69–010 

Calendar No. 94 

115TH CONGRESS REPORT " ! SENATE 1st Session 115–75 

TO EXTEND THE FEDERAL RECOGNITION TO THE LITTLE 

SHELL TRIBE OF CHIPPEWA INDIANS OF MONTANA, 

AND FOR OTHER PURPOSES 

MAY 22, 2017.—Ordered to be printed 

Mr. HOEVEN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 39] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Indian Affairs, to which was referred the bill 

(S. 39) to extend the Federal recognition to the Little Shell Tribe 

of Chippewa Indians of Montana, and for other purposes, having 

considered the same, reports favorably thereon, without amendment, and recommends that the bill do pass. 

PURPOSE

The purposes of S. 39 are (1) to extend Federal recognition to the 

Little Shell Tribe of Chippewa Indians of Montana (Little Shell), 

making its members eligible for all services and benefits provided 

by the United States to other federally recognized Indian tribes; 

and (2) to effect the transfer of 200 acres of land, which the Secretary of the Interior (Secretary) shall acquire and place in trust 

for the benefit of Little Shell. 

BACKGROUND

History of federally recognizing Indian tribes 

The act of federally recognizing an Indian tribe is highly significant. It is an affirmation by the United States of the existence of 

a formal government-to-government relationship between the 

United States and the tribe. Once federally recognized, a tribe and 

its members have access to Federal benefits and programs, and the 


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1See 59 Fed. Reg. 94–3934. (February 25, 1994). 2 80 Fed. Reg. 37861 (July 1, 2015). 

3See 80 Fed. Reg. 37862. 4 Examples of changes made to the process prior to recent reform efforts include regulations 

clarifying the evidence needed to support a recognition petition, 59 Fed. Reg. 94–3934 (February 

25, 1994); a notice regarding internal BIA processing of federal acknowledgment petitions, 65 

tribal government incurs a formal responsibility to its members as 

the primary governing body of the community. 

Before Congress ended the practice of treaty-making with Indian 

tribes in 1871, treaties were the usual manner of recognizing a government-to-government relationship between the United States and 

an Indian tribe. Since the conclusion of this practice, the United 

States has recognized Indian tribes by legislation, executive orders, 

and administrative decisions. Additionally, Federal courts may 

clarify the status of an Indian group. 

In order to provide a uniform and consistent process by which an 

Indian tribe may be federally recognized, the Department of the Interior (Department) developed an administrative process in 1978 to 

allow Indian groups to petition for formal acknowledgment of a 

government-to-government relationship with the United States. 

Standards and procedures for this process were set forth in Part 

83 of Title 25 of the Code of Federal Regulations (Part 83 or the 

Federal acknowledgement process). These regulations, as amended 

in 1994, required a petitioner to satisfy seven mandatory requirements, including: 

(1) The petitioner ‘‘has been identified as an American Indian entity on a substantially continuous basis since 1900’’; 

(2) A predominant portion of the petitioning ‘‘group comprises a 

distinct community and has existed as a community from historical 

times until the present’’; 

(3) The petitioner has ‘‘maintained political influence or authority 

over its members as an autonomous entity from historical times to 

the present’’; 

(4) The group must ‘‘provide a copy of its present governing documents and membership criteria’’; 

(5) The petitioner’s ‘‘membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes 

which combined and functioned as a single autonomous political 

entity’’; 

(6) The ‘‘membership of the petitioning group is composed principally of persons who are not members of any acknowledged North 

American Indian tribe’’ and do not maintain a bilateral political relationship with the acknowledge tribe; and 

(7) ‘‘Neither the petitioner nor its members are the subject of 

congressional legislation that has expressly terminated or forbidden the Federal relationship’’.1

The Department issued new Part 83 regulations on July 1, 

2015.2

History of changes made to the Department’s Part 83 regulations 

The Federal acknowledgement process has been criticized as 

‘‘broken’’ for decades.3 Nonetheless, until the Department’s recent 

effort to reform Part 83 (discussed below), there have been only a 

handful of changes made to the Federal acknowledgement process 

since its inception.4


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Fed. Reg. 7052–53 (February 11, 2000); and a notice providing guidance and direction to streamline the process, 73 Fed. Reg. 30146 (May 23, 2008). 5See 80 Fed. Reg. 37861 (July 1, 2015). 6See Tonto Apache Tribe of Arizona, Pub. L. 92–470 (1972); Modoc Tribe of Oklahoma, Pub. 

L. 95–281 (1978); Pasqua Yaqui Tribe of Arizona, Pub. L. 95–375 (1978); Houlton Band of 

Maliseet Indians of Maine, Pub. L. 96–420 (1980); Cow Creek Band of Umpqua Indians of Oregon, Pub. L. 97–391; Kickapoo Traditional Tribe of Texas, Pub. L. 97–429 (1983); Mashantucket 

Pequot Tribe of Connecticut, Pub. L. 98–134 (1983); Ysleta Del Sur Pueblo of Texas, Pub. L. 

100–89 (1987); Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan, Pub. 

L. 100–420 (1988); Coquille Tribe of Oregon, Pub. L. 101–42 (1989); Aroostook Band of Micmac 

Indians of Maine, Pub. L. 102–171 (1991); Pokagon Band of Potawatomi Indians of Michigan, 

Pub. L. 103–323 (1994); Little River Band of Ottawa Indians of Michigan, Pub. L. 103–324 

(1994); Little Traverse Band of Odawa Indians of Michigan, Pub. L. 103–324 (1994); Central 

Council of the Tlingit & Haida Indian Tribes of Alaska, Pub. L. 103–454 (1994); Graton 

Rancheria of California, Pub. L. 106–568 (2000); and Loyal Shawnee Tribe of Oklahoma, Pub. 

L. 106–568 (2000). 7The Department of the Interior issued a final determination recognizing the Pamunkey Indian Tribe. See 80 Fed. Reg. 39144 (July 8, 2015). 8See U.S. Department of the Interior, News Release, Department of the Interior Announces 

Final Federal Recognition Process to Acknowledge Indian Tribes (June 29, 2015) (stating that 

more than 2,800 commenters provided input on the Discussion Draft, and that there were over 

330 unique comments on the Proposed Rule). The Department also received feedback from tribes 

during consultations and public meetings. Id. 9 80 Fed. Reg. 37861 (July 1, 2015). 

10 80 Fed. Reg. 37538–39 (July 1, 2015). 11 80 Fed. Reg. 37861 (July 1, 2015). 12 Id. 

Complaints about the Department’s Federal acknowledgement 

process have centered primarily on the high cost of gathering documentary evidence to meet the seven mandatory criteria, the length 

of time it takes the Department to review a petition, and the Department’s inconsistent application of the listed criteria.5 Of the 

567 tribes that have been federally recognized, only 18 have been 

acknowledged through the Part 83 process. 

Since 1970, Congress has passed legislation to federally recognize 

or reaffirm 17 Indian tribes.6 To date, the Department has issued 

50 decisions under the Part 83 process, including one decision 

issued after new Part 83 regulations were published in July 2015.7

Recent developments 

On June 21, 2013, the Assistant Secretary—Indian Affairs (AS– 

IA) released a Discussion Draft proposing changes to Part 83. The 

related comment period closed on September 30, 2013. On May 29, 

2014, the AS–IA published a Proposed Rule in the Federal Register. The Department received substantial input from tribes, state 

and local governments, and the public, during the associated comment period, which closed on September 30, 2014.8

Ultimately, the Department published a Final Rule on July 1, 

2015, which took effect on July 31, 2015.9 Assistant Secretary 

Washburn also issued a policy statement indicating that the Department will rely on the new Part 83 process as the ‘‘sole administrative avenue’’ for Federal acknowledgement for tribes.10

According to the Department, the Final Rule preserves the existing standard of proof and seven mandatory criteria to ‘‘maintain[] 

the substantive rigor and integrity of the [Part 83] process.’’ 11 In 

order to promote timeliness and efficiency, the Final Rule provides 

for a two-phased review of petitions that establishes certain threshold criteria and may result in the earlier issuance of final decisions, 

as well as a uniform evaluation period (1900 to present) to satisfy 

the tribal identification, community and political authority criteria.12 The Final Rule is intended to promote efficiency by proVerDate Sep 11 2014 06:34 May 23, 2017 Jkt 069010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR075.XXX SR075

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13 Id. 14 Id. 15 Id. 16 Id. 17The Department of the Interior issued a final determination recognizing the Pamunkey Indian Tribe on July 2, 2015. See 80 Fed. Reg. 39144 (July 8, 2015). 18See Little Shell Tribe of Chippewa Indians Restoration Act of 2011, S. 546, 112th Cong. § 2 

(7) (2011). 19Treaty with the Chippewa—Red Lake and Pembina Bands, U.S.-Chippewa—Red Lake and 

Pembina Bands, October 2, 1863, 13 Stat. 667. 20Fixing the Federal Acknowledgement Process: Hearing Before the S. Comm. on Indian Affairs, 111th Cong. 2, 2–3 (2009) (written testimony of John Sinclair, President of the Little Shell 

Tribe of Chippewa Indians of Montana). 21 Id. 22 Id. 23Little Shell Tribe of Chippewa Indians Restoration Act of 2007: Hearing on S. 724 Before 

the S. Comm. on Indian Affairs, 110th Cong. 2, 13 (2008) (statement of the Hon. John Sinclair, 

Little Shell Tribe of Chippewa Indians of Montana, President); 41 Stat. 1225 (March 3, 1925). 24 Indian Reorganization Act, 25 U.S.C. §§ 5101–5144 (2017). 

viding for limited reconsideration of final agency determinations.13

The Department states that the Final Rule promotes fairness and 

consistency by providing that prior decisions finding evidence or 

methodology sufficient to satisfy any particular criterion will also 

be sufficient for a petitioner under the new Part 83 process.14 It 

also states that the Final Rule promotes transparency by providing 

for increased public access to petitions for Federal acknowledgement and associated public materials and, in the case of a negative 

proposed finding, providing petitioners the opportunity for a hearing.15

Indian tribes that applied for federal acknowledgment prior to 

publication of the Final Rule on July 1, 2015, are allowed to choose 

to have the Department evaluate their application under the previous application process or the new application process.16

Since the Final Rule was published, one Indian tribe has been 

federally recognized.17

History of Little Shell 

The Little Shell has used historical ties to the Pembina Band of 

Chippewa Indians in North Dakota for the Department to consider 

to satisfy criteria five.18 The Pembina Band was included in the 

Chippewa—Red Lake and Pembina Bands treaty with the United 

States in an 1863 treaty that was ratified by the Senate.19 Many 

of the members of the Pembina Band settled on reservations in 

Minnesota, but the ancestors of the Little Shell moved westward, 

following the buffalo herds. By the late 1800s, the Little Shell had 

settled in Montana and in the Turtle Mountains of North Dakota.20

The Little Shell Band has had numerous dealings with the 

United States. In 1892, a United States Commission was formed to 

negotiate cession of land from the Turtle Mountain Chippewa and 

provide for their removal. Chief Little Shell and his followers refused to accept the terms of the agreement and walked out on the 

negotiations. He was followed by a group of supporters who would 

become known as the ‘‘Little Shell Band’’.21

Chief Little Shell and the Little Shell Band’s refusal to cede additional lands to the United States left them without a reservation.22 Congress appropriated funds in 1908, and from 1914 

through 1925, to establish a land base for the ‘‘homeless Indians 

in the State of Montana.’’ 23

In 1935, following the enactment of the Indian Reorganization 

Act (IRA),24 the BIA attempted to help the Little Shell Tribe form 


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25See Little Shell Tribe of Chippewa Indians Restoration Act of 2011, S. 546, 112th Cong. § 2 

(7) (2011). 26 Id. 27Little Shell Tribe of Chippewa Indians Restoration Act of 2013: Hearing on S. 161 Before 

the S. Comm. on Indian Affairs, 113th Cong. 1, 4 (2013) (written testimony of the Assistant Secretary for Indian Affairs, U.S. Department of the Interior). 28 65 Fed. Reg. 45394 (July 21, 2000). 29 74 Fed Reg. 56861 (November 3, 2009); Little Shell Band of Chippewa Indians Restoration 

Act of 2011: Hearing on S. 546 Before the S. Comm. on Indian Affairs, 112th Cong. 1, 30 (2011) 

(statement of Hon. John Sinclair, Little Shell Tribe of Chippewa Indians of Montana, President). 30Little Shell Tribe of Chippewa Indians Restoration Act of 2013: Hearing on S. 161 Before 

the S. Comm. on Indian Affairs, 113th Cong. 1, 20 (2013) (statement of the Assistant Secretary 

for Indian Affairs, U.S. Department of the Interior). 31 Id. 32Little Shell Tribe of Chippewa Indians Restoration Act of 2007: Hearing on S. 724 Before 

the S. Comm. on Indian Affairs, 110th Cong. 2, 1 (2008) (written testimony of Director, R. Lee 

Fleming, Office of Federal Acknowledgment, US Department of the Interior). 

a government and reestablish a relationship with the United 

States. The Little Shell was ultimately unable to formally organize 

under the IRA because they lacked a land base.25

The Little Shell continued its effort to obtain Federal recognition 

through the Department’s Federal acknowledgment process. In 

1978, the year this process was created, Little Shell filed a letter 

of intent to petition for Federal acknowledgment. Little Shell spent 

approximately 14 years documenting their petition for acknowledgment, and ultimately submitted a petition in 1992.26

In 1995, the BIA declared the Little Shell’s petition was complete.27 In 2000, the BIA issued a positive proposed finding on the 

petition, stating that Little Shell had met all seven mandatory criteria for Federal acknowledgment.28 However, the BIA Office of 

Federal Acknowledgement requested additional information from 

the Tribe. In response, Little Shell provided nearly 1,000 pages of 

additional material. 

In 2009, the Department issued a final determination against 

federally acknowledging Little Shell.29 The Department’s final determination stated that Little Shell met only four of the seven 

mandatory criteria for Federal acknowledgment.30 Little Shell appealed the negative final determination to the Interior Board of Indian Appeals.31

In 2013, the Secretary referred Little Shell’s petition to the AS– 

IA for reconsideration. The Little Shell petition was placed on hold. 

LEGISLATIVE HISTORY

Montana Senators Jon Tester [D–MT] and Max Baucus [D–MT] 

introduced legislation to federally recognize Little Shell in the 

110th Congress (S. 724), the 111th Congress (S. 1936), the 112th 

Congress (S. 546), and the 113th Congress (S. 161). During the 

110th Congress, and again in the 112th and 113th Congresses, the 

Committee on Indian Affairs held hearings on the legislation. At 

that time, Little Shell’s petition for recognition was on active consideration, and the Administration testified in support of the Part 

83 process.32 Montana Senators Jon Tester and Steve Daines introduced legislation to federally recognize Little Shell in the 114th 

Congress (S. 35). The Committee favorably reported out bills to recognize Little Shell in the 112th, 113th, and 114th Congresses. 

In the 115th Congress, on January 5, 2017, Senators Jon Tester 

[D–MT] and Steve Daines [R–MT] introduced S. 39 to federally recognize Little Shell. The bill was referred to the Committee on Indian Affairs, which considered the bill at a February 8, 2017 busiVerDate Sep 11 2014 06:34 May 23, 2017 Jkt 069010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR075.XXX SR075

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ness meeting. During this business meeting, the Committee favorably reported S. 39 to the full Senate by voice vote, without amendment. 

Although there have been companion bills introduced in the 

House during past Congresses (including the 114th Congress), 

there is currently no companion bill. Additionally, Montana’s atlarge congressional seat is presently vacant. 

SECTION-BY-SECTION ANALYSIS

Section 1—Short title 

This section states that the short title of the bill is the ‘‘Little 

Shell Tribe of Chippewa Indians Restoration Act of 2017’’. 

Section 2—Findings 

This section lists Congressional findings. 

Section 3—Definitions 

This section defines terms used throughout the Act. 

Section 4—Federal recognition 

This section formally extends Federal recognition to Little Shell, 

making all federal laws and regulations of general applicability to 

Indians and Indian tribes, including the IRA, applicable to Little 

Shell and its members. 

Section 5—Federal services and benefits 

This section states that, beginning on the date of enactment of 

this Act, the Little Shell and each member shall be eligible for all 

services and benefits provided by the United States to Indians and 

federally recognized Indian tribes, without regard to either the existence of a reservation for the tribe or the location of the residence 

of any member on or near an Indian reservation. This section also 

establishes Little Shell’s service area for service delivery and benefits purposes as Blaine, Cascade, Glacier, and Hill Counties in the 

State of Montana. 

Section 6—Reaffirmation of rights 

This section makes clear that nothing in this Act diminishes any 

right or privilege of Little Shell, or members of Little Shell, that 

existed prior to the date of enactment. The section further states 

that any legal or equitable claims to enforce rights or privileges reserved by or granted to Little Shell that were wrongfully denied or 

taken before enactment of this Act are preserved. 

Section 7—Membership roll 

This section mandates, as a condition of receiving recognition, 

services, and benefits pursuant to this Act, that Little Shell submit 

to the Secretary a membership roll within 18 months of enactment 

of this Act, and maintain such roll. This section also requires that 

tribal membership be determined in accordance with Little Shell’s 

constitution dated September 10, 1977. 


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Section 8—Transfer of land 

This section directs the Secretary to acquire trust title to 200 

acres of land within the service area of the Tribe. This section also 

states that the Secretary may acquire additional land for the benefit of the Tribe, in accordance with the IRA. 

COST AND BUDGETARY CONSIDERATIONS

The following cost estimate, as provided by the Congressional 

Budget Office, dated February 21, 2017. 

Summary: S. 39 would provide federal recognition to the Little 

Shell Tribe of Chippewa Indians of Montana. Federal recognition 

would make the tribe eligible to receive benefits from various federal programs. 

CBO estimates that implementing this legislation would cost $35 

million over the 2018–2022 period, assuming appropriation of the 

necessary amounts. Enacting S. 39 would not affect direct spending 

or revenues; therefore, pay-as-you-go procedures do not apply. 

CBO estimates that enacting S. 39 would not increase net direct 

spending or on-budget deficits in any of the four consecutive 10- 

year periods beginning in 2028. 

S. 39 would impose an intergovernmental mandate as defined in 

the Unfunded Mandates Reform Act (UMRA) by exempting some 

lands from taxation by state and local governments, but CBO estimates the cost of the mandate would be small and well below the 

threshold established in that act ($78 million in 2017, adjusted annually for inflation). 

S. 39 contains no private-sector mandates as defined in UMRA. 

Estimated cost to the Federal Government: The estimated budgetary effect of S. 39 is shown in the following table. The costs of 

this legislation fall within budget functions 450 (community and regional development) and 550 (health). 

By fiscal year, in millions of dollars— 

2018 2019 2020 2021 2022 2018–2022 

INCREASES IN SPENDING SUBJECT TO APPROPRIATION 

Department of the Interior: 

Estimated Authorization Level ..................... 3 3 3 3 3 16 

Estimated Outlays ....................................... 2 3 3 3 3 15 

Indian Health Service: 

Estimated Authorization Level ..................... 4 4 4 4 5 20 

Estimated Outlays ....................................... 4 4 4 4 5 20 

Total Changes: 

Estimated Authorization Level ............ 7 7 7 7 8 36 

Estimated Outlays .............................. 6 7 7 7 8 35 

Note: Components may not sum to totals because of rounding. 

Basis of estimate: For this estimate, CBO assumes that S. 39 will 

be enacted near the end of 2017 and that the amounts necessary 

to implement the bill will be appropriated each year. 

Providing federal recognition to the Little Shell Tribe of Chippewa Indians of Montana would allow the tribe and about 2,600 

tribal members to receive benefits from various programs administered by the Department of the Interior (DOI) and the Indian 

Health Service (IHS). Based on the average per capita expenditures 

by those agencies for other Indian tribes, CBO estimates that implementing S. 39 would cost $35 million over the 2018–2022 period. 


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Department of the Interior 

DOI, primarily through the Bureau of Indian Affairs (BIA), provides funding to federally recognized tribes for various purposes, 

including child welfare services, adult care, community development, and general assistance. Based on current per capita expenditures of around $1,200 for other federally recognized tribes located 

in the central states and accounting for anticipated inflation, CBO 

estimates that providing those services to the tribe would cost $15 

million over the 2018–2022 period. 

Indian Health Service 

S. 39 also would make members of the tribe eligible to receive 

health benefits. Based on an analysis of information from the IHS, 

CBO estimates that about 55 percent of tribal members—or about 

1,400 people—would receive benefits each year. CBO expects that 

the per capita cost to serve those people would be similar to the 

costs for current IHS beneficiaries—about $2,650 in 2017. Accounting for anticipated inflation, CBO estimates that providing benefits 

for tribal members through the IHS would cost $20 million over the 

2018–2022 period. 

Other Federal Agencies 

In addition to DOI and IHS funding, certain Indian tribes also 

receive support from other federal programs within the Departments of Education, Housing and Urban Development, Labor, and 

Agriculture. Based on their status as a tribe recognized by the 

state of Montana, the tribe is already eligible to receive funding 

from those departments. Thus, CBO estimates that enacting S. 39 

would not increase costs for that support. 

Pay-As-You-Go considerations: None. 

Increase in long-term direct spending and deficits: CBO estimates that enacting S. 39 would not increase net direct spending 

or on-budget deficits in any of the four consecutive 10-year periods 

beginning in 2028. 

Estimated impact on state, local, and tribal governments: S. 39 

contains an intergovernmental mandate as defined in UMRA because it would authorize the Secretary of Interior to acquire and 

take into trust 200 acres of land for the Little Shell Tribe. Because 

that land would be exempt from state and local taxes, the provision 

would impose an intergovernmental mandate. Given the small 

amount of land to be taken into trust, CBO estimates that the forgone tax revenue to state and local governments would be small 

and well below the threshold established for intergovernmental 

mandates ($78 million in 2017, adjusted annually for inflation). 

Estimated impact on the private sector: S. 39 contains no private-sector mandates as defined in UMRA. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires each report accompanying a bill to evaluate the regulatory and paperwork impact that would be incurred in carrying 

out the bill. The Committee believes that S. 39 will have a minimal 

impact on regulatory or paperwork requirements. 


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EXECUTIVE COMMUNICATIONS

The Committee has received no communications from the Executive Branch regarding S. 39. 

CHANGES IN EXISTING LAW

In accordance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee finds that the enactment of S. 

39 will not make any changes in existing law. 

Æ 


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