with and overruled a BAR/OFA

recommendation have all been attorneys.

Moreover, the job of the Assistant Secretary is to bring a broader policy perspective to all of the agency’s decisionmaking. Those of us who have served in the office

may fairly be called experts in Indian affairs, and most of us had devoted many
71

years of study and professional work to Indian history, Indian culture, Indian politics, and Indian law before assuming office. Thus, there is absolutely no reason why

the work of the historians and anthropologists in the OFA should receive any more

deference from the Assistant Secretary than does the work of the educators, social

workers, peace officers, et cetera who advise the Assistant Secretary on other important policy matters.

To be sure that the Assistant Secretary has the resources necessary to review

OFA’s work, S. 297 would establish an Independent Review and Advisory Board. I

believe this to be an excellent solution to the problem of ‘‘staff capture’’ that I described. This independent expertise will go far in helping the Assistant Secretary

identify the key factual, legal, and policy issues raised by any given petition and

ensure that, with the advice provided by the Board and by comparing the Board’s

analysis to that of the OFA, the Assistant Secretary will be personally engaged in

making those key decisions in each case.

My primary disagreement with BAR staff related specifically to the assignment

of weight to specific evidence, the inferences that could fairly be drawn from the evidence, and the degree of certainty about historical facts required by the regulations.

I believe that BAR staff, being trained as historians, anthropologists, and genealogists, applied too difficult a standard. I believe they sought near certainty of the

facts asserted by petitioners. They dismissed relevant evidence as inconclusive, even

though conclusive proof is not required by the regulations. Moreover, BAR staff

seemed thoroughly unwilling to give evidence any cumulative effect. While any

given piece of evidence might be characterized as weak, for example, many pieces

of weak evidence, when considered cumulatively, can make a sound case. I do not

believe that the BAR staff were dishonest in their analysis. I do believe that, in accordance with their training, they applied a burden of proof far beyond what is appropriate and far beyond what is permitted by the regulations. The creation of the

Board will improve the process by permitting the Assistant Secretary to review the

evidence effectively and apply the appropriate standard of review.

The authorization for grants to petitioning tribes and affected communities also

will address important problems. Tribes often turn to developers for resources to

pursue their petitions because they have little choice. If a tribe declines help from

developers, it runs the risk that its resources in pursuing the petition will be inadequate. My experience indicates that the quality of technical assistance and representation provided to petitioning tribes by their consultants and lawyers is uneven. With the additional resources that would become available under this grant

program, perhaps the quality of that assistance will improve. Moreover, the grant

program will provide a petitioning tribe with a meaningful choice as to whether to

seek the assistance of a developer. [I note that such grants are conditioned on a

showing of need, and I assume from this that a tribe supported by a developer

would be unable to make a showing of need.] While the grant program will not

eliminate entirely the influence of developer resources on the process, it will help.

As for grants to affected communities, my support is more reluctant. I understand

the need for fairness in the process, and I realize the need for political compromise

on legislation of this sort, but I am troubled by the precedent of permitting scarce

funds appropriated to the BIA, generally for Indian purposes, to be awarded to nonIndian communities. To the tribes, such a ‘‘raid’’ on BIA funding might be seen as

yet another non-Indian misappropriation of resources intended for Indians—the essence of the colonialism that this Congress has decried. However, given that the

grants are conditioned on a demonstration of need by the affected community, I believe that the grants may help the process to be more accessible to communities potentially affected by the recognition of tribes.

Another important idea in S. 297 is the definition of the ‘‘historical period’’ for determining the continuity of tribal existence as running from 1900 to the filing of the

petition. My experience in evaluating petitions revealed that tribes very often could

not provide the kind of documentary evidence BAR wanted for the period from

roughly 1870 to 1930. As an Indian person and a scholar of Indian history, I found

this unsurprising. As the chairman well knows, this period was a bleak one for Indians. The United States sought a final solution for the ‘‘Indian problem,’’ and that

solution was assimilation, a deliberate assault on Indian tribalism. The United

States sought to withdraw from its responsibilities to Indian tribes in many circumstances; other tribes suffered from benign neglect or were simply left for the

States to deal with. Still other tribes, I believe, adopted a strategy of anonymity,

believing it better not to be noticed than to come to the attention of Federal and

State authorities. Small wonder, then, that documentary evidence of some tribes in

this period is sparse.

I believe that the date of 1934 well may be a better starting point. As you know,

Federal policy shifted radically at that point, and a number of tribal groups re-
72

emerged at that time. Their re-emergence cannot fairly be described as the re-constitution of a community once scattered to the wind. Rather, communities that had

long been underground were willing once more to reveal themselves to the light

when Federal policy toward tribalism became friendlier. BAR’s interpretation of evidence in this period was consistently rigid and formalistic, taking little or no account of the larger historical context. I took a more generous approach, refusing to

give new life and effect to the policies of an era that can only be called

unenlightened.

As I have indicated, I would support the enactment of S. 297 in its current form.

I would like to propose, however, three possible amendments that would further improve the process.

First, I strongly believe that certain petitioners, which already have been denied

recognition, should be permitted another opportunity under the revised process established by this bill. I adopted a policy when I was Assistant Secretary that I

would not revisit final determinations of my predecessors in office. While I believe

that this was the right policy, I remain troubled to this day that justice was denied

to certain tribes, particularly the Miami Tribe. Even some of the petitions I personally acted upon leave me wishing that this revised process had been in effect when

I was in office. Into this category I would place the Mowa Choctaw. Finally, I remain convinced that the Chinook Tribe is deserving of Federal recognition, and I

believe that, if Assistant Secretary McCaleb had the resources provided by this bill

available to him when he addressed the Chinook petition, the outcome well may

have been different. There may be other tribes, such as the Duwamish and the

Muwekma who should be eligible for reconsideration as well.

Second, I believe that fairness in the process will be enhanced by limiting the role

of the Division of Indian Affairs in the Office of the Solicitor. I described above the

pervasive influence of that division. I believe that such pervasive influence is pernicious to the process. I note that the Independent Review and Advisory Board will

have two attorney members, and I believe that is wise. I urge that the Congress

go a step further, however, and provide that, when a matter is assigned by the Assistant Secretary to the Board, no attorney from the Division of Indian Affairs be

permitted to communicate with the Board. Further, to the extent the Board requires

legal assistance from the Department, as it well may, that assistance should come

from another division of the Solicitor’s office. I suggest that the Division of General

Law have this responsibility. Similarly, after the OFA has made its recommendation

to the Assistant Secretary on the final determination of a petition, neither OFA nor

the Division of Indian Affairs should have any further contact with the Assistant

Secretary regarding the petition. In the alternative, Congress should provide that

a petitioner must receive notice of the OFA’s recommendation to the Assistant Secretary and have one last opportunity to appear before the Assistant Secretary and

offer any rebuttal evidence it might wish. These suggestions are offered in order to

further reduce the historic inappropriate influence that BAR and the Division of Indian Affairs have asserted over the process.

Third and finally, I suggest that the committee more broadly address the issue

of the significan6e of continuous state recognition of Indian tribes. While the existing regulations and the bill before the Committee indicate the significance of state

recognition as evidence of historic identification of the tribe, I agree wholeheartedly

with the Department’s position that such continuous State recognition is also evidence of continuity of political influence. In its recent decision on the petition of the

Schaghticoke Tribal Nation, the Department held that ‘‘the historically continuous

existence of a community recognized throughout its history as a political community

by the state and occupying a distinct territory set aside by the State, provides sufficient evidence for continuity of political influence within the community.’’ The proposition is unremarkable; indeed, it is obvious. When a State has maintained a relationship with an Indian group throughout the State’s history, and when the group

has occupied a state-recognized reservation throughout that time, these facts are

evidence of ongoing political organization in the tribe. I support this holding concerning the evidentiary value of State recognition. Indeed, I believe it is the only

sensible interpretation of the fact of continuous State recognition.

Mr. Chairman, thank you again for this opportunity to appear before you. I would

be pleased to answer any questions the committee might have.

PREPARED STATEMENT OF AURENE MARTIN, PRINCIPAL DEPUTY ASSISTANT

SECRETARY—INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Good morning, Mr. Chairman and members of the committee. My name is Aurene

Martin, principal deputy assistant secretary—Indian affairs at the Department of
73

the Interior. I am here today to provide the Administration’s testimony on S. 297,

the ‘‘Federal Acknowledgment Process Reform Act of 2003.’’ The stated purposes of

S. 297 include ensuring that when the United States acknowledges a group as an

Indian tribe, that it does so with a consistent legal, factual and historical basis,

using clear and consistent standards. Another purpose is to provide clear and consistent standards for the review of documented petitions for acknowledgment. Finally it attempts to clarify evidentiary standards and expedite the administrative

review process for petitions through establishing deadlines for decisions and providing adequate resources to process petitions.

While we agree with these goals, we do not believe S. 297 achieves them. The Department therefore, does not support S. 297. We are concerned that S. 297 would

lower the standards for acknowledgment and not allow interested entities the opportunity to be involved in the process. We recognize the interest of the Congress in

the acknowledgment process, and are willing to work with the Congress on legislative approaches to the Federal acknowledgment process. We believe that any legislation created should have standards at least as high as those currently in effect so

that the process is open, transparent, timely, and equitable.

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. We believe these regulations provide a rigorous and thorough process.

The Department’s regulations are intended to apply to groups that can establish

a substantially continuous tribal existence and, which have functioned as autonomous entities throughout history until the present. See 25 C.F.R. Sections 83.3(a)

and 83.7. When the Department acknowledges an Indian tribe, it is acknowledging

that an inherent sovereign continues to exist. The Department is not ‘‘granting’’ sovereign status or powers to the group, nor creating a tribe made up of Indian descendants. We believe this standard as provided in 25 C.F.R. Part 83.3(a) needs to

be maintained.

Under the Department’s regulations, in order to meet this standard petitioning

groups must demonstrate that they meet each of seven mandatory criteria. The petitioner must:

(1) demonstrate that it has been identified as an American Indian entity on a substantially continuous basis since 1900; (2) show that a predominant portion of the

petitioning group comprises a distinct community and has existed as a community

from historical times until the present; (3) demonstrate that it has maintained political influence or authority over its members as an autonomous entity from historical

times until the present; (4) provide a copy of the group’s present governing document including its membership criteria; (5) demonstrate that its membership consists of individuals who descend from the historical Indian tribe or from historical

Indian tribes that combined and functioned as a single autonomous political entity

and provide a current membership list; (6) show that the membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe; and (7) demonstrate that neither the petitioner nor its members are the subject of congressional legislation that has expressly

terminated or forbidden the Federal relationship.

A criterion is considered met if the available evidence establishes a reasonable

likelihood of the validity of the facts relating to that criterion.

S. 297 would reduce the standards for acknowledgment by requiring a showing

of continued tribal existence only from 1900 to the present, rather than from first

sustained contact with Europeans as provided for in 83.7(b) and (c). Other changes

from the current regulatory standards would reduce the standard for demonstrating

tribal existence even after 1900. This reduction in the standard deviates significantly from the position of the Department, as stated in the regulations, that the

legal basis of Indian sovereignty is continuous political and social existence pre-dating European settlement of the territory that now constitutes the U.S. and extends

without break to the present. The standard set out in S. 297 makes it more likely

that groups without demonstrated tribal ancestry or historical tribal connection may

be acknowledged.

The bill also reduces the burden of producing evidence to demonstrate continuous

existence by creating an extensive list of exceptions delineated in section 5(g) of S.

297. Section 5(g) would provide that if an Indian group demonstrates by a reasonable likelihood that the group was, or is a successor in interest to a party to one

or more treaties, that group would only have to show their continual existence from

when the government expressly denied them services, even if this notification occurred only in the recent past. Under the Department’s regulations, the burden

rests with the petitioning group to show continuous existence; the bill shifts that
74

burden to the Department. For example, if a group requested services from the government in 2000 and was denied those services, under this scheme, the group would

only have to submit documentation from 2000 to the present. The Department

would then have to demonstrate the group did not exist as a tribe prior to 2000.

The Department supports a more timely decisionmaking process, but does not believe that the factual basis of the decisions should be sacrificed to issue more decisions. The bill seeks to speed the process by narrowing the role of interested parties

in the administrative process and by permitting only the petitioner to respond to

proposed findings. These limits on outside party involvement, however, lessen the

evidentiary basis of the decisions by not allowing interested parties the opportunity

to submit arguments and evidence to rebut or support the proposed finding. Interested parties that believe that their views and concerns are not being given due consideration in the administrative process will likely challenge the decisions in court,

which makes the process more costly and time consuming. The bill, however, appears to limit these challenges by permitting only petitioners to sue over the decisions. Specifically, the bill would provide for an appeal of the final determination

by the petitioner within 60 days in the U.S. District Court for DC; however, it is

unclear if this bill precludes an appeal by interested parties under the Administrative Procedure Act. Since Federal acknowledgment decisions impact the groups

seeking tribal status, the local communities, States, and federally recognized tribes,

the process must be equitable.

With respect to deadlines and time lines, the Department is interested in exploring some type of sunset provision. In fact, in response to a November 2001, General

Accounting Office [GAO] report on the ‘‘effectiveness and consistency of the tribal

recognition process’’, the Department stated that we would support a legislative sunset rule that would establish a clear timeframe in which petitioners must submit

final documented petitions and supporting evidence.

The September 30, 2002, strategic plan and needs assessment of the Assistant

Secretary in response to the GAO report outlined a number of changes that the Department is implementing, and changes that Congress can implement, to speed the

process and to make it more equitable and transparent—without changing the

standard of continuous tribal existence. The Secretary in April 2004 requested from

the Assistant Secretary—Indian Affairs a report outlining the progress on the implementation of the strategic plan.

A number of changes have been made at the Department to implement the strategies identified in the Department’s response to the GAO. First, previous acknowledgment decisions have been scanned on CD-ROM and are available to the public.

Second, the use of Federal Acknowledgment Information Resource, or FAIR, has expanded. FAIR is a data base system linking images of the documents in the record

with the Department researchers’ comments. It includes a chronology of events from

the documents submitted and data extracts, and allows the tracking of persons involved in the group and their activities. FAIR has been praised by petitioners and

interested parties alike for providing timely access to the record and researchers’

analysis. The fact that this Administration has issued 14 decisions further documents the success of these efforts. The bill does not address the improvements that

the Department has made.

The Department believes that the acknowledgment of the existence of an Indian

tribe is a serious decision for the Federal Government. It is of the utmost importance that thorough and deliberate evaluations occur before the Department acknowledges a group’s tribal status, which carries significant immunities and privileges, or denies a group Federal acknowledgment as an Indian tribe.

When the Department acknowledges an Indian tribe, it recognizes an inherent

sovereign that has existed continuously from historic times to the present. These decisions have significant impacts on the petitioning group as well as on the surrounding community. Therefore, these decisions must be based on a thorough evaluation

of the evidence using standards generally accepted by the professional disciplines

involved with the process. The process must be open, transparent, timely, and equitable.

Thank you for the opportunity to testify on S. 297 and the Federal acknowledgment process. I will be happy to answer any questions you may have.
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166

Æ