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AUTHORIZATION, STANDARDS, AND 

PROCEDURES FOR WHETHER, 

HOW, AND WHEN INDIAN TRIBES 

SHOULD BE NEWLY RECOGNIZED 

BY THE FEDERAL GOVERNMENT: 

PERSPECTIVE OF THE DEPARTMENT OF THE INTERIOR

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON INDIAN AND 

ALASKA NATIVE AFFAIRS

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS

FIRST SESSION

Tuesday, March 19, 2013

Serial No. 113–5

Printed for the use of the Committee on Natural Resources

(

Available via the World Wide Web: http://www.fdsys.gov 

or 

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

(II)

COMMITTEE ON NATURAL RESOURCES

DOC HASTINGS, WA, Chairman 

EDWARD J. MARKEY, MA, Ranking Democratic Member

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Mark E. Amodei, NV 

Markwayne Mullin, OK 

Chris Stewart, UT 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Vacancy 

Peter A. DeFazio, OR 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Steven A. Horsford, NV 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Jeffrey Duncan, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS 

DON YOUNG, AK, Chairman 

COLLEEN HANABUSA, HI, Ranking Democratic Member

Dan Benishek, MI 

Paul A. Gosar, AZ 

Markwayne Mullin, OK 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Doc Hastings, WA, ex officio 

Tony Ca ́ rdenas, CA 

Raul Ruiz, CA 

Eni F. H. Faleomavaega, AS 

Rau ́l M. Grijalva, AZ 

Edward J. Markey, MA, ex officio

(III)

CONTENTS 

Page

Hearing held on Tuesday, March 19, 2013 ............................................................ 1

Statement of Members: 

Hanabusa, Hon. Colleen W., a Representative in Congress from the State 

of Hawaii ....................................................................................................... 3

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

Young, Hon. Don, a Representative in Congress from the State of

Alaska ............................................................................................................ 1

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

Statement of Witnesses: 

Washburn, Hon. Kevin K., Assistant Secretary for Indian Affairs, U.S. 

Department of the Interior ........................................................................... 5

Prepared statement of ............................................................................... 6

Additional materials submitted for the record: 

Hawk, Larry Echo, Letter Submitted for the Record .................................... 35

Knugank Tribe, Dillingham, Alaska, Prepared statement submitted for 

the record ....................................................................................................... 32

Qutekcak Native Tribe, Seward, Alaska, Prepared statement submitted 

for the record ................................................................................................. 33

(1)

OVERSIGHT HEARING ON ‘‘AUTHORIZATION, 

STANDARDS, AND PROCEDURES FOR 

WHETHER, HOW, AND WHEN INDIAN TRIBES 

SHOULD BE NEWLY RECOGNIZED BY THE 

FEDERAL GOVERNMENT: PERSPECTIVE OF 

THE DEPARTMENT OF THE INTERIOR.’’

Tuesday, March 19, 2013

U.S. House of Representatives 

Subcommittee on Indian and Alaska Native Affairs 

Committee on Natural Resources 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 11:02 a.m., in 

room 1324, Longworth House Office Building, Hon. Don Young 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Young, Mullin, Daines, LaMalfa, 

Hanabusa, Ca ́ rdenas, Ruiz, and Faleomavaega. 

Also Present: Thompson; Napolitano, and Huffman. 

Mr. YOUNG. The Subcommittee will come to order. The Chairman 

notes the presence of a quorum. The Subcommittee on Indian and 

Alaska Native Affairs is meeting today to hear testimony from the 

perspective of Department of the Interior concern in recognition of 

Indian Tribes. 

Under Committee Rule 4(f), opening statements are limited to 

the Chairman and the Ranking Member of the Subcommittee, so 

we can hear from our witnesses more quickly. However, I ask 

unanimous consent to include any other Members’ opening statements in the hearing record, if submitted to the clerk by the close 

of business today. 

[No response.] 

Mr. YOUNG. Hearing no objections, so ordered. I will ask also 

unanimous consent—and I don’t know where they are—but that 

when they get here, the gentlelady from California, Ms. Napolitano, 

the gentleman from California, Mr. Thompson, and the gentleman 

from California, Mr. Huffman, be allowed to sit on the dais and ask 

questions. 

STATEMENT OF THE HON. DON YOUNG, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF ALASKA 

Mr. YOUNG. In the year 2012 the Subcommittee held an oversight hearing regarding Federal recognition of Indian Tribes. But 

the Department did not make a witness available. Because the perspective of the executive branch is so important, today we are holding what may be considered part two of that hearing. Our witness 

today is Assistant Secretary for Indian Affairs Kevin Washburn. 

Though he has been in his position for nearly 6 months, it is Mr. 

2

Washburn’s first opportunity to testify before the Subcommittee. I 

do welcome him today. 

Last year, my opening statement set forth a few facts concerning 

Federal recognition of the Tribes. They are worth briefly mentioning again. Tribal recognition is one of the most solemn issues 

this Committee deals with. It has impacts on the Federal budget, 

on the Government’s trust responsibility on other recognized 

Tribes, and on States and their political subdivision. In effect, the 

legal rights of many individuals, both Indian and non-Indian, who 

reside or do business in any reservation. 

Historically, Tribes have been recognized pursuant to the Acts of 

Congress, treaties and Executive orders. In modern times, however, 

the Bureau of Indian Affairs has extended recognition to two new 

Tribes without clear instruction for Congress. This is inconsistent 

with the precedents established by the Supreme Court, which held 

that Congress possesses power over Indian Affairs, not the executive branch, which, in tribal areas, is limited solely to performing 

actions specified by Congress. 

Much of the controversy surrounding the number of recognition 

and fee-into-trust action made by the BIA may be traced to the failure of the Agency to act according to the specific directions from 

the Congress. The Department of the Interior has its own perspective. And today I am pleased to welcome the new Assistant Secretary to provide it for the members of the Committee on how they 

believe. 

I look forward to the witness, and now recognize the Ranking 

Member for 5 minutes. 

[The prepared statement of Mr. Young follows:]

PREPARED STATEMENT OF THE HONORABLE DON YOUNG, CHAIRMAN, SUBCOMMITTEE

ON INDIAN AND ALASKA NATIVE AFFAIRS

On June 27, 2012, the Subcommittee held an oversight hearing regarding Federal 

recognition of Indian tribes, but the Department did not make a witness available. 

Because the perspective of the executive branch is so important, today we are holding what may be considered Part Two of that hearing. 

Our witness today is the Assistant Secretary for Indian Affairs, Kevin Washburn. 

Though he has been in his position for nearly 6 months, it is Mr. Washburn’s first 

opportunity to testify before the Subcommittee. 

Last year, my opening statement set forth a few facts concerning Federal recognition of tribes. They are worth briefly mentioning again. 

Tribal recognition is one of the most solemn issues this Committee deals with. It 

has impacts on the Federal budget, on the Government’s trust responsibility, on 

other recognized tribes, and on States and their political subdivisions. It affects the 

legal rights of many individuals—both Indian and non-Indian—who reside or do 

business in Indian reservations. 

Historically, tribes have been recognized pursuant to Acts of Congress, Treaties, 

and Executive orders. In modern times, however, the Bureau of Indian Affairs has 

extended recognition to new tribes without clear instructions from Congress. 

This is inconsistent with the precedents established by the Supreme Court, which 

has held that Congress possesses ‘‘plenary’’ power over Indian Affairs. Not the executive branch, which in the tribal arena is limited solely to performing actions specified by the Congress. 

Much of the controversy surrounding a number of recognition and fee-to-trust actions made by the BIA may be traced to the failure of the agency to act according 

to specific direction from the Congress. 

The Department of the Interior has its own perspective and today, I am pleased 

to welcome the new Assistant Secretary to provide it for the benefit of the members 

of the Subcommittee. 

3

STATEMENT OF COLLEEN W. HANABUSA, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF HAWAII 

Ms. HANABUSA. Thank you, Mr. Chairman. I am pleased to return to this Subcommittee in the 113th Congress as its Ranking 

Member. And I, of course, look forward to working with you, Mr. 

Chairman, and with the Indian Country on a variety of pressing 

issues, including Federal recognition and the administrative acknowledgment process, which we will examine here today. 

I would like to first welcome Assistant Secretary Washburn to 

the hearing. Your testimony is important, not only for the groups 

who seek to confirm a nation-to-nation relationship with the United 

States through the administrative process, but also for existing federally recognized Indian Tribes, their governments, and State and 

local communities who may be impacted by Federal recognition of 

the new Indian Tribes. And thank you for being here today. 

In this Subcommittee’s hearings on Federal recognition process 

in the 112th Congress, we heard testimony from three groups who 

are seeking Federal recognition. These groups are either actively 

seeking acknowledgment through the administrative process, or 

failed to meet the acknowledgment criteria and now, therefore, 

seeking recognition through legislative or judicial decree, or both of 

them. These groups testified to their experiences as the Office of 

Federal Recognition petitioners, and the message was quite clear: 

The system is broken. 

They testified to the high cost to gather information and present 

a successful petition, the length of time petitioners must wait to 

learn their status, and the lack of transparency with which the 

OFA received, reviewed, and advanced their petitions. 

The witnesses also testified that the recognition criteria do not 

take into account, or are even hostile to, their unique historical circumstances. They were very clearly frustrated, tired, and dismayed 

by their experiences. 

As a Member from Hawaii, I have led the legislative efforts in 

the House to achieve Federal recognition for Native Hawaiians. I 

understand how difficult the process of Federal recognition is, and 

recognize that the regulatory barriers to achieving Federal status 

for petitioning groups are many. That is why I support meaningful 

reform to the OFA process that takes into account suggestions from 

all interested parties, the general public, federally recognized 

Indian Tribes, and petitioning groups, for reforms to administrative 

acknowledgment that improve OFA’s transparency, timeliness, efficiency, and flexibility. 

The last revisions to the regulatory process found at 25 CFR part 

83 were made in 1994. It is well past time to revisit the regulations 

and identify changes that can be made to expedite the process, 

make it less financially burdensome, and more transparent for petitioning groups, some of whom have been waiting decades for a decision from OFA. 

I look forward to hearing the Administration’s testimony on 

when, not whether, reform can be made in the near term. Thank 

you, Mr. Chairman. I yield back. 

[The prepared statement of Ms. Hanabusa follows:]

4

PREPARED STATEMENT OF COLLEEN W. HANABUSA, RANKING MEMBER, 

SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS

Thank you, Mr. Chairman. 

I’m pleased to return to the Subcommittee in the 113th Congress as its Ranking 

Member. I look forward to working with you, Mr. Chairman, and with Indian country on a variety of pressing issues, including Federal recognition and the administrative acknowledgment process which we will examine today. 

I’d like to first welcome Assistant Secretary Washburn to the hearing. Your testimony is important not only for the groups who seek to confirm a nation to nation 

relationship with the United States through the administrative process, but also for 

existing federally recognized Indian tribes, their governments, and State and local 

communities who may be impacted by Federal acknowledgment of new Indian 

tribes. Thank you for being here today. 

In this Subcommittee’s hearing on the Federal acknowledgment process in the 

112th Congress, we heard testimony from three groups who are seeking Federal recognition. These groups are either actively seeking acknowledgement through the administrative process or failed to meet the acknowledgement criteria and are therefore seeking recognition through legislation or judicial decree (or both). 

These groups testified to their experiences as Office of Federal Acknowledgment 

(OFA) petitioners, and the message was quite clear: the system is broken. They testified to the high cost to gather information and present a successful petition, the 

length of time petitioners must wait to learn their status, and the lack of transparency with which the OFA received, reviewed and advanced their petitions. The 

witnesses also testified that the recognition criteria do not take into account—or are 

even hostile to—their unique historical circumstances. They were very clearly frustrated, tired and dismayed by their experiences. 

As a Member from Hawaii, I have led legislative efforts in the House to achieve 

Federal recognition for Native Hawaiians. I understand how difficult the process of 

Federal recognition is, and recognize that the regulatory barriers to achieving Federal status for petitioning groups are many. That is why I support meaningful reform to the OFA process that takes into account suggestions from all interested parties—the general public, federally recognized Indian tribes and petitioning groups—

for reforms to administrative acknowledgment that improve OFA’s transparency, 

timeliness, efficiency and flexibility. 

The last revisions to the regulatory process found at 25 CFR Part 83 were made 

in 1994. It is well past time to revisit the regulations and identify changes that can 

be made to expedite the process, make it less financially burdensome and more 

transparent for petitioning groups, some of whom have been waiting decades for a 

decision from OFA. I look forward to hearing the Administration’s testimony on 

when, not whether, reform can be made in the near term. 

Mr. YOUNG. I thank the good lady. Now we will hear from our 

witness, who is Kevin Washburn, the Assistant Secretary of Indian 

Affairs, Department of the Interior. He is accompanied by Lawrence Roberts, Deputy Assistant Secretary for Indian Affairs. It is 

my understanding Mr. Washburn will provide a formal statement, 

and Mr. Roberts will assist him in answering specific questions. 

And, as a witness, Mr. Washburn, you know you have a 5-minute 

rule, but I am pretty lenient if you would like to continue, because 

I do think this is an important hearing. That goes along with the 

answers. I will rap the gavel if the other guys get a little bit too 

long, because there are other people waiting. 

But you will have that—watch the red lights, make sure you 

push your button that says ‘‘talk’’—I guess you have a button down 

there, or at least one on front. And that is how we will conduct this 

hearing. And with that, I welcome you here, and I have high hopes 

for your testimony and your performance on your job. You are up. 

5

STATEMENT OF KEVIN K. WASHBURN, ASSISTANT SECRETARY 

FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY LAWRENCE ROBERTS, DEPUTY ASSISTANT 

SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR 

Mr. WASHBURN. Thank you, Chairman Young. It is a real honor 

to be here. And Ranking Member Hanabusa, and members of the 

Committee, this is my first appearance before this Committee. And 

again, it is a real honor. I would note that Chairman Young I have 

met with more than any other Member of Congress so far, and that 

has also been a real honor. Grateful to have that support. I have 

a lot to learn, and I am anxious to learn from all of you. 

I am a member of the Chickasaw Nation, the same Tribe as Tom 

Cole, who has become a close friend. And his mother was both my 

House Representative in the State legislature of Oklahoma, and 

then later my Senator. And so I have a long relationship with the 

Coles. 

I currently serve as Assistant Secretary for Indian Affairs, and 

I am learning about the acknowledgment and recognition process. 

I do, as the Chairman noted, have Deputy Assistant Secretary 

Larry Roberts with me here today, who is a member of the Oneida 

Tribe of Wisconsin. And we are happy to talk about acknowledgment efforts. I have brought Mr. Roberts because he is my principal deputy, he is my number one assistant, and he has been 

tasked largely with overseeing our work group. 

We have put together a work group to look into Federal acknowledgment issues, because these issues are so important. And we do 

intend to recommend changes to the process. The group has been 

meeting, I believe they have had five or six meetings so far, and 

we are looking at everything related to the process with an effort 

toward making recommendations. 

We have seen Mr. Faleomavaega’s proposed legislation, and we 

have looked to it for ideas into how we reform the process. And we 

certainly are interested in input from each of you, as that process 

goes forward. 

As you know, this is one of the most important things we do. It 

is an important responsibility. We have a government-to-government relationship with American Indian Tribes, and we have to 

identify those Tribes in order to exercise that relationship properly. 

The Department of the Interior has recognized Tribes in an ad 

hoc process from 1961 to 1978, recognized about 10 Tribes that 

hadn’t been sort of routinely recognized before that. 

From 1978 to the present, through the Part 83 process, we have 

recognized approximately 17 Tribes. And Congress, during the 

same time, has recognized around 31 Tribes. So you actually do 

more work in this area, or about as much work as we do. And so 

we share that responsibility, and we are happy to work with you. 

We are always pleased when Congress takes the lead and is willing 

to recognize Tribes, because it is certainly your responsibility as 

well, and we are happy to work with you on that. 

Approximately 34 tribal groups have been denied recognition 

through our process since the Part 83 process was created in 1978. 

We have identified several standards that we would like to pursue, and ensuring that we do a good job in reforming our efforts. 

6

Transparency, making sure that everybody knows what we are 

doing, and understands the reasons therefor, is very important. 

Transparency is important in all forms of government, and nowhere as much as here, where it is such a high-stakes process. 

Timeliness is obviously very, very important. We have sometimes 

heard from you that people are dismayed about how long the process takes. And that is not all on our end, some of that is because 

Tribes don’t have the resources to hire experts and that sort of 

thing. But it is something that we are concerned about. 

Efficiency. Obviously, the process has become more and more and 

more expensive over the years, and that is not necessarily a good 

use of the resources, for this process to take up resources from poor 

communities. 

Finally, flexibility. We feel like we need to make sure we have 

adequate flexibility in the process. And so we will be looking with 

those key factors in mind about how to reform the process. 

I will tell you, more important than any of these, is just simple, 

the matter of justice. We have to come to just results, and results 

that people trust, that the American public trusts. And so, those 

are the things that will guide us as we work to come up with efforts to reform the Part 83 process. And we are looking very intently at that process. 

We have constructed a team within the Department which involves both people who have been around this area for a long, long 

time, and some newer people, so that it gets a fresh look by people 

that don’t have fixed ideas about how things need to come forth. 

We hope to have a discussion draft that we will begin to roll out 

and consult with your staff and with Tribes, hopefully before the 

summer, or during the summer, if not before the summer. And we 

will then proceed, hopefully, to a rulemaking process in which we 

will come up with a final rule to replace Part 83 or to adjust Part 

83. 

I think that is probably enough. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Washburn follows:]

PREPARED STATEMENT OF KEVIN K. WASHBURN, ASSISTANT SECRETARY,

INDIAN AFFAIRS, UNITED STATES DEPARTMENT OF THE INTERIOR

Good morning Chairman Young, Ranking Member Hanabusa, and Members of the 

Subcommittee. My name is Kevin Washburn, and I am a member of the Chickasaw 

Nation of Oklahoma, and currently serve as the Assistant Secretary—Indian Affairs 

at the Department of the Interior (Department). Thank you for the opportunity to 

provide the Department’s views on Federal acknowledgment of Indian tribes. 

Implications of Federal Acknowledgment

The acknowledgment of the continued existence of another sovereign entity is one 

of the most solemn and important responsibilities undertaken by the Department. 

Federal acknowledgment permanently confirms the existence of a nation-to-nation 

relationship between an Indian tribe and the United States. 

The decision to acknowledge an Indian tribe often involves input from a number 

of parties including other Indian tribes and State, and local governments. Once federally acknowledged, the tribe is generally eligible for Federal services and programs and other rights as recognized by Federal law. In 1994, Congress confirmed 

that Federal agencies must not make distinctions among federally-acknowledged 

tribes. 

Background of the Federal Acknowledgment Process

The Department’s process for acknowledging an Indian tribe is set forth at 25 

CFR Part 83, ‘‘Procedures for Establishing that an American Indian Group Exists 

as an Indian Tribe.’’ (Part 83 Process) This process provides for the Assistant SecVerDate 0ct 09 2002 16:06 Feb 03, 2014 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 Y:\03INDI~1\03MA19~1\3-19-1~1\80075.TXT MARK
7

retary to make a decision on whether to acknowledge a petitioner’s nation-to-nation 

relationship with the United States. These regulations include seven ‘‘mandatory’’ 

criteria, by which a petitioner must demonstrate that:

(a) It has been identified as an American Indian entity on a substantially continuous basis since 1900; 

(b) A predominant portion of the petitioning group comprises a distinct community 

and has existed as a community from historical times until the present; 

(c) It has maintained political influence or authority over its members as an autonomous entity from historical times until the present; 

(d) It has provided a copy of the group’s present governing document including 

its membership criteria; 

(e) Its membership consists of individuals who descend from an historical Indian 

tribe or from historical Indian tribes that combined and functioned as a single autonomous political entity, and provide a current membership list; 

(f) The membership of the petitioning group is composed principally of persons 

who are not members of any acknowledged North American Indian Tribe; and, 

(g) Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship.

The Department considers a criterion satisfied if the available evidence establishes a reasonable likelihood of the validity of the facts relating to that criterion. 

This consideration does not mean that the Department applies a ‘‘preponderance of 

the evidence’’ standard to each petition. A petitioner must satisfy all seven of the 

mandatory criteria in order for the Department to acknowledge the existence of a 

group as an Indian tribe. 

The Office of Federal Acknowledgment (OFA) is located with the Office of the Assistant Secretary—Indian Affairs and makes acknowledgment recommendations to 

the Assistant Secretary. OFA is currently staffed with a Director, an administrative 

assistant, four anthropologists, four genealogists, and four historians. Generally, a 

team composed of one professional from each of these three disciplines reviews each 

petition. 

Recent Actions Under the Acknowledgment Process

The Department has issued 12 decisions on acknowledgment petitions since 2009. 

These include five proposed findings and seven final determinations. Of these final 

determinations, the Department issued a positive decision acknowledging the 

Shinnecock Indian Nation in New York. The six negative final determinations were 

as follows:

• October 27, 2009 final determination not to acknowledge the Little Shell Tribe 

of Chippewa Indians of Montana (#31). • March 15, 2011 final determination not to acknowledge the Juaneno Band of 

Mission Indians, Acjachemen Nation (#84A). • March 15, 2011 final determination not to acknowledge the Juaneno Band of 

Mission Indians (#84B). 

• April 21, 2011 final determination not to acknowledge the Choctaw Nation of 

Florida. 

• March 23, 2012 final determination not to acknowledge the Central Band of 

Cherokee. 

• September 9, 2012 final determination not to acknowledge the Brothertown Indian Nation (#67).

Since the establishment of the Part 83 Process in 1978, the Department has 

issued 53 final determinations and 7 reconsidered final determinations. Overall, the 

Department has federally recognized 17 Indian tribes and denied 34 groups. 

The Department currently has nine petitions under active consideration, and four 

petitions awaiting active consideration. In addition, 265 groups have submitted only 

letters of intent or partially documented petitions, and are not ready for evaluation. 

In the foreseeable future, the following proposed findings may be issued:

• Southern Sierra Miwuk. 

• Muscogee Nation of Florida. 

• Meherrin Indian Tribe. 

• Piro-Manso-Tiwa. 

• Pamunkey Indian Tribe. 

Recent Actions in Addition to the Acknowledgment Process 

The Part 83 Process is used by the Department to acknowledge Indian tribes that 

‘‘are not currently acknowledged as Indian tribes by the Department.’’ The Department may also reaffirm a nation-to-nation relationship with tribes by rectifying preVerDate 0ct 09 2002 16:06 Feb 03, 2014 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 Y:\03INDI~1\03MA19~1\3-19-1~1\80075.TXT MARK
8

vious administrative errors by the Bureau to omit a tribe from the original Federal 

Register list of entities recognized and eligible to receive services from the Bureau 

of Indian Affairs or by resolving litigation with tribes that were erroneously terminated. 

Early in the first term of President Obama’s Administration, then Assistant Secretary Echo Hawk committed to consider requests for the reaffirmation of tribal status for those tribes that were not included on previous lists of federally recognized 

tribes due to administrative error. After a careful review of information submitted 

over a period of years, Assistant Secretary Echo Hawk reaffirmed the governmentto-government relationship between the United States and the Tejon Indian Tribe 

in December 2011. The Tejon Indian Tribe had been omitted from the 1979 list of 

Indian tribes due to a unilateral administrative error on the part of the United 

States. 

In 2009, the Department, working with the Department of Justice, entered into 

an agreement as part of the settlement of litigation to restore the United States government-to-government relationship with the Wilton Rancheria. The Wilton 

Rancheria had been erroneously terminated by the United States under the California Rancheria Act of 1958, Pub. L. No. 85–671, amended by Pub. L. No. 88–419. 

The settlement agreement, and the corresponding court order, provides that the Wilton Rancheria is restored to the same status it enjoyed prior to the distribution of 

its trust assets, and that the Tribe is entitled to any of the benefits or services provided or performed by the United States for Indian tribes. 

Principles Guiding Improvements in the Federal Acknowledgment Process

Some have criticized the Part 83 Process as expensive, inefficient, burdensome, intrusive, less than transparent and unpredictable. The Department is aware of these 

critiques and, as we have previously indicated, we are reviewing our existing regulations to consider ways to improve the process to address these criticisms. Based 

upon our review, which includes consideration of the views expressed by members 

of Congress, former Department officials, petitioners, subject matter experts, tribes 

and interested parties, we believe improvements must address certain guiding principles:

• Transparency—Ensuring that standards are objective and that the process is 

open and is easily understood by petitioning groups and interested parties. 

• Timeliness—Moving petitions through the process, responding to requests for 

information, and reaching decisions as soon as possible, while ensuring that the 

appropriate level of review has been conducted. 

• Efficiency—Conducting our review of petitions to maximize Federal resources 

and to be mindful of the resources available to petitioning groups. 

• Flexibility—Understanding the unique history of each tribal community, and 

avoiding the rigid application of standards that do not account for the unique 

histories of tribal communities.

We have created an internal workgroup that is closely examining these suggestions and developing options to improve Part 83. The workgroup is also considering 

processes to implement 25 U.S.C. § 473a, also known as the Alaska amendment to 

the Indian Reorganization Act (IRA) of 1934, which provides that groups of Indians 

in Alaska not recognized prior to 1936 may organize under the IRA if they satisfy 

certain criteria. 

The Department is working toward a goal of distributing a discussion draft of the 

Part 83 regulation this Spring. We plan to make the discussion draft available to 

the public for comment, to consult with federally recognized tribes and to meet with 

non-federally recognized groups for their input. Following this first round of consultation and public input, we will further revise the draft to address comments received and then prepare a proposed rule for publication in the Federal Register. 

This will open a second round of consultation and the formal comment period to 

allow for further refining of the regulations prior to publication as a final rule. The 

timing for publication of a final rule depends upon the volume and complexity of 

comments and revisions necessary to address those comments, but our ultimate goal 

is to have a final rule published in 2014. 

Conclusion

I would like to thank you for the opportunity to provide my statement on the Federal acknowledgment process. I will be happy to answer any questions the Subcommittee may have. 

9

Mr. YOUNG. Thank you, Mr. Washburn. I appreciate it. And, as 

customary, I am going to recognize the Ranking Member first for 

questions, comments, whatever she would like to talk about. 

Ms. HANABUSA. Thank you, Mr. Chairman. Secretary Washburn, 

you laid out the timetable, which I am interested in. You said that 

some time during the summer you anticipate rolling out the draft 

to us, and then engaging in rulemaking process after that. 

When do you anticipate starting the rulemaking process? 

Mr. WASHBURN. Madam Ranking Member, that will depend on 

kind of the comments that we get back. If we have a proposal at 

the front end that is acceptable to people, it could happen sooner. 

If we really have to go back and really rethink things, it will take 

a little bit longer. 

We kind of came into this with the idea that it probably takes 

2 years, if everything goes well, to accomplish this sort of thing, because of all the steps that need to happen in the process. And we 

would love to have it done faster than that, but we also want to 

be careful to get it right, because we have talked about doing this 

for more than a decade, and it is time to get it done. We want to 

get it done right this time. 

And so we hope you will be patient with us, but we certainly 

want to move as expeditiously as possible. 

Ms. HANABUSA. Mr. Secretary, there is also another schedule, 

which is that, it is a 4-year term for the President. So, more than 

likely, it is a 4-year term for yourself. So, given that fact, I mean, 

you might want to take more time, and we might want to take 

more time, but it would be, I think, a great disservice to those who 

have been waiting for these changes since probably around 1994 to 

then tell them it may take 4 years or it may take 3 years, and then 

we are not able to avail themselves of the process under those who, 

in essence, are creating it. 

So, is 2 years the best estimate you have, in a perfect world situation? 

Mr. WASHBURN. I think that is fair to say. Let me tell you that 

we came in talking about this and ready to work on it from the moment we started. Mr. Roberts started about a month before I did, 

and had an interest in this area. I heard a lot about it during my 

confirmation process, and from former assistant secretaries, and 

several of them said, ‘‘I wish that I had gotten that done.’’ And we 

knew that, to get it done, we needed to focus on it early. 

And so, we have started from day one working on this issue. And 

we do hope that we can get it done in 2 years so we can move on 

to other important matters. 

Ms. HANABUSA. And how many petitions are presently pending? 

And what happens to them while you are engaging in this potential 

rulemaking process which may take place as early as summer, but 

may take 2 years? What is going to happen to them? 

Mr. WASHBURN. Well, we have talked about what to do with 

those—certainly we hope to make improvements in the process. 

And so one of the issues is, do we force people to go through a process that is currently being renovated? And I have lived in a house 

while it was being renovated, and that was not a pleasant experience. And so there may be groups that would like to sort of stay 

their petition while we make improvements to the process. 

10

We don’t want to force people to do that, but we have talked 

about giving them the option to place a pause on their petition, so 

that they can see if the criteria could change, and they may prefer 

the criteria that come out in the future, if we make changes to the 

criteria. And so we want to leave the flexibility in the process so 

that they may do that if they wish to do so. 

I should have the number of pending petitions here before me. 

I believe we have 9 on active status, we have 4 on ready status, 

and 265 groups that have submitted partial petitions, such as a letter of intent, but which have not fully completed their applications. 

Ms. HANABUSA. Mr. Secretary, one of the issues that we have 

faced in this Committee is the Carcieri decision. And of course, the 

magical year there is 1934. And, given the fact that we still do not 

have the Carcieri fix—that is something I know that the Chairman 

and I would like to see done—what are the chances that, once your 

new process comes in, that you are going to actually create two 

classes of Indian Tribes? I mean the pre-Carcieri ones who met the 

deadlines, and the ones who are now, post-Carcieri. 

Mr. WASHBURN. Well, Madam Ranking Member, that is a real 

risk. That is a real problem, frankly. Until Congress can fix that 

Carcieri decision, that is what happens. And we, frankly, currently 

have two classes of Tribes. And we would like to treat all Tribes 

the same, and we have asked Congress for a clean Carcieri fix. But 

until we get that, we are going to have some Tribes that are recognized for whom we can take land into trust, and other Tribes that 

are recognized for whom we cannot take land into trust. 

There is a real risk that a lot of the Tribes that we recognize 

going forward will not have the power to take land into trust, since 

they likely were not under our jurisdiction in 1934. 

Ms. HANABUSA. Thank you, Mr. Chairman. I yield back. 

Mr. YOUNG. And we will have a second round, if you wish to do 

so. 

Mr. Mullin. 

Mr. MULLIN. Thank you, Chairman Young. It is a privilege to be 

on this Committee. I tell you, as a Cherokee myself, it comes with 

a lot of pride. And Assistant Secretary Washburn, I know it is a 

pleasure, again, to meet with you. The Chickasaw Nation has been 

a good friend of mine. 

And I know it is an honor for you to be sitting in this position. 

I know it carries a lot of pride that you get to take care of the country and your Nation at the same time, and even your family. And 

I feel that pride, literally, every day when I get up and I get to realize I am representing our constituents and so many Native Americans that live inside my district. You know we have the largest 

number of Native Americans in the country in my district. 

And so, I want to make sure that what we do, going forward, 

that we do it right. And a big concern that we have inside our community is the way that Tribes are being recognized. Obviously, 

there has been a strong spike of individual Tribes looking for recognition, especially after the gaming law came out. And the way 

they are being confirmed is something that I believe has a cloud 

that surrounds it. 

What I would like to understand is, what is the process you feel 

like is going forth, where we can make sure everybody is on the 

11

same page, and the questions that so many Tribes are putting out 

there right now, where some Tribes take 3 years to be confirmed 

and some Tribes have been trying for 20 years. How can we make 

it look like there is a more even playing field? 

Mr. WASHBURN. Thank you, Congressman. And it was a pleasure 

to meet with you a couple of weeks back. And I am grateful for 

your service on this Committee and for your interest in these 

issues. It is important for you, given your constituency, to be engaged on these issues. We want to be energetically engaged in ensuring that things move expeditiously for each Tribe, each group 

that puts in an application or a petition for Federal recognition. 

As a practical matter, the times do vary quite a bit. Partially, 

that is because of resources available at the tribal level, among the 

groups. Do they have the resources to buy the expert witnesses 

that they need, the anthropologists, the ethnologists, the historians, to make this happen? Or do they not have those resources. 

And so, often times we have received a petition or a letter of intent, 

but the full application hasn’t been prepared for many years. 

We endeavor to provide technical assistance to groups, but there 

are limits to the technical assistance that we can provide, because 

we actually are sort of the judges of their petitions. And so it is 

up to the group to sort of meet the burden. And so, we do know 

that is an issue. We think timeliness is very, very important. And 

we endeavor to move in a timely way. 

As I said in response to the Ranking Member, there is a risk that 

we will slow down just a little bit here, as we reconfigure the process. As we look at Part 83, we may want to put some petitions that 

otherwise would be due for a decision on hold so that we can make 

sure that the process is as fair as possible. Because, as you said, 

there is a lot of cloudiness around this. 

And one thing we have already learned is just our looking at the 

process is a good opportunity for education. Mr. Roberts and I both 

have raised these issues with the National Congress of American 

Indians. We have been very pleased to see them very engaged on 

these issues. Several groups that have recently gone through the 

recognition process successfully have been engaged in those discussions with us, which is heartwarming, because there is nothing in 

it for them, they have already come through the process, and they 

made it through a difficult process already, but they have, nevertheless, said, ‘‘Here are some things that we see as problems with 

this process, and we encourage you to address them.’’

So, we will be taking input from wherever we can, and certainly 

from all of you, if you are willing to give it to us. And we will endeavor to move as expeditiously as we can. 

Mr. MULLIN. Well, I look forward to working with you. As a 

Cherokee, as I said, I want to not just be an ear, but also be a 

voice. And so, when we are speaking about ancestries, some petitions that I might be of assistance with, please use my office. And 

we look forward to working with you. Thank you so much. 

Mr. WASHBURN. Thank you, Congressman. 

Mr. MULLIN. Mr. Chairman, I yield back. 

Mr. YOUNG. I thank the gentleman. The gentleman from American Samoa. 

12

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. As a member of 

the Samoan Tribe, I just wanted to welcome Assistant Secretary 

Washburn, and I’m very appreciative of your most eloquent statement and understanding of the issue. 

Mr. Secretary, I really hope that you will not delay the process. 

This is over 15 years we have been kicking this issue for so long. 

It is really sad. 

I can think of my good friend and dear sister, Ms. Locklear, sitting there. The most populous Indian Tribe east of the Mississippi, 

over 60,000 Lumbees who have tried to be recognized for the last 

100 years because of racism and bigotry and all the different 

things. And we are part of the mess. And they are still not recognized as a Tribe, and yet fully recognized by the State of North 

Carolina for all these years. 

I tell you we have held how many hearings, we have had how 

many Administration officials testify, whether agree or disagree, 

this is not a Republican or Democratic issue. This is an issue that 

really needs to be righted for the wrong that has been committed. 

We all know the process is administrative. There has been no congressional statutory mandate that makes the process—and hence—

let me tell you. The gentleman who testified 15 years ago, Mr. 

Chairman, right in that chair that you sit in, Mr. Secretary, he is 

the one that drafted the regulation, seven criteria that these Tribes 

had to fulfill before they can be federally recognized. You know 

what he said? Even he would not have been able to be recognized 

after going through the process of these seven criteria that they 

had to come through, it is just so ridiculous. 

I know a couple times we have introduced legislation, maybe in 

doing so by statutory, the situation now is, it is done by regulation. 

And the fear that I have, Mr. Chairman, is that you know what 

happens to regulations? The Administration can change it, with or 

without our approval. 

And I just wanted to ask you, when you say that it will be some 

time around the summer before you make a recommendation, what 

more information do you need to come up with some good recommendations? Like I said, it is already on the record, pros and 

cons and I know the Administration has always resisted having a 

congressional mandate or statute. This is not just Republican; 

Democrats, as well, and maybe because of the strong influence of 

the bureaucracy that we have downtown who don’t want changes. 

They like to continue making these recommendations by having 

some overnight experts who are anthropologists. 

I had a member of the Lumbee Indian Tribe testify that they 

wanted to find out what kind of teeth you had so that they could 

say, ‘‘Well, maybe you do look like an American Indian because of 

your teeth structure.’’ I mean this is so ridiculous. But that is the 

kind of process that the poor Indian Tribes have been subjected to. 

I know my time is up, but I would like your comment. Do you 

think that maybe summer is a little too long? I am sure that we 

can get the Congressional Research Service to give you all—I can 

tell you we have the records, we have the information. So what 

more do we need to—I am sorry, Mr. Secretary. I just hate to see 

this issue studied to death. We have the information. Could you 

please comment on this? 

13

Mr. WASHBURN. Yes, Congressman. And let me say thank you for 

your own leadership on looking at these issues, and offering some 

real constructive solutions, because you have actually offered legislation on numerous occasions in the past, and there have been a 

lot of efforts to reform. We are moving as fast as we can. 

It is a real honor to appear here. And so I would like to share 

that honor with my Deputy Assistant Secretary, who is a little bit 

closer to this issue than I am. So maybe he could talk a little bit 

about the timing and our timeline for this. 

Mr. FALEOMAVAEGA. I have 29 seconds more. Go ahead, please. 

Quick. 

Mr. ROBERTS. Thank you, Congressman. We are actively looking 

at all of the materials that you are discussing right now, in terms 

of the vast records that this body has put together, in terms of reform. And so, we want to put out a discussion draft this spring. We 

are not going to get everything right, we are going to need——

Mr. FALEOMAVAEGA. A few more seconds——

Mr. YOUNG. The gentleman will yield. You don’t have that much 

time, but I will let him answer the question. I am not going to cut 

him off, OK? Go ahead, sir. 

Mr. ROBERTS. Well, we are moving as quickly as possible, and we 

hope to get a discussion draft out this spring, so that everyone can 

take a look at it. Input can be provided very quickly so that, once 

we get a sense of what we have gotten right and what we have gotten wrong, that we can then move ahead with proposed rulemaking. 

And so, I thank you for this leadership on this issue, and I thank 

you for building a record that we are looking at internally to build 

off of all the good work that this Committee has done. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chair. 

Mr. YOUNG. I would like to make one comment. If I remember, 

my poor mature mind, I think we passed it out of this Committee 

twice, passed the House twice, and it went to the dark hole on the 

other side. So it would be helpful if we could do this administratively, if possible. And I do agree we should get it right, but some 

of these areas have been held up a long time. 

Mr. LaMalfa. 

Mr. LAMALFA. Thank you, Mr. Chairman. Thank you for appearing today, Mr. Washburn. I will try and whistle through this here. 

You did mention there was currently nine pending reaffirmation 

requests that have their full application in, and then four partial? 

But the tally number is 265 letters of intent. And is that a normal 

backlog, or is that a recent spike, as was mentioned a while ago 

here, or——

Mr. WASHBURN. I don’t believe that it is a spike. We have seen 

Tribes, I think have a little bit more success documenting their petitions in recent years, because there have been people willing to 

finance those petitions. Gaming has changed this process just a little bit. By no means do all of them seek to engage in gaming. And 

many of them had petitions in before gaming was known to any of 

us. But gaming has had the effect of giving some Tribes a little bit 

more resources to document their petitions. 

Mr. LAMALFA. OK, thank you. When certain entities have sought 

recognition under the Part 83, do you think it is proper if they have 

14

been denied that recognition in the past, or the recent past, with 

perhaps a cleaner process, that they should even be allowed to request a new reaffirmation since BIA’s Office of Federal Acknowledgment has already determined that the petitioners do not meet 

the qualifications? How do you see that process? 

Mr. WASHBURN. Well, I would hate to answer that strongly. It is 

something we are looking at because generally, when someone has 

been denied, that should be a decision that stands. There may be 

some exceptions to that, though, and so that is something that we 

are looking at. If we change the criteria, for example, it might lead 

some people to believe that an injustice has occurred, if someone 

was denied under more rigorous criteria and we make them more 

lenient, then they may say, ‘‘Well, that is not fair.’’

And so, those are the kinds of things we have to be cognizant of 

as we look to maybe slightly modify the criteria. 

Mr. LAMALFA. Do you have a figure in the numbers we just mentioned here, the 265 intent or the 9 plus the 4 that have a whole 

or partial petition in, that have been previously denied? Do you 

have a figure on that? 

Mr. WASHBURN. I don’t believe so. The way our process works is 

we may sometimes put out a proposed finding of denial. And that 

proposed finding of denial may cause them to provide us more information that changes the final finding to an approval. 

Mr. LAMALFA. I guess that would apply to final findings, then. 

Mr. WASHBURN. That is right. 

Mr. LAMALFA. Do you have many of those, currently in the pipeline that are——

Mr. WASHBURN. I don’t believe so. I don’t believe so, Congressman. I believe these are all sort of fresh, if you will, fresh applications, fresh petitions. 

Mr. LAMALFA. OK. Getting more into the, I guess, unwieldy term 

of art ‘‘reservation shopping’’ that comes up a lot, it appears there 

is kind of an inconsistency in policy with the proposed gaming facilities. A concern comes up there is a 25-mile radius with impact 

to other existing Tribes where a proposed one may go in, yet in 

other criteria the impact will be assessed over a 50-mile area, 50-

mile radius. 

And so, what do we do about that inconsistency, because, again, 

in the wide-open spaces from my neighborhood, 25 miles is next to 

nothing for travel, so there has been 50-mile criteria looked at as 

well. What would your Department think about an impact that 

might be occurring just outside of a 25-mile radius? Say, 30, or 

within that 50 of existing Tribes who have gone through the process and then a new proposal would come up within that zone. Is 

that right, or is that fair? And what would your Department be 

doing to try and make that right? 

Mr. WASHBURN. Well, Congressman, to some degree, these bright 

lines that we have created—25 miles, for example—are arbitrary. 

They just are. And 26 miles is outside of that zone. We, to some 

degree, just to make this process manageable, we have to create 

some bright guidelines. So we will follow the law and our regulations when we look at these matters of taking land into trust for 

Tribes for gaming. 

15

But I will tell you that, at least informally, we hear from people 

outside the 25-mile zone, and we are happy to do so. 

Mr. LAMALFA. Does that have any binding on the decision? 

Mr. WASHBURN. I wouldn’t say it has—it may not be binding, but 

it is certainly something that we take into consideration. These are, 

in large part, discretionary matters on our part. And we do pay attention to the views of people, even if they aren’t strictly within the 

25 miles. 

Mr. LAMALFA. Mr. Chairman, with your indulgence, I have one 

more quick one, if you don’t mind. Thank you. 

The past practice has been when there is litigation involved 

until—if litigation is going on, the practice of the Department has 

not been to try and solve these issues until the litigation is over 

with. And we are seeing that perhaps that isn’t the case any more. 

What is the defined practice of your organization on allowing litigation to be settled before a determination is made on the lands involved? 

Mr. WASHBURN. Well, my staff and my lawyers will yell at me 

for saying anything at all, since these do involve matters in litigation. But let me just say that the Hatch Act decision that came out 

last year changed our views about these things, because we had 

previously stayed our hand on taking land into trust while litigation was pending, largely because once we took the land into trust 

we took the view that we were immune from suit at all, and so that 

we would essentially moot out that case. And so, to allow the case, 

allow the courts to hear the case, we had to stay our hand. 

Now, with the Hatch Act decision decided, it does not appear 

that was correct. And so it appears that courts can continue to hear 

the case, and can continue to make a ruling on the merits, even 

if we have already taken the land into trust. And so, our inclination is that self-stay, if you will, is not necessary any longer, in 

light of Hatch Act. 

Mr. LAMALFA. Thank you. I have nothing to yield back. Thank 

you. 

Mr. YOUNG. Thank you. Mr. Ruiz. 

Dr. RUIZ. Thank you, Mr. Chairman. Mr. Secretary, it was a 

pleasure to meet you yesterday in my office. And good luck with 

this work. I know it is very important, not only for many Tribes 

throughout, but it is also very important for our country that we 

get it right. 

As I mentioned to you before, there are two very important 

things that I look for in a process that will recognize new sovereign 

Nations. And that is, one, sovereignty, and two is success. With 

sovereignty comes respect, and also comes responsibility, responsibility for themselves and responsibility for their surrounding communities, and responsibility to have great relationships with us 

and everybody else in the surrounding communities, and responsibilities to have those relationships with each other. 

The other is success. And we mentioned earlier about making 

sure that we set up a process that will set them up for success and 

not for failure. Success for self-reliance, success for development of 

social, economic, cultural, and political progress in Indian Country. 

And so, with that, I appreciate your efforts, and you can count on 

16

my office to assist in whatever way possible to help you achieve 

that. 

My first question is, do you believe that any Federal administrative process which confers Federal recognition as a Tribe should require the individuals petitioning, to demonstrate Indian ancestry? 

And to what extent would that qualify? 

Mr. WASHBURN. Well, absolutely. Part of the determination here 

is to determine whether this is an Indian Tribe. And so, Indian ancestry is an important touchstone, and is included within our criteria. So, we have taken that in the past as one of the criteria. We 

are looking at the criteria. I am kind of doubtful that is one that 

we would change. I think that is probably still exceedingly important to our process. But we are looking at the criteria, and we 

would be happy to have input about any changes you think regarding those factors might be necessary. 

Dr. RUIZ. To what extent do you look into, I mean, what will satisfy the criteria, as it stands now? 

Mr. WASHBURN. May I ask Mr. Roberts to address that? 

Dr. RUIZ. Yes, absolutely. 

Mr. ROBERTS. Sure. We look at descent from a historic Tribe or 

descent from Tribes that have combined, and that function. So a 

lot of the Tribes that we have recognized through the process will 

show descent through a very high percentage: 99, 98, 95 percent 

descent from a historic Tribe. So that is sort of how we have looked 

at it in the past. 

And I know that in legislation that this body has considered in 

terms of reforming the process, that has maintained a component. 

We have heard some folks advocate that be a way to be more efficient in the process is to have that be a first look. And if a group 

can’t satisfy that first take, then some would advocate, well, then 

expedite that denial and move resources to the other petitioners. 

Dr. RUIZ. OK. 

Mr. ROBERTS. And so, it is something that we have heard about 

and that we are looking at. 

Dr. RUIZ. One more question in the hopes that it will go back 

around another turn, because I have others. But what if more than 

one splinter group or faction of a Tribe is seeking reaffirmation for 

the same tribal identity? And on what basis would the Bureau of 

Indian Affairs decide to choose which group would be reaffirmed as 

that Tribe, and which would not, if that is an issue? 

Mr. WASHBURN. I am going to ask Mr. Roberts, Chairman, if that 

is OK, to answer that question as well. Thank you. 

Mr. ROBERTS. Essentially, the Department issued guidance on 

this issue in 2008, in terms of how the Department will generally 

look at issues where a petitioner has splintered somewhere during 

the process. And so, in the process where they are petitioning for 

acknowledgment, where they have submitted the petition, OFA 

looks at whether the leadership dispute there is such that OFA 

cannot move forward with its expertise and resources. And the 

guidance there that was put out in 2008 essentially provides OFA 

some discretion to essentially put that on hold, if the leadership 

dispute is such that they just can’t work with that petitioner. 

In the ready stage, again, once the petition has been completed 

and they are ready to be actively considered by OFA, the guidance 

17

suggests that OFA should advise the two groups that this division 

may result in the subgroups not being able to meet the criteria and 

encouraging them to move forward collectively. 

Dr. RUIZ. Thank you very much. I appreciate your answers, and 

I really do appreciate all the work that you are doing. 

Mr. WASHBURN. Thank you, Congressman. 

Mr. YOUNG. Thank you, sir. Mr. Daines? 

Mr. DAINES. Thank you, Mr. Chairman. Thank you, Mr. Secretary, for being here. As you know, I am a new Member from 

Montana. As you probably know, in the State of Montana, I represent an entire State, like our Chairman has an entire State, I 

represent seven federally recognized Indian reservations. And there 

is one Tribe, the Little Shell Tribe, that has been fighting for Federal recognition, literally, for decades. This is about 4,500 members 

of this Tribe; about 3,500 live in Montana. 

And I serve with two Senators who are Democrats. I am a Republican. And our delegation has offered legislation to recognize 

this Tribe for several years, and Congress has had several hearings. To my knowledge, the BIA has issued a final determination 

denying Little Shell’s Federal recognition and the Tribe has made 

an appeal. It has now reached, I guess, what is called active consideration in the Interior Board of Indian Appeals. 

Now, I know that I am the new guy on the block here. But it 

seems if we can’t settle the Little Shell Tribe’s recognition, an effort that Montana, including our two Democratic Senators, my 

predecessor, Republican Denny Rehberg, our State Government, 

the local community, and myself all support, I am not sure what 

else the BIA needs to know on it. 

It seems the Federal recognition process, as it affects the Little 

Shell Tribe, is clearly in need of some reform, hence the purpose 

of this hearing. In 2000, the BIA had stated in the Federal Register 

that the Little Shell Tribe had met all 7 criteria for Federal recognition. I realize this was a proposed decision, was not final. But 

10 years later, after the Little Shell Tribe provided 10,000 pages 

of paperwork, the BIA revoked the position findings, citing, ‘‘A different weighing of the facts, which resulted in a deviation from 

precedent.’’

Now, the folks back home in Montana think that is a lot of paperwork for a negative outcome. As I said earlier, my colleagues in 

the delegation from Montana have pressed the Administration on 

behalf of Little Shell several times. In fact, in 2011 there was a 

hearing on Senator Tester’s bill to recognize the Tribe in the Senate Indian Affairs Committee. At that point the BIA had revoked 

its positive proposed finding for the Little Shell Tribe, and the 

Tribe had filed for an appeal at the Interior Board of Indian Appeals, yet again spending more time and money fighting for something that should have been settled perhaps decades ago. 

I guess, in light of this long history, what would you say is needed, in terms of reform to this process, because I think the Little 

Shell Tribe is looking at this process, and I think the lawyers are 

winning right now, but the Tribe is not. 

Mr. WASHBURN. Congressman, thank you for that, that input. 

And I will tell you that it was similar statements by Senator Tester 

during my confirmation process that convinced me that this was a 

18

process that desperately needed a careful looking at. And that is 

a big part of the reason that we are, indeed, looking to reform the 

system, and to see what improvements we can make to it. 

The Little Shell matter, I gather, is in litigation. And so I am 

precluded from talking about it specifically. But I will tell you 

again that is one of the issues that caused me to think that there 

is something broken here that we need to take a look at. And we 

are endeavoring to do so. 

Mr. DAINES. And perhaps setting the Little Shell as maybe a 

case study here of something demonstrating the need for reform, 

what reforms are you thinking about? I mean, I am glad you are 

here as part of the solution now, to address this problem. But what 

reforms need to be made that might help address the Little Shell? 

Not specifically, but it is an example? 

Mr. WASHBURN. Well, let me say this. You raised one important 

issue yourself. The first few Tribes that went through this process 

gave us a couple inches of documents. And nowadays, we get truckloads of documents with regard to each one of these Tribes. And 

some people believe that there is a sort of a justice in there. How 

come one Tribe got recognized with 2 inches of documents, and 

nowadays it takes several linear feet worth of documents to get recognition, or even to get denied recognition? 

And so, those are the kinds of issues that we are looking at. We 

want to put the people through a process that is rigorous enough 

to get to the right result, but not so onerous that it causes a lot 

of wasted effort. And you are right, we don’t want to be providing 

a full employment act for lawyers. We want to be getting worthy 

Tribes through the process. 

So, the Deputy Assistant Secretary might have a few additional 

comments, if that is OK with the Chairman and Congressman, to 

suggest things that we are looking at. 

Mr. ROBERTS. And I think, generally speaking, it is exactly what 

the Assistant Secretary said. I mean we are looking at everything 

fresh. And we are looking at how can we make the process more 

efficient, more timely, how can we make the process more workable 

for petitioners, how can we make it transparent. We have heard 

from both the Congress and the public-at-large that sometimes 

there is a view out there that they are not applied objectively. 

And so, we are looking at it all, essentially. And I think the discussion draft will provide a good sense of our first take on it. 

Mr. YOUNG. I thank the gentleman, and there will be another 

round. I believe, yes, we should do so. 

Mr. Ca ́ rdenas. 

Mr. CA ́ RDENAS. Thank you very much, Mr. Chairman. A question 

to the Assistant Secretary. It has been stated by the Bureau of 

Indian Affairs that reaffirmation corrects administrative mistakes 

that were made which left Tribes off the list of federally recognized 

Tribes. How would the Department define a mistake in this context? 

Mr. WASHBURN. Congressman, I gather that there is litigation 

regarding that general issue. And so I probably shouldn’t speak too 

much to that issue. 

I will say a little bit. As you know, we have sort of the regular 

Part 83 administrative process, then we have this sort of other 

19

process that some people view as sort of an end-around to the regular process. And I have to say I have concerns about using a different process than the primary process. The Department has used 

this other end-around process only very rarely in history. Since we 

have had the Part 83 process in place, there have been only 5 or 

6 occasions that other process has been used. And I think that is 

probably the right answer, that it should be used rarely, if at all. 

And so, I probably shouldn’t say any more than that, but I would 

say that it should be very rare that this administrative error type 

approach would be used, because we do have a regular process that 

maybe needs to be reformed, but is the one that most people have 

to go through. 

Mr. CA ́ RDENAS. So, therefore, the Department somehow and some 

way in the past has acknowledged that there is such a thing as a 

mistake. But at this time the Department doesn’t feel comfortable 

defining what a mistake is? 

Mr. WASHBURN. Well, again, the matter is in litigation, so I feel 

like I shouldn’t say too much. But certainly, I will tell you that the 

process of creating the tribal list in the first place, after Congress 

passed the Tribal List Act in 1994, it was an imperfect process. It 

involved people who had been involved in Indian Affairs kind of 

scratching their heads and trying to come up with all of the names 

that should go on that list. 

And there have been a few occasions where Tribes with a lengthy 

history of past dealings with the United States were left off that 

list. And, indeed, those Tribes had a continuing government relationship with the United States. And in those circumstances, those 

Tribes should have been listed on the tribal list, and so, the mistake is when you leave off someone that has had a steady, continuous pattern of dealing with the United States, and a continuous 

governmental relationship with the United States over a long period of time. If they were not on the list, then that would be a mistake. 

Mr. CA ́ RDENAS. Well, it is unfortunate that the amount of time 

that it takes for sovereignty to be officially recognized, leaves people in limbo. And that sovereignty really is the key, in 99.9 percent 

of the cases, to be able to have some semblance of order so that 

self-reliance can take place. 

And, in the meantime, we have tremendous poverty. In the 

meantime, we have tremendous issues with groups of people who, 

without that recognition, I wouldn’t want to say lost, but certainly 

are not in a good place, and not in a place where they can actually, 

again, have self-reliance take place. 

I have another question. How does a group request a petition, or 

petition the BIA to reaffirm them as a federally recognized Tribe? 

Is there an official form or application? What is the formal process? 

Mr. WASHBURN. Well, that is a fairly ad hoc process. And, like 

I said, it has been very rare to have happened. And so, no, we don’t 

encourage people to use that process, so we don’t have a form. It 

has happened on rare occasions. And it is by every means the exception and not the regular course of business. And so we don’t 

have a regular form that we use for that. And we steer most people 

toward the Part 83 process. 

20

Mr. CA ́ RDENAS. So when you receive a request from a tribal 

group to be affirmed, what does the BIA do after that moment? 

Mr. WASHBURN. Well, may I ask Deputy Assistant Secretary 

Roberts to respond to that question? 

Mr. ROBERTS. As the Assistant Secretary said, this issue generally is in litigation, so we are limited in terms of what we can 

say. But, I mean, generally speaking, the question that you are 

asking is does the Department have a process for correcting a mistake. That depends on the mistake, right? 

So, lots of people just generally, even outside the acknowledgment process, can say the government made a mistake on a particular issue. It is going to depend on the specific facts of that 

issue. And so, in the context of an administrative error here, the 

Department looks both at the materials provided, but also internally to reach the right result. 

Mr. CA ́ RDENAS. Thank you, Mr. Chairman. 

Mr. YOUNG. I thank the gentleman. Mrs. Napolitano. 

Mrs. NAPOLITANO. Well, thank you, sir. 

Mr. YOUNG. Well, you are welcome. You are sitting there. Ask a 

question. 

Mrs. NAPOLITANO. OK. 

Mr. YOUNG. You have 5 minutes. I am recognizing you because 

you are on the Committee as a whole, and the other two gentlemen 

next to you are not. Now, I will recognize them next time. 

Mrs. NAPOLITANO. Well, I appreciate your courtesy, Mr. Chairman. And it is good to see Mr. Roberts and the gentleman. I have 

sat through a lot of hearings on Indian affairs and looking at the 

team and the composition. 

But how many Tribes were recognized last year. Can you give me 

a number? Generally? Ballpark? 

Mr. WASHBURN. Last year—well, maybe one. This is a fairly rare 

event. 

Mrs. NAPOLITANO. I know that, that is why I am asking. That 

is OK, let it go. I would like to have it, maybe give us some idea. 

But we do need more clarity and disclosure in the process for especially the new Members. I have the one Tribe that I have been 

dealing with that has been hanging fire for at least 4 years that 

I have been working on it. And coming to find out there were several factions that I did not know about. It would have been nice 

to have the agency tell us that there were other factions. But I 

don’t know whether that is one of the reasons why they have not 

been recognized. 

And even though I asked for something in writing back in July 

of last year, I have had conversations with several of the members 

of the agency, and I understand what they are trying to do, but 

even though they say the team says there is no more information 

needed, they are still hanging fire. And we need to know what we 

need to do to either have the factions come together, and tell them 

that this is a requirement—maybe that is one of the things you 

need to put into, is that factions become united, instead of separately trying to vie for the ability to have a casino or to have gaming. To me that is important. And maybe you can answer that. 

Mr. ROBERTS. Sure, Congresswoman. Thank you for the question. 

And I appreciate your patience. We met very shortly after I started 

21

at the Department in September. And I thank you for your patience on this issue. It is something that we are looking at very 

closely. We do hope to update your office soon. I know you have 

been waiting for some time, and that is probably not heartening to 

you. We do have folks working on this issue, and we are hoping to 

provide an update and some of that clarity very soon. 

Mrs. NAPOLITANO. I appreciate that. The other issue that I have 

a very great concern are your water settlements. Can they be defined as government’s legal liability, no more, no less? I mean it is 

in the Constitution, Mr. Kildee used to remind us every time there 

was a meeting on tribal issues. And can you explain why the settlements are important, why BIA is supportive? And what guarantee 

can you provide these agreements between the Tribes and Federal 

Government will be a BIA priority? 

Mr. WASHBURN. Thank you, Congresswoman. I would say that, 

absolutely, legal liability is sort of the touchstone for what causes 

us to get involved in a tribal water rights settlement. You are from 

the West, so I don’t need to tell you how important water is, and 

how important having rights adjudicated and clarified is. 

Mrs. NAPOLITANO. And the answer is? 

Mr. WASHBURN. The answer is, well, absolutely, it is important 

that we support Indian water rights settlements. I am sorry, if 

there was a yes or no question, you can give it to me again and 

I will try to answer——

Mrs. NAPOLITANO. Well, no. I just want to be sure that you are 

making that a priority. 

Mr. WASHBURN. Oh, absolutely. 

Mrs. NAPOLITANO. It is a BIA priority. 

Mr. WASHBURN. Yes. No, absolutely. I was in New Mexico on 

Thursday to sign a water rights settlement that you had passed, 

that this Congress has passed, for four Pueblos in New Mexico. 

I have been working on these issues personally quite a bit since 

I have been at the Department. We had the Navajo and Hopis in 

for some negotiations at the end of the year. 

Mrs. NAPOLITANO. Would it be possible, sir—let me interrupt, because my time is running out—to get a list of those water settlements, so this Committee knows what is hanging, so we have an 

idea? Because those are real critical, for some of the Tribes to have 

settlement. 

Mr. WASHBURN. Absolutely. We can share with you a list of the 

ones that we are actively working on, Congresswoman. Thank you. 

Mrs. NAPOLITANO. Thank you. And then the other area that is 

real critical for me is the rate of suicide amongst Tribes. What are 

you doing about it? Because the last time I asked, there was very 

little being done about it. 

Mr. WASHBURN. Well, we have been working very closely with 

the IHS and SAMSA, as well, another government agency, on these 

issues. And we have issued a report relatively recently about this 

particular problem in Indian Country. And we are all ears to this, 

this is one of the most important problems we worry about. And 

honestly, child suicide makes all the other issues look unimportant 

in comparison. 

Mrs. NAPOLITANO. But what is being done? I mean again, I 

would like to have a copy of that report to this Committee. Because 

22

these are affecting every Tribe that we have within our jurisdiction, or at least have that we know of. And we want to be sure that 

you work more collaboratively with the Members of Congress who 

are trying to outreach and trying to help the Tribes get those services to them on tribal land. 

Mr. WASHBURN. Well, let me say we would be delighted to collaborate with you, absolutely, and we will endeavor to do so. This 

is a public health problem and, to a large degree, the public health 

problems in Indian country have been handed to the IHS, the 

Indian Health Service. But we work very closely on this, because 

this is such an important problem that it affects everything. 

So we tend to try to work closely with the IHS on these issues, 

but we would be delighted to collaborate with you more, and so we 

can reach out to you to talk about ways to do that. 

Mrs. NAPOLITANO. Please, yes. And it is not just trying, it is getting it done. 

Mr. WASHBURN. Thank you. 

Mrs. NAPOLITANO. And one last question that can go for the 

record, and that is——

Mr. YOUNG. Make it quick. 

Mrs. NAPOLITANO [continuing]. Energy—real quick? You gave everybody else a few seconds, so give me a few, please. 

Mr. YOUNG. Yes, well, I recognized you, so go ahead and do it. 

Mrs. NAPOLITANO. Thank you. Are any Tribes that may be having some of the renewables on their land? It would be nice to know, 

so that other Tribes that ask us for information, that we know who 

has been doing it. 

Mr. WASHBURN. OK. Now——

Mrs. NAPOLITANO. For the record. 

Mr. WASHBURN. Yes, we would be happy to do that. We do have 

several Tribes, including the Moapa Band in Southern California, 

that have been very good making major developments in renewable 

energy on Indian land. 

Mrs. NAPOLITANO. It would be great to refer some of the Tribes 

to get information, instead of reinventing the wheel. Thank you, 

Mr. Chairman. 

Mr. YOUNG. Thank you. Mr. Thompson. 

Mr. THOMPSON. Thank you, Mr. Chairman, and thank you for allowing me to join you today. 

Mr. Secretary, I am here on the issue of restoration, tribal restoration for Tribes that have been terminated. And I have a very 

parochial interest in this, one particular Tribe, and we have talked 

about this, who is attempting to get recognized. And I agree with 

the Chairman, and we are on record in a letter to Interior regarding who has the authority to restore a Tribe. And clearly, it is Congress. And I don’t think you disagree with that. Is that correct? 

Mr. WASHBURN. I believe you have the authority to do so, absolutely. 

Mr. THOMPSON. And given that, what is your position on encouraging Tribes or working with Tribes or suggesting that Tribes try 

and circumvent that constitutional or that congressional authority 

by going through the courts? 

23

Mr. WASHBURN. Well, I have been known to say, ‘‘So, sue me’’ at 

some point, whenever people disagreed with what I was telling 

them, but I wouldn’t characterize that as an effort to——

Mr. THOMPSON. So you don’t encourage Tribes seeking restoration to sue the Department of the Interior in court? 

Mr. WASHBURN. No, I don’t. Again, I might have said, ‘‘So sue 

me,’’ but I don’t view that as a gilded invitation to do so. 

Mr. THOMPSON. I think this particular one that I am dealing 

with came before you. 

So what are you doing? What do you do to both discourage this, 

and to work to make sure that you take every step necessary not 

only to discourage this practice, but to defend both the Administration and Congress against such suits? 

Mr. WASHBURN. Well, I am a former DOJ lawyer, as is Mr. Roberts here, and when we were working for the United States as lawyers, we litigated aggressively. And I count on my lawyers now to 

litigate aggressively on my behalf. I am also just a naturally competitive kind of guy, and I like to win. And so, when someone sues 

me, I tend to want to win the lawsuit, you know. 

Mr. THOMPSON. Is that what is happening in regard to this particular suit that is in Napa and Sonoma County? 

Mr. WASHBURN. I can’t comment on matters in litigation. But I 

will say that I have done——

Mr. THOMPSON. I am not asking you to comment on matters in 

litigation. I am asking you to tell us if you are vigorously opposing 

this lawsuit? 

Mr. WASHBURN. I am sorry, Congressman. What I have done 

with regard to this matter is I have met personally with you and 

Mr. Daley, and I have met with numerous of your constituents to 

hear their concerns. I have met with Diana Dillon, who is a Napa 

County Supervisor. I have met with Larry Florin, the intergovernmental affairs person at Napa County, Minh Tran, the County 

Council——

Mr. THOMPSON. Notwithstanding that is appreciated, but is your 

Department actively and vigorously opposing this particular lawsuit? 

Mr. WASHBURN. I believe it is, but again, I shouldn’t be speaking 

about matters in litigation. But yes, I believe it is litigating——

Mr. THOMPSON. Apparently earlier in your testimony you mentioned that you are creating this working group. 

Mr. WASHBURN. Yes, sir. 

Mr. THOMPSON. Are local governments included in this? 

Mr. WASHBURN. Well, the working group at this point is purely 

internal to the Department. However, once there is a discussion 

draft, we would be delighted to hear the input of any local community groups or counties or cities, municipalities, or States that were 

interested in speaking to us. 

We have a formal responsibility to consult especially with Tribes, 

because we are the Indian Affairs branch of government. But——

Mr. THOMPSON. My time is running out, but I would appreciate 

it if you could at least explore that. I think that they are impacted. 

They are one of the most heavily impacted communities of interest 

in these decisions. That is why I believe Congress should exercise 

24

their authority and responsibility in dealing with this, so 

everybody’s concerns can be met. 

And then one of my colleagues mentioned the need to deal with 

the poverty amongst the Tribes and I think the term was ‘‘these 

large groups of people.’’ On this particular Tribe that I have an interest in, this particular case, it has been hard to define how large 

that group of people actually is. And could you share with us the 

names of the tribal members involved in this particular case, so we 

have some idea as to how many people we are talking about? 

Mr. WASHBURN. Congressman, I don’t have that information with 

me. And it is a matter in litigation, so I mostly am in listening 

mode on that. But I would be happy to consult with my lawyers 

and see if we can get you a list of the parties in the case. 

Mr. THOMPSON. I think it would answer a lot of questions as to 

whether or not this is a legitimate effort to deal with a group of 

people, or this is merely to try and get into the community for 

other reasons. Thank you, Mr. Chairman. Thank you. I yield back. 

Mr. YOUNG. I thank you. Mr. Washburn, you have held up well, 

we have been pretty good, but I am going to ask you a question. 

As you are writing this proposal to reform, do you think there will 

be any legislation needed? 

Mr. WASHBURN. We don’t intend to be drafting a bill for you all. 

We intend to be drafting a regulatory reform effort for us. And 

so——

Mr. YOUNG. But in doing that—what I am saying, in doing that, 

do you think that you will have the authority to do what you are 

suggesting, without legislation? 

Mr. WASHBURN. Yes, Chairman, we do. 

Mr. YOUNG. OK. 

Mr. WASHBURN. We think that we have the authority to, under 

long-standing laws, to do this. There wasn’t specific legislative authorization for Part 83. We did it under very general authorities 

that have existed for many, many decades. And we will be acting 

under that same general authority here. 

Mr. YOUNG. OK. There was a question about Carcieri. My knowledge, the BIA has not found any Tribe except the Narragansett not 

to be recognized under the Federal jurisdiction of 1934. Is that correct, Mr. Roberts? 

Mr. ROBERTS. [No response.] 

Mr. YOUNG. See, you mentioned there were two different standards now, one in Carcieri, pre-Carcieri, and then one after the 

court decision in Carcieri. To my knowledge, there has only been 

one Tribe that has not been recognized. 

Mr. WASHBURN. Well, let me say that we haven’t—this decision, 

we have been working with the decision. And we have been trying 

to figure out what the extent of Carcieri is, to which Tribes does 

it apply. And that has been a case-by-case type analysis. And I 

can’t tell you which ones we have found do have a Carcieri problem 

and which of them don’t. 

I will tell you the context when this arises is usually when a 

Tribe seeks to put land into trust. And when that happens, we now 

conduct an analysis under the Carcieri case to determine whether 

that is an issue or not. When we find that there is a problem, in 

any part of the land-into-trust process, it frequently does not result 

25

in a denial, because it results in a Tribe’s merely withdrawing its 

application. And so, we don’t actually get to a decision, often times. 

Mr. YOUNG. OK. Because I am very much involved in the 

Carcieri, and I plan on having a bill on the Floor. It may not be 

clean. I don’t know why anybody has the idea of a clean bill, because we have a different standard in Alaska. And so I am not 

going to undo Alaska, although some people may want me to do it, 

but I am not going to do that. 

And I just want to bring up that last question for you. You don’t 

have any plans of arbitrarily recognizing a Tribe without going 

through a process, do you? 

Mr. WASHBURN. No. We endeavor always not to act arbitrarily. 

Mr. YOUNG. OK, because that did happen in Alaska, 227 Tribes 

were created by the stroke of a pen by Executive order, trying to 

destroy the real Tribes. And there were reasons for it back in those 

days, but that did occur. Now I have 227 Tribes that are really basically 10 Tribes. And I can’t undo that, but I don’t suggest you do 

that any time future. I would like to see a process set forth so a 

Tribe knows really what has to be done, and why the refusal was 

made by not doing everything. It is not a one size fits all. That I 

won’t deny. 

And it is always fun to me, for the members of this Committee, 

50 years ago we had very few Tribes. Now everybody wants to be 

part Indian. That is always sort of exciting to me, to see this happen. And I am related to this, so I know what I am talking about, 

it even happened in my State. And it is a good thing, but also a 

bad thing, because some people now are trying to say, ‘‘Well, we 

are a Tribe, because we want to have a piece of land, and my uncle 

owned it. By the way, we want to build a casino on it.’’ And that 

is not fair to the other Tribes, either. That demeans their real responsibility. 

Now, we will go back to the second round. Mrs. Ranking Member? 

Ms. HANABUSA. Thank you, Mr. Chairman. Following up with 

what the Chairman basically was talking about, do you see any 

way that you can fix the Carcieri situation just by regulation? 

Mr. WASHBURN. Madam Ranking Member, no. We will never be 

able to address the Carcieri situation by regulation. We certainly 

will endeavor not to apply that case any broader than it deserves 

to be applied, or any narrower than it deserves to be applied. But 

we don’t anticipate that we can solve it entirely by regulation. 

Ms. HANABUSA. Following up on what the Chairman was speaking to, which is that how many Tribes fall in this sort of like this 

area where they may have been recognized post-1934, and therefore, based on Carcieri, does not have the rights, of course, to 

Indian country, and having lands taken into trust by yourself. 

Now, do you have any idea as to how many Tribes are in that 

category? 

Mr. WASHBURN. No, we don’t. We have done a case-by-case analysis each time we have gotten a land-into-trust application. We 

have to do it sort of for our work. We haven’t done a broader survey to figure out sort of generally who falls into which category. 

And, frankly, it is extremely time-consuming. 

26

The Carcieri case has put an enormous burden on the staff at the 

Department of the Interior, because we now have to conduct a fairly extensive historical legal analysis any time they wish to try to 

take land into trust for a Tribe. So we haven’t sort of done it generally, as regard to 566 different Tribes, or the 300-plus that are 

outside of Alaska. We have just kind of been going about our business. And it has added a huge burden to our business that we go 

through already. 

Ms. HANABUSA. Well, let me ask it this way. Of the ones that 

have taken your time and it has been time consuming and you 

have done the analysis, how many have you come up with the decision that you could not take their lands into trust? 

Mr. WASHBURN. Madam Ranking Member, I don’t have that figure at hand. I will tell you that it hasn’t been very many. We 

haven’t had the decision, really, that long. And you know, Tribes 

didn’t spring, for the most part, from thin air. Most Tribes that we 

work with regularly were around in 1934. That is just the facts for 

most of the Tribes. 

And so, I wouldn’t anticipate that it would be very, very many. 

But it is an issue that we have to carefully consider any time we 

take land into trust. 

Ms. HANABUSA. You said something very interesting, because we 

are trying to figure out how to best proceed as a result of the 

Carcieri decision. You said most Tribes have been around since or 

before 1934. Now, that is a different statement to me than a Tribe 

that is federally recognized. 

So, are you saying that, as the Secretary in charge, that if a 

Tribe was in existence prior to 1934, was around before 1934, that 

somehow that would then satisfy the requirement of being federally 

recognized? Because I think we are being trumped on this phrase, 

‘‘federally recognized.’’

Mr. WASHBURN. Madam Ranking Member, you are a good lawyer. I would tell you that, and I should have spoken with a little 

bit more precision, frankly, even under our Part 83 process, we are 

only recognizing the existence of a group that has proven it has 

been around sort of since time immemorial, basically. 

So, it is every Tribe, in essence, has been around, was around in 

1934. So the more narrow question that Carcieri poses is, were 

they under Federal jurisdiction in 1934? And given the trust responsibility, we think that most of them were under our jurisdiction, or our responsibility in 1934. What the recognition process 

does is it finds those Tribes that, while they were a distinct group 

as of that time, were not sort of having specific interactions with 

the Federal Government regularly at that time. And that is the difference. 

Ms. HANABUSA. And so, a Tribe like you just described could arguably fulfill the Carcieri definition of being there since 1934, recognized not in a sense of being stamped or anything like that, but 

notwithstanding under your jurisdiction. And as long as you make 

the distinction that the Tribe is somehow, would be under your jurisdiction, that they would then satisfy Carcieri, because Part 83 

really just determines whether the Tribe can be recognized. Am I 

understanding you correctly? 

27

Mr. WASHBURN. I think that is fair to say. But having said all 

of that, we really would like to see Congress act to address the decision, address the Carcieri decision. 

Ms. HANABUSA. Thank you. I yield back. 

Mr. YOUNG. We intend to do that. Mr. LaMalfa? 

Mr. LAMALFA. Thank you, Mr. Chairman, for a follow-up. I just 

wanted to drill down a little bit more on the zones between Tribes 

or prospective Tribes. 

When you have a Tribe with lands that are in one location that 

are in trust already, and they are seeking to take another piece of 

property into trust that is over 50 miles away, again, there has 

been a lot of controversy about that. So, wouldn’t it be appropriate, 

instead of maybe looking at that 25-mile radius, that when you 

have an existing trust land, seeking new trust land, that there is 

a consultation with other Tribes that are already in existence with 

full recognition to have that consultation in that 50-mile zone of 

the new prospective trust land? 

Mr. WASHBURN. Congressman, it is a reasonable idea to suggest 

that, maybe that should be the rule. That is something that we 

have—I have sort of been wrestling with in the Department. And, 

I hear you. 

One of the things that we have been wrestling with is what are 

the right connections to that land that they are seeking to take into 

trust. Certainly some sort of historical connection makes some 

sense. Certainly considering the views of the local communities 

makes some sense. 

And that is not the formula that you proposed is not unreasonable to say that if you go a certain distance away, from existing 

lands, maybe you should talk to the Tribes between those two distances, or something like that. I think that is not an unreasonable 

suggestion, and we will take that back as we make these kinds of 

decisions. We make these decisions very much on a case-by-case 

basis. And so I will take that back. Again, it is a good suggestion. 

Mr. LAMALFA. Thank you. We realize that one size doesn’t fit all 

here, but you do have folks making the gaming decisions and establishing a facility there perhaps, and then you have a surprise 

that may pop up from way beyond what a reasonable assessment 

would have been, and it can wreck things for maybe both sides and 

the business decisions that would be made. 

So, it seems like just a sense of fairness and as much as you can 

achieve consistency as you can somehow apply it across the board 

would certainly move a long ways toward a fairness and a lot less 

controversy. So we do appreciate that. 

Mr. WASHBURN. Thank you, Congressman. 

Mr. YOUNG. I thank the gentleman’s comment. One of the problems we have, and I think the Department has, is the predatory 

concept of one Tribe preying on another Tribe’s investment. And, 

truthfully, that is inappropriate, especially if they bought a piece 

of land and they are trying to put it in a trust to build a casino 

right next door. Because the market is not that thick, even in California. So that is something we have to think about. 

The gentleman from American Samoa, you have any other questions, comments, suggestions? Try to stay on the subject, both of 

28

you, on the subject of recognition. A lot of other things we have we 

talk about, but we have other hearings——

Mr. FALEOMAVAEGA. I would say, Mr. Chairman, I am going to 

try very earnestly to stay within the subject. 

Mr. Secretary, I understand that we currently recognize 566 

Tribes. And it is my understanding, and this is years ago, I think 

there are approximately 100 Tribes in the State of California alone 

that have not been recognized. Is that true? 

Mr. WASHBURN. I don’t have the exact figures on that, Congressman. I believe that there are roughly 102 recognized Tribes in the 

State of California. And I am not sure how many groups that are 

petitioning are from the State of California. But I know it is a fair 

number, and that wouldn’t strike me that that seems incorrect. 

Seventy-nine I am told by my staff. 

Mr. FALEOMAVAEGA. Could you submit for the record, I would be 

very curious, how many Tribes throughout the country that are 

recognized by their given States, but have not been given Federal 

recognition? Can you submit that for the——

Mr. WASHBURN. We would be happy to do that, Congressman. 

And I will tell you that, in our reform efforts, that is one of the 

things that we are looking at. If a State can recognize a Tribe, 

should that carry some weight in our process? And it hasn’t in the 

past. So——

Mr. FALEOMAVAEGA. The gentlelady from Hawaii had mentioned 

something about the 1934—I believe that is the Dawes Act. Is 

that—seems to be the ground rule, where an applicant Tribe makes 

an application to the BIA for recognition. In other words, if you 

were not on the rolls, or as a recognized or not recognized, this is 

the cutoff date, so to speak, to give you an access to the process 

of applying for recognition? 

Mr. WASHBURN. Congressman, that is a criteria that my Deputy 

Assistant Secretary has done a fair bit of thinking about, and so 

I am going to ask him to respond to your question. 

Mr. ROBERTS. It is not a cutoff point for the acknowledgment 

process, but I think just looking at the history of Federal-tribal relationships, that 1934 time period may be very important, because 

that is when this Congress passed the Indian Reorganization Act, 

and was affirmatively looking for Tribes to reorganize, essentially, 

under that Act and restore the hundreds of thousands of acres of 

land that was lost. 

And so, that time period you see a lot of activity, historically, between the Federal Government and Tribes. And so I think that is 

an important time period that we are looking at, but it is not a cutoff date. 

Mr. FALEOMAVAEGA. Well, that was one of the problems with the 

Dawes Act was it wiped out millions and millions of acres that supposedly belonged or owned by the several Tribes throughout the 

country. And assimilation was the policy then. 

One of the critical criteria for recognition would be a group that 

is indigenous to the country, the United States? I mean an indigenous group. Would that qualify you to apply for recognition? 

Mr. WASHBURN. Well, anybody can apply, Congressman. That is 

one of the facts, is that anybody can apply. We——

Mr. FALEOMAVAEGA. So that would include Native Hawaiians? 

29

Mr. WASHBURN. Well——

Mr. FALEOMAVAEGA. They are truly an indigenous group, exactly 

like the American Indians and the Native Alaskans. 

Mr. WASHBURN. There are a tremendous number of similarities, 

absolutely. And——

Mr. FALEOMAVAEGA. Similarities? They are truly an indigenous 

group from the State of Hawaii. 

Mr. WASHBURN. Well, I am sorry. What I meant to say there are 

tremendous similarities to mainland groups with Hawaii. They 

share challenges with regard to retaining their native languages 

and retaining important aspects of their culture and their religion. 

And those commonalities are overwhelming with other American 

Indian groups. 

Mr. FALEOMAVAEGA. In your opinion, would Native Hawaiians 

qualify, if they were to apply for recognition? 

Mr. WASHBURN. I don’t believe——

Mr. FALEOMAVAEGA. Provided they fulfill all the seven criteria, 

of course. 

Mr. WASHBURN. Well, I don’t believe that we believe that we 

have the authority to recognize Native Hawaiians through the Part 

83 process. 

Mr. FALEOMAVAEGA. Why not? They are indigenous, just like Native American Indians, Native Alaskans. 

Mr. WASHBURN. Congressman, it is a matter that we believe we 

would need legislation to be able to proceed down that road. Our 

regulations now leave out Native Hawaiians. And so we are not 

able to consider Native Hawaiians under our current regulations. 

Mr. FALEOMAVAEGA. I look forward to getting your draft, discussion draft by this spring, hopefully. 

Mr. WASHBURN. Thank you, Congressman. 

Mr. FALEOMAVAEGA. Thank you. 

Mr. YOUNG. The lady from California. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. And going on to 

the Chairman’s—touching upon the gaming issue, are all the 

Tribes currently seeking recognition? Or how many of them actually are interested because of the ability for them to establish gaming within their tribal land? 

Mr. WASHBURN. Well, Congresswoman, I would say the word ‘‘because’’ is probably way too strong. I would——

Mrs. NAPOLITANO. Incentivize, then. 

Mr. WASHBURN. Well, it may be certainly a factor. But my sense 

is that people who are seeking Federal recognition are doing so in 

good faith because they believe they are an American Indian Tribe, 

and that economic development is one of the things that they 

would like to do with recognition as a sovereign nation. But I think 

we take everybody on good faith, that this isn’t about gaming, it 

is about being a sovereign nation. 

Mrs. NAPOLITANO. Well, how far back, then, do we begin to look 

at driving some of these Tribes to seek recognition based on the 

ability for them to establish gaming? Because that has only been 

the last couple of decades, right? So that maybe we know that some 

of those Tribes really want the recognition because they are owed 

the recognition, not because they now feel that they can benefit by 

having the gaming capability? 

30

Mr. WASHBURN. Well, I think that is exactly right, that most 

Tribes, many Tribes have been in the process, or many groups have 

been in this process since long before gaming came about. And I 

think that gaming has been a resource for some of them. The possibility of conducting gaming has helped them attract investors who 

can help them with their petitions. But for many or most of them, 

it is not about gaming, primarily. It is about recognition. 

Mrs. NAPOLITANO. In reporting, in the request that I had made 

to you about telling us which Tribes and now he is asking by State, 

can you date them, when they first started seeking recognition? 

And that might be helpful to us in being able to determine one 

versus the other. 

The recognition for the one Tribe that I have been following for 

a while has different factions. How do you deal with that? Do you 

pull them together and tell them to get their act together and work 

as one? Because I did not find out until afterwards that there were 

several factions. In fact, five. And I was working with one. The second one asked me to swear in the council, and yet I had no idea 

that they were split. 

Mr. WASHBURN. It is something that we, again, look at the 2008 

guidance that we put out in the Federal Register as sort of our 

guidepost. But it is also sort of case by case, right? 

So, if there are different factions and it is just not feasible for 

us to process a petition, we tell them all that. And hopefully that 

will encourage some sort of collaboration on the petition. But it 

really is a case-by-case basis. And we do follow the guidance. But 

it is something that, again, that we will need to take a closer look 

at. Because we probably could provide more clarity through regulations. 

Mrs. NAPOLITANO. Well, it almost would touch upon Chairman 

Young’s ability to say that the 500-some-odd Tribes—or only, what, 

10 Tribes—be able to narrow it down, and be able to say to all of 

them, ‘‘You need to work as one,’’ and make your job easier, make 

our job easier, too. 

Do you notify—OK. The question on the factions. Can you tell 

whether or not all the factions are appealing to you for recognition? 

Because, as far as I know, only two of them have. I don’t know 

about the others. And that leaves us at a disadvantage, as to how 

do we deal with it. 

Mr. ROBERTS. Yes. I can’t speak to the specifics of the matter 

that you have in mind. But I think, in general, when we do learn 

of a split we reach out to all of the groups that we know of. 

Mrs. NAPOLITANO. OK. Well, this idea of them coming in separately, it creates more work for you and more of a headache for us. 

Mr. Chairman, I would like to submit some questions for the 

record later. Thank you. 

Mr. YOUNG. Without objection, everybody can submit questions 

for the record. 

I am going to ask one last question, and then we are going to 

get out of here, if that is OK with the Ranking Member. 

Mr. Secretary, the Department is on record as stating that Congress has long recognized the Department’s power to recognize the 

Tribes under the three provisions of law: Section 2 and 9 of Title 

25, and Section 1457 of Title 43 of the U.S. Code. 

31

My question is, what are the standards and criteria set forth in 

these provisions of law for the Secretary to determine when to recognize a Tribe? Mr. Roberts? 

Mr. WASHBURN. Why don’t I take that one, Chairman? 

Mr. YOUNG. Oh, good. 

Mr. WASHBURN. They don’t provide any timelines, frankly. They 

don’t contain any timelines. We have to——

Mr. YOUNG. I said—no, that is right. There is no standards and 

criteria, is there? That is what I meant to ask. 

Mr. WASHBURN. No, there are no standards and criteria. It is just 

under our—we have the responsibility to provide services to Tribes. 

And so, to do that, we have to know who the Tribes are. And so 

that has sort of been the analysis. That is not an elegant way to 

express it, but that is why we believe we have the power to determine whether a group is a Tribe or not. 

Mr. YOUNG. Well, my concern is that without statutory authority, 

this is the reason I asked that question earlier, and criteria for the 

recognition, the Supreme Court could eventually find that BIA’s socalled Part 83 process is illegal. Mr. Roberts, you are the lawyer. 

So are you, too, by the way. I forgot. 

Now, you follow what I am saying? I remember when Carcieri 

came up. Tribes said, ‘‘Oh, don’t worry. The Supreme Court will 

never agree to that.’’ Well, they did. And that is why we are in this 

pickle right now. And what makes you think, without statutory authority, that someone else couldn’t file suit via Carcieri too, and 

find out everything in 1983 would not be legal? 

Mr. ROBERTS. First off, while we are both attorneys, the Department did make us check our bar licenses at the door in these policy 

decisions. 

Mr. YOUNG. Very good. But that makes you better. But go ahead. 

[Laughter.] 

Mr. ROBERTS. The Department has, since the advent of the regulations, we have relied on Section 2 and Section 9 providing general 

authority. The courts where this has been litigated, and the issue 

of whether our regulations are lawful, the courts have affirmed 

that we do have the authority under this. 

So, I suppose a court, I guess, could always decide otherwise. But 

we have had a good track record and a number of different circuits 

in defending our decisions. 

Mr. YOUNG. So you don’t think you need any legislation process 

to make sure you are legal? 

Mr. ROBERTS. At this point in time we are not asking for 

that——

Mr. YOUNG. OK. That is all I needed to know. I want to thank 

the witnesses for participating for an hour-and-a-half, and of course 

the Members for being here. 

And I would make one suggestion, Mr. Washburn. Communicate 

with the Minority and Majority staff members on where you are 

going on this reform. So let us help you. I think that would be very 

beneficial on both sides of the aisle, instead of someone getting all 

excited later on, ‘‘They didn’t consult with us.’’ So I offer that as 

a suggestion. 

With that, this Committee is adjourned. 

[Whereupon, at 12:32 p.m., the Subcommittee was adjourned.]

32

[Additional Materials Submitted for the Record] 

PREPARED STATEMENT SUBMITTED FOR THE RECORD BY THE KNUGANK TRIBE

The Knugank Tribe (Knugank) appreciates the opportunity to submit this written 

testimony to the House Subcommittee on Indian and Alaska Native Affairs, for the 

record of its March 19, 2013 Oversight Hearing on Federal Recognition. 

Knugank is an Alaska Native community in South-central Alaska whose members 

share a common association and residence in our current location that goes back to 

1894. Although the name of the community has changed over time (Kanakanak, 

Dillingham, Nelsonville, Old Dillingham, Olsonville, and Knugank), our location has 

been the same. Knugank, under our corporation name, Olsonville, was listed on the 

Department of the Interior’s list of federally recognized tribes in 1988. In 1993, we 

were omitted from that list, an error that to this date has not been corrected. 

Knugank members have long been acknowledged by the Federal Government as 

Alaska Natives, and have received Federal services as such since well before the 

Alaska Native Claims Settlement Act (ANCSA) was passed into law. Our Tribe has 

continued serving its members through social programs; cultural heritage activities; 

and by maintaining dialogue with the Federal Government, other tribes in our region and with State and local authorities to advance our shared interests. Critical 

activities include our efforts to correct the BIA’s erroneous termination of our federally-recognized tribal status and to protect our tribal cemetery from accelerating riverbank erosion and encroachment by the City of Dillingham. 

This testimony concerns the frustrating lack of recourse our Tribe has experienced 

in seeking to remedy historical errors that revoked our tribe’s federally recognized 

status. We respectfully ask the Committee to encourage the Department of the Interior to acknowledge and act on its authority to restore our Federal recognition outside of the 25 CFR Part 83 process, including authority to correct errors and omissions as well as its authority under the Alaska Amendment to the Indian Reorganization Act (Alaska IRA). 

When Congress decided that Alaska Native land claims should be settled in the 

ANCSA, it provided that a community had to have 25 members in order to be considered an ‘‘Alaska Native Village’’. Native Villages were made eligible for an 

ANCSA village corporation and permitted select land in the area they had historically used. Unfortunately, The ANCSA enrollment process led to a great deal of confusion amongst the Native population. As a result of a miscount of our membership 

during ANCSA enrollment we were deemed to be only 24 members and thus too 

small to be a Native Village. The 1970 Federal census listed only 33 Native residents in Olsonville (Knugank), but that was because some of our children were 

away at school and others were temporarily away from the village. The ANCSA enrollment failed to include all Native residents of the village and several members 

of our community were mistakenly enrolled in a different village corporation or simply enrolled as at-large members of the regional corporation and not associated with 

any village. With only 24 members enrolled, Olsonville was established as a ‘‘Native 

Group’’ under ANCSA and not a Native Village. 

The miscount had serious consequences for our Tribe. As a Native Group, we were 

entitled to a much smaller land selection than Native Villages and had to wait 

longer to make our selection. By the time we were able to make a land selection 

under ANCSA, all the land around Knugank had already been selected, including 

the Knugank cemetery which is at the very heart of our village and our tribal identity. 

Knugank has never been terminated by Congress and, therefore, continues to be 

a tribe. In 1993, the Assistant Secretary made a mistake by removing Knugank 

(Olsonville) from the list of federally recognized tribes. We have called on the Office 

of the Assistant Secretary to confirm and/or restore Federal recognition of our Tribe 

by adding Knugank to the list of federally recognized tribes in the State of Alaska. 

In the alternative, we also submitted a petition in June 2012 to organize as a Tribe 

pursuant to the Alaska Amendment to the Indian Reorganization Act (Alaska IRA), 

25 U.S.C. § 473a. In extending the IRA to Alaska, Congress stated:

‘‘That groups of Indians in Alaska not recognized prior to May 31, 1936, as 

bands or tribes, but having a common bond of occupation, or association, 

or residence within a well-defined neighborhood, community, or rural district, may organize to adopt constitutions and bylaws and to receive charters of incorporation and Federal loans under sections 470, 476, and 477 of 

this title.’’

Former Assistant Secretary for Indian Affairs Larry Echo Hawk recently confirmed the continuing authority of the Alaska IRA in a January 31, 2012, letter to 

33

Senator Lisa Murkowski, which we append to this written testimony for inclusion 

in the record. Longstanding practice and precedent under the Alaska IRA provide 

for the Bureau of Indian Affairs (BIA) to authorize the organization of tribes in 

Alaska based on their showing of a ‘‘common bond of occupation, or association, or 

residence’’ that was established prior to 1936. Knugank 

Restoring Knugank’s Federal recognition would enable us to preserve and maintain our community identity as well as allow us to offer our members, particularly 

our young people, the benefits of tribal membership that are due them as Alaska 

Native people without forcing them to forsake their heritage by joining another 

tribe. For instance, federal recognition means we could assist our members in improving their housing, and may make it possible for us to obtain resources to protect 

our village, particularly the cemetery, from further erosion. We attach our recent 

letter to the City of Dillingham, Alaska, which demonstrates the seriousness of the 

threats facing our Cemetery and the challenges we face in addressing them. The 

Alaska Federation of Natives (AFN), Bristol Bay Native Association (BBNA), Bristol 

Bay Area Health Corporation (BBAHC) and tribes in our region all recognize 

Knugank as a tribe and have been supporting our effort to restore federal recognition of our tribal status. 

Knugank extends our appreciation to the Senate Committee on Indian Affairs for 

holding the oversight hearing. We respectfully urge the Committee to remind the 

Department of its authority, responsibility, and Congressional directive under the 

Alaska IRA to take action on tribal recognition outside the Part 83 process in cases 

like ours. 

PREPARED STATEMENT SUBMITTED FOR THE RECORD BY THE QUTEKCAK NATIVE

TRIBE

The Qutekcak Native Tribe (QNT) appreciates this opportunity to submit written 

testimony to be included in the record for the Subcommittee on Indian and Alaska 

Native Affairs’ March 19, 2013 Oversight Hearing on Federal Recognition. QNT is 

a community of Alaska Natives in Seward, Alaska that has been active since 1886 

and has had a formalized tribal government since 1972. 

Like other tribes in Alaska, we serve our 298 members by providing community 

services, promoting economic self-sufficiency, and carrying out Federal programs 

under the Indian Self-Determination Act using funds passed through the regional 

non-profit Chugachmiut. We also sponsor a renowned dance and drum program 

through which our Elders pass on our cultural values and practices to our youth. 

We have also established the Alaska Native Archive jointly with the Seward Municipal Library. Unfortunately, however, we carry out the responsibilities of a tribe 

without enjoying any of the benefits of Federal recognition. 

Tribes in Alaska have been recognized in a number of ways: pursuant to the statutory criteria set forth in the Alaska Amendment to the Indian Reorganization Act 

(the Alaska IRA), by being named in the Alaska Native Claims Settlement Act 

(ANCSA), through specific recognition by Congress, and through administrative confirmation by the Assistant Secretary for Indian Affairs. Not one of the 229 Federal 

recognized tribes in Alaska has been recognized pursuant to the Part 83 regulatory 

process. 

The members of Qutekcak share a common association and location that has 

lasted over a hundred years. Despite our eligibility for recognition and our efforts 

over several decades, as a result of historical circumstances and administrative errors and delays, QNT has not been afforded the Federal recognized tribal status we 

deserve. 

In 1971, the Alaska Native Claims Settlement Act (ANCSA) established Native 

Alaskan corporations for the purpose of administering land claims settlement funds. 

Many of those ANCSA-created entities have since been granted the benefits of recognized tribal status. One provision of the ANCSA enabled groups of Native people 

in primarily non-Native cities and towns to form urban corporations. Although Seward Natives expected to benefit from that provision, when ANCSA was finalized only 

four such urban corporations were created: Juneau, Kodiak, Sitka, and Kenai. Similarly situated communities, including our Native community in Seward, were unfairly left out. QNT was also left off of the list of federally Recognized Tribal Entities in Alaska when it was published in 1993, with no explanation. 

Since 1993, QNT has expended significant time, energy, and resources seeking to 

have the Federal Government correct its error of not including QNT within ANCSA 

or on the 1993 and subsequent BIA lists of recognized tribes. In 1993, we submitted 

a petition to the Bureau of Indian Affairs (BIA) to adopt a tribal constitution under 

the Alaska IRA. The Alaska IRA provides statutory authority for the Department 

34

of the Interior (the Department) to organize Alaska Native tribes that have not otherwise been extended Federal recognition. Under Section 1 of the Alaska IRA, Congress provided:

That groups of Indians in Alaska not recognized prior to May 1, 1936, as 

bands or tribes, but having a common bond of occupation, or association, 

or residence within a well-defined neighborhood, community, or rural district, may organize to adopt constitutions and bylaws and to receive charters of incorporation and Federal loans under sections 470, 476, and 477 of 

this title.

25 U.S.C.A. § 473a, May 1, 1936, c. 254, § 1, 49 Stat. 1250.

After submission of three formal requests to organize under the Alaska IRA and 

years of meetings, letters and legal briefings to address questions from the Department as to the scope of agency authority under the Alaska IRA , QNT was encouraged in January 2012, when then Assistant Secretary for Indian Affairs Larry Echo 

Hawk responded to inquiries from Senator Lisa Murkowski with a letter reaffirming 

that ‘‘a group that can establish its existence in 1936 with ’a common bond of occupation, or association, or residence within a well-defined neighborhood, community, 

or rural district’ could seek to be organized under the Alaska Amendment to the 

IRA.’’ Assistant Secretary Echo Hawk’s letter stated that the Part 83 process was 

available to Alaska Native tribes as an alternative means to obtain Federal recognition, if the Alaska IRA criteria do not apply to the group. (We attach a copy of the 

Assistant Secretary’s January 31, 2012, letter for the hearing record). 

Mr. Echo Hawk’s letter affirmed the Department’s long-espoused the view that 

meeting the eligibility criteria to organize under the Alaska IRA would provide a 

basis for recognition, and that Alaska tribes need not petition for consideration 

under the 25 CFR Part 83 process unless the group does not meet the Alaska IRA 

criteria. When the Federal Acknowledgment Procedures issued in 1978, the Department expressly stated that those regulations would not apply to Alaska IRA-eligible 

groups: ‘‘The [Part 83] regulations . . . are not intended to apply to groups, villages, 

or associations which are eligible to organize under the Alaska Amendment of the 

Indian Reorganization Act (25 U.S.C. 473a) or which did not exist prior to 1936.’’ 

43 Fed. Reg. 39361 (1978). In the 1988 Federal Register Notice announcing the Native Communities within Alaska that were recognized and eligible to receive services 

from the BIA, the Department stated that:

‘‘applying the criteria presently contained in Part 83 to Alaska may be unduly burdensome for the many small Alaska organizations. Alaska, with 

small pockets of Natives living in isolated locations scattered throughout 

the State, may not have extensive documentation on its history during the 

1800’s and early 1900’s much less earlier periods commonly researched for 

groups in the lower-48 . . . insistence on [producing such documentation] 

for those Alaska groups might penalize them simply for being located in an 

area that was, until recently, extremely isolated.’’

53 Fed. Reg. at 52833 (1988).

Mr. Echo Hawk’s letter provides fresh confirmation of the established Department 

interpretation that Section 1 of the Alaska IRA has not been repealed and remains 

valid law. In 1993, the Solicitor of the Department of the Interior explained that 

while Section 19 of the ANCSA revoked Section 2 of the Alaska IRA authorizing the 

creation of reservations in Alaska, ‘‘ANCSA did not revoke the village IRA constitutions . . . [n]or did it repeal the authority in Section 1 of the Alaska amendment 

of the IRA for the Natives to reorganize and adopt constitutions.’’ Governmental Jurisdiction of Alaska Villages Over Land and Nonmembers, Op. Sol., M–36975 at 39 

(Jan. 11, 1993). 

The federally Recognized Tribes List Act (‘‘List Act’’), enacted in 1994, also did not 

affect the Alaska IRA. The List Act requires the Secretary to annually publish a 

‘‘list of all Indian tribes eligible for the special programs and services provided by 

the United States to Indians because of their status as Indians.’’ It does not specifically mention the Alaska IRA, nor is the Alaska IRA mentioned in the List Act’s 

legislative history. Overall, the legislative history evidences no intent for the List 

Act to limit the Secretary’s authority to recognize tribes. In fact, the List Act’s legislative history states that the Act is not intended to change the status of Alaska Native tribes, but requires that the ‘‘Secretary continue the current policy of including 

Alaska Native entities on the list of federally recognized Indian tribes which are eligible to receive services.’’ See H.R. Rep. No. 103–781 (1994). 

In light of the statutory authority and recognition criteria set forth in the Alaska 

IRA and the Department’s stated policy, QNT hopes its documented tribal history 

35

and request to organize under an IRA constitution will finally correct the government’s past errors of omission in not listing QNT as a federally recognized tribe. 

When we first submitted an Alaska IRA petition in 1993, the BIA’s technical assistance letters raised no concerns about QNT’s eligibility under the statute. BIA correspondence, however, was sent to the wrong address and we did not receive file 

copies for several years. In light of a 3 year time lapse, the BIA advised that we 

should submit a new request. Unfortunately, when we resubmitted our petition, the 

BIA sent our documents to the Branch of Acknowledgment and Research even 

though our petition was submitted under the Alaska IRA and not 25 CFR Part 83. 

We wrote to BIA objecting to its mishandling of our IRA petition by placing it with 

the BAR/OFA, but our small Tribe had limited resources to mount a renewed effort 

to pursue recognition. It was not until 2008 that we had sufficient resources to submit a third petition. At that time, we resubmitted a fully revised Alaska IRA petition, complete with an ethnohistorical report. 

While Mr. Echo Hawk’s January 2012 letter offers some encouragement that the 

Department will act upon QNT’s request to organize under the IRA, we are concerned that the departure of the Assistant Secretary may stall our progress and add 

to the already extensive delays we have endured. The continuing delay adversely 

impacts our ability as a tribe to provide for the needs of our members, and maintaining the ongoing process is a constant and heavy strain on our limited resources. 

Federal recognition would enable our Tribe to expand our services to our members 

and would enable us to utilize the other Federal programs open only to federally 

recognized tribes. We have support for our recognition effort from the city of Seward; tribes and Native organizations in the Chugach region, including Chugach 

Alaska Corporation; Chugachmiut, and the Alaska Federation of Natives. Congress 

provided the Department with statutory authority to act on our petition to organize 

as a tribe, but the Agency has not done so. 

In his January letter, Assistant Secretary Echo Hawk observed that Congress 

passed the Alaska IRA in order to account for ‘‘Alaska’s unique circumstances.’’ The 

Part 83 process does not account for these unique circumstances, as the Department 

has acknowledged in the past. Accordingly, the Department should exercise its 

clearly delegated authority under the Alaska IRA for the organization of groups of 

Alaska Natives not previously recognized, but ‘‘having a common bond of occupation, 

or association, or residence within a well-defined neighborhood, community, or rural 

district. The Qutekcak Native Tribe is simply seeking to be treated the same as 

other similarly situated tribes in Alaska. Thirty years is too long to wait. 

We appreciate the opportunity to share our testimony with the Subcommittee. We 

ask the Subcommittee acting in its oversight capacity and through its Chairman to 

encourage the Department to review and act upon QNT’s request to organize under 

the Alaska IRA consistent with statutory authority and Department precedent. 

LETTER SUBMITTED FOR THE RECORD FROM LARRY ECHO HAWK

UNITED STATES DEPARTMENT OF THE INTERIOR, 

OFFICE OF THE SECRETARY. 

WASHINGTON, D.C., JANUARY 31, 2012. 

Honorable LISA MURKOWSKI, 

United States Senate, 

Washington, DC 20510. 

Dear Senator Murkowski:

Thank you for your letter of June 23, 2011, posing two questions about the recognition process for Alaskan tribal entities. Your letter inquires about the Alaska 

Amendment to the Indian Reorganization Act, 25 U.S.C. § 473a (IRA), and the Department’s acknowledgment regulations, 25 CFR Part 83, as the means by which 

Alaskan tribal entities are recognized as tribes. I apologize for the delay in responding to your letter. 

You note that there are currently 229 Alaska native entities listed in the October 

1, 2010 Federal Register Notice ‘‘Indian Entities Recognized and Eligible to Receive 

Services from the United States Bureau of Indian Affairs.’’ The acknowledgment 

process of Alaska Native tribes and villages has a long and unique history, as described below. 

When the tribal entities list was first published in 1982, it was qualified as a 

‘‘preliminary list.’’ See 47 Fed. Reg. 53,130, 53,133 (Nov. 24, 1982). Efforts to clarify 

the list were unsuccessful and numerous Alaska Native villages appealed being left 

off the 1986 list, which resulted in the Department modifying the list significantly 

in 1988 to include Alaska Native villages and Alaska Native Claims Settlement Act 

36

(ANCSA) corporations and other tribal organizations that would not otherwise be 

considered tribes. See 53 Fed. Reg. 52,829, 52,832 (Dec. 29, 1988). Unfortunately, 

the revisions to the list did not resolve the questions related to tribal status of the 

Native villages and, indeed, may have made them more complicated. As a result, 

the Solicitor issued a comprehensive opinion on the ‘‘Governmental Jurisdiction of 

Alaska Native Villages Over Land and Nonmembers,’’ M–36975 (Jan. 11, 1993, as 

supplemented Jan. 19, 1993). In response to the Solicitor’s Opinion, the Department 

published a revised list of tribal entities for Alaska, the preamble to which recounts 

the significant history of the Alaska portion of the list. See 58 Fed. Reg. 54,364 (Oct. 

21, 1993). The authoritativeness of the current list has most recently been confirmed 

by the Alaska Supreme Court in McCray v lvanolBay Village, No. S–13972, 2011 

Alas. LEXIS 136 (Alaska Dec. 9, 2011). 

Turning to your specific question as to the applicability of the IRA to Alaska, the 

IRA as originally enacted in 1934 applied to Alaska, but had limited effect because 

of the absence of reservations similar to those in the contiguous 48 States. Recognizing Alaska’s unique circumstances, Congress amended the IRA in 1936 to account for those circumstances. For the contiguous 48 States, Section 16 of the IRA, 

25 U.S.C. § 476, gave any tribe or tribes residing on one reservation the right to reorganize and adopt a constitution for self-government. Since there were few reservations in Alaska, Congress amended the IRA to provide in part:

that groups of Indians in Alaska not heretofore recognized as bands or 

tribes, but having a common bond of occupation, or association, or residence 

within a well-defined neighborhood, community or rural district, may organize to adopt constitutions and bylaws and to receive charters of incorporation and Federal loans under Sections 16, 17, and 10 of the Act of June 18, 

1934 (48 Stat. 984). 

(emphasis added) 49 Stat. J250: 25 U.S.C. § 473a.

Thus, a group that can establish its existence in 1936 with ‘‘a common bond of 

occupation, or association, or residence within a well-defined neighborhood, community, or rural district’’ could seek to be organized under the Alaska Amendment of 

the IRA. 

If the Alaska Amendment of the IRA does not apply to the group because the 

group was not in existence in 1936, there are several alternatives. First, the group 

could seek special clarifying legislation similar to that passed for the United 

Keetoowah Band of Cherokee Indians (Act of August 10, 1946; 60 Stat. 976) or the 

Central Council of the Tlingit and Haida Tribes (Act of Nov. 2, 1994; 108 Stat. 

4793). Second, in the alternative, the group could consider forming a ‘‘tribal organization’’ within the meaning of the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450b(l), for purposes of managing Federal services and benefits 

available to Alaska Native people. A third possibility may be the acknowledgment 

process under the Department’s regulations, 25 CFR Part 83. One of the requirements of that process is the need to show a continuous existence as a community 

from historical times to the present. See 25 CFR § 83.7(b). 

We hope these comments have been helpful to you in understanding the Department’s position. If you have any further questions please do not hesitate to contact 

us. 

Sincerely, 

LARRY ECHO HAWK, 

Assistant Secretary, Indian Affairs.

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